FORMALITIES
Requirements of a Valid Will
INTENTIONALITIES
FORMALITIES
Capacity
Undue Influence
Fraud
Duress
In Writing
Signed By The Testator
Witnessed
OR Holographic
Why In Writing?
Probate Code Section 6110. (a):
“Except as provided in this part, a will shall be in
writing and satisfy the requirements of this section.”

Who Is The Testator?
Probate Code Section 6110. (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.”

How Do You Witness A Will?
Probate Code Section 6110 (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.

When Do The Witnesses Sign?

Can You Sign At Any Time?
 Estate
of Saueressig
Holds That The Witnesses Must Sign The Will Before The
Death Of The Testator.
 Why Does This Case Control And Not Estate of Eugene?
 Why Does The Court Dismiss The Uniform Probate Code?
 What Does This Court Have To Say About The Importance of
This Formality?
 Estate
of Eugene
 What
Is Wrong With Allowing Post-Death Witness
Signatures When There Is The Disposition Is Uncontroverted
And There Is No Indication of Fraud?
Who Can Be A Witness?
Probate Code Section 6112. (a):
“Any person generally competent to be a witness may
act as a witness to a will.”

But Don’t Witnesses Have To Be
Disinterested?
Probate Code Section 6112 (b):
“A will or any provision thereof is not invalid because
the will is signed by an interested witness.”

A Disinterested Witness Does Not
Invalidate The Will, But…
Probate Code Section 6112 (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.”

What If The Presumption Is Not
Rebutted?
Probate Code Section 6112 (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.”

Let’s Go Back To Estate Of Saueressig

So They Only Have One Witness Signature, What
Do They Do?
 Probate
Code Section 6110(c)(2):
“If a will was not executed in compliance with
paragraph (1) [witness signature requirements], 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.”
Holographic Wills
Probate Code Section 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.”

Estate Of Williams

No Legal Signature
What Signature Counts?
Can Be Legal Signature, Initials, Nicknames, A Title, Etc., Just
Needs Sufficient Indicia Of Completeness From Which To
Conclude That The Name Was Intended To Be A Mark Of
Authentication.



What About Concern Of Counterfeit?
No Testamentary Language
What Does The Testator Have To Intend?
Not Create A Will, Only Make A Disposition Of Property
Upon Death.


What Evidenced The Testator’s Intent In This Case?
Estate Of Brenner

Why Wasn’t The Court Concerned Of Digital
Manipulation?
 What
If The Document Was Scanned Instead Of
Photocopied?
In Re Estate Of Kuralt
Was The First Holographic Will Valid?
 Was The Letter A Valid Holographic Will?
 What Is The Biggest Take Away From This Case?
Every Document Can Be Considered A Will If You
Underline The Word, “Inherit”

What Satisfies The Handwritten
Material Provisions Requirement?
Estate Of Williams
“Whether a document should be admitted into probate as
a holographic will depends on…whether words establish
that it was intended to be the author’s last will and
testament at the time she [or he] wrote it…Courts are to
use common sense in evaluating whether a will constitutes
a holographic will.”
 Estate Of Brenner
The Handwriting Does Not Have To Be The Original
Writing.
 Estate Of Sola
A Purported Holographic Will That Relies Upon
Typewritten Writing Found In The Document, Cannot Be
Found A Valid Holographic Will

What Can Be Considered Part Of The
Will?
Probate Code Section 6130
“A writing in existence when a will is executed may be
incorporated by reference if the language of the will manifests
this intent and describes the writing sufficiently to permit its
identification.”
 Probate Code Section 6131
Best Illustrated By Groupings,
“I Give To My Students All Of My Debt”
 Probate Code Section 6132
Allows For Incorporation By Reference Of Writings Disposing
Of Non-Money Tangible Personal Property, Even If The Writing
Is Made After The Will Executed

Will Interpretation

Probate Code Sections 21120, 21121, 2122 Sets Forth
The Following:

Every Provision Is To Be Presumed To Have An Effect

Likewise, Every Will Is To Be Presumed Valid
If One Provision Is Ambiguous, Another Provision May Be
Referenced To Explain The Ambiguous Provision
 Words Should Be Given Their Plain Meaning, Unless They
Are Technical Terms, Unless Then They Should Generally Be
Given Their Technical Meaning


From Estate Of Goyette:

“The fact that he made a will raises the presumption that he
intended to dispose of all of his property.”
How To Resolve Mistaken Or
Ambiguous Language
Probate Code Section 6111.5:
“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.”

Extrinsic Evidence

Citizens Business Bank v. Carrano
 Extrinsic
Evidence Can Only Be Introduced When
Language is “Fairly Susceptible” To More Than One
Interpretation.
 Extrinsic

Evidence Cannot Be Introduced To Show Ambiguity.
In Re Estate Of Kuralt
 What
Ambiguity Was The Court Resolving?