2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
4/29/2012 1:48 PM
CALIFORNIA PROBATE CODE SECTION
6110(C)(2): HOW BIG IS THE HOLE IN THE
DIKE?
Peter T. Wendel*
I.
INTRODUCTION
Like many states, California recognizes two principal types of wills: a
formal/attested will, and a holographic will.1 A formal/attested will
requires a writing that is signed by the decedent and properly witnessed.2 A
holographic will also requires a writing that is signed by the decedent, but
the document need not be witnessed; instead the material provisions must
be in the decedent’s handwriting and it needs testamentary intent.3 Whether
*
Professor of Law, Pepperdine University School of Law. B.A., University of Chicago;
M.A., St. Louis University; J.D., University of Chicago. I thank Professor Grayson McCouch and
Ira Shafiroff for their helpful comments on earlier drafts. I also thank Taurean Brown, Tamara
Kagel, Maxfield Marquardt, Kristin Ingulsrud, Christopher Blake, and Carolyn Wendel for their
invaluable research and editing assistance.
1. CAL. PROB. CODE § 6110 (West 2009) (formal/attested will); CAL. PROB. CODE § 6111
(West 2009) (holographic will). California also recognizes a statutory will, CAL. PROB. CODE §
6221 (West 2009), but statutory wills are not as common as attested or holographic wills.
California has also adopted the Uniform International Wills Act, which recognizes international
wills regardless of form, the place where it is made, the location of the assets and of the
nationality, domicile, or residence of the testator, if it is made in compliance with the requirements
of the Act. See CAL. PROB. CODE §§ 6381–6384 (West 2009).
2. This statement of the requirements of a formal/attested will is a generic statement of the
principal requirements. Most state statutes setting forth the Wills Act formalities for a
formal/attested will also contain a plethora of additional minor details that elaborate on or qualify
to some degree these key requirements.
The California statutory requirements for a
formal/attested will are set forth in Probate Code section 6110. PROB. § 6110. Although not set
forth statutorily, it is also implicit that a formal/attested will must also have testamentary intent:
the decedent must have intended the document to be his or her will. See Fleming v. Morrison, 72
N.E. 499 (Mass. 1904). The requirement that a formal/attested will must be properly witnessed
virtually guarantees that the document will have testamentary intent. The requirement of
testamentary intent is implicit in the California statutory requirement that the witnesses must
understand that the document being witnessed is intended to be the testator’s will. CAL. PROB.
CODE § 6110(c)(1) (West 2009).
3. This statement of the requirements of a holographic will is a generic statement of the
387
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
388
S OU TH WES TER N LA W REVIE W
4/29/2012 1:48 PM
[Vol. 41
a document qualifies as a valid will, be it an attested will or a holographic
will, is a function of two variables: (1) the Wills Act formalities (i.e., the
statutory requirements for a valid will); and (2) the jurisdiction’s approach
to how strictly a party must comply with the Wills Act formalities (i.e.,
strict compliance versus substantial compliance versus harmless error).4
Historically California courts applied strict compliance in analyzing
whether a document complied with the California Wills Act formalities.5
Under strict compliance, the document must comply one-hundred percent
with each and every requirement set forth in the applicable Wills Act
formalities statute.6 Under strict compliance, even where there is clear and
convincing evidence the decedent intended the document to be his or her
last will and testament, the document does not qualify as a will if the
document does not comply completely with the state’s Wills Act
formalities.7
principal requirements. Some state statutes setting forth the Wills Act formalities for a
holographic will also contain a variety of additional minor details that elaborate on or qualify to
some degree these key requirements. See, e.g., ARIZ. REV. STAT. ANN. § 14–2502 (West 2005);
MONT. CODE ANN. § 72–2–522 (West 2011). The California statutory requirements for a
holographic will are set forth in Probate Code section 6111. PROB. § 6111.
4. Peter T. Wendel, The Succession Rights of Adopted Adults: Trying to Fit a Square Peg
Into a Round Hole, 43 CREIGHTON L. REV. 815, 825-26 (2010); Lawrence W. Waggoner, The
UPC Authorizes Notarized Wills, 34 ACTEC J. 83, 83-85 (2008) (discussing the UPC Wills Act
formalities and harmless error combination); see also Alan Newman, Revocable Trusts and The
Law of Wills: An Imperfect Fit, 43 REAL PROP. PROB. & TR. J. 523, 525-26 (2008) (discussing the
relationship between a jurisdiction’s Wills Act formalities and the degree of compliance the courts
require); Kelly A. Hardin, An Analysis of the Virginia Wills Act Formalities and the Need for a
Dispensing Power Statute in Virginia, 50 WASH. & LEE L. REV. 1145, 1157 (1993).
5. Estate of Mangeri observed that while there is a trend toward liberality in construing
statutes governing holographic wills, “Strict compliance with the code requirements as to
handwriting, date and signature remains essential. . . . ‘Statutory requirements must be strictly
followed in the execution of a will, and the testator’s intention is not to be considered in
determining whether such requirements have been met.’ Even rules of liberal construction do not
permit us to ignore clear and explicit statutory requirements. . . . The question whether a will was
executed in conformity with statutory requirements must be determined by reference to what the
statutes themselves require. It is not enough to say that the procedures actually followed, while not
in accordance with those requirements, were arguably as good.” 127 Cal. Rpt. 438, 441 (Ct. App.
1976) (quoting In re Howell’s Estate, 324 P.2d 578, 582 (Cal. 1958)) (citation omitted).
6. In re Howell’s Estate, 324 P.2d 578, 582 (1958) (en banc). “Statutory requirements must
be strictly followed in the execution of a will, and the testator’s intention is not to be considered in
determining whether such requirements have been met.” Id. (citing In re Estate of Moore, 206
P.2d 413, 414 (Cal. Dist. Ct. App. 1949)).
7. In re Seaman’s Estate, 80 P. 700, 701 (Cal. 1905) (“For the purpose of determining
whether a will has been properly executed, the intention of the testator in executing it is entitled to
no consideration. For that purpose only the intention of the Legislature, as expressed in the
language of the statute, can be considered by the court, and whether the will, as presented, shows a
compliance with the statute.”) (citing Estate of Walker, 42 P. 815 (Cal. 1895)).
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
2012]
C AL. P ROB . C OD E S E CT ION 6 1 1 0 (c)(2 )
4/29/2012 1:48 PM
389
While strict compliance was the traditional method of applying and
analyzing a jurisdiction’s Wills Act formalities, this approach came under
vigorous attack during the 1970’s.8 Critics claimed the courts were giving
too much weight to formalism at the expense of decedent’s intent.9 In his
landmark article Substantial Compliance With the Wills Act, Professor John
H. Langbein argued that the execution threshold for a valid will should be
lowered to substantial compliance so that a will that was not strictly
compliant with the applicable Wills Act formalities could nonetheless be
probated to preserve the intent of the decedent.10 In a subsequent article,
Professor Langbein advocated an even more generous harmless error
approach: as long as there is clear and convincing evidence that the
decedent intended the document to be his or her will, the court should
8. Critics of the strict compliance approach pre-date the 1970’s. On the academic front,
Gulliver and Tilson’s landmark article back in the 1940’s arguably started the shift from focusing
on the Wills Act formalities to the functions underlying the formalities. See Ashbel G. Gulliver &
Catherine J. Tilson, Classification of Gratuitous Transfer, 51 YALE L.J. 1 (1941). On the judicial
front, a number of courts began to adopt a “flexible” strict compliance approach, adopting a
substantial compliance approach on more of a doctrine-by-doctrine basis where they felt the
potential for fraud and risk of fraud were low as opposed to adopting an across the board
substantial compliance or harmless error doctrine. The conscious presence approach to the
witnessing requirement arguably is substantial compliance with the more traditional and stricter
line of sight test. See Jeffry L. Weiler, So How Contagious is the Testator?, 18 OHIO PROB. L.J.
115, 115 (2007) (acknowledging that conscious presence takes a more “flexible” approach to the
witnessing requirement). Delayed attestation (permitting witnesses to sign a will after the
testator’s death so long as the signing occurs within a reasonable time after witnessing the
testator’s signature or acknowledgement of the signature or of the will) arguably is substantial
compliance with the traditional attestation requirement. See In re Estate of Saueressig, 136 P.3d
201, 204-13 (Cal. 2006). The rule that a will is validly executed as long as all the parties sign the
will as part of one transaction is substantial compliance with the order of signing requirement. See
In re Morgan’s Estate, 223 N.Y.S.2d 537, 539 (1961) (acknowledging the “irreconcilable conflict
of authority as to the importance to be attached to the order of signing a testamentary paper if the
acts of subscription are substantially contemporaneous and are completed as one transaction . . .”).
The movement to soften the impact of strict compliance pre-dates and is independent of Professor
Langbein’s approach, but his landmark articles led to the Uniform Law Commission adopting his
curative doctrines. See Stephanie Lester, Admitting Defective Wills to Probate, Twenty Years
Later: New Evidence for the Adoption of the Harmless Error Rule, 42 REAL PROP. PROB. & TR. J.
577, 582 (2007). Hence, he is commonly cited as the catalyst of the prevailing reform movement.
9. See Gulliver & Tilson, supra note 8, at 2-3; see also Note, Change of Beneficiary Under
National Service Life Insurance, 54 YALE L.J. 451, 460 n. 39 (1945). In addition, the rise of the
revocable inter vivos trust, and its ease of creation, put pressure on the need for the formalities
associated with the execution of a will. In 1965, Norman Dacey, a mutual fund salesman, wrote a
book entitled How To Avoid Probate! The book shot up to number one on the non-fiction
bestseller list and sold over a million copies. The book not only argued that an inter vivos trust
had the advantage of avoiding probate, it imlicitly offered the trust as a simpler instrument to
execute. See Stanley M. Johanson, Revocable Trusts and Community Property: The Substantive
Problems, 47 Tex. L. Rev. 537, 537-38, 548-58.
10. See John H. Langbein, Substantial Compliance With the Wills Act, 88 HARV. L. REV.
489, 514 (1975).
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
390
S OU TH WES TER N LA W REVIE W
4/29/2012 1:48 PM
[Vol. 41
probate the will despite any deficiencies in its execution.11 The Uniform
Law Commission ultimately agreed, adopting and promulgating for state
adoption, as part of the Uniform Probate Code (“UPC”), a harmless error
approach to determining whether a decedent complied with the
jurisdiction’s Wills Act formalities.12
While a minority of states has followed the UPC’s intent-based lead,
repealing the traditional strict compliance approach in favor of either
substantial compliance or harmless error,13 for years most states—including
California—stood firm, resisting the growing tide of opinion that strict
compliance needlessly sacrificed testator’s intent.14 In 2008, however,
California’s Legislature finally relented and amended California Probate
Code section 6110 to include a harmless error provision.15 The California
Legislature did not, however, adopt the UPC harmless error doctrine
verbatim. Instead, as California is prone to do, it “modified” the UPC
approach to create its own harmless error doctrine.16 In doing so, however,
11. See John H. Langbein, Excusing Harmless Errors in the Execution of Wills: A Report on
Australia’s Tranquil Revolution in Probate Law, 87 COLUM. L. REV. 1, 6-7 (1987); Mark Glover,
Formal Execution and Informal Revocation: Manifestations of Probate’s Family Protection
Policy, 34 OKLA. CITY U. L. REV. 411, 430 (2009).
12. While some states adopted the substantial compliance approach, see, e.g., In re Will of
Ranney, 589 A.2d 1339, 1344 (N.J. 1991), by time the time the New Jersey court did, Professor
Langbein had already moved on and was advocating the harmless error approach. See Langbein,
supra note 10 at 513. Although the Uniform Law Commission rather quickly adopted Prof.
Langbein’s Harmless Error approach, see UNIF. PROBATE CODE § 2–503 (amended 2008), 8
U.L.A. 357 (1998), as of 2008 only a handful of states had followed suit. See HAW. REV. STAT.
ANN. § 560:2–503 (West 2010); MICH. COMP. LAWS ANN. § 700.2503 (West 2009); MONT.
CODE ANN., § 72–2–523 (West 2011); N.J. STAT. ANN., § 3B:3–3 (West 2009) (statutorily
adopting the Harmless Error approach, overruling In re Will of Ranney, supra note 12); S.D.
CODIFIED LAWS, § 29A–2–503 (2009); UTAH CODE ANN., § 75–2–503 (West 2009). In addition,
a modified version has been adopted by Colorado, see COL. REV. STAT. § 15–11–503 (West 2009)
(providing harmless error applies only if the document has been signed).
13. See Leigh A. Shipp, Equitable Remedies for Nonconforming Wills: New Choices for
Probate Courts in the United States, 79 TUL. L. REV. 723, 727 (2005); Matthew D. Owdom,
Casenote, Estate of Saueressig and Post–Death Subscription: The Protective Function Reborn, 39
MCGEORGE L. REV. 359, 362 (2008) (noting that while the “general rule” was strict compliance, a
“few” states had adopted a lesser standard).
14. See Joseph Karl Grant, Shattering and Moving Beyond the Gutenberg Paradigm: The
Dawn of the Electronic Will, 42 U. MICH. J.L. REFORM 105, 121 (2008); see also Hardin, supra
note 4, at 1158-59. In 1991, California did adopt a dispensing power approach to statutory wills.
See CAL. PROB. CODE §6226(c) (West 2009). Statutory wills, however, are not very commonly
used and so this adoption did not have much effect upon the typical testator and the typical
probate administration.
15. See CAL. PROB. CODE §6110(c)(2) (West 2009).
16. Compare UNIF. PROBATE CODE § 2–503 (amended 2008), 8 U.L.A. 357 (Supp. 2011),
with PROB. §6110(c)(2).
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
2012]
4/29/2012 1:48 PM
C AL. P ROB . C OD E S E CT ION 6 1 1 0 (c)(2 )
391
the California Legislature ended up with a statutory provision that raises
interesting questions with regard to the scope of the doctrine.
The principal questions concerning the scope of the California
harmless error doctrine can be highlighted by juxtaposing the California
harmless error doctrine with the UPC doctrine. In particular, the UPC
harmless error doctrine was designed to cure two recurrent classes of cases,
cases where the intent-based movement believes the decedent’s intent is
needlessly ignored in the name of unyielding formalism: (1) the
handwritten alteration to an attested will, and (2) the “near miss” attested
will execution ceremony.17 One can get a sense of the scope of the
California harmless error doctrine—and the questions concerning its
scope—by comparing how these two recurrent classes of cases come out
under the respective harmless error doctrines.
