Will Formalities in California
While many people die with a will, courts do not enforce every will. Instead, courts enforce only those wills meeting specific legal requirements.
Who Can Make a Will?
California Probate Code section 6100 delineates that an individual 18 years or older who is of sound mind may make a will.
For a will to meet the proper formalities, California Probate Code section 6110 provides that:
(a) Except as provided in this part, a will shall be in writing and satisfy the requirements of this section.
(b) The will shall be signed by one of the following:
(1) By the testator.
(2) In the testator’s name by some other person in the testator’s presence and by the testator’s direction.
(3) By a conservator pursuant to a court order to make a will under Section 2580.
(c)(1) Except as provided in paragraph (2), the will shall be witnessed by being signed, during the testator’s lifetime, by at least two persons each of whom (A) being present at the same time, witnessed either the signing of the will or the testator’s acknowledgment of the signature or of the will and (B) understand that the instrument they sign is the testator’s will.”
If the testator had previously signed alone or in the presence of just one of the witnesses, the testator need not sign again in the presence of the two witnesses but must acknowledge their signature or will (i.e., “this is my signature/will”) in the presence of the two witnesses, both present at the same time.
Importantly, the witnesses do not have to sign in front of each other or in the presence of the testator, they just have to sign the will during the testator’s lifetime.
What Does Presence Mean?
There are two tests in California for presence:
- Line of sign presence: here the witnesses see the testator sign;
- Conscious presence: here the testator signs or acknowledges the will within the witnesses’ hearing and the witnesses know what is being done.
What If Not All Formalities of a Will are Met?
Now, if these listed formalities are not met, a will can still be admitted to probate under California Probate Code section 6110(c)(2) if the proponent of the will establishes by clear and convincing evidence that at the time the testator signed the will, they intended the instrument to constitute their will: “If a will was not executed in compliance with paragraph (1), the will shall be treated as if it was executed in compliance with that paragraph if the proponent of the will establishes by clear and convincing evidence that, at the time the testator signed the will, the testator intended the will to constitute the testator’s will.”
A holographic will is, in essence, a hand-written will.
What are the Requirements for a Holographic Will?
California Probate Code section 6111(a) provides that: “A will that does not comply with Section 6110 is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator.”
Subsection (c) clarifies “[a]ny statement of testamentary intent contained in a holographic will may be set forth either in the testator’s own handwriting or as part of a commercially printed form will.” Thus, statements such as “this is my will” need not be in the testator’s handwriting.
The signature of the testator must be in the handwriting of the testator and the signature may appear anywhere in the will—it need not be at the end of the will.
What are Material Provisions?
Simply put, material provisions are “who” gets “what.” These must be in the testator’s handwriting. For example, Joanne writes “$3,000 to my son Jim Jones.” The gift of “$3,000” is material and constitutes the “what,” and “Jim Jones” is material and constitutes the “who.”
Date Not Required
A holographic will need not contain a date. However, if a holographic will is not dated, and another will exists with inconsistent provisions and there is doubt as to which provisions are controlling, the holographic will will be deemed invalid to “the extent of the inconsistency unless the time of its execution is established to be after the date of the execution of the other will.” California Probate Code section 6111(b).
Further, “[i]f it is established that the testator lacked testamentary capacity at any time during which the will might have been executed, the will is invalid unless it is established that it was executed at a time when the testator had testamentary capacity.” California Probate Code section 6111(b)(2). Thus, even though a date is not required for a holographic will to be valid, a lack of date can present some difficulties.
Importantly, if a will does not meet either the formal requirements or the requirements for a holographic will, it may be challenged in what is called a will contest.
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