Estate of Tkachuk

California Court of Appeal Aug 31, 1977 No. 50129Published

Before: Kingsley

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Holding. A bequest to a charitable organization is not void under California Probate Code section 51 simply because a subscribing witness to the will is an officer or trustee of that organization. The statute only voids beneficial bequests made directly to a subscribing witness, not bequests to a third-party entity where the witness holds an indirect or tangential interest.

Issues

Whether a bequest to a church is void under Probate Code section 51 when one of the subscribing witnesses is an officer and trustee of that church.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The language of Probate Code, section 51 does not void gifts to a beneficiary where one of the subscribing witnesses, who is not a beneficiary, is interested in the bequest.”

“The language of this code section merely voids "beneficial ... bequests ... to a subscribing witness," unless there are "two other ... disinterested witnesses."”

“In the case at bar, the language of the California statute does not void a bequest to a beneficiary where a subscribing witness had an interest in the bequest.”

73 Cal.App.3d 14 (1977) 139 Cal. Rptr. 55 Estate of DEMETRY TKACHUK, Deceased.

JOHN ANDREEVICH TKACHUK, Plaintiff and Appellant,

RUSSIAN UKRAINIAN EVANGELICAL BAPTIST UNION OF THE UNITED STATES OF AMERICA et al., Defendants and Respondents.

Docket No. 50129. Court of Appeals of California, Second District, Division Four.

August 31, 1977. [15] COUNSEL

Slaff, Mosk & Rudman, Robert E. Mundy and Marc R. Stein for Plaintiff and Appellant.

Lovell, King & Case and William T. King for Defendants and Respondents.

OPINION

KINGSLEY, J.

This is an appeal from a judgment in favor of respondent Union Church. Decedent left the bulk of his estate to the church and left a small sum to his brother. Appellant, decedent's brother, alleges that the gift to the church is void under Probate Code, section 51.

[16] At the time of decedent's death he was a resident of California and he left property located in Los Angeles.

Prior to moving to Los Angeles, decedent lived in Detroit for 25 years where he was a member of the First Russian Baptist Church. The First Russian Baptist Church is the local Detroit church of respondent Union Church. In August 1940, respondent Andrew Myczka became minister of the Detroit church. Decedent was a Sunday school teacher, a deacon, and member of the church board. Decedent attended services on the average of three times a week. On several occasions decedent asked respondent Myczka to type a will for him, but Myczka advised him to see an attorney. In 1947, Myczka finally acceded to decedent's request, and decedent dictated his will while Myczka typed it for him. Decedent and Myczka took the will to Rose Lucas, a notary public in Michigan. Decedent declared to Mrs. Lucas that this document was his will, he signed it in both the presence of Myczka and Mrs. Lucas, and he requested Mrs. Lucas and Myczka to be witnesses. In the presence of the decedent, and in each others' presence, Mrs. Lucas and Myczka signed the document. Sometime later, Myczka left for another town in Michigan and decedent went to California.

Estate of Tkachuk

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OPINION

KINGSLEY, J.

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