Legal Memorandum: Measurement of Survival and Probate Law

Issue: Is survival for purposes of probate law, measured in terms of calendar days or twenty-four hour periods?

Area of Law: Estate Planning & Probate
Keywords: Probate law; Measurement of survival
Jurisdiction: California
Cited Cases: 86 Cal. Rptr. 2d 569; 127 Cal. App. 4th 1164; 73 Cal. App. 4th 463; 116 Cal. Rptr. 2d 319
Cited Statutes: Cal. Prob. Code §§ 21101 to 21122; Cal. Prob. Code § 21102 (2006), § 21121, § 21103; Cal. Prob. Code § 6211
Date: 03/01/2007

In California, the interpretation of the terms of any will, trust, or similar instrument is governed by Cal. Prob. Code §§ 21101 to 21122.  In following the analysis framed by the Probate Code, the meaning of the term “day” depends, first, on the grantor’s expressed intention for using the term in the trust:

(a)        The intention of the transferor as expressed in the instrument controls the legal effect of the dispositions made in the instrument. 


(b)        The rules of construction in this part apply where the intention of the transferor is not indicated by the instrument.  


(c)        Nothing in this section limits the use of extrinsic evidence, to the extent otherwise authorized by law, to determine the intention of the transferor.

Cal. Prob. Code § 21102 (2006).  The Code also requires that, to the extent possible, the instrument should be read logically, as a whole, so as to give the entire trust consistent meaning. 

All 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. at § 21121.

California courts have referenced these provisions many times when asked to determine the meaning of a decedent’s choice […]

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