II. THE HANDWRITTEN ALTERATION TO AN ATTESTED WILL
The Official Comment to the UPC’s harmless error doctrine states that
there are two recurrent classes of cases that the harmless error doctrine was
designed to address:18 the handwritten alteration to an attested will, and the
“near miss” attested will execution ceremony.19 The paradigm handwritten
alteration to an attested will scenario involves a validly executed attested
will that the testator attempts to revise by scratching out a typed provision
and handwriting on the will an intended revision (sometimes initialing or
signing in the margin, sometimes not, but either way the revision is not
witnessed).20 The issue is whether the handwritten inter-lineation is a valid
codicil to the will.
A codicil is a testamentary instrument —a will—that amends or
modifies an existing valid testamentary scheme.21 As a will, it must comply
with the requirements of the Wills Act formalities.22 Assuming a
17. UNIF. PROBATE CODE §2–503 cmt. (amended 2008), 8 U.L.A. 357 (1998 & Supp. 2011).
18. Id.
19. Id.
20. See, e.g., In re Estate of Sola, 275 Cal. Rptr. 98, 99-100 (Cal. Ct. App. 1990) (stating
testator scratched out typewritten provisions and handwrote in pen); see also In re Estate of
Foxley, 575 N.W.2d 150 (Neb. 1998).
21. Black’s Law Dictionary defines a codicil as follows: “A supplement or an addition to a
will, not necessarily disposing of the entire estate but modifying, explaining, or otherwise
qualifying the will in some way.” BLACK’S LAW DICTIONARY 294 (9th ed. 2009); see also In re
Benson’s Estate, 145 P.2d 668, 671 (Cal. 1944) (discussing the difference between a will and a
codicil).
22. The California Probate Code expressly defines the term “will” to include a codicil. CAL.
PROB. CODE §88 (West 2009); see also Crook v. Contreras, 116 Cal. Rptr. 2d 319, 326-27 (2002)
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
392
S OU TH WES TER N LA W REVIE W
4/29/2012 1:48 PM
[Vol. 41
jurisdiction recognizes both holographic and attested wills, a codicil can be
either a holographic or an attested codicil.23
Historically, courts have applied the same strict compliance approach
to the execution of a codicil that they applied to the execution of a will.24
Under strict compliance, the classic “handwritten alteration to an attested
will” does not qualify as a valid codicil.25 The handwritten alteration fails
as an attested will/codicil because it was not witnessed, and it fails as a
holographic will/codicil because not enough of the material provisions are
in the testator’s handwriting.26 Thus, despite the clarity of the testator’s
intent, under strict compliance the handwritten alteration to the attested will
typically fails.27 The intent-based movement believes the testator’s intent
expressed in the handwritten alteration is needlessly being ignored in the
interest of rigid formalism and administrative convenience.28 The UPC
harmless error doctrine was adopted in part to address this scenario.29
(applying the requirements of Probate Code §6110 in analyzing whether a codicil to a will was
validly executed).
23. Because a codicil is a subset of a will, see supra notes 21-22, and California recognizes
both formal/attested wills and holographic wills, see supra notes 2-3 and accompanying text, a
codicil can be either an attested codicil or a holographic codicil. See also Estate of Archer, 239
Cal. Rptr. 137, 138 (1987) (analyzing validity of an offered holographic codicil); Estate of Steele,
169 Cal. Rptr. 635, 643 (1980) (acknowledging validity of testatrix’s formal, attested codicils).
24. See, e.g., In re Estate of Lahr, 744 P.2d 1267, 1267 (Okla. 1987) (upholding statute
requiring strict compliance in the execution of wills and codicils); In re Estate of Tolin, 622 S. 2d
988, 990 (Fla. 1993) (“[I]t is well settled that strict compliance with the wills statutes is required
to effectuate a revocation of a will or codicil.”).
25. See infra notes 26-27 and accompanying text.
26. E.g., In re Estate of Foxley, 575 N.W.2d 150, 153 (Neb. 1998) (noting the necessity of
material provisions in the testator’s handwriting in order to qualify as a holographic will); Wheat
v. Wheat, 244 A.2d 359, 363 (Conn. 1968) (requiring witnesses for the execution of a will).
27. When a handwritten interlineation fails and it was coupled with the testator scratching out
or lining out part of the underlying typed will, the proponent of the will may be able to salvage the
scratched out original typed provision under dependent relative revocation. See In re Estate of
Kaufman, 155 P.2d 831, 832-34 (Cal. 1945).
28. The Restatement (Third) of Property: Wills & Other Donative Transfers adopts the
intent-based approach to whether handwritten alterations to an attested will should constitute a
valid codicil. See RESTATEMENT (THIRD) OF PROP.: WILLS & DON. TRANS. § 3.2 (1999).
Comment g of the Reporter’s Notes discusses the Nebraska Supreme Court’s opinion in In re
Estate of Foxley, 575 N.W.2d 150 (Neb. 1998), one of the leading examples of the traditional
strict compliance approach to the handwritten alteration to an attested will. Comment g criticizes
the opinion as “By refusing to treat the nonhandwritten portions of the original, attested will as
extrinsic evidence that can be considered in determining testamentary intent and the meaning of
the handwritten codicil, the court reached a manifestly unjust result.” (Emphasis added.)
RESTATEMENT (THIRD) OF PROP.: WILLS & DON. TRANS. § 3.2, reporter’s notes, cmt. g (1999).
29. See supra note 17 and accompanying text.
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
2012]
4/29/2012 1:48 PM
C AL. P ROB . C OD E S E CT ION 6 1 1 0 (c)(2 )
393
A. THE UPC HARMLESS ERROR DOCTRINE
The UPC’s harmless error doctrine provides that a handwritten
alteration to a validly executed will—an alteration that otherwise does not
qualify on its own as a validly executed will—should nevertheless be
probated as long as the proponent of the alteration “establishes by clear and
convincing evidence that the decedent intended the . . . writing to
constitute . . . an addition to or an alteration of the will . . . .”30 In the
paradigm handwritten alteration to the will, the alteration is in the testator’s
handwriting and on the face of the will.31 Because the alteration is in the
testator’s handwriting there is little potential for fraud.32 In addition,
because the alteration is in the testator’s handwriting and on the face of the
testator’s will, there is strong evidence that the decedent intended the
writing to constitute an alteration of the will.33 The assumption is that in
the paradigm handwritten alteration to an attested will scenario there will be
clear and convincing evidence that the decedent intended the writing to
constitute an addition to or an alteration of the will, and therefore the
attested will, as modified by the handwritten alteration, should be
probated.34 The analysis is that straightforward under the UPC harmless
error doctrine.
Unfortunately, the structure and statutory wording of the California
harmless error doctrine injects an element of uncertainty into the analysis of
the same scenario.
B. THE CALIFORNIA HARMLESS ERROR DOCTRINE: DOES IT
APPLY TO HOLOGRAPHIC WILLS?
In analyzing whether the California harmless error doctrine applies to
the handwritten alteration to an attested will, the first issue is whether the
30. UNIF. PROBATE CODE §2–503 (amended 1997), 8 U.L.A. 357 (1998) (emphasis added).
31. On the “face” or front of the will as opposed to on the back. For an example of writing
on the back of the will, see Thompson v. Royall, 175 S.E. 748, 749 (1934).
32. See Michael G. Rogers, Put on Your Blinders and Get Your Earplugs: The Nebraska
Supreme Court’s Construction of the Nebraska Holographic Will Statute Excluding Evidence of
Testator Intent in Estate of Foxley v. Hogan, 254 Neb. 204, 575 N.W.2nd 150, 78 NEB. L. REV.
147, 153 (1999) (citing In re Estate of Foxley, 568 N.W.2d 912, 919 (Neb. App. 1997), rev’d 575
N.W.2d 150 (Neb. 1998)).
33. Id. at 158.
34. See Gongaware v. Donehoo 100 A. 264, 267 (Pa. 1917) (finding that an alteration
handwritten by the testator carries a presumption of legitimacy); see also Langbein, supra note 10,
at 519-20; Langbein, supra note 11, at 29-33.
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
394
4/29/2012 1:48 PM
S OU TH WES TER N LA W REVIE W
[Vol. 41
California harmless error doctrine applies to holographic wills. Inasmuch
as the alteration to the attested will typically is handwritten, and not
witnessed, it resembles a holographic codicil more than an attested
codicil.35 In order to qualify as a holographic codicil, however, the writing
must comply with the statutory formalities for a holographic will.36
Inasmuch as the classic handwritten alteration to an attested will fails as a
holographic will/codicil because all of the material provisions are not in the
testator’s handwriting (typically some of the material provisions are in the
underlying typed will),37 a critical threshold question is whether the
California harmless error doctrine applies to holographic wills at all; that is,
can the writing be probated even though it is not a validly executed
holographic will as long as there is clear and convincing evidence that the
decedent intended the writing to constitute his or her will? While this
question appears simple enough, the historical backdrop to, the statutory
structure of, and the legislative history behind the California harmless error
doctrine create an appearance of ambiguity with respect to whether it
applies to attested wills only or to both attested wills and holographic
wills.38
1. The Case Against the California Harmless Error Doctrine
Applying to Holographic Wills
a.
The California Statutory Backdrop
At first blush it would appear that the California harmless error
doctrine does not apply to holographic wills. Like many states, California
recognizes two principal types of wills: attested wills and holographic
wills.39 California Probate Code section 6110 sets forth the Wills Act
formalities for an attested will, and section 6111 sets forth the Wills Act
formalities for a holographic will.40 An attested will has three principal
35. Richard Lewis Brown, The Holographic Problem – The Case Against Holographic Wills,
74 TENN. L. REV. 93, 93-94 (2006); Owdom, supra note 13, at 361-66 (2008).
36. Mary F. Radford & F. Skip Sugarman, Georgia’s New Probate Code, 13 GA. ST. U. L.
REV. 605, 673 (1997); Rohan Kelley, Trusts and Estates: 1996 Survey of Florida Law, 21 NOVA
L. REV. 385, 418 n. 168 (1996) (quoting FLA. STAT. § 732.502 (1995)); see also TEX. PROB.
CODE ANN. § 63 (West 1980) (requiring codicils to be executed with the same formalities as those
required for wills); and CAL. PROB. CODE § 88 (defining a will to include a codicil, implicitly
requiring the same execution requirements).
37. See supra note 26 and accompanying text.
38. See infra notes 39-111 and accompanying text.
39. CAL. PROB. CODE §§ 6110-6111 (West 2009).
40. PROB. §§ 6110-6111.
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
2012]
C AL. P ROB . C OD E S E CT ION 6 1 1 0 (c)(2 )
4/29/2012 1:48 PM
395
requirements: (1) a writing that is (2) signed and (3) witnessed.41 The
statutory structure of section 6110 reflects these principal requirements.
Subdivision (a) of section 6110 sets forth the writing requirement,
subdivision (b) sets forth the signature requirement, and subdivision (c) sets
forth the witnessing requirement.42
The principal difference between an attested will and a holographic
will is a holographic will does not have to be witnessed, but to compensate
for the lack of witnesses the will must be in the testator’s handwriting and it
must have testamentary intent.43 In some jurisdictions a holographic will
also must be dated to be valid.44 Like section 6110, the statutory structure
of California Probate Code section 6111 reflects the principal requirements
of a holographic will. Subdivision (a) of section 6111 sets forth the
requirements that the holographic will must be in writing and the signature
and the material provisions must be in the testator’s handwriting,
subdivision (b) sets forth the California approach to the issue of whether the
holographic will must be dated, and subdivision (c) addresses the
testamentary intent requirement.45
It was against this statutory backdrop that the California Legislature
adopted the California harmless error doctrine, and it is against this
statutory backdrop that the California harmless error doctrine should be
analyzed.
b.
The California Harmless Error Doctrine
On July 1st, 2008, the California Legislature adopted a harmless error
doctrine as part of its Probate Code.46 Structurally, the California harmless
doctrine is not set forth in its own statutory section; rather it is a subparagraph of California Probate Code section 6110, the attested will
41. See In re Krause’s Estate, 117 P.2d 1, 2 (Cal. 1941).
42. PROB. § 6110.
43. Cf. PROB. § 6111; see also Estate of Southworth, 59 Cal. Rptr. 2d 272, 273 (1996).
44. See, e.g. PROB. § 6111(b).
45. PROB. § 6111.
46. California had previously adopted a harmless error provision as part of its Probate Code
but its application was limited to statutory form wills. CAL. PROB. CODE § 6226 (West 2009).
Because statutory form wills are not used very often it had little effect. The harmless error
doctrine that the California Legislature adopted in 2008 brought the harmless error doctrine into
the mainstream California probate process. Assem. Comm. on Judiciary, Bill Analysis, A.B.
2248, 2007-2008 Leg., Reg. Sess., 1-3 (Cal. 2008) (as amended March 24, 2008), available at
http://www.leginfo.ca.gov/pub/07-08/bill/asm/ab_22012250/ab_2248_cfa_20080328_171823_asm_comm.html (legislative intent regarding amending
CAL. PROB. CODE § 6110).
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
396
S OU TH WES TER N LA W REVIE W
4/29/2012 1:48 PM
[Vol. 41
statutory section.47 At the time California adopted its harmless error
doctrine, subdivision (c)(2) was added to section 6110, so that section 6110
now reads as follows:
(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
48
the will to constitute the testator’s will.
No changes were made to section 6111, the provision of the California
Probate Code governing holographic wills.49
An initial reading of the doctrine would appear to indicate that the
California harmless error doctrine applies to attested wills only, in
particular only to attested wills that fail for want of proper witnessing, and
not to holographic wills. This impression flows first from the statutory
structure of the doctrine. The California harmless error doctrine is not set
forth in its own statutory section.50 The California harmless error doctrine
is set forth as a sub-paragraph of subdivision 6110(c), the subdivision that
sets forth the witnessing requirements for a formal, attested will in
California.51 Further, the California harmless error doctrine makes no
reference to holographic wills.52 In adopting the California harmless error
doctrine, the California Legislature made no statutory references to
amendments to California Probate Code section 6111, the California
47.
48.
49.
50.
51.
52.
See infra note 48 and accompanying text.
CAL. PROB. CODE § 6110 (West 2009) (emphasis added).
See PROB. § 6111.
See infra note 51.
CAL. PROB. CODE § 6110(c) (West 2009).
See id.
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
2012]
4/29/2012 1:48 PM
C AL. P ROB . C OD E S E CT ION 6 1 1 0 (c)(2 )
397
statutory section that sets forth the Wills Act formalities for a holographic
will.53
The impression that the California harmless error doctrine applies only
to a failed attested will and not to a failed holographic will is further
supported when the California statutory structure and harmless error
doctrine is juxtaposed with the UPC statutory structure and harmless error
doctrine.
c.
