Execution Of Wills - Wills - Probate - CA

Section § 6110

This law explains how a will must be created to be considered valid in California. First, the will needs to be in writing. It must be signed either by the person making the will (the testator), someone else signing on behalf of the testator with their permission, or a court-appointed conservator. Additionally, the will needs to be signed by at least two witnesses who were present at the same time and who understand they're witnessing a will. However, if these witness requirements aren't initially met, the will can still be validated if it's proven that the testator intended the document to be their will at the time of signing.

(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.

(2) 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.

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Section § 6111

This law explains that a will can still be valid even if it doesn’t meet the usual requirements, as long as it is handwritten by the person making the will (the testator). Such a handwritten will is called a 'holographic will' and doesn't need to be witnessed.

If this will doesn't have a date, there are problems if it conflicts with another will or if there’s doubt about when it was written. If these issues arise, the handwritten will might not be valid unless it's clear it was written after the other will or during a time when the person was able to make decisions about their will.

Also, any expressions of the person’s intentions can either be in their handwriting or included in a form will. This means you can use part of a pre-printed form but need to write the important parts yourself.

(a) 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.

(b) If a holographic will does not contain a statement as to the date of its execution and:

(1) If the omission results in doubt as to whether its provisions or the inconsistent provisions of another will are controlling, 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.

(2) If 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.

(c) Any 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.

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Section § 6111.5

This law says you can use outside information, known as extrinsic evidence, to help figure out if a document is actually a will or what an unclear part of a will means.

Extrinsic evidence is admissible to determine whether a document constitutes a will pursuant to Section 6110 or 6111, or to determine the meaning of a will or a portion of a will if the meaning is unclear.

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Section § 6112

Anyone who can legally be a witness can serve as a witness to a will. A will isn't invalid just because it's signed by someone who stands to benefit from it (an interested witness).

However, if the will is signed by a witness who receives something under the will, it's assumed they might have used pressure or trickery to get it unless there are two other witnesses who don’t benefit.

If this assumption isn’t challenged, the witness only gets what they would receive if the will didn’t exist, unless they can prove they didn’t use influence to secure the gift. This doesn’t change other laws about influence over wills.

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

(b) A will or any provision thereof is not invalid because the will is signed by an interested witness.

(c) Unless there are at least two other subscribing witnesses to the will who are disinterested witnesses, the fact that the will makes a devise to a subscribing witness creates a presumption that the witness procured the devise by duress, menace, fraud, or undue influence. This presumption is a presumption affecting the burden of proof. This presumption does not apply where the witness is a person to whom the devise is made solely in a fiduciary capacity.

(d) If a devise made by the will to an interested witness fails because the presumption established by subdivision (c) applies to the devise and the witness fails to rebut the presumption, the interested witness shall take such proportion of the devise made to the witness in the will as does not exceed the share of the estate which would be distributed to the witness if the will were not established. Nothing in this subdivision affects the law that applies where it is established that the witness procured a devise by duress, menace, fraud, or undue influence.

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Section § 6113

This law explains the different ways a written will can be considered validly executed. A will is accepted if it follows certain requirements: it can be made under California's specific laws for wills, follow the rules at the location where it's signed, or adhere to the laws of the place the person lived or was a citizen of at the time of signing or death.

A written will is validly executed if its execution complies with any of the following:

(a) The will is executed in compliance with Section 6110 or 6111 or Chapter 6 (commencing with Section 6200) (California statutory will) or Chapter 11 (commencing with Section 6380) (Uniform International Wills Act).

(b) The execution of the will complies with the law at the time of execution of the place where the will is executed.

(c) The execution of the will complies with the law of the place where at the time of execution or at the time of death the testator is domiciled, has a place of abode, or is a national.

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