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Why Your Will Needs to Be Witnessed

Although you often hear stories about people contesting a will, it is not a simple process. Under California law, a person contesting a will has the burden of proving “lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, or revocation.” In contrast, the person offering the will for probate only has the burden of proving “due execution,” that is, that the purported will meets the formal requirements of California law. So in most cases, proper estate planning can thwart a will contest.

Surviving Witness Proves Will 14 Years Later

Like most states, California law requires a will be signed by the person making it (the testator) and two witnesses. The witnesses need not read the will or understand its contents. Their role is simply to witness the testator declare the document in question is, in fact, his or her will. The witnesses must then sign the will in the presence of the testator and each other.

One reason wills must be witnessed by two people is that in the event of a contest, at least one of them will hopefully be available to testify in court as to the authenticity of the document. Here is an illustration from a recent case in San Diego which is discussed here for informational purposes only and should not be taken as an accurate statement of the law. This actually involved a contest to a will nearly 14 years after the testator’s death.

The testator died in 1996. A relative found his will, which named the same relative as executor and sole beneficiary. The will was signed by three witnesses. Together with the will, the relative submitted “Proof of Subscribing Witness” forms from two of the three witnesses. This is a standard form used by California probate courts, which basically function as an affidavit by the witnesses. The court accepted the forms and admitted the will to probate in 1998.

Normally, that would have been the end of the matter, but in 2010, two other relatives filed a petition to set aside the 1998 probate and revoke the will, which they claimed was a forgery. This required a trial. By this point, two of the three original witnesses were unavailable. (One had died, the other moved out of the United States.)

The remaining witness offered somewhat conflicting testimony. Prior to trial, she signed a declaration “disavowing” the Proof of Subscribing Witness she signed during the 1998 probate. But during a deposition, she said, ” I don’t know why I signed this,” stating the disavowal was not true. She further identified her signature and that of the testator and the other witnesses on the will.

This was enough for the probate court, which affirmed the earlier finding the will was authentic and duly executed. The objectors appealed, but the California Court of Appeals said it would not disturb the probate judge’s findings, noting there was “contested but substantial evidence” supporting the will.

Need Help With a Will?

As this case illustrates, it is important to follow all California requirements for the execution of a valid will. If you need help from an experienced San Diego estate planning lawyer on this, or any related matter, contact the Law Office of Scott C. Soady today.

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