Saturday, July 27, 2013

Will Formalities – Those Picky Lawyers


Back again with more thoughts on Estate Planning after completing your divorce.  Previously, we discussed components necessary to make a valid Will.  In summary, you, as the person making the Will must have capacity and be competent to make a Will, with the intent to give upon your death, without outside influence, reduced to a writing, properly signed and witnessed.

Before we get into some of the substance of a standard Will, I thought it might be fun to hear some of the picky little requirements, that have had Will’s in court for hundreds of years as we perfect our rules to protect people in this gifting process.  Below I will spew some rules of law and for those who like fact checking, I will refer to the Probate Code by section number, commonly shortened to “PC §”.

A Will shall be in writing – PC§6110 (a) and by this law, California no longer accepts spoken, oral or nuncupative wills and has not done so since 1983.

The Will shall be signed by the Testator (the person giving under the will), in the Testator’s name by someone else, but in the presence of the Testator and at the Testator’s direction, or by a Conservator (court appointed caretaker) for the Testator – PC§6110 (b)(1)(2)(3).

A Will can be a valid holographic will, if the signature and material provisions are all in the handwriting of the Testator – PC§6111(a).

With these basic rules in hand, the courts have gone on to say, that a valid Will could be – typewritten, handwritten, a letter, a printed form, a printed form with typewritten or handwritten additions.  It may be one sided or two sided or multiple pages, even if not bound together.  The Will need not have been made all at one time.  The Will may be in pencil and/or ink, or different color ink, even at the same time.  A valid will may even be a carbon copy (for those of us who are old enough to remember “carbon paper”) and may even be marked as “duplicate” or “copy”.  A valid Will in California, may even be in a foreign language.  I share all of these weird little comments, only because at some time, some one, or many have fought over a Will being valid or not, because one of these odd facts came up.  For each of these odd facts, there are additional rules telling us how these are valid or not.

Another picky area for Wills, is witnessing the signature of the Testator.  Witnessing or Attestation is governed by PC§6110(c)(1) which states that the witnessing must be of the act of signing of the Will by the Testator, during the Testator’s life, of course it is tough to witness the signed by a dead person, by at least 2 persons, both present at the same time, so they can witness each other witnessing.  The witnesses may also both be present when the Testator claims that the Will was signed previously, so the Testator says, I signed this, and that is my signature.  The witnesses must also understand that they are witnesses of a Will and that they are signing the Will as witnesses.

A quick warning before we finish, a Will and the witnessing can be valid if a witness is an interest party under they will, that is, they stand to receive a benefit under the Will.  However this raises a presumption that the interested party procured their benefit under the will by some sort of duress or undue influence.  If that is the case, then it might be better to not be a witness if you are getting something under the will, or to have additional disinterested witnesses.  Just trying to avoid a family fight.

This was some odd bits in thinking about a basic Will.  Next blog will deal with a few other types of Will, including Holographic Wills and Statutory Wills. However, if you have any questions, feel free to respond below, or if you are interested in learning more about an Estate Plan, Wills, Trusts, Advanced Healthcare Directives, or Divorce, Custody, Visitation, Child Support, Spousal Support, Property Division, Modifications, Remarriage, or Pre-Nuptial Agreements, please contact me at http://www.fcbegun.com/, fbegun@gmail.com or at http://www.linkedin.com for Fred Begun.