Executing a Will: Formal Wills & Holographic Wills

There are two basic types of wills: (1) formal wills, and (2) holographic wills (informal wills).

Execution of Formal Wills
These are referred to as “tested” or “witnessed" wills. In contrast, holographic wills (informal wills) do not have to be witnessed. To have a valid formal will, five requirements must be met.

First, the will must be in writing. In California, oral wills are not valid.

Second, the will must be signed by the testator. It can be signed informally as "Dad" or if the person is illiterate, "X" is okay. If the testator is incapable of signing the will himself, he can ask someone else to sign it on his behalf, but it must be at the testator's direction and in testator's presence. The person who signs has to sign the testator's name.

Third, the will must be signed by 2 witnesses that are present at the same time who understand that the document being signed is the testator's will.

Fourth, the 2 witnesses must see the testator sign the will or they must see or hear the testator acknowledge his signature or acknowledge that this is his will. Usually witnesses will sign under an attestation clause (although not technically required). It recites what the witnesses did (which witnesses were present, who saw the testator sign the will, etc). Either the testator can say “this is my signature” or he can say “that’s my will.”

Fifth, the testator must have testamentary intent. The testator must intend that this document be his will. If you sign a formally attested, that is strong evidence that there was testamentary intent.

Who can be a witness?
The person must be competent. The witness doesn't have to know the content of the will. The witness should not be "interested" (if you receive an interest from the will, then you are interested). Under common law, the signature of interested witness didn’t count.

In California, a signature of an interested witness counts and the will is still valid, but there is a presumption (rebuttable) that the witness exerted undue influence on the testator. Unless rebutted, the witness gets nothing. What is undue influence? See my testamentary capacity post.

However, if the interested witness is someone who would have inherited by intestacy, the interested witness will still receive his or her interested shares.

Self-proving affidavits and attestation clauses
Neither are required but are typically included. Attestation clauses show intent to be a witness. Usually it will say something like “we hereby witness the will” (present tense). Attestation clauses are useful in proving due execution of a will. It makes out a prima facie case that the will was duly exercised and thus the will may be admitted to probate even though the witness predeceases the testator or cannot recall the events of execution. Self-proving affidavits say that you witnessed it already (past-tense). Usually it wills ay something like “we have witnessed the will.” This can be done by someone other than who did the attestation clause.

Components of a will
The concept of integration is important in understanding the components of a will. Generally, papers that are present at the time of execution and that the testator intends to be part of the will are part of the will. If something is physically attached, you can use doctrine of integration. The lesson is: use a stapler to attach documents you want to be considered part of the will.

For example, if the testator comes to the execution ceremony with a piece of paper that gives away some personal possessions and it is attached, through the doctrine of integration, the separate list could be part of her will and would be carried out. But if the list is not physically present when the will is executed, it is not part of her will.

Incorporation by reference
A writing in existence when a will is executed may be incorporated by reference if the language of the will manifests intent to incorporate and describes the writing sufficiently to permit its identification. CPC § 6130.

Codicils
A codicil is an amendment or an addition to a will. It must be executed with the same formalities as a will. If you have validly attested will and you created a codicil, it's okay that the codicil is handwritten as long as the codicil is valid as a holographic will. (see below for a discussion on holographic wills). The two documents must be read as a single document and will be dated on date of codicil. For example, if a woman executes a will in 1990 and in 2000, she executes a codicil to the 1990 will, the documents are read together as a single will, dated 2000.

Doctrine of republication by codicil
The doctrine of replication by codicil can help if you are trying to later incorporate a document by reference. There must be a manifestation of intent to incorporate and the document must be clearly identified.

Replication by codicil may validate a will that was previously invalid. If the first will was invalid because there was lack of capacity or perhaps it wasn’t properly executed, and then later you add a valid codicil, the valid codicil can validate the previously invalid will. Basically, if there is capacity and proper execution of the subsequent codicil, then the first will becomes valid. For example, if a woman was not competent when she executed her 1990 will, but she was competent when she executed the 2000 codicil, the proper execution of the 2000 codicil republishes or validates the 1990 will, and both docs will be carried out. A simple little handwritten sentence (codicil) can breath life into an otherwise invalid will.

