Is an Unwitnessed Will Valid Without a Witness?
According to the California Probate Code, wills must be witnessed by two individuals when they are signed. California probate has specific rules regarding who can serve as a valid witness and the conditions under which the witnessing must occur. These requirements include being present simultaneously and understanding that the signed document is a will. Additionally, witnesses must meet specific age requirements and cannot be beneficiaries of the will.
While these requirements are essential for simple, testamentary trust, joint, and living wills, not every will is the same. The will may still be valid if your loved one left behind an unwitnessed will or holographic will. However, this could often provide grounds for contesting the will as handwritten wills are easier to null if you suspect fraud.
Unwitnessed Will
Individuals seeking to have the holographic will admitted to probate must prove the following:
- Clear and convincing evidence exists that the testator wrote and signed the will.
- Clear and convincing evidence demonstrates the testator’s intent for the will to be valid.
- They were in sound mind and body, meaning they were taken advantage of, also known as undue influence.
- State law states that the unwitnessed are valid if there is convincing evidence they created or redid their will.
To have a valid unwitnessed will be admitted to probate, other parties must be able to demonstrate that it should still be deemed valid. That means there is evidence that the testator meant to create a will.
A holographic will can still be valid if created with intent.
Undue Influence
However, suppose you suspect the will was fraudulent. In that case, it is best to speak to a California probate attorney to review your case. The lack of witnesses may also support your attempts to contest the will.
For more on undue influence, please look at our article “Understanding Undue Influence,” which provides a better understanding of proving the will invalid.
Next Steps
If you have additional questions about trust litigation, our Learning Center has plenty of helpful information.
If you are ready to start your case, please give us a call or fill out our Get Help Now form. A comprehensive overview of California Probate is available here. Or call our office today to schedule your free 30-minute phone consultation at (888) 443-6590.