a. as a witness, subsequent disclaimer cannot transfer
(Geneve Parsons) set up her will on May 3, 1976. There were 3 witnesses for
Geneve Parsons’s will. Their names are Evelyn
Nielson, Marie Gower, and Bob Warda. They sighed as witnesses. Nielson (Evelyn
Nielson), Marie Gower (Gower) are beneficiaries in this will. Nielson would inherit
$100 from this will. Gower would inherit real property from this will. Parsons passed away on December 13, 1976. Provate was going on. Next year, Nielson
gave up $ 100 bequest from Parsons.
Roger (Roger Winelander) was Parsons relative. Roger filed a suit against Gower
insisting that this will is invalid. Trial Court rejected. Gower appealed. Gower was respondent. Roger was appeallant.
b. Issue If a person has some interest
by the will, Is he deserved to be witness in the will?
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.
According to Cal. Prob. Code § 51, there must be two other and disinterested
subscribing witnesses to the will. Here, Roger insisted that there existed only one disinterested
subscribing witnesses, Bob Warda because Nielson,
Gower are beneficiaries in this will. Nielson contended that Nielson gave up
his $ 100 bequest after Parsons’s death, therefore, Nielson was not interested
witness any more. Roger
rebut that even though Nielson gave up his $ 100 bequest after
subscribing the will as a witness, subsequent disclaimer cannot transfer
interested witness into disinterested witness. Gower insisted that argument of Roger is
very technical and disregard to purpose of Parsons. Parsons wanted to leave his
asset to persons as named in the will, not to remote relatives. There was not
any fraud or undue influence.
The Court told that the
statute of frauds of 1676 required that devises of land be attested and
subscribed “by three or four credible witnesses, or else they shall be
utterly void. Here, credible means that the person has no interest as a
witness. Adding this, the basic function of subscribing will begin when the
will executed. However, Nielson gave up his $ 100 bequest after execution of
the will. If the law admit subsequent disclaimer, it would disregard the
meaning Cal. Prob. Code § 51
Court of Appeal held that Nielson’s disclaim was not effective, thus Nielson
would be interested witness. The Court of Appeal reversed the judgement of