Estate of Parsons, 163 Cal. Rptr. 70 (1980)


Facts: Three persons signed the will of the decedent, Geneve Parsons (T): Evelyn Nielson, Marie Gower (D), and Bob Warda, a notary public. Two of them, Nielson and Gower, were named in the will as beneficiaries. After T's death, her will was admitted to probate. Nielson then filed a disclaimer of her bequest in the will. Thereafter, distant relatives of T (Ps) claimed an interest in the estate on the ground that the devise to Gower was invalid. The trial court rejected that argument. Ps appeal.

Issue: Is a subscribing witness to a will who is named in the will as a beneficiary a disinterested subscribing witness as required by statute?

Holding: No. The Superior Court, San Francisco County, John B. O'Donnell, pro tem., rejected argument, and objectors appealed. The Court of Appeal, Grodin, J., held that subscribing witness, who was named in will as a beneficiary, did not become “disinterested” within statute voiding gift to subscribing witness absent two other and disinterested subscribing witnesses by filing a disclaimer of her interest after death of testatrix. Reversed.

AnalysisProbate Code 51 provides that a gift to a subscribing witness is void unless there are two other disinterested witnesses to the will. Ps contend that a subsequent disclaimer is ineffective to transform an interested witness into a disinterested one. They assert that because there was only one disinterested witness at the time of attestation, the devise to D is void by operation of law. D, however, points to language in Probate Code also that states "in every case, the disclaimer shall relate back for all purposes to the date of creation of the interest." At CL a party to an action, or one who had a direct interest in its outcome, was not competent to testify in court because it was thought that an interested witness would be tempted to perjure himself in favor of his interest. If any one of the requisite number of attesting witnesses was also a beneficiary, then the entire will would fail. Parliament, in 1752, enacted a statute that saved the will by providing that the interest of an attesting witness was void; under such legislation, the competence of a witness to testify is restored by invalidating his gift. The majority of jurisdictions have similar statutes; section 51 falls into this category. Because it was held that section 51 looks solely to the time of execution and attestation of the will, it follows that a subsequent disclaimer will be ineffective to transform an interested witness into a disinterested one within the meaning of that section.