Legal Memorandum: Codification of Rules of Construction

Issue: Have rules of construction applied to the interpretation of testamentary instruments have been codified?

Area of Law: Estate Planning & Probate
Keywords: Testamentary instruments; Rules of construction; Codification
Jurisdiction: California
Cited Cases: 114 Cal. Rptr. 2d 865; 94 Cal. App. 4
Cited Statutes: Cal. Probate Code § 21102(a) (2006); Cal. Probate Code § 21102(b), § 21109; Cal. Probate Code § 21109(a), § 21110©, § 21110(a), (b)
Date: 05/01/2007

As the Estate of Kaila, 94 Cal. App. 4th 1122, 114 Cal. Rptr. 2d 865 (2001) court noted, these basic rules of construction have been codified in the California Probate Code.  Section 21102, for instance, states that “[t]he intention of the transferor as expressed in the instrument controls the legal effect of the dispositions made in the instrument.”  Cal. Probate Code § 21102(a) (2006).  The Probate Code also provides additional guidance, to be used in cases where “the intention of the transferor is not indicated by the instrument.”  See Kaila, 94 Cal. App. 4th at 1131, 114 Cal. Rptr. 2d at 872 (quoting Cal. Probate Code § 21102(b)).  For instance, § 21109 provides that “[a] transferee who fails to survive the transferor of an at-death transfer or until any future time required by the instrument does not take under the instrument.”  Cal. Probate Code § 21109(a) (2006).  “Transferee,” as used in that section, means “a person who is kindred of the transferor or kindred of a surviving, deceased, or former spouse of the transferor.”  Id. § 21110(c).  In such cases, the issue of the deceased transferee will take in his or her place, unless the will expresses a contrary intentionId. § 21110(a), (b).

Perhaps more importantly for present purposes, however, § 21111(a) provides that if a transfer “fails for any reason” and the transferring instrument provides for an alternative disposition in the event of such failure, the property is transferred according to the terms of the instrument.  Id. § 21111(a).


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