Estate of Parsons - 103 Cal. App. 3d 384, 163 Cal. Rptr. 70 (1980)

Rule:

Cal. Prob. Code § 51 states that all beneficial devises, bequests and legacies to a subscribing witness are void unless there are two other and disinterested subscribing witnesses to the will, except that if such interested witness would be entitled to any share of the estate of the testator in case the will were not established, he shall take such proportion of the devise or bequest made to him in the will as does not exceed the share of the estate which would be distributed to him if the will were not established.

Facts:

In a probate proceeding, the trial court rejected a claim of interest in the estate of numerous relatives. The record indicated that at the time of execution of the will, three persons signed it as attesting witnesses. One of the witnesses was a notary public, but the other two witnesses were named in the will as beneficiaries. One witness was given $ 100, and the other was given certain real property. After the death of the testatrix, the will was admitted to probate. Subsequently, one of the witnesses filed a disclaimer of her $ 100 bequest. The relatives then claimed an interest in the estate on the ground that the devise to the other interested witness was invalid. There was no suggestion by any of the parties of any fraud or undue influence.

Issue:

Would a subscribing witness to a will, named in the will as a beneficiary, become "disinterested" within the meaning of Probate Code section 51 by filing a disclaimer of her interest after the testatrix' death? 

Answer:

No.

Conclusion:

The Court of Appeal reversed. The court held that a subscribing witness to a will who was named in the will as a beneficiary does not become disinterested within the meaning of Prob. Code, § 51 (providing that a gift to a subscribing witness is void unless there are two other and disinterested subscribing witnesses to the will) by filing a disclaimer of interest after the testatrix's death. Thus, the court held that the witness' disclaimer was a nullity, for lack of any interest to disclaim, and the gifts to the witnesses were therefore void, by operation of law, due to the fact that when the will was executed and attested, only one of the subscribing witnesses was disinterested.