Do You or Your Client Need A Certificate of Independent Review?[i]

 

What may these fact patterns have in common[ii]?

 

Fact pattern #1:

Your 85-year-old client with dementia, but with capacity, is considering making a testamentary gift by will, trust or amendments thereto and wants to leave $50,000.00 to her current care giver.

 

Fact pattern #2:

Your 85-year-old client with dementia, but with capacity, is considering making a testamentary gift by will, trust or amendments thereto and wants to leave $50,000.00 to her current accountant.

 

Fact pattern #3:

Your 85-year-old client with dementia, but with capacity, is considering making a testamentary gift by will, trust or amendments thereto and wants to leave her entire estate to one child and entirely disinherit her only other child.

 

Fact pattern #4:

Your 85-year-old client with dementia, but with capacity, is considering making a testamentary gift by will, trust or amendments thereto and wants to you, the drafting attorney, to be her only trustee or the successor trustee.

 

In any of the above circumstances, you must or certainly should recommend to your client that she obtain an Independent Review of the contemplated testamentary transactions and if available to obtain Certificate of Independent Review from an “independent attorney” upon successful completion of the Review.  

See, California Probate Sections 21370 and 21380-21392.

 

With an independent attorney’s review (Probate Code § 21370 -  “Independent attorney” means an attorney who has no legal, business, financial, professional, or personal relationship with the beneficiary of a donative transfer at issue under this part, and who would not be appointed as a fiduciary or receive any pecuniary benefit as a result of the operation of the instrument containing the donative transfer at issue under this part) and a corresponding Certificate of Independent Review issued in accord with §21384,  your client’s intended testamentary transfer can be better implemented and protected. §21384 provides in pertinent part:

 

"A gift is not subject to Section 21380 if the instrument is reviewed by an independent attorney who counsels the transferor, out of the presence of any heir or proposed beneficiary, about the nature and consequences of the intended transfer, including the effect of the intended transfer on the transferor’s heirs and on any beneficiary of a prior donative instrument, attempts to determine if the intended transfer is the result of fraud or undue influence, and signs and delivers to the transferor an original certificate in substantially the following form…[a “COIR”]…"

And, it may very well be that the planning attorney will face malpractice liability FOR FAILING TO RECOMMEND that his/her client obtain a COIR.

 

See Osornia v Weingarten (2004) 124 Cal. App. 4th 304 (The attorney drafted the will without including a certificate of independent review as required by Cal. Prob. Code § 21351…The court balanced the five Biakanja/Lucas factors and held that an attorney drafting instruments to transfer property to a presumptively disqualified person owed a duty of care to advise as to the likelihood of presumptive disqualification and to recommend that the client seek independent counsel. Thus, the attorney owed a duty of care to the nonclient under the facts as could be alleged.); see also Paul v Patton (2015) 235 Cal. App. 4th 1088.


To summarize, without an Independent Review and COIR and even where the facts are difficult to obtain to show fraud or undue influence in connection with a will or trust and gifts to suspect persons, §21380 is a very powerful tool to obtain relief from the probate judge. Under §21380, the legislature further provided for the recovery of attorneys’ fees and costs at Section 21380(d) to a family who prevails on the claim and where the suspect beneficiary is unsuccessful in rebutting the presumptions set forth in the statute.  All in all, a Section 21380 claim and petition can wreak havoc with your client’s intended plan and thereafter subject the planning attorney to claims of legal malpractice.  You must plan to avoid at §21380 attack on the estate plan.

 

With an independent review and a corresponding Certificate of Independent your client’s intended testamentary transfer can be better implemented and protected and you and your client may avoid a Section 21380 Petition and the very negative related results. 

 

Protect your client and avoid potential malpractice liability FOR FAILING TO RECOMMEND that your client obtain a COIR.

 

Contact us to schedule an Independent Review before your client(s) signs those new or amended testamentary documents.

 

The Hoffman Law Firm/ Nathan B. Hoffman, ESQ. 

www.TheHoffmanLawFirm.com 

Nathan B. Hoffman, AV-Preeminent 

Estate & Trust, Independent Reviews, Elder Law, Real Estate/Construction and Business Litigation

Copyright © 1999-2017 All rights reserved

 

 



[i] The information and opinions above are for general information purposes only.  Nothing in this article should be taken as legal advice for any individual case or situation. 

This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

 

[ii] Per California Probate, the code currently only directly applies to:

21380.  

(a) A provision of an instrument making a donative transfer to any of the following persons is presumed to be the product of fraud or undue influence:

(1) The person who drafted the instrument.

(2) A person in a fiduciary relationship with the transferor who transcribed the instrument or caused it to be transcribed.

(3) A care custodian of a transferor who is a dependent adult, but only if the instrument was executed during the period in which the care custodian provided services to the transferor, or within 90 days before or after that period.

(4) A person who is related by blood or affinity, within the third degree, to any person described in paragraphs (1) to (3), inclusive.

(5) A cohabitant or employee of any person described in paragraphs (1) to (3), inclusive.

(6) A partner, shareholder, or employee of a law firm in which a person described in paragraph (1) or (2) has an ownership interest.

21382.  

Section 21380 does not apply to any of the following instruments or transfers:

(a) A donative transfer to a person who is related by blood or affinity, within the fourth degree, to the transferor or is the cohabitant of the transferor.

(b) An instrument that is drafted or transcribed by a person who is related by blood or affinity, within the fourth degree, to the transferor or is the cohabitant of the transferor.

(c) An instrument that is approved pursuant to an order under Article 10 (commencing with Section 2580) of Chapter 6 of Part 4 of Division 4, after full disclosure of the relationships of the persons involved.

(d) A donative transfer to a federal, state, or local public entity, an entity that qualifies for an exemption from taxation under Section 501(c)(3) or 501(c)(19) of the Internal Revenue Code, or a trust holding the transferred property for the entity.

(e) A donative transfer of property valued at five thousand dollars ($5,000) or less, if the total value of the transferor’s estate equals or exceeds the amount stated in Section 13100.

(f) An instrument executed outside of California by a transferor who was not a resident of California when the instrument was executed.