Metropolitan News-Enterprise


Thursday, August 28, 2008


Page 1


Court Upholds Man’s Will Giving Drafter Control of Estate


By STEVEN M. ELLIS, Staff Writer


An Orange County man’s will placing the bulk of his $3 million estate under the control of his friend who drafted the will is exempt from state law prohibiting such transfers because the man executed the will out of state before gaining California residency, the Fourth District Court of Appeal held yesterday.

Ruling that an exemption from the state’s prohibition on donative transfers to will drafters for instruments executed outside California by non-residents remains available even if the testator later gains California residency, Div. Three declined to revoke probate of Joseph Clementi Jr.’s will giving $100,000 to a friend and placing his remaining assets into a charitable trust to be run by the friend or the friend’s son.

Clementi was living in Philadelphia in 1999 when his accountant, Richard E. Weisz, suggested that he contact an attorney and prepare a will. Instead, Clementi asked Weisz to create the will by hand, and Weisz did so, drafting a will giving $250,000 each to Clementi’s brother and sister, and $100,000 to Weisz, and giving the balance of Clementi’s assets “to a charitable foundation or trust in [Clementi’s] name to be run by” Weisz.

Friend, Son Appointed

The will also appointed Weisz as administrator of Clementi’s estate, and provided that Weisz’s son, Frank Weisz, would control both the charity and estate administration if Richard Weisz predeceased Clementi.

After Weisz read the will aloud, Clementi signed it in the presence of two witnesses, who also signed. He later moved to California in 2000, and died the following year.

Clementi’s will was admitted to probate in 2004, but a niece and two nephews—Adeline DiAmbrosio, Salvatore Chimenti and Mario Chimenti, respectively—sought to revoke admission, arguing that the will was not entitled to an exemption from Probate Code Sec. 21350’s general prohibition of gifts to the drafters of wills and their relatives.

Meaning of ‘Nonresident’

Noting that transfers to drafters in wills executed outside of California are exempted from the ban by Sec. 21351(i) only if “made by an instrument executed by a nonresident of California who was not a resident at the time the instrument was executed” they argued that use of the term “nonresident” twice meant that residency had to be evaluated at two separate times: time of execution, and time of death.

However, Orange Superior Court Judge Gerald G. Johnson rejected the challengers’ interpretation, and found that the exemption applied and that the will was valid.

On appeal, Justice Richard D. Fybel wrote that Johnson’s conclusion was correct given the exemption statute’s legislative history.

“[T]he legislative intent in enacting [Sec. 21351(i)] was to exempt from the reach of Sec. 21350 donative transfers in instruments executed outside the State of California by persons who were not residents of California at the time of execution of the instrument,” he said. “Nowhere in the legislative history is there any reference to a legislative intent that the exemption apply only if the transferor was also a nonresident at the time of his or her death.

Fybel similarly rejected the challengers’ contention that the charitable residuary trust failed because the will did not specify the charity’s intended purpose, remarking that “[a]ll the relevant cases are squarely against appellants’ position.”

Justices William F. Rylaarsdam and Eileen C. Moore joined Fybel in his opinion.

The case is Estate of Clementi, G039223.


Copyright 2008, Metropolitan News Company