The UPC Statutory Structure
Like the California Probate Code, the UPC recognizes two principal
types of wills: attested wills and holographic wills.54 Like the California
Probate Code, the UPC sets forth the Wills Act formalities for the
respective wills in separate statutory provisions.55 Unlike the California
Probate Code, however, the UPC requirements for an attested will and for a
holographic will are set forth in the same statutory section, section 2-502,
but the requirements are set forth in separate subsections. Subsection (a) of
section 2-502 of the UPC sets forth the requirements for a valid attested
will.56 Subsection (b) of section 2-502 sets forth the requirements for a
valid holographic will.57 It is against this statutory backdrop that the UPC
adopted its harmless error doctrine.
53. See id.; PROB. § 6111.
54. The UPC also recognizes notarized wills, but such wills are not very common and they
are not relevant to the issue under analysis. UNIF. PROBATE CODE § 2-504 (amended in 2008), 8
U.L.A. 363 (Supp. 2011).
55. See UNIF. PROBATE CODE § 2–502 (amended in 2008), 8 U.L.A. 350 (Supp. 2011).
56. UNIF. PROBATE CODE § 2–502(a) (amended in 2008), 8 U.L.A. 350 (Supp. 2011)
provides in pertinent part as follows:
(a) Except as provided in subsection (b) and in Sections 2–503, 2–506, and 2–513, a will
must be:
(1) in writing;
(2) signed by the testator or in the testator’s name by some other individual in the
testator’s conscious presence and by the testator’s direction; and
(3) signed by at least two individuals, each of whom signed within a reasonable time
after he [or she] witnessed either the signing of the will as described in paragraph (2) or the
testator’s acknowledgment of that signature or acknowledgment of the will.
57. § 2–502(b) provides in pertinent part as follows:
(b) A will that does not comply with subsection (a) is valid as a holographic will, whether or not
witnessed, if the signature and material portions of the document are in the testator’s handwriting.
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
398
4/29/2012 1:48 PM
S OU TH WES TER N LA W REVIE W
d.
[Vol. 41
The UPC Harmless Error Doctrine
The UPC’s harmless error doctrine is set forth in its own statutory
section, section 2-503, separate from the Wills Act formalities for attested
wills and holographic wills:
§ 2-503. Harmless Error.
Although a document or writing added upon a document was not executed
in compliance with Section 2-502, the document or writing is treated as if
it had been executed in compliance with that section if the proponent of
the document or writing establishes by clear and convincing evidence that
the decedent intended the document or writing to constitute (i) the
decedent’s will, (ii) a partial or complete revocation of the will, (iii) an
addition to or an alteration of the will, or (iv) a partial or complete revival
of his [or her] formerly revoked will or of a formerly revoked portion of
58
the will.
As the statutory structure and language of section 2-503 evidence, the
UPC harmless error doctrine applies to both attested wills and holographic
wills.59 The UPC harmless error doctrine expressly refers to a document
that was “not executed in compliance with Section 2-502” without
distinguishing between subsections (a) and (b), the subsections that set forth
the requirements for an attested will and a holographic will respectively.60
The failure to distinguish between the two subsections or to expressly
distinguish between attested wills and holographic wills implicitly reflects
the intended breadth of the UPC harmless error doctrine: it applies to both
types of wills. Moreover, the UPC’s harmless error doctrine is an
independent, free-standing statutory provision that applies to a whole host
of testamentary acts that a testator can perform, not just the attempted
execution of a will.61 The UPC harmless error doctrine applies whether the
testamentary act in question is the act of creating a will, revoking a will,
altering a will, or reviving a will.62
Just as the statutory structure and language of the UPC harmless error
doctrine supports the construction that it applies to both attested and
holographic wills, when juxtaposed with the California harmless error
doctrine it supports the impression that the California harmless error
doctrine applies to attested wills only, in particular only to attested wills
58.
59.
60.
61.
62.
UNIF. PROBATE CODE § 2–503 (amended in 2008), 8 U.L.A. 357 (1998).
Id.
See supra note 55 and accompanying text.
See Formalities of Will Execution, 34 EST. PLN. 45, 47 (2007).
UNIF. PROBATE CODE § 2–503 cmt. (amended in 199), 8 U.L.A. 357 (1998).
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
2012]
C AL. P ROB . C OD E S E CT ION 6 1 1 0 (c)(2 )
4/29/2012 1:48 PM
399
that fail for want of proper witnessing, and not to holographic wills. Unlike
the UPC, the California Legislature did not set forth its harmless error
doctrine in its own statutory section.63 Instead, the California Legislature
inserted the California harmless error doctrine into section 6110, the
statutory section that sets forth the Wills Act formalities for an attested will,
and made no reference to the doctrine in section 6111, the California
statutory section that sets forth the Wills Act formalities for a holographic
will.64
Although the California harmless error doctrine is similar to the UPC
harmless error doctrine in that it does not expressly reference an attested
will or a holographic will, the impression that California Probate Code
section 6110(c)(2) applies only to failed attested wills, and not to failed
holographic wills, is supported by the introductory clause of the California
harmless error provision.65 It expressly provides that it applies “[i]f a will
was not executed in compliance with paragraph (1).”66 Paragraph one deals
with the witnessing requirements for an attested will.67 If an attested will
was not executed in compliance with the statutory witnessing requirements,
the harmless error doctrine now provides an alternative method of
validating the document as the decedent’s last will and testament.68
Because holographic wills do not have a witnessing requirement,69 the
introductory clause, that the harmless error doctrine applies to a will that
“was not executed in compliance with [the witnessing requirement],” would
appear to support the position that the California harmless error doctrine
does not apply to holographic wills.70
e.
The California Harmless Error Legislative History
The impression that the California Legislature intended the more
limited California harmless error doctrine to apply to failed attested wills
only, and not to failed holographic wills, is also supported by the legislative
history behind the amendment.71 The legislative history focuses on, and
63. Compare CAL. PROB. CODE § 6110(c) (West 2009), with PROBATE CODE § 2–503
(amended in 2008), 8 U.L.A. 357 (Supp. 1998).
64. PROB. §§ 6110–11.
65. See id. § 6110(c)(2).
66. Id.
67. See id. § 6110(c)(1).
68. See id. § 6110.
69. See id. § 6111.
70. See supra notes 63-69 and accompanying text.
71. See infra notes 72-75 and accompanying text.
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
400
S OU TH WES TER N LA W REVIE W
4/29/2012 1:48 PM
[Vol. 41
makes repeated references to, attested wills that fail for technical reasons
under strict compliance.72 The March 24, 2008 California Bill Analysis
Report written by the California Senate Rules Committee refers only to
“printed” wills being affected by the harmless error doctrine:
DIGEST: This bill . . . also allows a printed will that fails to meet current
statutory requirements to be probated if the proponent of the will
establishes by clear and convincing evidence that the testator, at the time
he/she signed the will, intended the will to be his/her will.
ANALYSIS: Existing law requires a will to be signed by the testator and
witnessed and signed by at least two persons each of whom (1) was
present, (2) witnessed either the signing of the will or the testator’s
acknowledgement of the signature or of the will, and (3) understand that
the instrument they sign is the testator’s will. (Probate Code Section
6110.)
This bill provides that if a will was not executed in compliance with the
above statutory requirements, the will shall be treated as if it was in
compliance if the proponent of the will establishes, by clear and
convincing evidence, that at the time the testator signed the will, the
73
testator intended the will to constitute his/her will.
The reference to witnesses, coupled with the absence of any reference
to holographic wills, would lead one to believe the reference to “printed”
wills is a reference to formal, attested wills.74
The June 10, 2008 hearing of the Senate Judiciary Committee similarly
focused on failed formal, non-holographic wills:
Any deficiency in meeting the statutory requirements of a formal,
nonholographic will would render the will invalid. Thus, a court may not
admit the will for probate, and the distribution of the testator’s estate may
actually be made in conflict with the testator’s intent.
72. See S. Rules Comm., Bill Analysis, S. Doc. No. AB 2248, 2007-2008 Leg., Reg. Sess.
passim
(Cal.
2008)
[hereinafter
Senate
Rules
Committee
Report],
http://www.leginfo.ca.gov/pub/07-08/bill/asm/ab_2201-2250/ab_2248_cfa_20080612_121623_sen_floor_html; See S. Judiciary Comm., Bill Analysis, S. Doc. No. AB
2248, 2007-2008 Leg., Reg. Sess. passim (Cal. 2008) [hereinafter Senate Judiciary Committee
Report],
http://www.leginfo.ca.gov/pub/07-08/bill/asm/ab_2201-2250/ab_2248_cfa_20080611
_134146_sen_comm.html.
73. Senate Rules Committee Report, supra note 72, at 1-2 (emphasis added).
74. See. id.
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
2012]
4/29/2012 1:48 PM
C AL. P ROB . C OD E S E CT ION 6 1 1 0 (c)(2 )
401
This bill would adopt a harmless error rule in order to allow an imperfectly
75
executed formal will to be admitted into probate.
The repeated references to “an imperfectly executed formal will,”
coupled with the fact that the California harmless error doctrine was
inserted into the Section 6110, the statutory provision governing formal
attested wills, make a strong case for the position that the scope of the
California harmless error doctrine is limited to formal wills that fail for
want of proper witnessing and that it does not apply to failed holographic
wills.76
The problem with that conclusion is that, upon closer inspection, there
is also support in the statutory language and Legislative history for the
position that the California harmless error doctrine also applies to failed
holographic wills.77
2. The Case in Favor of the California Harmless Error Doctrin
Applying to Holographic Wills
a.
The Statutory Language
Although California Probate Code section 6110 is commonly
associated with formal attested wills, there is nothing in the statutory
language of the section that expressly limits its application to such wills.78
A careful reading of the statutory language reveals no express reference to a
formal or attested will, nor to a holographic will; it simply refers to “the
will” or “a will”:
(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
75.
76.
77.
78.
Senate Judiciary Committee Report, supra note 72, at 5 (emphasis added).
See supra notes 70-75 and accompanying text.
See infra notes 78-88 and accompanying text.
See PROB. § 6110.
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
402
S OU TH WES TER N LA W REVIE W
4/29/2012 1:48 PM
[Vol. 41
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
79
the will to constitute the testator’s will.
The requirement in subparagraph (a) that the will “shall be in writing,”
the requirement in subparagraph (b) that the will “shall be signed,” and the
requirement in subparagraph (c)(1) that the will “shall be witnessed” draw
no distinction between whether the terms of the will are printed or
handwritten.80 The absence of any statutory language limiting the harmless
error doctrine to failed formal wills or printed wills implies that it applies
regardless of whether the document is a printed will that fails for want of
proper witnessing or a holographic will that fails for want of the material
provisions being in the testator’s handwriting.81
79. Id. (emphasis added).
80. See id.
81. The California Court of Appeal for the Second District basically ruled as much in a
recent decision. In re Estate of Stoker, 122 Cal. Rptr. 3d 529, 534 (2011):
It is a prime rule of construction that the legislative intent underlying a statute ... must be
ascertained from its language; if the language is clear, there can be no room for
interpretation, and effect must be given to its plain meaning. Where the statute is inclusive,
containing no limiting or qualifying language to exclude persons from its scope, the words
the legislators used should control.
Here the statutory language is clear and broad, and there is no language to support the
limitation appellants propose. This statute applies to wills that are “in writing” and signed by
the testator. The 2005 document is a written will signed by decedent. The statute contains no
language to indicate that the wills covered by this section are limited to typewritten wills.
Consequently, handwritten non–holographic wills are not excluded from the scope of this
statute. Id. (internal citations and quotations omitted).
The court also noted that the statute should be construed broadly consistent with its remedial
purpose. Id.
In addition, the Legislature has shown in the past that, when it did not want a statutory
provision to apply to codicils, it knew how to do so. The 2000 version of subdivision (c) of
Probate Code section 21305 read: “Nothing in this section shall apply to a codicil executed after
January 1, 2001, unless the codicil specifically adds or amends a no contest clause contained in
the will or other testamentary instrument executed before January 1, 2001.” CAL. PROB. CODE §
21350 (West 2000) (current version at CAL. PROB. CODE § 21350 (West 2009)). There is no such
limiting language in Probate Code section 6110. See PROB. § 6110.
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
2012]
C AL. P ROB . C OD E S E CT ION 6 1 1 0 (c)(2 )
4/29/2012 1:48 PM
403
Historically, section 6110 became associated with formal attested wills
because of the express witnessing requirement in subparagraph (c).82 The
principal distinction between a formal, attested will and a holographic will
was the witnessing requirement in section 6110 and the absence of the
witnessing requirement in section 6111.83 In as much as the California
harmless error doctrine permits a probate court to dispense with the
witnessing requirement,84 the principal distinction—and the analytical
distinction—between a formal attested will and a holographic will has
largely been abolished.
While it likely would be hyperbolic to say that holographic wills have
been de facto abolished, it seems safe to say that, analytically, holographic
wills can now be viewed as a subset of failed formal wills. If the will is not
witnessed and the material provisions of the failed will are in the testator’s
handwriting (i.e., the traditional holographic will), the proponent of the
document needs to prove testamentary intent by only a preponderance of
the evidence.85 If the will is not witnessed and the material provisions of
the failed will are not in the testator’s handwriting (the new type of “will”
permitted by the harmless error doctrine), the proponent of the document
needs to prove testamentary intent by clear and convincing evidence.86
The harmless error doctrine moots, to a large degree, the traditional
attested versus holographic classification and analytical scheme. If a
testator types a will on her computer, prints it out, signs it, and dies that
night in her sleep, it does not matter whether one calls it a failed attested
will because it was not witnessed or a failed holographic will because the
material provisions are not in the testator’s handwriting. 87 Either way, the
document can still be probated under the California harmless error doctrine
as long as there is clear and convincing evidence that the decedent intended
the document to be her will when she signed it. 88
Under the California harmless error doctrine, it no longer makes sense
to ask if the doctrine applies only to attested wills or if it also applies to
holographic wills. To the extent one prefers to continue to think in terms of
attested wills and holographic wills, a failed holographic will fits within the
82. See PROB. § 6110(c).
83. Compare id. § 6110, with id. § 6111.
84. See id. § 6110.
85. See cf. In re Wolfe’s Estate, 67 Cal. Rptr. 297, 300-01 (Ct. App. 1968) (explaining the
proponent’s burden of proof in regard to testamentary intent); In re Estate of Bernard, 23 Cal.
Rptr. 828, 830 (Ct. App. 1962) (acknowledging that the standard of proof for a holographic will is
a preponderance of the evidence).
86. See PROB. § 6110(c)(2).
87. See supra notes 2-3 and accompanying text.
88. See PROB. § 6110(c).
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
404
S OU TH WES TER N LA W REVIE W
4/29/2012 1:48 PM
[Vol. 41
scope of the statutory language of the California harmless error doctrine just
as well as a failed attested will.
b.
