FORMALITIES OF EXECUTION FOR ATTESTED OR FORMAL WILLS

Question 1

Elements for an Attested Will (5 elements, the “traditional formalities”):

Answer 1

1. The Will must be in writing (CA does not recognize Oral Wills)
2. The will must be signed by Testator or, if Testator isn’t available: A third person, in testator’s presence and at testator’s direction. This arises if testator is incapacitated. By a conservator pursuant to a court order
3. The signing by testator, the third person, or the
   conservator must be done in the presence of two witnesses, both present at the same time.
4. The witnesses must sign the will during the
   testator’s lifetime.
5. The witnesses understand that the instrument they sign is Ts Will

NOTE: If the will does not satisfy elements 3, 4, or 5, of the “traditional formalities” approach, above, California’s “clear and convincing” standard (also known as the “harmless error rule”) may apply. In such case, the will can still be admitted into probate if the proponent of the will establishes by “clear and convincing evidence”
that at the time the testator signed the will, he or she intended the will to constitute his or her will.

Question 2

What if testator had previously signed alone or in the presence of just one of the witnesses? Does testator have to sign again in the presence of the two witnesses?

Answer 2

The answer is no.
In such case, testator simply acknowledges his signature (“This is my signature”) or acknowledges the will (“This is my will”), in the presence of the two witnesses, both present at the same time.

Question 3

Hypo: T privately signs his name to a typed document that is titled, “Will,” which makes testamentary dispositions.
However, there are no witnesses to T’s signing and T never acknowledges in the presence of any witnesses. Analysis:

Answer 3

Without any witnesses, T did not execute his will under the “traditional formalities” approach.

As to the harmless error (clear and convincing) approach, the statutory history and case law indicate that the harmless error rule was intended to cure witness execution problems—but we still need witnesses for a non-holographic will.

Further, no California court has ever held that witnesses are not needed for a non-holographic will.

Question 4

Approach for formalities of execution on the California Bar Exam:

Answer 4

1. always analyze the problem under the “traditional
   formalities”
2. if there is a problem with compliance under the
   “traditional formalities” then use the “clear and convincing” standard for those elements.

Question 5

Note the following in California (under even the more rigorous traditional formalities standard):

Answer 5

1. The witnesses do not have to sign in the presence of each other.
2. The witnesses do not have to sign in the presence of testator.
3. Testator does not have to declare to the witnesses, “this is my will” because California does not have a so-called “publication” requirement. Nonetheless, something about the execution process must convey to the witnesses the information necessary for them to understand that the document being signed is the testator’s will. (But even if the witnesses do not understand that the document is testator’s will, under the “clear and convincing” standard, this should not be a problem.)
4. Neither testator nor the witnesses have to sign at the end of the will: Signing anywhere on the will is okay in California.

Question 6

But must the Testator sign the will before the witnesses sign?

Answer 6

Typically, chronologically speaking, the normal course of
events is that first testator signs the will and then the witnesses sign the will.

Question 7

But what if the witnesses sign the will before the
testator signs?

Answer 7

The California statute is ambiguous as to whether the testator must sign before either or both of the witnesses.

Question 8

On the bar exam, if you get a hypo where the witnesses
sign before the testator signs, tell the bar examiners the
following:

Answer 8

“If there is no issue of fraud or mistake, the will should be deemed valid under California’s ‘substantial compliance’ doctrine (that is, if there is no fraud or mistake, the will is validly executed if there is substantial compliance with the Probate Code, even if not literal compliance)

In addition to the preceding analysis, also tell the bar
examiners that if the proponent establishes by clear and
convincing evidence that T intended the will to be his or
her will, the document is the will and is admitted into
probate.

Question 9

Testator must sign or acknowledge in the “presence” of two witnesses. What means presence? It means one of two things:

Answer 9

1. Sight presence: The witnesses see testator sign; or
2. Conscious presence: Testator signs or acknowledges
   within the witnesses hearing and the witnesses know
   what is being done.

But note, the failure of the testator to sign or
acknowledge in the presence of two witnesses does not
mean that the will cannot be probated; such a will still
may be admitted into probate under the “clear and
convincing” standard, discussed above.

Question 10

Interested witness defined:

Answer 10

a witness who is a beneficiary under the Will

Question 11

Consequences of finding an interested witness:

Answer 11

1. the Will is NOT invalid
2. But unless there are two other disinterested witnesses, a presumption arises that the witness-beneficiary secured the gift by wrongdoing.
3. If witness-beneficiary rebuts the presumption of wrongdoing, no problem: witness-beneficiary takes the gift.
4. If witness-beneficiary cannot rebut the presumption of wrongdoing, he or she takes the amount as does not exceed what would be given by intestacy.

The presumption of wrongdoing is inapplicable if witness-beneficiary is taking only in a fiduciary capacity.

Question 12

Conditional Wills

Answer 12

A conditional will is one whose validity is made conditional by its own terms.

The will is to be probated only if the condition is satisfied

Question 13

Can conditional Wills be holographic?

Answer 13

Yes