Listen to this post

Although much wealth passes today through trusts and beneficiary designations, we occasionally handle California probate disputes that turn on the validity of wills, sometimes involving high value estates.

The standard practice in California estate planning is for wills to be typewritten and prepared by attorneys, but those steps are not necessary.  A holographic, i.e., handwritten, will can have just the same effect.

Typewritten Wills

At its most basic level, a will must be signed, which is a specific requirement of California Probate Code section 6110.  While most all wills are signed by the testator, i.e., the person who is making the will, that is not an unbendable rule.  A typewritten will may also be valid if the testator’s name is signed by someone else, but in the testator’s presence, and at the testator’s direction.

“Honey, my hand is so sore tonight, would you please pick up that pen and sign my name to that will?”  Valid will.  In truth, this is an important provision for a testator who lacks the physical ability to write but who maintains his or her mental faculties.

In addition, almost all typewritten wills are “attested,” which means witnessed.  Two witnesses must be present together, must either watch the testator sign his or her will or watch the testator acknowledge his or her signature on the will, and then must sign the will as witnesses with the understanding that the document they are signing as witnesses is indeed the testator’s will.

A Real Life Example – Estate of Saueressig (2006) 38 Cal.4th 1045

Timothy Saueressig prepared a type-written document labeled “Timothy K. Saueressig’s Last Will and Testament,” and on December 26, 2000, he asked a notary public to notarize the execution of his will.  The notary did, and Saueressig delivered copies of the notarized instrument to his named executor and to one of the beneficiaries.  Saureressig passed away in August 2002.

Applying the above principles, the trial court denied the enforceability of the will because the notary public was only one witness and the typewritten will lacked the required two witnesses.

After the ruling, the executor of the will found a second witness.  It turned out that the notary’s husband was also present when Saueressig asked the notary to witness the will, heard Sauressig ask the notary to notarize the will, and saw Saueressig sign the will.  The notary’s husband signed a declaration stating that he was ready and able to sign Saueressig’s will as a second witness even though Saueressig was deceased.

Nevertheless, the California Supreme Court refused to recognize Mr. Saueressig’s will.  The Court said that post-death witnesses were not permissible, and confirmed that the notary public alone was insufficient to create a valid type-written will.  As such, Mr. Saueressig’s will was ineffective and his estate passed in accordance with the rules of intestacy, instead of to whomever he wished to benefit in his will.

Since the Saueressig case was decided in 2006, the Legislature has added a narrow exception to the two witness rule, codified in California Probate Code section 6110(c)(2), where there is “clear and convincing evidence” that testator intended for the document to constitute his will.  Our colleague, Sil Reggiardo, was a primary proponent of this statutory revision when he served on the Executive Committee of the State Bar’s Trusts and Estates Section.  The clear and convincing evidence standard is a high bar to meet, but Mr. Saueressig’s will may have passed muster under the new law.

Handwritten Wills

If a will does not meet the above requirements, it may nevertheless be enforceable as a valid holographic will under California Probate Code section 6111 if the “material provisions” and the signature are in the handwriting of the testator.

A Real Life Example – Estate of Williams (2007) 155 Cal.App.4th 197

Homer Williams died on December 7, 2005.  When his son was not able to locate his will, he petitioned the court to probate an intestate estate, which is what commonly happens when someone dies without a will.  The petition was granted on March 22, 2006.

On May 10, 2006, Mr. Williams’ stepdaughter came to the court with what she claimed was a holographic will.  Mr. Williams’ stepdaughter testified at trial that she found a note pad in the center drawer of Mr. Williams’ desk about a week after he passed away.  The only other thing in the center drawer was Mr. Williams’ checkbook.

The first sheet of paper in the note pad, which had block printing handwriting on both the front and back of the page, was the purported holographic will.  The next two pages in the note pad were blank.  The fourth page in the note pad contained a list of movies in the same block printing handwriting, and the rest of the pad of paper was blank.

Other than Mr. Williams’ name written across the top of the paper, in the same block printing, with the words “Last Will, Etc. or What? Of Homer Eugene Williams,” the document was not signed.  Mr. Williams’ stepdaughter interpreted the somewhat vague language on the note pad to indicate that she was to receive everything in Mr. Williams’ estate, to his son’s exclusion.

The trial court admitted the note pad will to probate as a valid holographic will, and the Court of Appeal upheld the trial court’s finding.

The Court of Appeal went to great lengths to discuss the family dynamics at play behind the scenes, specifically the close, care-taking relationship that Mr. Williams had with his stepdaughter, as compared to the minimal contact he had with his son.

The Court of Appeal held that the signature, which was at the top of the document, in the title only, and in block printing, was a sufficient signature for a holographic will.  The Court held that a signature need not be at the end of the document as long as the document otherwise appears to be complete.  In addition, the Court held that Mr. Williams’ signature need not be in cursive.

On the whole, the appellate court concluded that the document was written with testamentary intent, and affirmed the trial court’s decision to admit the note pad will to probate.

Take Away Points

  1. Two Witnesses!  A typewritten will must be signed and it generally requires two witnesses, but clear and convincing evidence can overcome defects in witnessing formalities.
  2. No Notary Magic.  There is little or no benefit to having your will notarized.  A notary public is not a “super witness” who counts as more than one human being when it comes to will executions.  While notarization is common on trust documents (although, not necessarily required), remember that you need two witnesses on your will, who need not be notaries.
  3. Important Handwriting.  A court may treat a handwritten letter, note, or journal entry, as a valid holographic will if it is in the testator’s handwriting and it is signed.  If you are the one tasked with going through a loved one’s possessions after they pass away, you should keep on the lookout for any documents that could be holographic wills.
  4. Litigation is uncertain.  It is obvious that Mr. Saueressig intended for his document, which was typed, labeled as his will, signed, notarized, and delivered to his named executor, to be his will.  Contrast those facts with the handwritten document of Mr. Williams, which had a confusing title, was written next to a list of movies, lacked a cursive signature at the end of the document, and was not at all witnessed.  It seems much less certain that Mr. Williams intended for that piece of paper to be his will.  And yet, the ultimate result from the court (under prior California law) was to deny the enforceability of Mr. Saueressig’s will based on a technicality, while giving force to Mr. Williams’ note pad will.  Every case turns on its own facts, and the uncertainty inherent in litigation is a big reason why so many cases end in settlement.