## Facts

- Geneve Lucy Angela Shaffer Parsons executed a will on May 3, 1976.
- The will was subscribed by three witnesses: Evelyne Nielson (also a $100 beneficiary), Marie M. Gower (also a beneficiary of specified real property), and Bob Warda (a notary and not a beneficiary).
- Parsons died on December 13, 1976, and the will was admitted to probate at the request of co-executors, including Gower.
- After Parsons’s death and after probate began, Nielson filed a disclaimer of her $100 bequest.
- Parsons’s heirs at law (first cousins once removed) challenged the devise to Gower, arguing the will lacked “two other and disinterested subscribing witnesses” as required to preserve a gift to an attesting witness under former California Probate Code § 51.
- The probate court upheld the devise to Gower, and the heirs appealed.

## Issues

1. Whether a subscribing witness who is named as a beneficiary can become “disinterested” under former California Probate Code § 51 by filing a disclaimer after the testator’s death.
2. Whether, when only one subscribing witness was disinterested at execution, a devise to an interested subscribing witness is void under § 51.

## Decision

- The Court of Appeal reversed the probate court’s order upholding the devise to Gower.
- The court held that a witness-beneficiary’s post-death disclaimer does not render the witness “disinterested” for purposes of § 51.
- Because disinterest is measured at the time of execution, there was only one disinterested subscribing witness when the will was attested.
- As a result, the devise to Gower (an interested subscribing witness) was void under § 51, and the property passed to the heirs at law by intestacy.

## Legal Principles

- Under former California Probate Code § 51, a gift to a subscribing witness is void unless the will was subscribed by “two other and disinterested” witnesses.
- “Disinterested” status for subscribing witnesses is determined at the time the will is executed and attested.
- A disclaimer filed after execution (including after death) cannot retroactively cure a failure to satisfy the statutory requirement of two disinterested subscribing witnesses.
- The statute operates categorically to prevent fraud and undue influence and does not require proof of actual wrongdoing in the particular case.
- Courts must apply the statutory formalities even when doing so defeats the testator’s apparent intent, absent legislative change.

## Conclusion

The court held that a witness-beneficiary cannot become “disinterested” under former Probate Code § 51 through a post-death disclaimer, so the will’s failure to have two disinterested subscribing witnesses at execution voided the devise to an interested subscribing witness and caused the property to pass by intestacy.


Estate of Parsons, 103 Cal. App. 3d 384, 163 Cal. Rptr. 70 (Ct. App. 1980)