The Legislative History
That the California harmless error doctrine was intended to apply to
failed holographic wills as well as failed attested wills is supported, not
only by the statutory language of Section 6110, but also by the legislative
history behind the amendment. Despite repeated references in the
legislative history to a failed formal will, which might lead one to conclude
that the harmless error doctrine was intended to apply to failed formal wills
only, near the end of the April 1, 2008 report of the Assembly Committee
on Judiciary is telltale proof that at least some members of the Legislature
intended the bill to apply to failed holographic wills as well:
The harmless error rule makes sense in any era, but is even more
important in an era of computers and the Internet, which are changing the
way people communicate and the way they find self-help legal
information. People increasingly sit at computers and type rather than pen
anything longer than a short note. Over time we will continue to see less
frequent use of hand-written holographic wills. Instead, people who want a
self-drafted will can be expected to type the will on the computer, print it,
and sign it. Additionally, people often now find wills and other legal forms
or software packages on line. They can often be expected to complete and
sign such wills without legal assistance and without following the proper
formalities for will execution. This harmless error rule will hopefully help
89
keep the will execution rules in step with the march of technology.
The hypothetical person described in the legislative report never
intended to have the will witnessed.90 The failure to witness the will is not
an oversight or a mistake.91 The individual intended a homemade will (i.e.,
a holographic will), not realizing that historically California required the
material provisions of holographic wills to be in the testator’s
handwriting.92 This legislative history indicates that at least some members
of the Legislature intended the California harmless error doctrine to apply
89. ASSEM. COMM. JUDICIARY, BILL ANALYSIS, Assem. Doc. No. AB 2248, 2007-2008
Leg., Reg. Sess., at 3 (Cal. 2008) [hereinafter ASSEMBLY JUDICIARY COMMITTEE REPORT],
http://www.leginfo.ca.gov/pub/07-08/asm/ab_2201-2250/ab_2248_cfa_20080328_171023_asmcomm.html.
90. See id.
91. See id.
92. See id.
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
2012]
C AL. P ROB . C OD E S E CT ION 6 1 1 0 (c)(2 )
4/29/2012 1:48 PM
405
to holographic wills that failed for want of handwritten material
provisions.93
This understanding that the California harmless error doctrine would
apply to both failed attested wills and failed holographic wills is expressed
again in the June 10, 2008 Senate Judiciary Committee report: “Traditional
penned holographic wills will give way to wills typed at the computer or
based on an Internet form.”94 Using the traditional attested/holographic will
terminology, these legislative comments clearly and expressly refer to a
failed “penned holographic” will—a holographic will that fails because the
material provisions are not in the testator’s handwriting. 95 These wills are
not formal attested wills that failed because of an “oversight or misstep”96
but rather documents that the testator never intended to have witnessed:
failed holographic wills. The California harmless error doctrine was
intended to apply to both failed attested wills and failed holographic wills.
3.
Conclusion
Despite the historical backdrop and the confusing—if not misleading—
statutory structure and language of the California harmless error doctrine,
on balance the better conclusion is that it was intended to apply to both
attested wills that fail for want of proper witnessing and holographic wills
that fail for want of the material provisions being in the testator’s
handwriting. As the legislative history notes: “Over time we will continue
93. See id. The legislative comment could also simply be an acknowledgement of the
increasing tendency of testators to make their own home-made wills. While home-made wills
have always been an option as long as California recognized holographic wills, the advent of
internet based wills has made more and more testators believe that they are capable of
downloading, printing, and executing their own will. The problem is that the classic downloaded
will does not meet the requirements of a holographic will because the material provisions are not
in the testator’s handwriting. It will be printed and many testators will not realize that the
downloaded document must be properly witnessed to be a valid formal will. Many testators will
simply sign the document and assume it qualifies as a valid will. The harmless error doctrine
arguably is intended to address this anticipated scenario. It also constitutes a functional approach
to the witnessing requirement. As long as the functions underlying the witnessing requirement are
otherwise served – there is clear and convincing that evidence at the time the testator executed the
will that he or she intended the document to be his or her will – the probate court can dispense
with the witnessing requirement. The modern trend movement, that the witnessing requirement is
no longer an indispensible element of a formal will is also reflected in the Uniform Probate
Code’s recognition of notarized wills, a will that is signed by the testator, notarized, but not
witnessed, and the material provisions need not be in the testator’s handwriting. See UNIF.
PROBATE CODE § 2-502(a)(3)(B) (amended in 2008), 8 U.L.A. 350 (Supp. 2011).
94. Senate Judiciary Committee Report, supra note 72, at 6.
95. See id.
96. See id. at 2.
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
406
S OU TH WES TER N LA W REVIE W
4/29/2012 1:48 PM
[Vol. 41
to see less frequent use of hand-written holographic wills. Instead, people
who want a self-drafted will can be expected to type the will on the
computer, print it, and sign it.”97 The scope of the California harmless error
doctrine is broader than one might first assume; it includes both failed
attested wills and failed holographic wills.98
C. THE CALIFORNIA HARMLESS ERROR DOCTRINE: DOES IT
APPLY TO CODICILS?
Returning to the question under analysis—how the California harmless
error doctrine deals with the first of two recurrent classes of failed will
cases the UPC harmless error doctrine was intended to address, the
handwritten alteration to an attested will—the only remaining analytical
issue is whether it should matter that the failed testamentary alteration
constitutes at best a codicil and not a will? At first blush, one would think
not. To qualify as a codicil, the writing must qualify as a will.99 To qualify
as a will, the writing must qualify as either an attested will or a holographic
will.100 The law makes no distinction between the execution requirements
for a will versus the execution requirements of a codicil.101 Why should it
make any difference, for purposes of the California harmless error doctrine,
if the testamentary instrument in question is a failed will or a failed codicil?
97. See Senate Judiciary Committee Report, supra note 72, at 6.
98. In light of the fact that the California harmless error doctrine applies to both failed formal
attested wills and failed holographic wills, one might question why the Legislature did not just put
the doctrine in its own statutory section, as the UPC does. A more cynical observer might argue
that the placement was intended to give the appearance of a narrower harmless error doctrine—
one that might be more politically acceptable even though it might lead to increased litigation to
clarify the full scope of the doctrine. But such a cynical observation would be pure speculation.
99. See CAL PROB. CODE § 88 (West 2002); CAL CIV. PROC. CODE § 17(5) (West 2006);
CAL CIV. CODE § 14(5) (West 2007); MD. INST. CONT’G PROF’L EDUC. LAWRS., WILL DRAFTING
IN MARYLAND § 3.3.1 (2007). “The Estates and Trust Article defines a will to include a codicil.
Therefore, the requirements and considerations applicable to the execution of a will apply to the
execution of a codicil.” Id. (commenting on the Maryland statutory approach). It is not a
coincidence that both the Uniform Probate Code and the California Probate Code minimize their
use of the term “codicil,” basically limiting its substantive use to the code section that defines
what constitutes a will. See PROB. § 88; UNIF. PROBATE CODE § 1–201(56) (amended in 2008), 8
U.L.A. 350 (Supp. 2011).
100. See supra note 1.
101. See supra notes 89-90.
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
2012]
1.
C AL. P ROB . C OD E S E CT ION 6 1 1 0 (c)(2 )
4/29/2012 1:48 PM
407
Legislative History
Surprisingly, the legislative history behind the California harmless
error doctrine claims that whether the failed instrument in question is a
failed will or a failed codicil makes all the difference. The June 10, 2008
Senate Judiciary Committee report clearly states that the proposed harmless
error doctrine does not apply to codicils: “Unlike the UPC language,
however, the proposed harmless error rule (new 6110(c)(2)) would only
apply to the testator’s will and not to any other writing such as a codicil, a
revocation of the will, or an alteration of a will.”102 The report goes on to
state: “Because the bill would apply only to the will itself and not to any
other writing such as a codicil, the use of the harmless error rule, and the
potential for fraud and abuse, would be limited.103 Unlike the contradictory
legislative history with respect to whether the California harmless error
applies to holographic instruments, there is no contradictory history with
respect to whether the California harmless error doctrine applied to
codicils.104 The legislative history is consistent and clear on that issue—the
doctrine itself, however, is not.105
Unfortunately, the statutory language that the California Legislature
adopted to express the California harmless error doctrine does not indicate
this limitation.106 The California Probate Code does not make any
distinction in the execution requirements for a will and a codicil.107
Codicils are a subset of wills.108 In terms of execution requirements, a
codicil has to qualify as a will.109 In analyzing whether the codicil should
qualify as a will, one would think that a California probate court would be
permitted to use the harmless error doctrine as it would be able to for any
other will. Why should it make a difference if the instrument is only a
codicil? Without express statutory language indicating that the California
harmless error doctrine does not apply to codicils there does not appear to
be any legal support for a court not applying the doctrine to codicils, nor is
there an ambiguity in the California harmless error doctrine that would
permit a court to invoke the clear legislative intent that the doctrine was not
intended to apply to codicils.
102.
103.
104.
105.
106.
107.
108.
109.
See Senate Judiciary Committee Report, supra note 72.
Id. at 6.
See id. at 5-6.
See id.
See PROB. § 6110(c)(2).
See supra notes 105-106 and accompanying text.
See PROB. § 88.
See supra note 22 and accompanying text.
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
408
S OU TH WES TER N LA W REVIE W
2.
4/29/2012 1:48 PM
[Vol. 41
Second Draft vs. First Draft
While the assertion that the California harmless error doctrine does not
apply to codicils makes little sense when viewed in the context of general
wills doctrine, the assertion makes sense when viewed in the context of the
historical backdrop and legislative history of the California harmless error
doctrine. In particular, in analyzing the assertion, one needs to factor in that
the first draft of the proposed California harmless error doctrine was based
upon, and worded almost identical to, the UPC harmless error doctrine.110
The initial proposal was to revise California Probate Code section 6110 to
read as follows, with the proposed revision indicated in bold:
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) The (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 (1) (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 (2) (B) understand that the instrument they
sign is the testator’s will.
(2) If a will, or a writing added upon a will, was not executed in
compliance with paragraph (1), the will or writing shall be treated as
if it was executed in compliance with that paragraph if the proponent
of the will or writing establishes by clear and convincing evidence that
the decedent intended the will or writing to constitute any of the
following:
(A) The decedent’s will.
(B) A partial or complete revocation of the will.
(C) An addition to, or alteration of, the will.
110. Compare UNIF. PROBATE CODE § 2–503, 8 U.L.A. 108 (Supp. 2011), with Assem. B.,
2007-2008 Leg., Reg. Sess., 2 (as introduced to the Cal. Assem. On Feb. 20, 2008) [hereinafter
Assembly Bill First Draft].
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
2012]
4/29/2012 1:48 PM
C AL. P ROB . C OD E S E CT ION 6 1 1 0 (c)(2 )
409
(D) A partial or complete revival of a formerly revoked will or a
111
formerly revoked portion of the will.
The first draft of the proposed amendment to section 6110 tracked the
language and scope of the UPC harmless error doctrine, expressly applying
not only to the act of executing a will, but also to the act of revoking a will,
the act of revising a will (i.e., creating a codicil), and the act of reviving a
will.112 In as much as a codicil is a will that amends or revises an existing
will,113 one can see how one might construe subsections (2)(B) and (2)(C)
of the first draft as expressly referring to codicils and indicating that the
harmless error doctrine would apply to codicils.
This first draft of the proposed California harmless error doctrine,
however, did not last very long in the California Legislature. A revised
proposal was rather quickly drafted, one that was based on a more
“simplified” version of the UPC harmless error doctrine;114 one arguably
with a much narrower scope.
(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
115
the will to constitute the testator’s will.
111. Assembly Bill First Draft, supra note 110, at 2.
112. Id.
113. See supra note 21 and accompanying text.
114. See Assem. B., 2007-2008 Leg., Reg. Sess. (as amended in the Cal. Assem. On Mar. 24,
2008) [hereinafter Assembly Bill Final Draft]. The revised bill was passed within the same year.
See Assem. B., 2007-2008 Leg., Reg. Sess. (as enacted in Cal. On Jul. 1, 2008) [hereinafter
Enacted Assembly Bill].
115. Enacted Assembly Bill, supra note 114.
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
410
S OU TH WES TER N LA W REVIE W
4/29/2012 1:48 PM
[Vol. 41
It was this modified version of the UPC harmless error doctrine that
was the subject of most of the legislative history behind the California
harmless error doctrine and it was this “simplified” version that was
ultimately adopted by the Legislature.116
Juxtaposing the California harmless error doctrine with the UPC
harmless error doctrine, it is easy to see why one might believe that the
California harmless error doctrine does not apply to codicils. The UPC
harmless error doctrine and the first draft of the California harmless error
doctrine have four subsections that expressly address the scope of the
doctrine.117 Two of the subsections, subsections (ii) and (iii) of the UPC
harmless error doctrine and subdivisions (2)(B) and (2)(C) of the first draft
of the California harmless error doctrine, appear to apply to codicils.118
Those subsections apply to “[a] partial or complete revocation of the will”
and to “[a]n addition to, or alteration of, the will.”119 A codicil partially
revokes or amends an existing will.120 It is clear that the UPC harmless
error doctrine and the first draft of the California harmless error doctrine
were intended to apply to codicils. This construction is supported by the
official comment to the UPC harmless error doctrine.121 When the
California Legislature decided to adopt the simplified version of the UPC
harmless error doctrine and deleted subsections (B), (C), and (D) from the
proposed California harmless error doctrine, one might think that by
deleting subsections (B) and (C) in particular the amendment would not
apply to attempted additions or alternations of a will, i.e., to codicils.122 But
the significance of the legislative history and the deleted subsections is
relevant only if there is an ambiguity in the statutory language that remains.
3.
Legislative History vs. Statutory Language
While the view that California’s harmless error doctrine does not apply
to codicils is understandable, in light of the statutory backdrop and
legislative history behind the amendment, it is not understandable—or
defensible—in light of the express language of the statutory amendment
that was adopted. Like the UPC, the California Probate Code expressly
defines a will to include a codicil.123 Thus, to be a valid codicil, the
116.
117.
118.
119.
120.
121.
122.
123.
Id.
See UNIF. PROBATE CODE § 2–503; Assembly Bill First Draft, supra note 110.
See supra note 117.
See supra note 117.
See PROB. § 6120.
See UNIF. PROBATE CODE §2–503 cmt. (amended 1997), 8 U.L.A. 109 (Supp. 2011).
See Assembly Bill First Draft, supra note 110, at 2.
See PROB. § 88.
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
2012]
4/29/2012 1:48 PM
C AL. P ROB . C OD E S E CT ION 6 1 1 0 (c)(2 )
411
document must qualify as a validly executed will—either attested or
holographic.124 Accordingly, for purposes of construing section 6110 as
applied to codicils, one might (without affecting the meaning of the section)
substitute the phrase “will or codicil” for the word “will” whenever the
statute uses the latter term:
(a) Except as provided in this part, a will or codicil shall be in writing and
satisfy the requirements of this section.
