Wills Formation

Front 1

Will Validity

Back 1

A will is a written instrument that dictates how a person's estate is to be distributed upon death. It goes into effect only upon the death of its author, the testator. For a will to be valid, there must be: (1) present testamentary intent; and (2) capacity. In addition, the will must comply with all the requisite formalities.

Front 2

Will Validity, Present Testamentary Intent

Back 2

Present testamentary intent refers to the testator's intent to create a will at the time the instrument is drafted. Intent to create a future will is insufficient. Intent is often inferred by looking at the specific bequests, a signature or any other extrinsic evidence.

Front 3

Will Validity, Capacity

Back 3

In California, capacity refers to the testator's age (18) and mental competence. To be mentally competent, the testator must understand the nature of the will, the estate and the relationships between the interested parties.

Front 4

Will Validity, Formalities

Back 4

The Statute of Wills dictates what formalities are to be followed in order for a will to be probated. The specific formalities required depend on what type of will is being executed. There are two types of wills (1) attested wills and (2) holographic wills.

Front 5

Will Validity, Formalities, Attested Wills

Back 5

A formal or attested will is a written will that, in California, must be (1) signed by the testator and witnessed and signed by two (2) competent, (3) disinterested parties.

Front 6

Will Validity, Formalities, Attested Wills, Competence

Back 6

A competent witness is one that understands that the document being signed is a will.

Front 7

Will Validity, Formalities, Attested Wills, Disinterested Witnesses

Back 7

Two disinterested witnesses are required in California. An interested witness is one who is a beneficiary under the will. Traditionally, if one of the two required witnesses was "interested" the will could not be probated. In California, however, the presence of an interested witness does not invalidate the will; it merely creates a presumption that the witness procured the devise by fraud, duress or undue influence.

Front 8

Will Validity, Formalities, Holographic Will

Back 8

A holographic will is one that is handwritten and unattested. In California, holographic wills are valid if (1) the signature and (2) material provisions of the will are in the handwriting of the testator.