SB 153: Estates and trusts: donative transfers.

Existing law creates a presumption of fraud or undue influence, under certain circumstances, for any instrument that makes a donative transfer to specified persons, including, among others, a person in a fiduciary relationship with the transferor who transcribed the instrument or caused it to be transcribed.

This bill would recast this presumption to apply to a donative transfer to a person who transcribed the instrument or caused it to be transcribed and who was in a fiduciary relationship with the transferor when the instrument was transcribed.

Existing law creates exceptions to presumptions of fraud or undue influence for gifts where the donative instrument is reviewed by an independent attorney who counsels the transferor, as specified, about the nature of the transfer. Existing law specifies how gifts operate if they fail under the provisions providing presumptions of fraud or undue influence for donative transfers. Existing case law construes the term donative transfer to include, in addition to gifts, a transfer for inadequate or unfair consideration.

This bill would replace the term gift with the term donative transfer for purposes of these provisions.

Existing law states the intent of the Legislature that the above-referenced provisions regarding these presumptions supplement the common law of undue influence.

This bill would state that it is the intent of the Legislature that these rules also supplement the common law of fraud.