The general rule, discussed in detail below, is that a gift or donative transfer in a will to the drafter of the instrument is void, unless the drafter is related by blood, marriage, or is a cohabitant with the testator, or the instrument is granted an independent certificate of review by an attorney. California Probate Code §21350. But another exception is where the transfer is made in a will executed by a nonresident of California who “was not a resident at the time the instrument was executed, and that was not signed within California.” California Probate Code §21351(i).

Joseph Clementi Jr. was a resident of California at the time of his death, but was a resident of Pennsylvania at the time his will was executed in Philadelphia. Estate of Clementi, G039223. His friend and accountant, Richard E. Weisz, wrote the will which included a gift to himself of $100,000, and appointed Weisz as trustee of a charitable trust. Clementi’s estate was worth in excess of $3 million at the time of his death, and his niece and nephews sought to revoke the admission of the will to probate. The beneficiaries argued that since Clementi was a resident of California at the time of his death, the exception should not apply and the will should not have been admitted to probate. The court held that California Probate Code §21351(i) does not require the transferor be a non-resident at the time of death, only at the time of execution, and that the gift to Weisz was valid.

Filed under: Probate Litigation, Will Contests