Is My Will Valid And Enforceable?

A will is a document that directs what happens to your property when you die. The validity of a will is determined when it is executed, according to the laws of the state where you reside at the time it was made.

In general, a will must be written, signed by the testator, and witnessed by two witnesses who are present at the time of execution A will that does not comply with these requirements can still be established as a valid will by clear and convincing evidence that, at the time the testator signed the will, the testator intended the will to be the testator’s last will and testament.

The Writing Requirement

A basic requirement of a valid California will is that it must be in writing. A will can be handwritten or typed. If the will is written in the testator’s handwriting and signed by the testator, it is called a holographic will. Holographic wills require proof that (1) the testator intended the document to serve as his or her last will and testament, (2) the testator had testamentary capacity when he or she drafted the document. (3) the handwriting is that of the testator, and (4) the signature on the document belongs to the testator. Under California law a handwritten holographic will does not need to be witnessed.

The Signature Requirement

Under California law, in order to be valid a will must be (1) signed by the testator, (2) signed in the testator’s name by some other person in the testator’s presence and by the testator’s direction, or (3) signed by a conservator pursuant to a court order authorizing the signature.

Although under California law, the will can be signed by someone other than the testator, it is always good practice to have the testator sign the will whenever he or she has the physical and mental capacity to do so.

Witness Requirement

California law also requires the will to be signed by two witnesses. The witnesses must be “generally competent”, and sign in each other’s and the testator’s presence. The general competency requirement means that the witnesses must understand that what they are signing is the testator’s will. Witnesses should also be disinterested, meaning they should not be beneficiaries under the will.

However, just because the witness is “interested” does not mean that the entire will is invalid. It is legal under California law for an interested witness to witness a will. The problem is that any property devised to an interested person is presumed to have been procured by duress, menace, fraud, or undue influence, such that they will be precluded from taking property under the will. The presumption can be overcome, but doing so can be a difficult and time-consuming endeavor. Thus, wherever possible, make sure disinterested persons sign as witnesses to the will.

Age And Competency Requirement

Anyone 18 years old or over who is of sound mind can make a will under California law. This means the signer must have testamentary legal capacity. A testator generally has testamentary capacity to make a will or a trust if the testator is able to understand the nature of his testamentary act, the testator’s property, and the testator’s relations to his family and those whose interests are affected by the will.

Conversely, for example, a testator lacks testamentary capacity if he or she suffers from a mental health disorder involving delusions or hallucinations, which result in the testator’s devising property in a way that the testator would not have done but for the hallucinations or delusions.

Self-Proving Wills

When the proper will language and legal arrangements are present, the will can be considered “self-proving”. If self-proving, the court considers the will to be valid without the need for a long, protracted hearing process. In California, a separate affidavit is not required as it is in some states. Rather, a proper self-proving will would include a signed witness statement that, under penalty of perjury, the testator had the capacity and intent to make a will, and there was no undue influence. If a will is not self-proving, additional proof will be required, such as an affidavit or testimony from one of the witnesses to the will, or perhaps the attorney who oversaw its execution.

At Lynx Legal Service, help on any of these issues is simply a click or phone call away. Email info@lynxlegal.com or call our office at (888) 441-2355 to discuss your questions or if you are ready to start a case.