Will Execution Requirements
- A valid will requires (1) a writing concerning the distribution of property upon death (2) signed by the testator or someone at his direction and in his presence (an appointed conservator may also sign); (3) the signing must be witnessed by two disinterested individuals (both must be present at the same time); (4) the witnesses must sign the writing during the testator’s lifetime; AND (5) the witnesses must understand that they signed the testator’s will.
- A will which complies with the writing and testator’s signature requirements (but fails to comply with the witnessing requirements) MAY still be admitted to probate if the proponent of the will is able to produce clear and convincing evidence that the testator intended the document to be her will at the time it was signed.
Holographic Will or Codicil–In General
A holographic will (or written alteration to a will) is handwritten and signed by the testator, but not witnessed. In California, a holographic will or codicil is valid if signed by the testator AND all material terms of the will are in the testator’s handwriting. Material terms include the name of the beneficiaries and the gifts they will receive. There is no requirement that a holographic will devise the testator’s entire estate; instead any portion not devised will pass by intestacy.
Holographic Will or Codicil–Lack of Date
The lack of a date DOES NOT affect the validity of a holographic will, except when: (a) there is an issue with testamentary capacity; OR (b) there is a possibility that two or more wills should be probated which are inconsistent – in such instance the holographic will is invalid to the extent of the inconsistency (unless the time of its execution is established to be after the date of execution of the other will).
Codicils
A codicil is an instrument made after a will is executed that modifies, amends, or revokes a will. A codicil MUST satisfy the same formalities as a will. Execution of a codicil republishes the will, meaning courts will consider the original will to have been executed on the same date as the codicil. A validly executed codicil will also cure any interested witness problems with the original will. To revoke a will through a codicil, there must be intent to do so
Acts of Independent Significance
A court may use an act of independent significance to fill in the gaps of a will. Acts of independent significance are those with significance outside of the will-making process (acts that have no testamentary affect).
Revocation by Subsequent Will or Codicil
A testator can revoke a will by executing a subsequent valid will or codicil.
Testamentary Capacity
To have sufficient capacity to execute a will, a testator must (1) be at least 18 years old; (2) understand the nature and extent of her property; AND (3) understand the natural objects of her bounty (i.e. her relatives and friends). Appointment of a conservator alone, does not prove a lack of capacity.
Undue Influence–Prima Facie Case
Undue influence occurs when a person exerts influence that overcomes a testator’s free will and judgment. A prima
facie case of undue influence is established if (1) the testator had a weakness (physical, mental, or financial) that made him susceptible to influence; (2) the wrongdoer had access to the testator and an opportunity to exert influence; (3) the wrongdoer actively participated in drafting the will; AND (4) there is an unnatural (unexpected) result.
Undue Influence–Common Law Presumption
A common law presumption of undue influence is established if (1) a confidential relationship existed between the testator and the wrongdoer; (2) the wrongdoer actively participated in the drafting the will; AND (3) there is an unnatural result.
Omitted Spouse
A surviving spouse is entitled to one-half of the decedent’s community property AND quasi-community property.
In addition, a surviving spouse not mentioned in a will that was executed before the marriage began, is entitled to a share of the separate property equal to what the spouse would have received under intestacy (but that share cannot be more than one-half of the separate property in the estate).
However, a surviving spouse DOES NOT receive the intestate share if: (a) the spouse was intentionally omitted – apparent from the testamentary instrument; (b) the spouse was given property outside of the will in lieu of a disposition in the will; OR (c) the omission was consistent with a valid prenuptial agreement.
Omitted Child
- A child that is NOT mentioned in a will that was executed before the child’s birth or adoption, is presumed to have been omitted accidentally, and is entitled to an intestate share of the testator’s estate, UNLESS: (a) the child was intentionally omitted; (b) the child is supported by transfers outside of the will; OR (c) the testator had more than one child and left all or substantially all of his estate with the parent of the omitted child.
- A child that is NOT mentioned in a will that was executed after the child’s birth is entitled to a share of the decedents estate ONLY IF the child was omitted because the decedent was unaware of the child’s existence or believed the child was dead.
