Witnesses to Wills

          People
should know the legal requirements for the proper execution (signing) of
wills.  Under California law, the
execution of a will must be witnessed by two persons generally competent to act
as witnesses, such as a Lake County wills attorney.  Wills are not
notarized.  An exception exists for handwritten
wills — so-called “holographic wills” — which do not require any witnesses.  Let us examine the significance of witnesses when
the will is later offered for probate.

          California
requires that the subscribing witnesses be present
together when the testator either signs or affirms his/her signature, and the
witnesses must understand that the instrument is the testator’s own will.  If a testator is unable or unwilling to find
two disinterested witnesses then he or she might decide to proceed with a
holographic (handwritten) will and avoid the witness requirement. 

          Furthermore,
the two witnesses should be disinterested persons who receive nothing under the
will.  Otherwise, the law presumes that
the interested witness procured such gift by duress, menace, fraud, or undue
influence.  In that case, unless the
presumption is overcome, the gift is invalidated.

          When
an unopposed will is offered for probate, these requirements must be shown to
be satisfied.  Accordingly, the subscribing
witnesses sign an “attestation clause” under penalty of perjury to that effect.  Such so-called “self proving” wills may then be
admitted without further evidence regarding execution.   Otherwise,
an affidavit or declaration of a witness and a copy of the will must also
be submitted.  This may become a problem
if the witness is unavailable after the testator’s death.

          If
the will’s attestation clause is irregular or incomplete, then provided there
is proof of the genuineness of the subscribing witnesses’ signatures, this may
be sufficient to show due execution. 

          When
one of the witnesses’ signatures cannot be proven to be genuine then the person
offering the will must then establish by clear and convincing evidence that the
testator intended the document to constitute his or her will.  Such evidence may be credible testimony from
someone to whom the testator declared the document to be his or her will.

          When
a will is opposed, an additional requirement applies.  Then each subscribing witness must be produced
and examined both as to whether the will was properly executed and whether the
testator had testamentary capacity.   If
a witness is forgetful or doubtful when examined then the proper execution of
the will may be proved based on other evidence as discussed above. 

          A
presumption of proper will execution
exists when the testator’s and the witnesses’
signatures are proven to be genuine.  If
the genuineness of any signature on the will comes into question, the court may
order the will to be examined by a handwriting expert.  Accordingly, the
names of each subscribing witness are typically printed below the signature together
with the witnesses’ legal street address.
Otherwise, an illegible signature without any way to prove the identity and
genuineness of the signature may result in the court finding that the will was
not properly executed.

          What
if one or both subscribing witnesses is unavailable? If one subscribing
witnesses is unavailable then the court may admit the will based on the
testimony of the other subscribing witness.  If neither subscribing witness is available
the court may then consider the evidence of other non-subscribing witnesses, if
any, to prove the will’s proper execution. 

          In
sum, a person making a will should have two credible and disinterested persons,
who are expected to outlive the testator, witness either the signing of the
will or affirmation of the testator’s signature on the will, as relevant.  The subscribing witnesses should sign the
will’s sworn attestation clause regarding the proper execution of the
will.  Notarization is not required.