(b) The will or codicil 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 or codicil
under
Section
2580.
(c) (1) Except as provided in paragraph (2), the will or codicil 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 codicil or the testator’s acknowledgment of the
signature or of the will or codicil and (B) understand that the instrument
they sign is the testator’s will or codicil.
(2) If a will or codicil was not executed in compliance with paragraph
(1), the will or codicil shall be treated as if it was executed in compliance
with that paragraph if the proponent of the will or codicil establishes by
clear and convincing evidence that, at the time the testator signed the will
or codicil, the testator intended the will or codicil to constitute the
125
testator’s will or codicil.
The claim in the legislative history that the amendment to section 6110
does not apply to a codicil is not borne out by the statutory language of
section 6110 as amended.126 Nowhere in section 6110 is there an express
reference limiting the section or the harmless error doctrine to wills as
opposed to codicils.127 Moreover, there is not even an ambiguity in the
statutory language of section 6110 with respect to whether the revised
section 6110 applies to codicils that would permit a court to resort to the
legislative history.128 Even assuming, arguendo, there was such an
ambiguity, there is no reasonable construction of section 6110 as amended
that supports the view that it does not apply to codicils since the section
124.
125.
126.
127.
128.
See id. §§ 6110–6111.
Id. § 6110.
See id.
See id.
See id.
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
412
S OU TH WES TER N LA W REVIE W
4/29/2012 1:48 PM
[Vol. 41
fails to draw any distinction between a will and a codicil.129 If the
California Legislature truly intended for the California harmless error
doctrine not to apply to codicils, the California Legislature will need to go
back and address the issue because the statutory provisions of the adopted
California harmless error doctrine do not permit or support such a
construction. As adopted, the California harmless error doctrine applies to
both wills and codicils, as it should.
D. CONCLUSION
While not as clearly drafted as the UPC harmless error doctrine, the
California harmless error doctrine should apply to handwritten alterations to
attested wills just as the UPC harmless error doctrine does. The following
hypothetical proves the point.
Assume testator has a validly executed attested, typed will. It includes a
gift that provides as follows: “I give $100,000 to East Coast University
130
School of Law.”
Thereafter, testator decides to change the gift from
131
East Coast to West Coast University School of Law.
He takes out the
will, draws a line through the word “East Coast,” and handwrites in the
space right above it the words “West Coast.” The testator then initials the
changes in the margin and dates his initials. Thereafter testator tells a
number of people that he has changed the gift in his will from East Coast
School of Law to West Coast School of Law. Thereafter he dies. Is the
handwritten interlineation that attempts to change the gift from East Coast
Law School to West Coast Law School valid? Is the handwritten
interlineation a valid codicil?
As noted above, under the traditional analysis the handwritten
interlineation would not qualify as a valid codicil. It would not qualify as
an attested codicil because there were no witnesses present at the time the
testator created the writing, so it could not qualify as an attested codicil.132
It would not qualify as a holographic codicil because the material
provisions—the “who” gets “what”—of the proposed amendment are not in
the testator’s handwriting.133 Under the traditional analysis, the handwritten
alteration on the attested will would be invalid.
129.
130.
coast.
131.
coast.
132.
133.
See id.
Assume East Coast School of Law is an ABA approved law school located on the east
Assume West Coast School of Law is an ABA approved law school located on the west
See supra note 2, 22 and accompanying text.
See supra notes 3, 22 and accompanying text. While one could argue that the material
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
2012]
C AL. P ROB . C OD E S E CT ION 6 1 1 0 (c)(2 )
4/29/2012 1:48 PM
413
Under the new California harmless error doctrine, however, the
alteration on the will should be valid. Thus, there is a writing: the testator’s
original will as altered by the handwritten interlineation. There is a valid
signature. Any mark that the testator makes that he or she intends to be his
or her signature can qualify as a valid signature.134 Here, when the testator
wrote his initials next to the handwritten interlineation, he intended his
initials to constitute his signature. There is a properly signed writing.
There are no witnesses, but as discussed above, there need not be any
witnesses or even any attempt to have any witnesses under California’s
harmless error doctrine.135 The California harmless error doctrine expressly
provides that if the will is not properly witnessed, it can still be probated as
long as there is clear and convincing evidence that at the time the testator
signed the document he intended the document to constitute his will.136 In
light of the fact that he initialed the change and his subsequent statements to
others that he had changed the gift in his will from East Coast School of
Law to West Coast School of Law, there arguably is clear and convincing
evidence that the testator intended the handwritten interlineation to
constitute a valid codicil to his will. Under the California harmless error
doctrine, the handwritten alternation to the attested will should qualify as a
valid will—a codicil—and the gift should go to West Coast School of Law.
In light of California’s new harmless error doctrine, California probate
courts now have an additional tool they can use to analyze whether
handwritten interlineations on attested wills are valid codicils, a class of
recurrent cases that has generated much litigation over the years in
California.137
provisions are in the testator’s handwriting, such provisions are understandable only in the context
of the printed words of the underlying will. The courts have construed and applied the statutory
requirement that the material provisions must be in the testator’s handwriting as requiring a
complete and comprehensible statement of testamentary intent to be in the testator’s handwriting.
See Estate of Sola, 275 Cal. Rptr. 98, 101-02 (Ct. App. 1990).
134. In re Estate of Williams, 66 Cal. Rptr. 3d 34, 45 (Ct. App. 2007) (holding that the
signature need not be identical to other types of legal signatures and noting that, with respect to
wills, the requirement can be satisfied from everything from block letters to initials to an
affectionate saying penned by the author).
135. See PROB. § 6110(c)(2).
136. Id.
137. Compare Sola, 275 Cal. Rptr. at 101 (holding that the testator’s handwritten
interlineations on his previously executed attested will did not constitute a valid holographic will),
with Estate of Phifer, 200 Cal. Rptr. 319, 321 (Ct. App. 1984) (holding that decedent’s
handwritten interlineations on his attested will were insufficient to meet the requirements of the
holographic wills statute).
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
414
S OU TH WES TER N LA W REVIE W
4/29/2012 1:48 PM
[Vol. 41
III. THE “NEAR MISS” FAILED ATTESTED WILL
The second class of recurrent cases that the Official Comment to the
UPC indicates the harmless error doctrine was designed to address is the
“near miss” attested will execution ceremony.138 The classic “near miss”
execution ceremony involves a classic Wills Act formalities statute and a
classic execution attempt. The classic Wills Act formalities statute required
(1) the testator sign or acknowledge in the presence of two witnesses, and
(2) the witnesses sign in the presence of the testator.139 The classic
execution ceremony is where the testator signs in the presence of the
witnesses, and the witnesses sign in the presence of the testator.140 In the
paradigm ‘near miss’ execution scenario, to the layperson the testator
appears to sign in the presence of the witnesses, who appear to sign in the
presence of the testator, only to have the probate court rule that under strict
compliance the ‘presence’ requirement was not satisfied and the will is not
valid.141
A. PARADIGM “NEAR MISS” ATTESTED WILL
A classic example of the “near miss” attested will execution ceremony
is the case of Chester v. Smith:142
[O]n April 26, 2006, [Sara] Campbell, who was in poor health, attempted
to execute her Will while seated in the passenger seat of a car that was
parked in a bank parking lot. The driver of the car in which Campbell was
seated called a bank employee, Christina Evans, and asked Evans to come
outside to the bank parking lot to assist Campbell in executing her Will.
Evans agreed, exited the bank, and walked to the vehicle occupied by
Campbell. Evans read the Will to Campbell, and Campbell signed it while
still seated in the car. Evans then carried the Will inside the bank and
asked two bank tellers, Betty Wilson and Kim Hulsey, to sign the Will as
witnesses. Wilson and Hulsey signed the Will at their respective teller
stations inside the bank. Although the Will contained an attestation clause
that stated that the witnesses had signed the Will in Campbell’s presence,
138. UNIF. PROBATE CODE § 2–503 cmt. (amended in 1997), 8 U.L.A. 357 (1998 & Supp.
2011).
139. Compare id., with UNIF. PROBATE CODE § 2–502 (amended 2008), 8 U.L.A. 103
(requiring two witnesses to sign within a reasonable time after witnessing the signing of the will).
140. D N.Y. Prac., Trusts and Estates Practice in New York § 3:120 (referring to the
acknowledgement ceremony as the “less common” will execution ceremony).
141. UNIF. PROBATE CODE § 2–503 cmt. (amended in 1997), 8 U.L.A. 181 (1998).
142. 677 S.E.2d 128, 130 (Ga. 2009).
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
2012]
4/29/2012 1:48 PM
C AL. P ROB . C OD E S E CT ION 6 1 1 0 (c)(2 )
415
affidavits from Evans, Wilson, and Hulsey established that Campbell
could not have seen the witnesses sign the Will inside the bank based on
Campbell’s position in the parked car outside of the bank. Indeed,
Campbell remained inside the vehicle when the witnesses signed the Will,
and the structure of the bank directly prevented Campbell from seeing the
143
witnesses sign her Will inside the bank.
The jurisdiction applied the “line-of-sight” test to the presence
requirement: when the witnesses signed the will, the testator had to be able
to see the witnesses sign, if she so desired, without changing her position.144
Despite Sara’s efforts to execute her will, the Georgia Supreme Court
affirmed the lower court’s ruling that the will was invalid.145
Trust & Estate casebooks are replete with examples of “near miss” will
execution cases where a court strictly applies the “presence” requirement to
invalidate a will.146 Advocates of strict compliance believe the “near miss”
will needs to be denied probate to minimize the potential for fraud and to
minimize costs of administration.147 They argue the line between what
constitutes a validly executed will and what does not needs to be drawn
somewhere, and drawing it at strict compliance is the most efficient.148 The
UPC harmless error doctrine shifts the line, implicitly arguing that the
increased risk of fraud and costs of administration are worth probating
documents that the decedent clearly intended to be his or her will.149 The
classic “near miss” execution ceremony is an easy analysis under the UPC
harmless error doctrine.
143. Id. at 129-30.
144. Id. at 129 (“Georgia law requires . . . the witnesses . . . [of the] Will . . . [to] have signed
the Will in [the] . . . presence [of the testator] in order for the Will to have been properly
executed.”).
145. Id. at 130.
146. Although the casebooks are replete with such “near–miss” cases, it is unclear how often
they actually occur in the real world. Some commentators have argued such cases are rare in the
real world, support for the position that strict compliance actually serves its intended purpose.
Assuming, arguendo, such claims are defensible historically, the proliferation of internet will
forms raises the real risk that such “near–miss” cases will increase in the future as more and more
people try to execute their internet form wills at home.
147. See Bruce H. Mann, Formalities and Formalism in the Uniform Probate Code, 142 U.
Pa. L. Rev. 1033, 1036 (1994) (arguing that adhering to the standard forms of testamentary
writings reduces costs and increases the efficiency of the bureaucratic process of probate).
148. See id.
149. See James Lindgren, Abolishing the Attestation Requirement for Wills, 68 N.C. L. REV.
541, 572 (1990) (arguing that the attestation by witnesses requirement has become a trap for the
unwary and uneducated, invalidating wills and thwarting testator intent).
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
416
S OU TH WES TER N LA W REVIE W
4/29/2012 1:48 PM
[Vol. 41
1. The Classic “Near Miss” Analysis Under the UPC Harmless Error
Doctrine
The UPC harmless error doctrine was designed with an eye towards the
classic “near miss” will execution ceremony.150 The UPC harmless error
doctrine provides that even if a will is not executed in complete compliance
with the applicable Wills Act formalities, if there is clear and convincing
evidence that the decedent intended the document to be his or her will, the
document should be probated.151 The classic “near miss” execution
ceremony virtually guarantees that there will be clear and convincing
evidence that the testator intended the document to be his or her will. The
Chester case demonstrates this point.152 Sara’s efforts at executing the
will—driving to the bank, having Christina Evans come out to the car,
having Christina read the will to her before she signed it, and asking
Christina to take it into the bank and have two tellers sign it—virtually
guarantee that a court would conclude that there is clear and convincing
evidence that Sara intended the document to be her will.153 Sara’s actions
with respect to the document, not just her signing it, but her efforts to have
the witnesses sign it, and the witnesses’ act of signing it and their good faith
belief that it was her will, support the conclusion that there is clear and
convincing evidence that she intended the document to be her will. In the
classic “near miss” execution ceremony the conclusion is supported not
only by the actions and belief of the testator, but also by the actions and
belief of the witnesses because their actions were at the request of the
decedent and further evidence the decedent’s intent.
If the jurisdiction had adopted the UPC harmless error doctrine, the
Chester case would have come out differently—the court would have
probated the instrument as her will under the UPC harmless error doctrine.
2. The Classic “Near Miss” Analysis Under The California Harmless
Error Doctrine
The classic “near miss” will execution ceremony arguably comes out
the same way under the California harmless error doctrine as it would under
the UPC harmless error doctrine. The California harmless error doctrine
150. See UNIF. PROBATE CODE §2–503 cmt. (amended 1997), 8 U.L.A. 109 (1998).
151. See id.
152. See Chester, 677 S.E.2d at 129-30.
153. See id. The court continuously refers to the failed writing as Sara’s “Will,” never
questioning her testamentary intent with regard to the document. Id.
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
2012]
C AL. P ROB . C OD E S E CT ION 6 1 1 0 (c)(2 )
4/29/2012 1:48 PM
417
provides that if the document was not properly executed in compliance with
the applicable Wills Act formalities, the document can still be probated as
the decedent’s will “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.”154 The only added
wrinkle between the UPC harmless error doctrine and the California
harmless error doctrine is the express requirement that the clear and
convincing evidence that the decedent intended the document to be his or
her will must exist “at the time the testator signed the will.”155 In the classic
“near miss” will execution ceremony, the added temporal requirement
under the California harmless error doctrine should make no difference.156
The classic “near miss” execution ceremony virtually guarantees that
there will be clear and convincing evidence the testator intended the
document to be his or her will “at the time the testator signed the will.”157
The Chester case demonstrates this point. Sara’s efforts at executing the
will—driving to the bank, having Christina Evans come out to the car,
having Christina read the will to her before she signed it, asking Christina
to take it into the bank and have two tellers sign it—virtually guarantee that
a court would conclude that there is clear and convincing evidence that at
the time Sara signed the document she intended it to be her will.158 This
conclusion is supported not only by Sara’s actions and belief with respect to
the document at the time she signed it—her signing it, her attempts at
having the witnesses sign it, and her good faith belief that it was properly
executed—but also by the witnesses’ acts and belief with respect to the
document at the time they signed it—the witnesses’ act of signing it and
their apparent good faith belief that it was her will.159
The analysis of the classic “near miss” execution ceremony is virtually
the same under the California harmless error doctrine as it is under the UPC
harmless error doctrine. Just as with the UPC, if the jurisdiction had
adopted the California harmless error doctrine, the Chester case would have
come out differently—the court would have probated the instrument as her
will under the harmless error doctrine.160 The added temporal component to
154. See PROB. § 6110(c)(2).
155. Compare UNIF. PROBATE CODE § 2–503 (amended in 1997), 8 U.L.A. 181 (1998), with
PROB. § 6110(c)(2).
