Will & Trust Contests – Decedent’s Pre-Death Statements About Intent

In will and trust contest actions California law holds that the intent of the decedent should control where his/her assets go. How do you determine the decedent’s intent? Certainly from the pre-death actions of the decedent and from admissible documents that can be authenticated and that aren’t out-of-court hearsay, but what about the decedent’s pre-death statements? Keep in mind that California Evidence Code sections 1260 and 1261 are hearsay exceptions that can be useful tools to bring in decedent’s pre-death statements.

Sections 1260 and 1260 provide as follows:

1260.
(a) Except as provided in subdivision (b), evidence of any of the following statements made by a declarant who is unavailable as a witness is not made inadmissible by the hearsay rule:
(1) That the declarant has or has not made a will or established or amended a revocable trust.
(2) That the declarant has or has not revoked his or her will, revocable trust, or an amendment to a revocable trust.
(3) That identifies the declarant’s will, revocable trust, or an amendment to a revocable trust.
(b) Evidence of a statement is inadmissible under this section if the statement was made under circumstances that indicate its lack of trustworthiness.

1261.
(a) Evidence of a statement is not made inadmissible by the hearsay rule when offered in an action upon a claim or demand against the estate of the declarant if the statement was made upon the personal knowledge of the declarant at a time when the matter had been recently perceived by him and while his recollection was clear.
(b) Evidence of a statement is inadmissible under this section if the statement was made under circumstances such as to indicate its lack of trustworthiness.

Dave Tate, Esq. (San Francisco)

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