- 15 - (1) The beneficiary, or someone acting on behalf of the beneficiary, makes a voluntary assignment, conveyance, encumbrance, pledge, or transfer of the interest or part thereof, or contracts to do so; provided, however, that a beneficiary will not have accepted an interest if the beneficiary makes a gratuitous conveyance or transfer of the beneficiary’s entire interest in property to the person or persons who would have received the property had the beneficiary made an otherwise qualified disclaimer pursuant to this part. * * * * * * * (3) The beneficiary, or someone acting on behalf of the beneficiary, accepts the interest or part thereof or benefit thereunder. Thus, California law, like Federal law, incorporates a rule denying the effectiveness of a disclaimer in situations evidencing a prior acceptance of benefits. The foregoing statute was recently interpreted by the Court of Appeals for the Ninth Circuit, to which appeal in the instant case would normally lie, in Cassell v. Kolb (In re Kolb), 326 F.3d 1030 (9th Cir. 2003). There, in the context of a bankruptcy proceeding, the Court of Appeals considered whether certain acts by a debtor constituted acceptance of a contingent interest in trust assets and thereby prevented the debtor from later disclaiming the property. Id. at 1033-1034. The appellate court focused on construction of the “broad ‘catch-all’ language” in Cal. Prob. Code section 285(b)(3). Id. at 1037. After first noting the dearth of California caselaw on the statute, the Court of Appeals engaged in an extensive analysis of the language andPage: Previous 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Next
Last modified: May 25, 2011