Metropolitan News-Enterprise


Friday, March 26, 2010


Page 3


C.A. Clarifies Standards for Independent Attorney Review of Wills


By SHERRI M. OKAMOTO, Staff Writer


The First District Court of Appeal yesterday revived a will contest by disinherited family members who claimed the decedent was not adequately counseled by his attorney before naming a care custodian and other non-relatives as beneficiaries of his $4 million estate.

Reversing a grant of summary judgment, Div. One explained that the legal heirs of Eugene Winans raised a triable issue of material fact as to the validity of a certificate of independent review issued by Santa Rosa attorney Patrick Coyle.

In 2003, Winans moved into the Canterbury Home, a six-bed residential care facility in Santa Rosa owned and operated by Elizabeth Timar. Starting about a year later, he began suffering from memory loss, diagnosed as “chronic dementia,” which rendered him unable to care for himself.

Winans executed wills in 2005 and 2006 which made substantial bequests to his nieces and nephews, but in 2007, he executed a new will excluding them as beneficiaries.

The new will was drafted by Ira Lowenthal, an attorney with whom Coyle shared office space, and designated Coyle as executor. Lowenthal, Coyle and a notary public witnessed the signing. 

Short Meeting

Coyle said he spent about one to five minutes explaining to Winans that the new will was giving property to Timar before it was executed and that Winans had assured him the bequests were being made voluntarily.

 Less than a month later, Winans died and his family challenged the 2007 will. They contended Coyle’s certificate of independent review was invalid because his discussion with Winans regarding the transfer to Timar did not satisfy the substantive requirements of Probate Code Sec. 21351.

However, Sonoma Superior Court Judge Elaine M. Rushing found the family failed to raise any triable issues of fact as to their claim.

Sec. 21351 provides that the presumption barring care custodians from being beneficiaries of testamentary transfers from dependent adults to whom they provide care services can be avoided if a “certificate of independent review” is prepared by an “independent attorney.” The attorney is required to counsel the transferor about the “nature and consequences of the intended transfer” and “attempt…to determine if the intended consequence is the result of fraud, menace, duress, or undue influence.” 

Writing on appeal, Justice Sandra L. Margulies explained that an attorney’s duty under the statute is “in essence, to make sure the transferor knows exactly what he or she is doing in executing the instrument.”

Proper Counseling

Proper counseling requires an attorney to ensure the testator understands the nature of the property bequeathed, that a disqualified person will receive the property and that the “natural objects” of the testator’s bounty, if any, will not receive the property, she said, noting the lack of evidence that Coyle had addressed the latter two subjects with Winans.

The justice also wrote that the Legislature “intended the counseling to occur under circumstances that would insulate the transferor from any improper influences giving rise to the donative transfer and encourage the transferor to speak frankly with the certifying attorney about those influences, if any,” even though Sec. 21351 does not specifically require counseling to be confidential.

While she declined to establish a bright-line rule banning the presence of any person other than the attorney and the testator, she said the burden would fall on a beneficiary to demonstrate that the presence of additional persons was either necessary to accomplish the counseling session or did not interfere with the transferor’s full and honest disclosure to the attorney regarding the transfer.

At a minimum, Margulies said, any person who is presumptively disqualified or associated with a person who is presumptively disqualified may not be present, nor may “any person whose presence might discourage the testator from speaking frankly with the attorney about the subject bequest.”

 Absent evidence that the presence of Lowenthal and the notary public assisted Coyle or was necessary to accomplish the counseling, the justice posited that their presence raised a triable issue regarding the confidentiality of the counseling session. 

She further concluded that that an attorney may only be considered “independent” under Sec.21351 if personal circumstances do not prevent the attorney from forming a disinterested judgment about the validity of a bequest, and that a triable issue existed as to Coyle’s ability to assess the validity of the 2007 testamentary gifts, since he stood to receive a large fee as executor.

Presiding Justice James J. Marchiano and Justice Robert L. Dondero joined Margulies in her opinion.

The case is Estate of Winans, 10 S.O.S. 1603.


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