Bank of America v. Angel View Crippled Children's Foundation

Probate Code section 21350 presumptively invalidates a donative transfer to an attorney-beneficiary who drafted the instrument providing for the gift. Probate Code section 21351 permits the transfer if, inter alia, the drafter-beneficiary can show by clear and convincing evidence that the transfer was not the result of fraud, menace, duress or undue influence. In this case we hold that these statutes, enacted in 1993, apply retroactively.

Three residual beneficiaries of a living trust—Angel View Crippled Children’s Foundation, St. Jude Hospital, and Heartspring, Inc.—appeal from an order of the probate court insofar as it allows the drafter of the trust instrument, respondent Alan D. Liker, Esq., to receive a distribution as a beneficiary of the trust. Because Probate Code section 21350 is applicable to the transfer in this case and because a hearing under section 21351 is required, we reverse and remand.

I. Facts

On July 5, 1974, Forrest and Glenda Shaklee established a living trust known as the Forrest Clell Shaklee, Jr., and Glenda Belle Shaklee Trust No. I. By the express terms of the trust instrument, this trust was revocable and subject to amendment by the…