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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Estate Law
Satisfied Customers: 90186
Experience:  Experienced in Trust and Succession Law, including Louisiana Laws
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To have a personalized will that does not follow the form of

Customer Question

To have a personalized will that does not follow the form of California's Statutory Will be considered valid in California do two witnesses have to sign a declaration that includes each and every point (a through h) made in California's Statutory Will (the fill in the blank form)? What would be the minimum requirements for the witness declaration at the end of the will for it to be considered valid?

In the section to be signed by witnesses, the CA Statutory Will states: "Each of us declares under the penalty of perjury under the laws of the State of California that the following is true and correct: a. On the date written below the maker of this Will declared to us that this instrument was the maker's Will and requested us to act as witnesses to it; b. We understand this is the maker's Will; c. The maker signed this Will in our presence, all of us being present at the same time; d. We now, at the maker's request, and in the maker's and each others presence, sign below as witnesses; e. We believe the maker is of sound mind and memory; f. We believe that this Will was not procured by duress, menace, fraud or undue influence; g. The maker is age 18 or older; and h. Each of us is now age 18 or older, is a competent witness, and resides at the address set forth after his or her name."
Submitted: 1 year ago.
Category: Estate Law
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

The provisions you listed above establish the witness was a proper witness and under CA Probate Code 6110, this is what a will must have:

6110. (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.

Thus, as long as you can show the witnesses were competent witnesses (which is what everything you typed above is designed to show) the will can still be considered valid according to the above code.

Furthermore see CA Probate Code 6111 as well:

6111. (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.

Thus, either way the will under CA Probate Code could still be considered valid.




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Customer: replied 1 year ago.

Hey Paul. Thanks for your response. I wasn't saying that all the things I listed were in the will ... I was saying that those things were the things in the CA Statute Will ... and wanted to see which of those things (a through g) were actually required. I think your response answers my question, though, but let me rephrase to be sure ...


 


So according to 6110(c)(1), all that really needs to be shown for the witnesses is that they signed during the testator's lifetime (the testator and witnesses each signing and being present at the same time) and that the witnesses understood it to the the testator's last will that was being signed. And according to 6110(c)(2), even if there's an issue with 6110(c)(1), as long as there is clear evidence that at the time the Testator signed, he/she intended it to be his/her will, it's still valid.


 


So, as long as you have the testator signature, plus competent witnesses signatures that conform to 6110(c)(1) or (c)(2), the will is most likely considered valid, right?

Expert:  Law Educator, Esq. replied 1 year ago.
That is absolutely a correct understanding of what I said and what the statutes state.

Of course the other statutory requirement is a witness be at least 18 and of sound mind, which is where those other things you listed above come from, that is what makes them competent.

Furthermore, the statement you posted in your initial question is the effort to make the will "self proving" in that the witnesses are swearing to all of those things to give the will validity and if it is notarized then the will can be accepted without putting witnesses on the stand. You will see various variations of those statements in different pre-printed wills, but those statements are designed to show the will is freely executed to eliminate the need for bringing witnesses to court to attest that it was not done under coercion or duress.

Customer: replied 1 year ago.

Gotcha. Ok ... here's an extension of that ... what if I was originally just given a copy of the will and can't seem to find the original. Is a copy as valid as an original or not? (I'll bonus for the extra help.)

Expert:  Law Educator, Esq. replied 1 year ago.
I am afraid that in CA the copy of the will is not accepted by the court and the original is required in most cases unless you can prove that the original was lost in something like a fire. In general though, the original will is not acceptable because if the grantor rips up the original will it invalidates the will.
Customer: replied 1 year ago.

And how would a trust play into this at all, if most of the personal property was transferred into a trust prior to the will even being executed. Would the things that were placed in trust be exempt from the probate process? (But the problem there is finding the original document for that too. Just have a copy!)

Expert:  Law Educator, Esq. replied 1 year ago.
If anything is in a trust, that is exempt from probate and it is part of the trust and not his estate. If you have no original trust document without original signatures, the trust can be invalid and it will have to go to court and a good cause reason has to be proven why the original is not available. Again, the premise is that without original documents, the original trust could have been dissolved.
Law Educator, Esq., Attorney
Category: Estate Law
Satisfied Customers: 90186
Experience: Experienced in Trust and Succession Law, including Louisiana Laws
Law Educator, Esq. and other Estate Law Specialists are ready to help you
Customer: replied 1 year ago.

Just the issue of having the time to go through mountains of stuff!!!

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you very much. Yes, you need to do what you can to find the original. If an attorney did the trust, they would generally have an original of the documents.

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