The California Probate Code requires an individuals Last Will and Testament to be witnessed by two parties at the time it is signed. There are certain rules designating who can serve as a witness and under what circumstances the will signing and witnessing thereof must occur. For example, the witnesses must be disinterested parties that do not benefit or inherit property under the terms of the will. What happens if a will is not witnessed by two eligible individuals? If the will is not witnessed by anyone, it may be contested. It can be treated as a holographic will, however, if the testators signature and the material provisions of the will are in the testators handwriting. It should be noted that an improperly witnessed will is not automatically invalid. Section 6112 of the California Probate Code provides:
Unless there are at least two other subscribing witnesses to the will who are disinterested witnesses, the fact that the will makes a devise to an improper subscribing witness creates a presumption that the witness procured the devise by duress, menace, fraud, or undue influence. This presumption is a presumption affecting the burden of proof.
The individuals attempting to have the improperly witnessed will admitted to probate will have to prove the following by clear and convincing evidence:
- The testator signed the will.
- The testator intended for the will to constitute his/her will.
If you suspect that the will was not properly witnessed, The Legacy Lawyers can help you. We will carefully walk with you every step of the way. You will never be left wondering what to do next. Start today by calling to schedule your no-cost consultation: (714) 963-7543. At The Legacy Lawyers we are dedicated to your peace of mind.