156. The added temporal requirement under the California harmless error doctrine may make a
difference, however, in non–traditional “near miss” scenarios. See infra § III.B.
157. See supra text accompanying notes 152-53.
158. See Chester, 677 S.E. 2d at 129-30.
159. See id.
160. See PROB. § 6110(c)(2).
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
418
S OU TH WES TER N LA W REVIE W
4/29/2012 1:48 PM
[Vol. 41
the California harmless error doctrine makes no difference in the classic
‘near miss’ will execution ceremony, but it does make a difference as one
moves further afield from that paradigm.
B. PARADIGM ‘NEAR MISS’ ACKNOWLEDGED WILL
In analyzing the scope of the harmless error doctrine as it applies to
“near miss” will execution ceremonies, one must remember that there are
two ways a testator can properly execute a formal will: (1) the testator can
sign the will in the presence of two or more witnesses (who then typically
sign the will in the presence of the testator); and (2) the testator can sign the
will outside the presence of the witnesses, but then later acknowledge his or
her signature in the presence of two or more witnesses (who then typically
sign the will in the presence of the testator).161 Although the harmless error
doctrine applies to both types of failed execution ceremonies, there are
differences between the two failed ceremonies that require separate
analyses of the classic “near miss” acknowledged attested will execution
scenario.
A classic example of a “near miss” acknowledged attested will
execution ceremony is the case of In re Groffman.162 Charles Groffman
went to an attorney who drafted a will for Charles’ execution.163 Charles
did not execute it at the attorney’s office.164 Instead the attorney gave him
general instructions on how to execute a will and assumed that Charles,
being an intelligent man, could read and follow the attestation clause.165
Charles and his wife used to get together weekly with friends, the
Blocks and the Leighs.166 On a number of these occasions Charles
mentioned to Mr. Block and Mr. Leigh that Charles had a will that he
would like them to witness.167 One night, Charles brought the will with him
to one of their weekly gatherings.168 After spending some time in the
161. Id. § 6110(c)(1)(A).
162. [1969] 1 W.L.R. 733 (Eng.P.). For similar California strict compliance decision
examples, see In re Lawrence’s Estate, 237 P. 738, 739 (Cal. 1925) (holding will invalid where
only one witness actually saw the decedent sign the will and second witness signed will nearly a
week later), or In re Emart’s Estate, 165 P. 707, 710 (Cal. 1917) (holding will invalid where
witnesses missed each other by a few hours).
163. See Groffman, 1 W.L.R. at 735.
164. See id.
165. See id.
166. See id.
167. See id.
168. See id.
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
2012]
4/29/2012 1:48 PM
C AL. P ROB . C OD E S E CT ION 6 1 1 0 (c)(2 )
419
lounge socializing, Charles indicated that he wished Mr. Block and Mr.
Leigh to witness his will.169 Charles did not pull the will out immediately,
however.170 Instead, after realizing that the coffee table in the lounge was
cluttered with teacups and cake, Mr. Block led Charles across a small hall
into the adjacent dining room where there was a clear table.171 Charles
pulled the will out then and placed it on the table.172 Mr. Block noted
Charles’ signature was already on the will, which Charles acknowledged.173
Mr. Block then added his signature to the will.174 Mr. Block then returned
to the lounge where Mr. Leigh, “who seems to have been somewhat
cumbrous in his movements,” was still waiting.175 Mr. Block said to Mr.
Leigh, “It is your turn now, don’t keep him waiting, it’s cold in there.”176
Mr. Leigh then went into the dining room and repeated the execution
ceremony Mr. Block had performed.177 Mr. Block stayed in the lounge.178
Following Charles death in 1967, his widow expressed surprise and
dissatisfaction with the terms of Charles’ will.179 At first she planned to
challenge his characterization of some of the property as his separate
property but, after consulting with her solicitor, she decided to challenge the
validity of the will.180
In analyzing whether the will was duly executed, the court began by
declaring that it was “satisfied that the document does represent the
testamentary intentions of the deceased.”181 Nevertheless, the court
acknowledged that it was not purely a question of testamentary intent but
rather a question of whether the decedent had complied with the statutory
requirements:
I am bound to apply the statute, which has been enacted by Parliament for
good reason. The provision with which I am concerned is section 9 of the
Wills Act, 1837. That reads:
“. . . no will shall be valid unless it shall be in writing and executed in
manner hereinafter mentioned; (that is to say,) it shall be signed at the foot
169.
170.
171.
172.
173.
174.
175.
176.
177.
178.
179.
180.
181.
See id.
See id.
See id.
See id.
See id.
See id.
Id.
Id.
See id.
See id.
See id. at 736.
See id.
Id.
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
420
S OU TH WES TER N LA W REVIE W
4/29/2012 1:48 PM
[Vol. 41
or end thereof by the testator, or by some other person in his presence and
by his direction; and such signature shall be made or acknowledged by the
testator in the presence of two or more witnesses present at the same time,
and such witnesses shall attest and shall subscribe the will in the presence
of the testator, but no form of attestation shall be necessary.”
The question, as I have indicated, is whether the testator acknowledged
his signature in the presence of Mr. Block and Mr. Leigh, those two
182
witnesses being present at the same time.
In analyzing the issue, the court analyzed what constitutes being in the
“presence” of another for purposes of the Wills Act formalities.183 The
court applied the traditional “line of sight” approach that requires the party
to be able to see, if he or she were to look, the other party’s performance. 184
The court concluded that the will was not acknowledged by Charles in the
presence of two witnesses “present at the same time . . . .”185 The court
acknowledged that even though the execution ceremony failed by just a
matter of seconds, the will was not validly executed under strict
compliance.186 The court invalidated the will apologetically:
In the end, therefore, although I would gladly accede to the arguments for
the plaintiffs [the will proponents] if I could consistently with my judicial
duty, in my view there was no acknowledgment or signature by the
testator in the presence of two or more witnesses present at the same time;
187
and I am bound to pronounce against this will.
182. Id. at 737-38.
183. Id. at 738.
184. See id. “[T]here is no sufficient acknowledgement unless the witnesses either saw or
might have seen the signature, not even though the testator should expressly declare that the paper
to be attested by them is his will.” Id. (citing Blake v. Blake, (1882) 7 A.C. 102 at 107 (Eng.).
185. See id. at 739.
186. See id.
187. Id. at 740. Advocates of the intent-based harmless error approach point to the holding in
Groffman as a classic example of the problem with strict compliance: the court failed to honor
testator’s intent arguably for no good reason. The Wills Act formalities are intended to serve a
number of functions: evidentiary, protective, ritualistic, and channeling. To the extent the Wills
Act formalities grew out of the Statue of Frauds, there are three principal requirements: (1) a
writing, (2) that is signed, and (3) properly witnessed. While each of the requirements arguably
serves each of the functions to some degree, each requirement pairs up particularly well with one
of the underlying functions. The writing requirement primarily serves the evidentiary function.
Written evidence of the testator’s testamentary intent is better than the witnesses’ recollection of
alleged oral statements by the testator of his or her final wishes. The signature requirement
primarily serves the ritualistic function, bringing home to the testator the finality of the act he or
she is performing. After signing the will, the terms of the will control how the testator’s property
will be distributed upon his or her death. The witnessing requirement primarily serves the
protective function, protecting the testator against fraud, duress or other wrongful conduct by a
third party. And historically the cumulative effect of the Wills Act formalities served the
channeling function, channeling lay people to attorneys for help in drafting and executing their
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
2012]
1.
C AL. P ROB . C OD E S E CT ION 6 1 1 0 (c)(2 )
4/29/2012 1:48 PM
421
The UPC Harmless Error Doctrine
There is little doubt that under the UPC harmless error doctrine the will
would have been deemed validly executed and Charles’ intent would have
been honored. The UPC harmless error doctrine permits a court to probate
a document that otherwise fails as a will as long as “the proponent of the
document or writing establishes by clear and convincing evidence that the
decedent intended the document or writing to constitute . . . the decedent’s
will.”188 The wording of the document, Charles’ signature on it, his
acknowledging his signature to each of the witnesses, the witnesses’ signing
the will—these facts combine to prove, by clear and convincing evidence,
that Charles intended the document to be his will.189 The paradigm “near
wills to maximize the chances that the will would be probated, and maximizing the chances that
the testator’s intent would be expressed in a way that a court could understand and give effect to it
at minimal administrative costs for both the estate and the probate system.
As applied to the Groffman case, there is little doubt that the functions underlying the Wills
Act formalities were satisfied. The writing, the document submitted as Charles’ will, satisfied the
evidentiary function. The document clearly evidenced his testamentary intent. The execution
ceremony, Charles acknowledging his signature to Mr. Block and then to Mr. Leigh, satisfied the
ritualistic function; it brought home to Charles the finality of the act he was performing – that
following his death, this is how his property was to be distributed. The witnessing and attestation
ceremony, Charles’ acknowledging his signature to Mr. Block and then a few moments later to
Mr. Leigh, and their signing the will, satisfied the protective function; the mere seconds that
passed between Mr. Block being in the dining room and Mr. Leigh being in the dining room did
not open the execution ceremony to any meaningful risk of wrongful conduct by either witness or
a third party. The only possible function served by striking down the will was the channeling
function, but even here the court declared that it thought the channeling function had been served
adequately. Charles went to an attorney to have his will drafted. The attorney gave Charles
instruction on how to properly execute the will:
The [attorney] … told the deceased very generally what was the right method of execution;
but realising that the deceased was an intelligent man relied in the main on the attestation clause to
be a guide to the deceased. That was in the usual form, and it seems to me to have been a perfectly
reasonable course for the [attorney] … to have taken. Id. at 735.
In as much as the court concluded that each of the functions of the Wills Act formalities was
adequately served by the execution ceremony, harmless error advocates argue only blind
allegiance to strict compliance justifies refusing to recognize Charles’ will.
188. See UNIF. PROBATE CODE § 2–503 cmt. (amended 1997), 8 U.L.A. 108 (1998).
189. See Groffman, 1 W.L.R. at 737. Even if a court were to apply the more stringent
substantial compliance doctrine, there is clear and convincing evidence that Charles intended the
document to be his will, and there is clear and convincing evidence that Charles substantially
complied with both the Wills Act formalities and the functions underlying them. As noted above,
the execution ceremony—though flawed—constitutes clear and convincing evidence that Charles
intended the document to be his will. And there is clear and convincing evidence that the
execution ceremony performed substantially complied with both the Wills Act formalities and the
functions underlying them. The execution ceremony failed to comply with strict compliance by
merely a matter of seconds.
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
422
S OU TH WES TER N LA W REVIE W
4/29/2012 1:48 PM
[Vol. 41
miss” acknowledged attested will execution ceremony is easy to analyze—
and cure—under the UPC harmless error doctrine.190
2.
The California Harmless Error Doctrine
While the Groffman case constitutes a classic “near miss”
acknowledged attested will execution ceremony that fits neatly into—and is
cured by—the UPC harmless error doctrine, the analysis is not so
straightforward under the California harmless error doctrine. Like the UPC
harmless error doctrine, the California harmless error doctrine authorizes a
court to probate an otherwise invalid will as long as there is “clear and
convincing evidence that the testator intended the will to constitute the
testator’s will.”191 As the court in Groffman intimated, based on the failed
execution ceremony, there arguably is clear and convincing evidence that
Charles intended the document he acknowledged in front of Mr. Block and
Mr. Leigh to be his last will and testament.192 At first blush, it appears the
California version of the harmless error doctrine applies to validate the will
in Groffman just as easily as the UPC harmless error doctrine did—but not
so fast.
a.
The Added Temporal Component
The California Probate Code’s harmless error doctrine has an express
temporal component that is absent from the UPC approach.193 The
California harmless error doctrine authorizes the court to probate an
improperly witnessed will only 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.”194 Under the
UPC harmless error doctrine, all that is necessary is that the proponent of
the will prove, by clear and convincing evidence, that “the decedent
intended the document or writing to constitute . . . the decedent’s will.”195
190. See supra notes 188-189 and accompanying text.
191. PROB. § 6110(c)(2) (West 2009).
192. See Grofman, 1 W.L.R. at 737.
193. Compare PROB. § 6110(c)(2), with UNIF. PROBATE CODE §2–503 (amended 1997), 8
U.L.A. 108 (1998).
194. See PROB. § 6110(c)(2).
195. See UNIF. PROBATE CODE § 2–503 (amended 1997), 8 U.L.A. 108 (1998). The
Restatement (Third) of Property: Wills and Other Donative Transfers, also embraces a harmless
error doctrine, but the Restatement doctrine is worded differently: “A harmless error in executing
a will may be excused if the proponent establishes by clear and convincing evidence that the
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
2012]
C AL. P ROB . C OD E S E CT ION 6 1 1 0 (c)(2 )
4/29/2012 1:48 PM
423
There is no temporal component to the UPC doctrine.196 The presence of
the temporal component in the California harmless error doctrine,
particularly when juxtaposed with the absence of such a requirement under
the UPC approach, is intriguing. The obvious threshold question is why:
why did the California Legislature add a temporal restriction to its harmless
error doctrine?
b.
The Legislative History—or Lack Thereof
Unfortunately, the legislative history surrounding the adoption of the
California harmless error doctrine fails to shed any light on why the
California version contains a temporal component. In fact, one of the more
interesting parts of the legislative history behind Assembly Bill 2448, the
bill that amended section 6110, is how little attention was paid to the
temporal requirement.197 Several of the legislative reports discussing and
analyzing the key provisions of the assembly bill do not even mention that
the proposed amendment contains a temporal component.198 The reports
focus solely on other changes included in the bill.199 A few of the
legislative reports recite the temporal requirement when stating the
proposed harmless error doctrine, but there is no discussion or analysis of
the temporal restriction.200 Not one of the legislative reports notes that the
decedent adopted the document as his or her will.” See RESTATEMENT (THIRD) OF PROP.: WILLS
AND OTHER DON. TRANS. § 3.3 (1999). The phrase “that the decedent adopted the document as
his or her will” implies a temporal component. If at any time the decedent adopted the document,
the document qualifies as his or her will, and any subsequent change of mind would be irrelevant
to the issue of whether the document constitutes his or her will. The absence of such limiting
language in the UPC wording implies that the issue is more open–ended; that courts would be free
to take into consideration the whole universe of relevant evidence—up to the point of the
decedent’s death—in determining if the decedent intended the document to be his or her will.
