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Disqualified Persons and Independent Reviews

In late 2003, when Eugene Winans was about 90 years old, he lived in a residential care facility.  By 2004, Mr. Winans began suffering  chronic dementia.  In 2005 and 2006, Eugene Winans executed wills leaving the  majority of his estate to his nieces and nephews.   In 2007, he executed a new will, leaving the majority of his estate to his half-brother (who was excluded in his previous wills) and his care custodian.  Additionally, Mr. Winans had an attorney that provided a Certificate of Independent Review of the 2007 will.  After Winans death in 2007, within the context of the probate, his nieces and nephews brought a will contest alleging that Mr. Winans lacked testamentary capacity and was subjected to undue influence when he executed his 2007 will.  The trial court granted summary judgment on behalf of the decedent's care custodian, and the nieces and nephews appealed.  

Generally, a care custodian is a disqualified person and cannot inherit under a will.  This prevents the healthcare or other paid care provider from abusing their close relationship with their patients for profiteering.  Probate Code section 21350 provides this prohibition.  However, the prohibition in Probate Code section 21350 may be avoided if there is a certificate of independent review provided by an independent attorney. The independent attorney reviewing the transfer confirms that there is no fraud, menace, duress or undue influence.  

The Estate of Eugene Winans case addressed, among other issues, the adequacy of the  Independent Review conducted by the estate litigation attorney.  The appellate court overturned the trial court's finding and found that there was a triable issue of fact in regards to the whether the independent review was valid and whether Winans had the testamentary capacity to execute the 2007 will.  

The Court of Appeals stated that proper counseling by an attorney conducting an independent review includes the attorney ensuring that the testator "understands (1) the nature of the property bequeathed; (2) that a disqualified person will receive the property; and (3) that the 'natural objects' of the testator's bounty, if any, will not receive the property."  The appellate court found that there was no evidence that the independent attorney confirmed that Winans was aware of the identity of that natural objects of his bounty or even discussed Winans decisions to exclude the nieces and nephews.  

Another issue the court examined is what constitutes an "Independent Attorney" for probate and estate litigation purposes.  The nephews and nieces argued that because the "independent attorney" would be acting as the executor of the new will, he was not independent.  The court found that "independent" is synonymous with "disinterested" in regards to Probate Code section 21351.  The Court found that whether the attorney was independent was a triable issue of fact.  Additionally, the court stated that the term independent should be viewed broadly.

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