Is Your Will Valid Under California Law? The California Harmless Error Doctrine

William Sweeney

Whether a document constitutes a valid will in California is a function of two variables: (1) the state’s Wills Act formalities, and (2) the degree of judicial compliance the courts require with respect to the statutory requirements including "harmless error."

This article addresses the formal requirements of a valid will first and the relatively new "harmless error" doctrine later in this article.

With regard to formal requirements:

(1) Under California Probate Code § 6110, a formal will must be in writing and signed by or on behalf of the testator. If the will is signed by someone other than the testator, it must be signed in the testator’s presence and at the testator’s direction. The will may also be signed by a conservator in accordance with California Probate Code § 6100 (b).

The formal will must be witnessed by being signed by at least two persons, each of whom must be present at the same time. The witnesses must be present for the testator’s signing of the will, or acknowledgement of the signature or of the will. The witnesses must also understand that the instrument they are signing is the testator’s will.

(2) Under § 6111(a) of the California Probate Code a "holographic" will is a will that is in the handwriting of the testator and signed by the testator. Such a will does not have to be witnessed.

(3) Under § 6221 of the California Probate Code, a California statutory will must be completed and signed by the testator, and at least two witnesses must be present while the testator signs the will. The witnesses must also provide their signature in the presence of the testator.

(4) Under § 6381(a) of the California Probate Code, an international will is a will that is valid regardless of where it is made, of the place where the assets are located, and of the nationality, domicile, or residence of the testator. The will must be in writing, and can be written in any language. It does not have to be written by the testator. Under the UIWA, the testator must state, in the presence of two witnesses and a person authorized to act in connection with international wills, that the document is the testator’s will and that the testator knows the contents of the will.

Until recently, most jurisdictions, including California, required strict compliance with each and every statutory requirement. Even the slightest defect in the execution ceremony led to a document being declared invalid. However, in 1990, the Uniform Law Commission adopted a "harmless error" provision. On July 1st, 2008, the California Legislature adopted a harmless error doctrine by amending its Probate Code § 6110.

With regard to California’s harmless error doctrine, if a will is not executed by the witnesses with the required formalities, it will be treated as if it complied with those formalities if the proponent establishes by clear and convincing evidence that, at the time the testator signed the document, he or she intended the document to be his or her will. (See California Probate Code §6110 (c)(2) below; Estate of Ben-Ali (2013) 216 CA4th 1026, 1036 (there was no proof by clear and convincing evidence in light of "many unusual events surrounding the document"); Estate of Stoker (2011) 193 CA4th 236 (will was valid even though it lacked witnesses’ signatures; two witnesses saw decedent sign document and testified in court to verify that will was genuine)).

At the time California adopted its harmless error doctrine, subsection (c)(2) of Probate Code § 6110 was added so that § 6110 now reads as follows:

(a) Except as provided in this part, a will shall be in writing and satisfy the requirements of this Section.

(b) The will shall be signed by one of the following:

(1) By the testator.

(2) In the testator's name by some other person in the testator's presence and by the testator's direction.

(3) By a conservator pursuant to a court order to make a will under § 2580.

(c) (1) Except as provided in paragraph (2), the will shall be witnessed by being signed, during the testator's lifetime, by at least two persons each of whom (A) being present at the same time, witnessed either the signing of the will or the testator's acknowledgment of the signature or of the will and (B) understand that the instrument they sign is the testator's will.

(2) If a will was not executed in compliance with paragraph (1), the will shall be treated as if it was executed in compliance with that paragraph if the proponent of the will 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. (Emphasis added).

With regard to subsection (c)(2), there are a number of issues that may arise. First, does the California harmless error doctrine apply to handwritten alterations to attested wills? Proper analysis of that issue requires resolution of two sub-issues. First, does the California harmless error doctrine apply to attested wills only or to both attested and holographic wills? Although the statutory location of California’s harmless error doctrine might lead one at first blush to conclude that it applies to attested wills only (it is housed in Probate Code § 6110, the statutory provision historically associated with attested wills), both the statutory language and the legislative history support the conclusion that the California doctrine applies to both attested and holographic wills.

Second, does the California harmless error doctrine apply to codicils? Although the legislative history clearly states that the modified doctrine does not apply to codicils, the statutory language of the amendment does not support the legislative history. The comment in the legislative history appears to be based on revisions to the proposed amendment, but the comment fails to take into consideration the final statutory language adopted which, like the California Probate Code, draws no distinction between the a will and a codicil. The California harmless error doctrine should apply to handwritten alterations (the purported codicil) to an attested will just like the UPC version does.

California’s harmless error doctrine has become very important indeed. With websites offering self prepared wills, more and more people are drafting their own wills without any knowledge of legal requirements. Many times this creates what are called "bare naked" or "near miss" wills.

The "bare naked" will is typically a downloaded will: a completely typed and signed document that purports to be the decedent’s will but: (1) it is not witnessed nor was there even an attempt to have it witnessed, and (2) the material provisions are not in the testator’s handwriting.

In the "near miss" execution scenario, to the layperson the signer of the will appears to sign in the presence of the witnesses, who appear to sign in the presence of the testator, only to have the probate court rule that under strict compliance the "presence" requirement was not satisfied and the will is not valid. (See California Probate Code § 6110 (c)(1) above).

While arguments can be advanced on both sides of the "bare naked" or "near miss" failed will, it will be up to the California courts to decide how the harmless error doctrine should be applied in each case. The California harmless error doctrine dictates that there must be clear and convincing evidence that the testator intended the document to be his or her will at the time the testator signed the will. Interestingly there appears to be no legislative explanation for this requirement.

If the harmless error rule applies, will it apply to validate the will of a testator who died before the effective date of the statute. In California, the answer appears to be yes. For example, Steven Wayne Stoker signed a will in 1997. In it he left some items of personal property to friends, but the residue (and bulk) of his estate was to go to the Steven Wayne Stoker Revocable Trust, which he had signed that same day. The trust named his girlfriend, Destiny Gularte, as trustee and beneficiary. At some point they had a break up. Gretchen Landry, a friend of decedent’s, testified that in 2001 decedent took his original copy of the 1997 will, urinated on it and then burned it. The probate court felt that decedent’s actions lead to the compelling conclusion he intended to revoke the 1997 will. The matter was appealed to a higher court.

The California appellate court held that the trial court did not err in admitting it to probate under § 6110(c)(2) based on clear and convincing evidence of decedent’s intent in the form of testimony by two witnesses who saw him sign it. The court ruled that public policy in favor of validating wills that reflect decedents’ intent supports retroactive application of §6110(c)(2) [which was effective as of January 1, 2009] to wills executed before its effective date. The court further ruled that lack of testamentary language, the absence of the use of the word "will," or reference to death did not preclude finding that document was intended by decedent to be his will. Estate of Stoker (2011) 193 CA4th 236.

Please contact me if you have a document that appears to dispose of assets on the death of a loved one, friend or acquaintance but you are not sure if the document would constitute a valid will. It may represent the last wish of the deceased and be covered by the harmless error doctrine under California law. I assist clients in all California counties, including Imperial County, Los Angeles County, Orange County, Riverside County, San Bernardino County and San Diego County. You can reach me by phone at 760-989-4820, by email at wksweeney@gmail.com or through my online contact form.