Such a broad approach is consistent with the overall intent-based approach advocated by, and
underlying, the UPC.
196. See UNIF. PROBATE CODE § 2–503 cmt. (amended 1997), 8 U.L.A. 108 (1998).
197. See ASSEMBLY JUDICIARY COMMITTEE REPORT, supra note 89; Senate Rules Committee
Report, supra note 72; Senate Judiciary Committee Report, supra note 72.
198. See supra note 197.
199. They focus instead on (1) the requirement that the witnesses sign the will while the
testator is alive, and (2) the harmless error provisions generally—that it provides a new means for
validating a will, but without any mention or discussion of the temporal requirement. See supra
note 197.
200. The notes, while mentioning the temporal component in discussing the changes to the
existing law, fail to offer any comparison to the UPC or provide insight as to the purpose of
distinguishing the temporal component as a new requirement for California’s harmless error
doctrine of attested wills. See ASSEMBLY JUDICIARY COMMITTEE REPORT, supra note 89; Senate
Judiciary Committee Report, supra note 72.
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
424
S OU TH WES TER N LA W REVIE W
4/29/2012 1:48 PM
[Vol. 41
temporal focus is a new requirement that is not in the UPC harmless error
doctrine, nor do any of them explain why it was added to the California
version of the harmless error doctrine.201
c.
The Holographic Will Analogy
In speculating on why the California Legislature added an express
temporal component to the harmless error doctrine, one of the more obvious
possible explanations is that probating a will under the harmless error
doctrine is analogous to probating a holographic will—a will that does not
require witnesses.202 One of the key requirements of a valid holographic
will is that it must have testamentary intent: the decedent must have
intended the document to be his or her will.203 Technically, testamentary
intent is also a requirement for a valid attested will, but it is rarely
mentioned as a requirement.204 That is because where there is a proper
witnessing ceremony, and the act of following through with a proper
witnessing ceremony virtually guarantees testamentary intent.205 Where a
document is not properly witnessed, however, i.e., in the case of a
holographic will or where one will need to invoke the harmless error
doctrine to validate the instrument, testamentary intent becomes much more
important.206 Viewed in that analytical light, the express requirement under
the California harmless error doctrine that the proponent of the will must
establish that “the testator intended the will to constitute the testator’s will”
is understandable.207
The analogy to the holographic will also helps to explain why the
California harmless error doctrine requires “clear and convincing evidence”
of testamentary intent even though the holographic will doctrine requires
201. See supra note 200.
202. See supra note 3 and accompanying text.
203. See Estate of Southworth, 51 Cal. Rptr. 2d 272, 277 (Ct. App. 1996) (“[admitting a
document to probate] as a holographic will depends on proof of its authorship and authenticity,
and whether the words establish that it was intended to be the author’s last will and testament.”).
204. See PROB. § 6110; Richard Lewis Brown, The Holographic Problem – The Case Against
Holographic Wills, 74 TENN. L. REV. 93, 110 (2006); Mark Glover, Formal Execution and
Informal Revocation: Manifestations of Probate’s Family Protection Policy, 34 OKLA. CITY U. L.
REV. 411, 411-12 (2009).
205. See Glover, supra note 204, at 411-12.
206. See id. § 6110-6111; Brown, supra note 204, at 110-16.
207. Id. § 6110(c)(2). While section 6110(c)(2) offers a way around the traditional witnessing
requirement via the harmless error doctrine, it simultaneously imposes the requirement of a
showing of testamentary intent by clear and convincing evidence. See id.
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
2012]
C AL. P ROB . C OD E S E CT ION 6 1 1 0 (c)(2 )
4/29/2012 1:48 PM
425
proof of testamentary intent by only a preponderance of the evidence.208 In
contrast to a valid attested will, a valid holographic will does not have to be
witnessed, but to compensate for the lack of witnesses the material
provisions must be in the testator’s handwriting.209 The attested will’s
witnessing requirement serves to help prevent fraudulent and counterfeit
wills.210 Likewise, the requirement that the material provisions of a
holographic will must be in the testator’s handwriting is intended to help
prevent fraudulent and counterfeit wills.211 “The primary purpose of the
statutory holographic will provisions is to prevent fraud. Because
counterfeiting another’s handwriting ‘is exceedingly difficult,’ these
statutes require the material provisions of holographic wills to be in the
testator’s handwriting.”212 Under the California harmless error doctrine,
however, there is no requirement that the offered instrument be either
witnessed or in the testator’s handwriting.213 In as much as the California
harmless error doctrine permits a court to dispense with the traditional
requirements that a will be either properly witnessed or in the testator’s
handwriting, it is easy to understand why the California Legislature upped
the ante with respect to testamentary intent, requiring clear and convincing
evidence that the decedent intended the document to be his or her will.214
The clear and convincing evidentiary standard is intended to substitute for
the attested will’s witnessing requirement and the holographic will’s “in the
testator’s handwriting” requirement: it is intended to help prevent
fraudulent and counterfeit wills.
While the analogy to the holographic will helps to explain the
California harmless error doctrine’s requirement that the proponent of the
will must prove the document has testamentary intent, and that the
proponent must prove testamentary intent by clear and convincing evidence,
the analogy is not as useful with respect to the temporal requirement that
the clear and convincing evidence of testamentary intent must be present “at
208. Compare id. § 6110(c)(2), with id. § 6111.
209. See id. § 6111.
210. See In re Estate of Saueressig, 136 P.3d 201, 208 (Cal. 2006) (“Our conclusion regarding
the legislative intent is consistent with sound public policy. As the Commission observed, ‘The
formalities for execution of an attested will are to ensure that the testator intended the instrument
to be a will, to minimize the opportunity for fraudulent alteration of the will or substitution of
another instrument for it, and to provide witnesses who can testify that the testator appeared to be
of sound mind and free from duress at the time the testator signed or acknowledged the will.’”)
(citation omitted).
211. Williams, 66 Cal. Rptr. 3d at 41, 46 (citing Southworth, 59 Cal. Rptr. 2d at 276).
212. Southworth, 59 Cal. Rptr. at 276 (Ct. App. 1996) (quoting Estate of Black, 641 P.2d 754,
756 (Cal. 1982)).
213. See PROB. § 6110(c)(2).
214. See id.
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
426
S OU TH WES TER N LA W REVIE W
4/29/2012 1:48 PM
[Vol. 41
the time the testator signed the will.”215 In the California statutory
provision authorizing holographic wills there is no requirement that
testamentary intent be proved at the time the testator signed the will.216 A
review of the California case law with respect to holographic wills and
testamentary intent fails to reveal a judicial requirement that testamentary
intent must be assessed at the time the testator signed the will.
When one thinks about the requirement of testamentary intent as
applied to a holographic will, however, while neither the holographic
statute or case law require that testamentary intent be tested at the time the
testator signed the will, that is the most logical point in time in which to
assess the person’s intent. There is only one way to execute a holographic
will. 217 The testator must sign it.218 Another cannot sign the document for
the testator.219 There is no witnessing requirement for a holographic will,
and typically there are no witnesses present when the testator signs the
will.220 The paradigm holographic will involves the testator writing out his
or her will and then signing it. The signature requirement serves the
ritualistic function; it brings home to the testator the finality of what he or
she is doing. By signing the document, the logical assumption is the
testator believes, in good faith, that he or she is executing a valid will, i.e.,
that the testator is finalizing his or her intent with respect to who gets his or
her property when the testator dies. There is nothing else to be done with
respect to the document to validate it.221 Hence it would make sense that
testamentary intent should be assessed at the time the testator signed the
will. Thus, analogizing a will probated under the California harmless error
doctrine to a holographic will, it makes some sense to add the temporal
requirement to the California harmless error doctrine: to require that the
proponent of the will must prove by clear and convincing evidence that, at
the time the testator signed the will, the testator intended the document to
be his will.222
There are, however, several problems with that logic. The first is that
when one thinks of the paradigm harmless error scenario, where the
proponent of a document needs to invoke the harmless error doctrine to
validate the will, the paradigm failed will arguably is a failed attested
215.
216.
217.
218.
219.
220.
221.
222.
See id.
See PROB. § 6111.
See id.
See supra note 3 and accompanying text.
See supra note 3 and accompanying text.
See supra note 3 and accompanying text.
See supra note 3 and accompanying text.
See PROB. § 6110(c)(2).
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
2012]
C AL. P ROB . C OD E S E CT ION 6 1 1 0 (c)(2 )
4/29/2012 1:48 PM
427
will.223 And, unlike a holographic will, there are two ways a testator can
execute an attested will: the testator can sign the will in the presence of the
witnesses, or the testator can acknowledge the will (or his or her signature)
in the presence of the witnesses.224 In both scenarios, the testator signing
the will technically is not the final act necessary to validate the will. The
witnesses must still properly execute the will.225 Where the testator signs
the will in the presence of the witnesses with the assumption that the
witnesses will sign immediately, the final act, the witnesses signing the
document, is part and parcel of the same transaction as the testator
signing.226 If the will happens to be invalid there is plenty of evidence of
the testator’s intent at the time he or she signed the will because of the
presence of other people, typically the witnesses, at the time the testator
signed the will.227
Where, however, the testator acknowledges the will in the presence of
the witnesses but the will nevertheless is invalid, the testator typically
signed the will well before the attempted acknowledgement ceremony. At
the time the testator signed the will the testator knew there was more to do
before the will would be valid. In the paradigm acknowledged will
execution ceremony there rarely will be any evidence of the testator’s intent
at the time he or she signed the will. Does the temporal requirement of the
California harmless error doctrine that the proponent of the will must prove
by clear and convincing evidence that the testator intended the document to
be his or her will at the time the testator signed the will over-focus on the
more common failed attested will scenario, where the testator signed the
223. See supra notes 65-73 and accompanying text.
224. See supra note 2 and accompanying text.
225. See PROB. § 6111; In re Estate of Saueressig, 136 P.3d 201, 202 (Cal. 2006) (holding will
signed by testator in the presence of two witnesses not valid unless signed by witnesses prior to
the testator’s death); Crook v. Contreras, 116 Cal. Rptr. 2d 319, 327 (2002) (holding will signed
by witnesses after testator’s death is invalid).
226. See In re Johnson’s Estate, 93 P. 1015, 1016 (1908).
227. See id. In the typical failed attested will scenario, the testator will have signed the will in
the ‘near presence’ of the witnesses, who then signed in the ‘near presence’ of the testator, and the
added temporal component of the California harmless error doctrine will have little to no effect
upon the analysis. The attempted witnessing ceremony at the time the testator signed the will is
what typically constitutes the clear and convincing evidence that the testator intended the
document to be his or her will. The testator’s good faith attempt at properly signing the will in the
presence of the witnesses, coupled with the witnesses’ good faith attempt at properly witnessing
and signing the will, virtually guarantee that at the time the testator signed the will the testator
intended the document to be his will. The classic “near miss” attested will execution ceremony
fits neatly within—and is cured by—the California harmless error doctrine. The added temporal
requirement makes sense because the extrinsic evidence with respect to the decedent’s
testamentary intent focuses on the attempted execution ceremony, the actions that occurred
concurrently with the decedent’s signing the will.
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
428
S OU TH WES TER N LA W REVIE W
4/29/2012 1:48 PM
[Vol. 41
will in the “near presence” of the witnesses, at the expense of the less
common failed attested will scenario where the testator acknowledged in the
“near presence” of the witnesses? In the failed acknowledgment attested
will scenario, does it make sense to limit analysis of testamentary intent to
the time the testator signed the will when typically there will be little
evidence of intent at that point in time?
Moreover there is some question as to whether the proper temporal
focus for assessing testamentary intent for all failed attested wills is at the
time the testator signed the will. Where the testator signs in the presence of
the witnesses, the proper analytical focus for whether the testator has
testamentary intent arguably is at the time the testator signs the will.228
Where the testator signs the will outside of the presence of the witnesses,
however, and then later acknowledges the testator’s signature or the will to
the witnesses, there is an interesting theoretical issue with respect to when
the testator’s testamentary intent should be assessed: when he or she signed
the will, or when he or she acknowledges his or her will in the presence of
the witnesses.229 Although the classic analysis is that the testator’s act of
signing the will is what serves the ritualistic function—what brings home to
the testator the finality of what he or she is doing—that analysis arguably
presumes the classic execution ceremony where the testator signs in the
presence of the witnesses.230 In the acknowledgment execution ceremony,
it is the acknowledgment ceremony—the testator’s act of acknowledging
his or her signature or the will to the witnesses, and then the witnesses
signing the will—that brings home to the testator the finality of what he or
she is doing, not the act of signing the will well before and outside the
presence of the witnesses.231
228. Focusing on the time the testator signed the document will also overlap with the most
relevant evidence of the testator’s testamentary intent.
229. In the failed acknowledgment attested will scenario, one can question whether it makes
sense to limit analysis of testamentary intent to the time the testator signed the will because,
typically, there will be no evidence of that point in time.
230. See Emily Sherwin, Clear and Convincing Evidence of Testamentary Intent: The Search
for a Compromise Between Formality and Adjudicative Justice, 34 CONN. L. REV. 453, 456
(2002). The purpose of a ritualistic function is to ensure a measured, considered decision.
231. See 64 CAL. JUR. 3D WILLS § 253 Observation (2011). To the extent one must have
testamentary capacity to execute a valid will, while the general statement is that a testator must
have testamentary capacity at the time he or she signs the will, that statement arguably assumes
the traditional execution ceremony: where the testator signs in the presence of the witnesses, who
then immediately sign in the presence of the testator. Where the testator signs the will ahead of
time, and later acknowledges his or her signature in the presence of the witnesses, should
testamentary capacity be assessed at the time the testator signed the document or at the time the
testator acknowledged the document? See, e.g., D.C. CODE § 18–102 (2001) (“A will, testament,
or codicil is not valid for any purpose unless the person making it is at least 18 years of age and, at
the time of executing or acknowledging it as provided by this chapter, of sound and disposing
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
2012]
C AL. P ROB . C OD E S E CT ION 6 1 1 0 (c)(2 )
4/29/2012 1:48 PM
429
That time of acknowledgement, not time of signing, is the proper
analytical point in time to assess testamentary intent in the classic
acknowledgment execution ceremony is demonstrated by the court’s
analysis in Groffman.232 In assessing whether the document that was
offered for probate as Charles’ will had testamentary intent, the court did
not focus on when he signed the will, the court focused on when he
acknowledged his signature in the presence of the witnesses and asked them
to witness the will.233 That is the point in time when Charles thought his
will would now be valid.
That conclusion, however, takes the analysis back to the original
question: why did the California Legislature expressly require that the
testator’s testamentary intent be assessed at the time the testator signed the
will?234 Did the Legislature intend to focus on the act of signing the will for
both attested will execution ceremonies (where the testator signs in the
presence of the witnesses as opposed to where the testator acknowledges in
the presence of the witnesses), or did the Legislature simply over-focus on
the classic execution ceremony—where the testator signs in the presence of
the witnesses, and overlook the acknowledgement execution ceremony?
