Execution of Attested Wills

Question 1

Requirements of a Valid Will

Answer 1

1. Testamentary Capacity
   a. Legal capacity; and
   b. Mental capacity
2. Testamentary Intent (Present)
   a. Lack of Undue Influence
   b. Lack of Duress
   c. Lack of Fraud
   d. Lack of Mistake
3. Compliance with Formalities of Execution
   a. Probate Code §6110 (for valid attested wills); or
   b. Probate Code §6111 (for valid holographic wills)

Question 2

What does a Will Not Affect

Answer 2

Joint Tenancy supersedes will (e.g., real estate, bank accounts, investment accounts).

POD Accounts (e.g., bank account with beneficiary attached to it, life insurance policy with beneficiary attached to it). The beneficiary designation supersedes will.

Assets in a Trust: The trust document controls over
the property in the trust

Question 3

What Can a Will Dispose Of?

Answer 3

100% of the testator’s SP

100% of the testator’s interest in the CP (50% of the total community estate).

100% of the testator’s interest in quasi-CP (50% of the total quasi-community estate).

Question 4

What are the Levels of Compliance for Attested Wills?

Answer 4

Strict Compliance
All formalities must be followed exactly. If all formalities
are not followed, will conclusively presumed invalid

Substantial Compliance
Focuses on whether the manner in which the will was
executed satisfied the purposes of the formalities.

Harmless Error
Although not executed in accordance with the formalities, if Testator’s intent can be established by clear and convincing evidence, the Will stands.

Question 5

Formalities of an Attested Will in California

Answer 5

An attested will must be:
1) In writing,

2) Signed by the testator or at testator’s direction,
- Can also be signed by a conservator pursuant to a court order to make a will

3) In front of at least 2 witnesses, during T’s lifetime, who understand that they are witnessing a will.
- Must be present at the same time (for T’s signing)
- Can witness the actual signing OR T’s acknowledgement of the signature
- Remember Line of Sight and Conscious Presence Rules

Question 6

Formalities of Execution: Traditional Rule

Answer 6

Strict Compliance

Question 7

Formalities of Execution: Modern Rule

Answer 7

Provides some room for “harmless errors” in execution of the will.

(Provided the proponent of the will can show the testator’s intent via clear and convincing evidence.)

Question 8

When MUST the witnesses be jointly present?

Answer 8

When Testator does one of the following:
1) Signs the will;
2) Acknowledges that the signature already on the will is T’s signature; or
3) Acknowledges the document is T’s will

Question 9

When do the Witnesses need to sign the will?

Answer 9

They don’t need to sign it immediately, but they must sign it anytime “during the testator’s lifetime.”

Question 10

Line of Sight Test for Witnesses

Answer 10

The testator must be CAPABLE of seeing the witnesses while testator is in the act of signing (does not ACTUALLY have to see them).

The will and both witnesses must be within the testator’s eyesight AT ALL TIMES during the act of the testator signing the will

(an exception is made for blind testators)

Question 11

Conscious Presence Test

Answer 11

CA Rule

The testator, through sight, hearing, or general consciousness of events, comprehends that the witness is present while testator signs.

Question 12

HYPO: Suppose T signed her will in her bedroom while the 2 witnesses were in the dining room. The witnesses knew T was in her room signing a will. T knew that the witnesses were in the dining room and could have walked into the dining room at any time to see them.

Does this meet the line of sight test?
Does this meet the conscious presence test?

Answer 12

LoS: No

Conscious Presence: Yes

Question 13

HYPO: Suppose T’s lawyer takes T’s will to T’s home, where T signs the will and the lawyer attests as a witness. The lawyer returns to her office with the will and has her secretary call T on the phone. By telephone, T requests the secretary to witness his will; the secretary then signs as an attesting witness.

Can the will be probated?

Suppose instead T requests the secretary to witness and the secretary does so with T watching via computer or smartphone video call. Can the will be probated?

Answer 13

Can the Will be Probated?
- § 6110: Witnesses must be present at the same time for T’s signing. Therefore NO because 3rd prong of valid will not met

Depends on when?

Question 14

HYPO: Suppose T, with the assistance of a caregiver, visits the 2 witnesses at their home. T tells the witnesses she needs them to “watch her sign something.” T then pulls out a pen and twirls it in the air while chanting “I’m signing….”, then signs the document. The caretaker then removes a witness attestation page and hands it to the witnesses, who then sign it. T and caregiver collect all papers then leave silently.

Can the will be probated?

Answer 14

A

Question 15

Who Can Be a Witness?

Answer 15

(a) Any person generally competent to be a witness may act as a witness to a will.

(b) The witness can be ‘interested’, but unless there are at least 2 other disinterested witnesses, there is a presumption that the gift was procured by fraud, duress, or undue influence.

BUT, the presumption does not apply if the gift is made to a person solely because of their fiduciary capacity (e.g. guardian of a minor child, trustee, conservator).

Question 16

Interested Witnesses Presumption

Answer 16

If the will makes a gift to an interested witness, but there are 2 other disinterested witnesses, then Interested witness gets the gift.

Otherwise, the interested witness must overcome the presumption by showing that no fraud, duress or undue influence exists (good friends/family, never knew getting gift, etc.

BUT, the presumption does not apply if the gift is made to a person solely because of their fiduciary capacity (e.g. guardian of a minor child, trustee, conservator)

Question 17

Who Can Be a Witness

Answer 17

Any person generally competent to be a witness may act as a witness (A legal adult: at least 18 years of age or older.)

A will is not invalid merely because it is signed by an interested witness.

Common law rule: interested witnesses could not testify about the validity of a will, therefore the will failed

Question 18

What is an Interested Witness?

Answer 18

Interested Witness: a person having a financial
interest in a will by being a beneficiary or a potential
beneficiary.

Question 19

What happens if a devise made by will to an interested witness fails because the witness failed to rebut the UI
presumption?

Answer 19

The witness’s share does not exceed the share of the estate which would be distributed to the witness if the will were not established.

Question 20

Signature Requirement

Answer 20

Will must be in writing and must be signed either by either:
1. The testator
- Does the signature comply with how T normally signs their name? (Full name or nickname/initials may require a showing of proof that they signed with initials or nickname in the past.)
- Signature by mark (“X”) is allowed if the document is also signed by least 2 witnesses; one witness signs/prints your name next to the mark, and signs their own name as the one who wrote your name in.

2. In the testator’s name by some other person in the testator’s presence & by the testator’s direction.
   - Line of Sight / Conscious Awareness tests apply
3. By a conservator pursuant to a court order to make a will under Section 2580.

Question 21

Harmless Error Rule

Answer 21

If a will was not validly witnessed, it shall be treated as such 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

Does not apply to codicils or words of revocation.