In will and trust contest actions the person who signed or who supposedly signed the will or trust is usually deceased.  Statements that the decedent previously made are considered hearsay, i.e., a statement made out of court that is being admitted for the truth of the statement, and are not admissible in evidence unless a hearsay exception applies. California Evidence Code section 1260 provides an important possible hearsay exception that may apply in will and trust contest cases; however, the applicability of section 1260 depends on a determination by the Judge in the case and applicability can vary from case to case and from Judge to Judge.

California Evidence Code section 1260 provides as follows:

Section 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.

And, in an action involving a claim or demand against an estate of a decedent, California Evidence Code section 1261 also provides an additional possible hearsay exception in appropriate circumstances as determined by the Judge in the case.  Section 1261 provides as follows:

Section 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 / California)