Wills are statutory creatures.  What does that mean?  They are created, and governed, almost exclusively by the black letter law in our California Probate Code.  In other words, there is no fundamental constitutional right to create a Will in a certain manner.  You have to follow the rules set down by law, and if you don’t, then you do not have a valid Will.

In California, all Wills require the signature of two witnesses to be valid (Probate Code Section 6110.  Wills are NOT notarized in California and they do not make a Will valid on their own).  And if a Will contest arises in Court after the person who created the Will (call the Testator) dies, then the person fighting for the validity of the Will first has to prove “due execution.” 

Due execution is a fancy way of requiring proof that the Will was properly signed by the Testator and two witnesses.  (By the way, the witnesses have to see the Testator sign and each other sign as well, so everyone needs to be in the same room at the same time to make a valid California Will).

Due execution is relatively easy to prove, especially with the testimony of one or both of the witnesses.  Once due execution is proven, the Will is considered valid and it then becomes the burden of the Will contestant to prove the Will invalid for any reason (such as for lack or capacity or undue influence).

This concept, and sequence of proof, was recently covered by the First Appellate District of the California Courts of Appeal in Estate of Ben-Ali.  Estate of Ben-Ali has one of the more peculiar set of facts for a Will contest matter.  The decedent in the case is Taruk Joseph Ben-Ali.  Taruk’s father (named Hassan Ben-Ali) hid his sons death for many years.  In fact, he also hid his son’s body inside the walls on an apartment complex.  The father didn’t kill the son (apparently), but he had to hid the fact of the son’s death because the father’s most valuable asset (and the source of his income) was an apartment building that father had transferred into son’s name to avoid creditors.  Son was married just a few months before his death and had no Will.  Therefore, the property in son’s name would be left, at least in part, to son’s wife. 

Rather than allow the property to transfer to wife, father hid his son’s death and forged his signature on a number of documents.  Once son’s death was finally revealed, father produced a Will that was purported signed by son and witnessed by two witnesses (whose signatures were largely illegible). 

Surprisingly, the trial court held that the Will was valid by comparing the son’s signature to other signatures of his, they appeared to match thereby authenticating the decedent’s signature.  And one of the witnesses testified as to his or her signature on the Will.  But there was no testimony to authenticate the other witness’s signature.  Nevertheless, the trial court found the testimony sufficient to admit the Will to probate.

The appellate court disagreed.  Holding that (1) the son’s signature had been forged many times by the father therefore his signature could not be properly authenticated, and (2) both witness signatures must be authenticated to prove due execution.  That means there must be some testimony to prove that both witness signatures are true signatures of the people who purportedly signed the Will.  This proof can be established by an expert witness, by the testimony of people who are familiar with the person’s signature, or by the Judge in comparing signatures with previous (legitimate) example.  Without this proof, however, the Will cannot be admitted.

The bottom line: be sure you can authenticate your witnesses’ signatures when defending a Will in probate Court.  If you can’t authenticate, then the Will must fail.