Would it not have been better for the statutory language in the harmless
error provision to have tracked the statutory language in the execution
provision: “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 or acknowledged
the testator’s signature or the will the testator intended the will to constitute
the testator’s will.” Such statutory language would have avoided the
needless ambiguity that the currently worded temporal focus contains,
ambiguity with respect to whether the failure to reference the failed
acknowledgment ceremony was intentional or accidental—an ambiguity
that will lead to needless litigation.235
mind and capable of executing a valid deed or contract.”); In re Estate of Kavcic, 341 So. 2d 278
(Fla. Dist. Ct. App. 1977); In re Estate of Beakes, 291 So. 2d 29, 30-31 (Fla. Dist. Ct. App. 1974);
In re Estate of Wognum, 279 So. 2d 66 (Fla. Dist. Ct. App. 1973); but see York v. Smith, 385 So.
2d 1110, 1111 (Fla. Dist. Ct. App. 1980).
232. See Groffman, 1 W.L.R. 733 at 737. (focusing attention solely on the acknowledgement
and never questioning the testator’s state of mind at the time he signed).
233. See id.
234. See PROB. § 6110(c)(2).
235. If such additional statutory language were present, one could argue it might further
muddy the issue of whether the California harmless error doctrine is intended to apply to both
holographic wills and attested wills or only the latter. The express reference to “the time the
testator . . . acknowledged the testator’s signature” might imply that the doctrine applies only to
attested wills since acknowledgment is not relevant to holographic wills. Id. This possible
ambiguity, however, could easily be clarified by an express provision that the California harmless
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
430
S OU TH WES TER N LA W REVIE W
d.
4/29/2012 1:48 PM
[Vol. 41
Temporal Focus vs. Admissibility of Evidence
In defense of the California Legislature, it can be argued that while the
current statutory language in the California harmless error doctrine
expressing the temporal component creates an interesting theoretical issue
with respect to what should be the proper temporal focus as applied to the
acknowledged will execution ceremony, this issue is more theoretical than
practical. Under the California harmless error doctrine, the will must still
be signed—whether in front of the witnesses or outside of their presence.236
While the California harmless error doctrine makes the moment of signing
the critical temporal focus for purposes of analyzing whether the testator
intended the document to be his or her will, that temporal restriction should
not constitute an evidentiary restriction. California admits extrinsic
evidence to help determine whether a document is a valid will, be it a
traditional attested will or a holographic will.237 California courts routinely
admit a testator’s subsequent actions and statements as relevant evidence
with respect to whether the testator intended a document to be his or her
will.238 No doubt the California courts will continue this practice with
error doctrine applies to either a failed attested will or a failed holographic will.
236. See PROB. § 6110(C)(2). The UPC harmless error doctrine is broader than the California
approach, permitting a court to probate a document the decedent did not sign as long as the court
finds that there is clear and convincing evidence that the decedent intended the document to be his
or her will. Compare UNIF. PROBATE CODE § 2–503 (amended 1997), 8 U.L.A. 357 (1998), with
PROB. §6110 (c)(2).
237. See CAL. PROB. CODE § 6111.5 (West 2009).
238. See Stoker, 122 Cal. Rptr. 3d at 536 (holding that trial court properly admitted testator’s
subsequent oral declarations that holographic instrument constituted his will); Southworth, 59 Cal.
Rptr. 2d at 277 (“Although courts may consider statements made before and after a holographic
will is made and the surrounding circumstances, evidence of present testamentary intent provided
by the instrument at issue is paramount.”); Estate of Wong, 47 Cal. Rptr. 2d 707, 710 (Ct. App.
1995); Estate of Archer, 239 Cal. Rptr. 137, 140-41 (Ct. App. 1987); Estate of French v. Mason
36 Cal. Rptr. 908, 910-11 (Ct. App. 1964); PROB. § 6111.5. Courts have had to address a similar
issue in the case of multiple party bank accounts. Historically banks offered a depositor interested
in creating a multiple party bank account only one account, a true joint tenancy account. The
depositor, however, might have had any one of three possible intents: a true joint tenancy account,
a convenience/agency account, or a payment on death account. The courts quickly realized that
despite the bank’s paperwork, the depositor’s true intent might not be a true joint tenancy. In as
much as the banks forced the depositor to execute the true joint tenancy account paperwork,
historically the courts accepted extrinsic evidence of the depositor’s true intent at the time he or
she signed the paperwork. Although the temporal focus was on the depositor’s intent at the time
he or she signed the account’s paperwork, the courts ruled that the depositor’s subsequent actions
and statements were relevant to the issue of the depositor’s state of mind at the time he or she
signed the paperwork. See Franklin v. Anna National Bank of Anna, 488 N.E.2d 1117, 1119 (Ill.
App. Ct. 1986) (holding “it is proper to consider events occurring after creation of the joint
account in determining whether the donor actually intended to transfer his interest n the account at
his death to the surviving joint tenant.”).
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
2012]
C AL. P ROB . C OD E S E CT ION 6 1 1 0 (c)(2 )
4/29/2012 1:48 PM
431
respect to wills offered for probate under the California harmless error
doctrine. Admitting any and all evidence that is relevant to the issue of
whether the decedent intended the document to be his or her will should
moot, for the most part, the statutory language directing that the testator’s
testamentary intent be assessed at the time the testator signed the will.239
That California’s approach to the admissibility of extrinsic evidence
moots, for the most part, the statutory language directing that the testator’s
intent be assessed at the time the testator signed the will is evidenced by
returning to Groffman.240 In a Groffman type scenario—the classic “near
miss” failed acknowledgment execution ceremony—the argument is that
the testator’s subsequent efforts at having the will properly witnessed, and
his statements to the witnesses at that time, constitute clear and convincing
evidence that at the time he signed the will he intended the document to be
his will and had a good faith belief that it was his will.241 The classic “near
miss” acknowledged attested will scenario should fit neatly into—and be
cured by—the California harmless error doctrine.
IV. THE “NOT-SO-NEAR-MISS” FAILED WILL
The California harmless error doctrine is not limited, however, to the
two recurrent classes of cases the UPC harmless error doctrine was intended
to help cure: (1) the handwritten alteration on an attested will, and (2) the
“near miss” attested will.242 It also applies, in theory, to the “not so nearmiss” failed will execution ceremony. While the “not-so-near-miss” failed
will can run the gamut of factual scenarios, the classic “not so near-miss”
failed will, for purposes of the California harmless error doctrine, is a “barenaked” will. The bare-naked will is a document that is found following a
decedent’s death, that is completely typed, purports to be the decedent’s last
will and testament, bears the decedent’s signature, but is not witnessed. It
fails as a traditional attested will because the document is not properly
witnessed.243 It fails as a traditional holographic will because the material
provisions are not in the decedent’s handwriting.244 The document is,
239. See id.
240. See Groffman, 1 W.L.R. at 737.
241. See id.
242. See UNIF. PROBATE CODE § 2–503 (amended 1997), 8 U.L.A. 357 (1998).
243. See PROB. § 6110 (requiring traditional attested wills to have the signatures, made during
the testator’s lifetime, of at least two persons each of whom, being present at the same time,
witnessed either the signing of the will or the testator’s acknowledgement of the signature of the
will and understand that the instrument they are signing is the testator’s will).
244. See id. § 6111 (requiring holographic wills to contain the material provisions to be in the
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
432
S OU TH WES TER N LA W REVIE W
4/29/2012 1:48 PM
[Vol. 41
however, in writing, it purports to be the decedent’s will, and it is signed by
the decedent. Assuming there is no other evidence concerning the
decedent’s intent or actions concerning the document, should the document
be probated under the California harmless error doctrine? Is there clear and
convincing evidence that the decedent, at the time he or she signed the
document, intended the document to be his or her will?
The “not-so-near miss” last will and testament will test the California
courts’ construction of the California harmless error doctrine. Should the
fact that the document is signed by the decedent create a presumption that
there is clear and convincing evidence that, at the time the decedent signed
the will, he or she intended it to be his or her will? Should the additional
express temporal component to the California harmless error doctrine be
construed as requiring more than just the fact that the decedent signed the
document? Assuming, arguendo, the signature alone creates a presumption
of clear and convincing evidence that the decedent intended the document
to be his or her will, what evidence should be required to rebut the
presumption? Should the fact that the will sets forth “an unnatural
disposition”245 be relevant to the issue of whether there is clear and
convincing evidence that the decedent intended the document to be his or
her will at the time he or she signed it? Should the confusing, if not
misleading, legislative history behind the adoption of the California
harmless error affect the courts’ construction and application of the
doctrine? Assuming, arguendo, the court finds there is clear and
convincing evidence that the decedent intended the document to be his or
her will at the time he or she signed it, if the bare-naked will is undated, and
there is another will, should the other will prevail as to any inconsistencies
unless the proponent of the will being probated under the harmless error
doctrine can prove it was executed after the other will?246 While there is
testator’s own handwriting).
245. See In re Higgins’ Estate, 104 P. 6, 10 (Cal. 1909) (“[W]here the will makes an irrational
or unnatural disposition of property, this is a circumstance to be considered in determining the
state of mind of the testator.”).
246. The California Probate Code creates just such a presumption if the undated will is a
holographic will. See PROB. § 6111(b)(1). To the extent documents probated under the California
harmless error doctrine are analogous to holographic wills, if the document is undated and it is
inconsistent with another will, should not the same presumption arise that the terms of the ‘other
will’ control as to any inconsistencies? Does that phrasing assume that the ‘other will’ is either a
formal will or a dated will? What if the two documents in conflict are an undated holographic and
an undated document probated under the harmless error doctrine? The presumption is based upon
the traditional thinking that plays off the split between an attested will and a holographic will, a
analytical split that loses much of its relevance in light of the harmless error doctrine. Should
either document be entitled to the presumption that it was executed first? The issue constitutes an
unexpected ripple effect to the adoption of the harmless error doctrine. If the Legislature does not
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
2012]
C AL. P ROB . C OD E S E CT ION 6 1 1 0 (c)(2 )
4/29/2012 1:48 PM
433
little doubt that the California harmless error doctrine applies to the two
recurrent classes of cases the UPC harmless error was designed to
address,247 what are the outer limits of the California harmless error
doctrine?
V. CONCLUSION
While California adopted a “modified” version of the UPC harmless
error doctrine, the California harmless error doctrine is not as modified as it
appears at first blush.248 Granted, unlike the UPC harmless error doctrine,
the California harmless error doctrine does not apply to failed attempts at
revoking a valid will by act or reviving a valid will by intent.249 The
California harmless error doctrine does apply, however, despite its
confusing if not misleading statutory structure and legislative history, to
failed attempts at creating a will or codicil, attested or holographic, and it
applies to both of the recurrent classes of cases the UPC harmless error
doctrine was intended to help cure: (1) the handwritten alteration on an
attested will, and (2) the “near miss” attested will.250 As applied to a will
that fails for want of proper execution, the “modified” California harmless
error doctrine is closer to the UPC version than it looks.
The proverbial sixty-four thousand dollar question is what are the outer
limits of the California harmless error doctrine? To what extent does the
doctrine apply to the “not-so-near-miss” failed will? Unfortunately, in light
of the confusing statutory language and structure of the California harmless
error doctrine, and the confusing—if not misleading—legislative history
behind it, the judicial system would be lucky if the litigation and judicial
costs associated with the unanswered question cost only sixty-four thousand
dollars. The questions related to the outer limits of the doctrine are too
numerous and too open-ended. While some of these questions are inherent
in any change in the law, it seems as though some of them could have been
avoided with better drafting and clearer legislative history. No doubt many
would agree the adoption of the California harmless error doctrine is not a
text-book example of the legislative process in action. A cynic might even
wonder if the confusion was not, to some degree, intentional to facilitate
clarify the situation it is just a matter of time until a court will have to resolve the issue.
247. See supra note 242 and accompanying text.
248. See supra notes 39-53 and accompanying text.
249. Compare UNIF. PROBATE CODE § 2–503 (amended in 1997), 8 U.L.A. 357 (1998); with
PROB. §6110(c)(2).
250. See supra notes 17, 78-88, and accompanying text.
2.WENDEL.MACRO.3.8.12 (DO NOT DELETE)
434
S OU TH WES TER N LA W REVIE W
4/29/2012 1:48 PM
[Vol. 41
getting the Legislature to adopt a provision it might not otherwise have
been so willing to adopt251—but that is another issue.
Some estate planners have voiced concerns that the intent-based
movement and the harmless error doctrine will put some estate planners out
of practice.252 The California harmless error doctrine should not, though it
probably will change much of their practice from estate planners to estate
litigators. As the saying goes, “You can pay us now, or you can pay us
later.” Let the litigation begin.
251. The legislative history behind the California harmless error doctrine repeatedly notes that
the statutory amendment was “sponsored by the Trusts and Estates Section of the State Bar” and
that the proposed bill was “non-controversial.” See ASSEMBLY JUDICIARY COMMITTEE REPORT,
supra note 89, at 1-2. The latter term is particularly interesting inasmuch as the UPC harmless
error doctrine, which the California harmless error doctrine is based on, has been described as the
more controversial sections of the UPC. See Ronald R. Volkmer, New Fiduciary Decisions:
Procedural Due Process in Estate Proceedings, EST. PLAN., Mar. 2011, at 35, 37; Ronald R.
Volkmer, New Fiduciary Decisions: Substantial Compliance of Estate Planning Documents, EST.
PLAN., Sept. 2007, at 42, 45 (“In modern-day wills law, no doctrine is as controversial as the
doctrine of ‘substantial compliance . . . .’” The article goes on to describe the UPC harmless error
doctrine as the current form of substantial compliance.). The legislative history also states that
“[t]here is no known opposition to the measure.” See ASSEMBLY JUDICIARY COMMITTEE
REPORT, supra note 89, at 1. Another interesting assertion in light of the fact that a majority of the
California Supreme Court implicitly rejected the arguments underlying the harmless error doctrine
in its opinion in In re Estate of Saueressig, supra note 8, at 1055-56, the opinion cited as the need
for the amendment. See Senate Judiciary Committee Report, supra note 72, at 4.
A draft of this article was sent to several officers of the Trusts and Estates Section of the
State Bar, particularly those who might have been involved in the legislative process or who might
be interested in this article. No one responded with any comments or criticisms. One can only
speculate as to the cause of the unusual nature of some of the assertions set forth in the legislative
history.
252. The harmless error doctrine will only encourage more testators to consider making their
own will, an already increasing trend. See David Horton, Unconscionability in the Law of Trusts,
84 NOTRE DAME L. REV. 1675, 1718-21 (2009).