Regardless of what type of will you choose, a will is invalid if it does not demonstrate present testamentary intent. (Estate of Wong (1995) 40 Cal. App.4th 1198, 1204-1205.) What does present testamentary intent mean? This was the issue in Estate of Southworth (1996) 51 Cal. App. 4th 564. Dorothy Southworth filled out a charitable donor card stating a future intent to make a gift to the North Shore Animal League. The court identified the specific language in question: “[o]n the card, the decedent circled printed option c. which states: "I am not taking action now, but my intention is [in the blank space provided she wrote] My entire estate is to be left to North Shore Animal League.” (Id. at 567.) In denying admission of the donor card, the court stated:
“…the printed language Southworth incorporated from the donor card does not evince her present testamentary intent. Instead of striking the material printed words which state "I am not taking action now, but my intention is," she chose to incorporate those words with her handwritten statement, "My entire estate is to be left to North Shore Animal League." The material printed language together with her handwriting evince a future intent; not present testamentary intent.”
The provisions of a will must be concrete and not aspirational, as the Southworth case demonstrates. Although this seems slightly obvious, what is clear and what is ambiguous may not be apparent to a lay person, further demonstrating the importance of having an attorney involved in the process of drafting the will.
Generally speaking, it is the better practice to have the two witnesses not be “interested persons.” A disinterested witness is a person who will not be receiving something under the will.
Under PC § 48(a) an “interested person” includes any of the following:
(1) An heir, devisee, child, spouse, creditor, beneficiary, and any other person having a property right in or claim against a trust estate or the estate of a decedent which may be affected by the proceeding.
(2) Any person having priority for appointment as personal representative.
(3) A fiduciary representing an interested person.
Do not think that these categories are rigid rather they are flexible and vary on a case-by-case basis. (“The meaning of “interested person” as it relates to particular persons may vary from time to time and shall be determined according to the particular purposes of, and matter involved in, any proceeding.” Probate Code § 48(b).)
What’s the problem with having a witness be "interested person"? The problem is that when the will leaves something to an interested person Probate Code § 6112 “creates a presumption that the witness procured the devise by duress, menace, fraud, or undue influence.” You don’t have to be a lawyer to imagine that this is a big problem. The presence of an interested witness will not invalidate a will but that witness may be prevented from receiving what the testator left to them if they cannot show that they did not obtain the gift by duress, menace, fraud, or undue influence. If they cannot rebut the presumption, then the witness can only receive a proportion of the devise made to the witness in the will as does not exceed the witness’ share of the estate which would be distributed to the witness if the will were not admitted to probate. (Probate Code § 6112(d).) That means, whatever the witness would have received if the testator died without a will.
Fraud or Duress in the Creation of a Will
While we are on the subject, some people worry about whether an elder relative may have been forced or tricked into making a will benefiting someone. In addition to being elder abuse under Welfare & Institutions Code § 15600 et seq., such a will is invalid under Probate Code § 6104 if it was the result of duress, menace, fraud, or undue influence. Although I used the example of an elderly person, this rule applies to any person who is tricked or forced into making a will. If you suspect that a will is the product of duress, menace, fraud, or undue influence you should immediately contact an attorney.