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Typewritten wills in California generally require the signatures of two witnesses to be found valid, but the harmless error rule can save the day. Probate Code section 6110(c)(2), as recently discussed, provides that a will not properly executed may be admitted to probate if the proponent “establishes by clear and convincing evidence that, at the time the testator signed the will, the testator intended the will to constitute the testator’s will.”

In Estate of Berger (2023) ___ Cal.App.5th ___, the Court of Appeal applied the harmless error rule to a validate a will benefiting an ex-fiancé that the testator seemingly had forgotten before her death. Spoiler alert: there may be “fifty ways to leave your lover,” but remember to “make a new [estate] plan, Stan,” after you “slip out the back.”

Melanie Writes a Will and Breaks Up with Maria

Melanie Berger started dating Maria Coronado in the spring of 2002. In August 2002, only a few months into their relationship, Maria proposed marriage to Melanie, and the two became engaged.

Shortly thereafter, Melanie, who was assigned male at birth, arranged to have gender reassignment surgery. Before Melanie’s surgery, Maria left on a trip to Spain. While Melanie was home awaiting her surgery, she printed out a letter in which she named Maria as “my sole beneficiary in the event of my death.” The letter further stated that Maria had sole discretion to keep or dispose of Melanie’s assets (listed in the letter) after Melanie’s death. Melanie signed and dated the letter, but no one witnessed her signature.

On the same day she signed the letter, Melanie emailed Maria to inform her that she decided to leave her all of her belongings. Melanie further explained in that email, and later emails, that she would leave a copy of the “will” on Maria’s desk chair before Melanie left for surgery.

Upon Maria’s return from Spain, Melanie and Maria continued dating for six months. The two did not discuss the letter at any point upon Maria’s return. Melanie and Maria ended their relationship in the spring of 2003 and ceased all contact with one another.

Melanie became somewhat of a recluse and “hardly ever” left her house in Pasadena. Melanie passed away in November 2020. After Melanie’s death, her pastor found the letter in her home.

Probate Court Denies Maria’s Petition for Probate

On February 4, 2021, Maria filed a petition in Los Angeles County Superior Court seeking to have the letter probated as Melanie’s will. Melanie’s sister and next of kin, Glee Berger, opposed the petition, arguing that the letter was not a valid will.

After a two day trial, the probate court denied Maria’s petition because the letter did not meet the execution formalities of the Probate Code and the letter was not a valid will under the “harmless error” rule. In its analysis, the probate court vaguely concluded that it “ha[d] doubts about the letter and its context.”

Court of Appeal Applies the Harmless Error Rule

The Court of Appeal disagreed with the lower court’s application of the “harmless error” rule. When assessing whether a testator intended for a written instrument to be their will under the “harmless error” rule, a probate court must look to (1) the words in the document itself, and (2) the circumstances surrounding its creation and execution. Under this two-pronged analysis, “extrinsic evidence is always admissible on the question of the drafter’s intent.”

Applying this analysis, the Court of Appeal found that Melanie intended the 2002 letter to have testamentary effect. Both the substance of the letter—which specifically directed the distribution of Melanie’s assets to Maria—and the surrounding circumstances combined to evince Melanie’s intent to execute a will.

The Court of Appeal noted that Melanie executed the letter while she was awaiting major surgery (and was therefore “more acutely facing her own mortality”), Melanie told Maria she was executing a will, and Melanie treated the letter like a will by giving Maria a copy and keeping the original in a safe place where it was found decades later.

The appellate court further noted that the probate court’s “doubts” about the context of the letter, and whether Maria and Melanie were a “conventional” couple in the eyes of the court, have no bearing on Melanie’s intent when executing the letter.

Hence, “[w]hether it was wise for Melanie to have drafted a will leaving all of her possessions to someone she started dating six months earlier is irrelevant to whether she intended the document she drafted to be a will; critically, it is not for the courts to act in a parens patriae role over competent adults by second-guessing the wisdom of their personal decisions.”

And, importantly, whether Melanie forgot about the letter in the intervening years also has no bearing on her intent at the time of execution. Indeed, a “person’s failure to revisit a will in light of changed circumstances has nothing to do with her intent at the time she drafted the will.


It appears that the Court of Appeal applied the “harmless error” rule to a “T.” That is to say, the words of the letter and the surrounding circumstances at the time of execution certainly seem to show Melanie’s intent for the letter to constitute her will (in 2002). But the question remains—was the Court’s application of the “harmless error” rule really harmless? Melanie’s sister Glee would argue that it was not, as Melanie likely would not have wanted her assets to be distributed to her ex-fiancé with whom she had not spoken in almost twenty years.

From a practical standpoint, the case shows the importance of keeping estate planning documents up to date so that assets will pass as intended at death, not as intended long before. This is especially true in the context of nonmarital relationships. Under Probate Code section 6122, a divorce automatically revokes any disposition of property made by will to a former spouse, but a breakup between unmarried partners does not invalidate any provision they may have made in their wills to benefit each other.