Legal Memorandum: Failure of a Bequest

Issue: How do courts address a bequest that has failed?

Area of Law: Estate Planning & Probate
Keywords: Bequest; Failure; Transfer
Jurisdiction: California
Cited Cases: None
Cited Statutes: Cal. Probate Code §§ 21122, 21120 (2006)
Date: 05/01/2007

The Probate Code § 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.*FN1  The Probate Code also provides, however, that the words in a will must be given “their ordinary and grammatical meaning unless the intention to use them in another sense is clear and their intended meaning can be ascertained,” and that the language used must be given “an interpretation that will give every expression some effect, rather than one that will render any of the expressions inoperative.” Cal. Probate Code §§ 21122, 21120 (2006), cited in In re Estate of Owens, No. C043846 (Cal. Ct. App. Feb. 25, 2004) (unpublished).  Moreover, “[a]ll parts of an instrument are to be construed in relation to each other and so as, if possible, to form a consistent whole.  If the meaning of any part of an instrument is ambiguous or doubtful, it may be explained by any reference to or recital of that part in another part of the instrument.” Id. § 21121, cited in Estate of Owens, supra


*FN1 Cal. Probate Code § 21111 further provides:

(2) If the transferring instrument does not provide for an alternative disposition but does provide for the transfer of a residue, the property becomes a part of the residue transferred under the instrument.

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