Is it a codicil or a will?
Is the subsequent document a codicil to the first will or a second will? If its carefully drafted, a good lawyer will say “codicil” but sometimes you have to figure out whether it’s a codicil or a whole new will. If there is a revocation clause, you can assume it’s a will. If there is no revocation clause, but there is total inconsistency, it revokes by inconsistency and the document is probably a will. If it's only partly inconsistent, then you probably have a codicil.

Substantial compliance / clear and convincing evidence of intent
For testators dying on or after January 1, 2009, under California Probate Code § 6110(2), if a writing or document doesn’t meet the witnessing formalities of a will, the writing or document is treated as if it meeting all formalities if you have clear and convincing evidence that at the time the T signed the will, he intended the will to be his will. But we still need T’s signature and 2 witnesses signatures. So failing to have both witnesses be present at the same time the T signed the will could be overlooked.

Dispensing power
Some other states recognize dispensing power (harmless error) which is the approach advocated in the UPC, not California. Dispensing power excuses any formal requirement for executing or revoking a will if the proponent can establish by clear and convincing evidence that the testator intended the document to be his will. This is broader than CA’s rule. Thus, although the T mistakenly signed the wrong will, this would not be excused under the CA rule, but it would be excused under dispensing power.

Exception to formalities: changing a will by non-testamentary acts
You don’t need to meet the formalities requirement again if you change a will by non-testamentary acts. Acts of independent significance permit a testator to effectively change the disposition of his property without formally changing a will. If acts or events changing the disposition have some significance beyond avoiding the requirements of the will, then they are allowed.

Foreign wills
What about people who move to CA from another state? They are now domiciled in CA. CA law determines whether their will is valid. But what if they come from a state with different formality requirements? (i.e. some states don’t require that the 2 witnesses be present at the same time). In CA, a will is valid if (1) it was executed in compliance with CA law, (2) it is was in conformity of the law of the state where the will was executed or the place of testator's domicile at the time of execution.

Execution of Informal or Holographic Wills
Informal or holographic wills are valid in California and about ½ of other states. Holographic wills do not have to be witnessed. However, 3 requirements must be met to qualify a document as a valid holographic will.

First, it must be signed by the testator. Note that the provision allowing another to sign at the testator’s direction and presence only applies to formal, not holographic wills. The testator must actually sign the document. The signature can be anywhere in the document.

Second, at least one material provision must be in testator’s own handwriting. “Material” means it must have some legal effect. The best example is giving away assets. If you give money away that’s material. Other things that are material include: naming beneficiaries, revoking a previous will, appointing someone executor or guardian of your kids.

Third, the testator must have testamentary intent. For example, a man writes a letter to his daughter and he signs it “dad” and at the end he writes a P.S. that says “if anything happens to me, I want you to have my entire estate.” The P.S. is a valid holographic will. The use of “estate” and his contemplation of death shows testamentary intent. He signed it, and giving away assets is a material provisions, so this is a valid holographic will. When a writer is contemplating death or is using of legalese such as “estate,” this tends to show testamentary intent.

Extrinsic evidence is admissible to ascertain the testator's intent.

Problems of pre-printed form wills
David buys a printed will form that says “I give ___ to ___.” He fills in “$1000” and “Jane Smith” in the blanks. Here, there is no material provision in his handwriting. David's handwriting simply read “$1000 Jane Smith” -- which is meaningless. This is not a valid holographic will. To determine the material provisions you look at handwriting parts only. However, if David had instead written, “I give $1000 to Jane Smith,” this is a material provision in his handwriting.

However, to determine whether there is testamentary intent, you are permitted to look to printed part, as well as the handwritten part, to see if there is testamentary intent.

The only way to give effect to pre-printed wills is to see if it’s valid as a formal will: does it meet elements to be a formal will?

Even if it doesn't meet the requirements to be a will, if the testator told people she executed her will, then the document might be admitted into probate as her will.

Date requirement?
CA doesn’t require a date to be on the will. But failing to date can create inconsistency problems. If there is no date, there is a rebuttable presumption that it was executed before any other will, thus any other will is going to trump the undated will. So it’s not a good idea not to date. But technically it's not required.