When creating a California Will there are a few basic steps that must be met from a legal perspective in order for that Will to be legally valid. In their simplest form, the two areas required for a valid California Will are the necessary “Intentionalities” and the required “Formalities.”
Intentionalities evidence a person’s intent to create a Will. Will creation requires intent—the person creating the Will (referred to as the “Testator” ) must intend to make a Will. And there are a number of things that can undermine the necessary intent to make a valid Will. A short list of such items include: lack of mental capacity, undue influence, fraud, and duress and menace. The full list of intentionalitiesfollows:
- Intent to create a will
- Undue influence
- Duress and menace.
Formalities refer to the formal requirements for California Will creation. For example, a Will must be in writing (no oral Wills are allowed), signed by the testator, and witnessed by two disinterested witnesses. Alternatively, a hand-written Will can be valid if the material provisions are written in the testator’s own handwriting and signed—no witnesses needed (this is referred to as a “Holographic” Will).
- Written Will
- Signed by testator
- Witnessed by two disinterested witnesses or holographic.
Using these two areas of legal requirements, you can go down the list of Intentionalities and Formalities to determine if a Will is valid or not. The lack of any one item may result in an invalid Will. For example, a Will with all the necessary Intentionalities, that is printed from a computer and signed by the testator could still be invalid if it lacks the required two witnesses. Conversely, a properly executed and witnessed Will could be invalid if the testator lacks mental capacity or if the testator is unduly influenced in making the Will.
Does that mean Wills are easy to attack? Not necessarily. In fact, a vast majority of Will contests that make it to trial fail to succeed. Of course, this could be due in part to the fact that many of the cases with troubling facts settle before trial.
Keep this list of Intentionalities and Formalities in mind as we submit further blog posts on the component areas—such as undue influence, capacity, fraud, etc.