The person who drafted the instrument (e.g. the attorney);
A person who is related by blood or marriage to, is a domestic partner of, is a cohabitant with, or is an employee of the drafter (e.g. the attorney's spouse);
Any partner, shareholder, or employee of any law partnership or law corporation in which the drafter has an ownership interest (e.g. the attorney's law firm or business partner);
Any person who has a fiduciary relationship with the transferor (e.g. a conservator or trustee) who transcribes the instrument or causes it to be transcribed.
A person who is related by blood or marriage to, is a domestic partner of, is a cohabitant with, or is an employee of a person described in the immediately preceding paragraph (e.g. the conservator's spouse);
A care custodian of a dependent adult who is the transferor (e.g. a nurse/in-home care worker); or
A person who is related by blood or marriage to, is a domestic partner of, is a cohabitant with, or is an employee of a care custodian (e.g. a nurse/in-home care worker's spouse).
However, as is often the case, there are exceptions to this rule. For example, if an otherwise disqualified person is related to the transferring-party by blood (within the fifth degree) or by marriage, or is the registered domestic partner or cohabitant with the transferee or the person who drafted the will, then the devise is permissible. Prob C § 21351(a), (g). For example, wife assists husband in drafting a will and husband leaves his entire estate to his wife.
Furthermore, if an independent attorney who counsels the transferring-party about the nature of the intended transfer, determines that the gift is not a result of fraud, duress, menace, or undue influence, and signs and delivers to the drafter a Certificate of Independent Review, then the devise is permissible. Prob C § 21351(b). For example, Widower decides to leave her entire estate to her in-home care worker of many years. In-home care worker enlists the services of an independent attorney to thoroughly explain the legal ramifications of this transfer to the Widower. Attorney explains the legal situation to the Widower and obtains her signature on a Certificate of Independent Review.
Finally, a transfer to a disqualified person is also permitted if approved by the court, following full disclosure of the relationships involved and on clear and convincing evidence that the transfer was not the product of fraud, duress, menace or undue influence. Prob C § 21351(d)-(e). Widower decides to leave her entire estate to her neighbor, who also happens to be the drafter of her will. Neighbor petitions Probate Court and states that Widower was competent at death, she had known Neighbor for many years, Widower's family never visited her and that Neighbor was not in financial trouble.
