My law school Civil Procedure professor often said: “You write the law and I’ll write the procedure and I will win every time.” His point was that understanding and following proper procedure is often more important than understanding the substantive law itself. While it might often feel like “form over function,” procedural rules are designed to ensure due process.
In the estate planning context, following the proper procedure for executing legal documents that legally effectuate your testamentary intent is critical. Below are three common procedural mistakes that people make when attempting “do-it-yourself” estate planning as well as possible solutions.
Problem 1: Non-Self-Proving Will
A formal will is generally witnesses by at least two disinterested witnesses. The witnesses subsequently sign the will attesting under penalty of perjury that the testator declared the instrument to be his/her will, appeared to be acting of his/her own free will, and did not appear to be under menace, fraud, or undue influence.
Often the attestation clause that the witnesses sign does not include all of the text that is required under the law. If this is the case, the will is not “self-proving” and additional procedures are required in order to admit the will to probate. If one of the witnesses can be located, the witness may sign a statement that he/she remembers witnessing the testator’s execution of the will. This document is known as a “Proof of Subscribing Witness.”
If no witness can be located, the will can still be admitted to probate if further evidence is presented that satisfies the court that the instrument was intended to be the testator’s will.
Problem 2: Holographic Will
If a will is not properly witnessed, it may still be valid if the material terms of the trust are written in the testator’s handwriting. This is often referred to as a “holographic will.”
In order to admit the holographic will to probate, someone familiar with the testator’s handwriting must file a document entitled, “Proof of Holographic Instrument,” stating that the handwriting in the will appears to be the same as the handwriting of the testator.
Problem 3: Typed Will Without Witnesses
In the current digital age of computers where many younger people do not even know how to write cursive, drafting documents using word processer software is the modern equivalent to a holographic will. It is common for testators to use their computer software to write their own wills. If the will does not have witnesses with the proper attestation clause, then the will might not be valid on its face.
California law allows such a will to be admitted to probate under the “harmless error” rule which allows for such a will to be admitted to probate provided that there is clear and convincing evidence that the testator intended the document to be his/her will. A person familiar with the will should file a declaration with the court explaining why the will should be admitted to probate despite its non-conformity with the proper procedure for executing a valid will.
Bonus Problem: Copies Only
If the original will cannot be located, there is a presumption that the testator intended to revoke the instrument. However, this presumption can be overcome by introducing clear and convincing evidence that simply not being able to locate the original does not necessary mean that the testator intended to revoke the will. In such a circumstance, complete signed photocopies of the will can be admitted to probate.
Although there are many ways to overcome a will that was not properly executed, methodically following proper procedure can make things much easier for your loved ones in the event of your passing. Attorneys who specialize in estate planning are familiar with the execution requirements and can ensure that you do not make a procedural mistake that creates uncertainty and unnecessary expense and delay.
KRASA LAW, Inc. is located at 704-D Forest Avenue, Pacific Grove, California and Kyle may be reached at 831-920-0205.
Disclaimer: this article is for general information only. Reading this article does not establish an attorney-client relationship. Before acting upon any of the information presented in this article, you should consult a competent attorney who is licensed to practice law in your community.