Will Validity

Negative Wills

Negative wills, which only proclaim that someone will not inherit, are not effective

Will Harmless Errors

California excuses harmless errors with respect to will formalities if there is clear and convincing evidence that, at the time the testator signed the document, the testator intended the document to be their will

Applicable Law: Real Property

To the extent a will disposes of real property, its validity and effect are governed by the law of the situs (state where the property is located)

Applicable Law: Personal Property

The law of the place of the testator’s domicile at death controls the validity and effect of a will with respect to personal property

Savings Statute

A will executed elsewhere is valid if it complies with: (1) California law; (2) the law of the state where it was executed; OR (3) the law of the place of domicile at the time of execution of the will or death of the testator.

Applicable Law Caveat

The rules for applicable law only apply to determine whether the will is admissible to probate. Once the will is admitted to probate, local law governs the construction and application of its provisions

Four Basic Requirements of a Will

(1) Legal Capacity; (2) Testamentary Capacity; (3) Testamentary Intent; (4) Formalities (attestation or holographic will)

Wills: Legal Capacity

An individual 18 years of age or older may make a will. Being married, in the military, having a child, or having disabilities of minority removed will not give a person legal capacity to execute a will.

Legal Capacity: Conservatorship

A conservator may make a will for a conservatee if authorized by the court. A conservatee retains the power to make a will unless a court finds lack of testamentary capacity. A conservatee who retains testamentary capacity may amend or revoke a will made by a conversator.

Requirements for Testamentary Capacity

The testator has the ability to understand: (1) the nature of the act (effect of a will); (2) the nature and extent of the testator’s property (exact knowledge not needed); (3) the persons who are the natural objects of the testator’s bounty (family); and (4) mental capacity at the time the will is executed. The testator must be able to understand all of these ideas at the same time.

Testamentary Capacity and Mentally Challenged Individuals

So long as they meet the requirements above, mentally challenged individuals can make wills

Effect of Adjudicated Incompetence

Generally this creates a presumption of lack of the required mental capacity but is not conclusive. A person adjudicated incompetent may be able to execute a will during a “lucid interval” for instance

Testamentary Capacity: Physical and Mental Ailments, Drug Addiction

None of these exclude mental capacity to make a will. Additionally, a sane person may lack capacity at times, but have sufficient capacity at other times

Testamentary Intent

The testator must have the present intent to make a particular instrument their will

Ineffective Deeds

An ineffective deed will be denied probate even if signed and attested because of lack of testamentary intent

Sham Wills

Wills executed as a joke or sham are void

Formalities of Attested Wills

(1) the will must be in writing; (2) the will must be signed by the testator; (3) the testator must sign or acknowledge the will or their signature in the joint presence of at least two witnesses; (4) the two witnesses must sign the will during the testator’s lifetime; and (5) the witnesses must understand that the instrument being witnessed is the testator’s will

Testator’s Signature

Any mark the testator makes or adopts with present intent to authenticate the will may be a signature. It need not be placed at the end. Proxy signatures are allowed if: (1) the other person signs in the testator’s presence at their direction; or (2) a conservator signs for the conservatee pursuant to a court order

Attestation: Witnesses

The will must be signed by at leas two attesting witnesses. There is no minimum age to be a witness, but a witness must be competent at the time of the execution. The witness must understand that the document being signed is the testator’s will. Joint presence of the witnesses is required when the testator signs or acknowledges. The witnesses only have to sign during the testator’s lifetime, and don’t have to sign at the same time

Interested Witnesses: Overall effect

The general rule is that the will itself remains valid, but the gift to the interested witness is presumed to be procured improperly

How an Interested Witness can Take Under the Will

(1) the interested witness rebuts the presumption against them; (2) there are at least two other disinterested subscribing witnesses; or (3) the interested witness who is also an heir may receive up to their intestate share

Attestation Clause

An attestation clause creates a rebuttable presumption that the will was duly executed but is not required. It acts as prima facie evidence that the will formalities were satisfied

Holographic Wills

Holographic wills are permitted in California if the signature and material provisions of the will are in the testator’s own handwriting. Filling in the blanks in a preprinted form can make the will be considered holographic

Holographic Wills: Dating

Dates are helpful but not required for holographic wills

Oral Wills

California does not recognize oral wills

California Statutory Will

A statutory will is a state-sponsored will form allowing a testator to execute a will without an attorney. To execute a statutory will: (1) the testator must complete the blanks and sign the will; (2) each witness must observe the testator’s signing; and (3) each witness must sign in the presence of the testator