Is a non-witnessed holographic will valid in California ?
Full Question:
Is a non-witnessed holographic will valid in California ?
05/17/2007 |
Category: Wills and Estates |
State: California |
#5096
Answer:
The relevant California statutes are as follows:
California Probate Code Section 6110.
§ 6110 Prob.
(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 will shall be witnessed by being signed by at least two persons
each of whom (1) 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) understand that the instrument they sign is the
testator's will.
California Probate Code Section 6111.
§ 6111 Prob.
(a) A will that does not comply with Section 6110 is valid as a
holographic will, whether or not witnessed, if the signature and the
material provisions are in the handwriting of the testator.
(b) If a holographic will does not contain a statement as to the
date of its execution and:
(1) If the omission results in doubt as to whether its provisions
or the inconsistent provisions of another will are controlling, the
holographic will is invalid to the extent of the inconsistency unless
the time of its execution is established to be after the date of
execution of the other will.
(2) If it is established that the testator lacked testamentary
capacity at any time during which the will might have been executed,
the will is invalid unless it is established that it was executed at
a time when the testator had testamentary capacity.
(c) Any statement of testamentary intent contained in a holographic
will may be set forth either in the testator's own handwriting or as
part of a commercially printed form will.
§ 6111.5 Prob.
Extrinsic evidence is admissible to determine whether a document
constitutes a will pursuant to Section 6110 or 6111, or to determine
the meaning of a will or a portion of a will if the meaning is
unclear.
§ 6112 Prob.
(a) Any person generally competent to be a witness may act as a
witness to a will.
(b) A will or any provision thereof is not invalid because the will
is signed by an interested witness.
(c) Unless there are at least two other subscribing witnesses to
the will who are disinterested witnesses, the fact that the will
makes a devise to a subscribing witness creates a presumption that
the witness procured the devise by duress, menace, fraud, or undue
influence. This presumption is a presumption affecting the burden of
proof. This presumption does not apply where the witness is a person
to whom the devise is made solely in a fiduciary capacity.
(d) If a devise made by the will to an interested witness fails
because the presumption established by subdivision (c) applies to the
devise and the witness fails to rebut the presumption, the interested
witness shall take such proportion of the devise made to the witness
in the will as does not exceed the share of the estate which would be
distributed to the witness if the will were not established. Nothing
in this subdivision affects the law that applies where it is
established that the witness procured a devise by duress, menace,
fraud, or undue influence.
.California Probate Code Section 6113
§ 6113 Prob.
A written will is validly executed if its execution complies with
any of the following:
(a) The will is executed in compliance with Section 6110 or 6111 or
Chapter 6 (commencing with Section 6200) (California statutory will)
or Chapter 11 (commencing with Section 6380) (Uniform International
Wills Act).
(b) The execution of the will complies with the law at the time of
execution of the place where the will is executed.
(c) The execution of the will complies with the law of the place
where at the time of execution or at the time of death the testator
is domiciled, has a place of abode, or is a national.