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Wills • Execution of Wills
WILLS#006
Legal Definition
Where a will is not executed in strict compliance with the witnessing requirements, it may still be admitted to probate if the proponent establishes by clear and convincing evidence that, at the time the testator signed the will, they intended it to constitute their will.
Plain English Explanation
In other cards, you will learn about the "witnessing requirements" in order for a court to accept a will as valid. However, under some circumstances, where there is very clear and convincing evidence that a will genuinely reflects the dead person's wishes even though it doesn't technically follow the witness requirements, some courts will not just throw out the will as invalid.
You may be wondering, "Well, what exactly counts as clear and convincing evidence?" That, my friend, is for you to argue on an exam. The key is to look out for an instance where some random act or stupid mistake would otherwise cause the will to be deemed invalid, then seek out facts that you can use to argue a court should still enforce the will because it genuinely reflects the dead person's wishes and is better than pretending as if they died without a will.
You may be wondering, "Well, what exactly counts as clear and convincing evidence?" That, my friend, is for you to argue on an exam. The key is to look out for an instance where some random act or stupid mistake would otherwise cause the will to be deemed invalid, then seek out facts that you can use to argue a court should still enforce the will because it genuinely reflects the dead person's wishes and is better than pretending as if they died without a will.
Hypothetical
Hypo 1: Bob has written his will. He presents it to Sam and Amy and confirms to them that this is his will and signs it in front of them. Bob then hands the pen to Sam, who signs as a witness. Sam then hands the pen to Amy. Amy attempts to sign, but the pen has run out of ink. Bob says, "No worries, I can run to the store and buy a new pen for you." On his way to the store, Bob is hit by a car and killed. Result: Technically, the witnessing requirements were not followed, which generally require two witnesses to sign and attest that a will is valid. Here, although Sam and Amy both witnessed Bob signing his will, Bob died with only Sam having signed as a witness. However, under the harmless error doctrine, if it can be shown through clear and convincing evidence that the will genuinely reflects Bob's actual wishes, courts may overlook the fact that Amy was unable to sign and accept it as a valid will.
Related Concepts
In California, what are the requirements for a will to be admitted to probate?
What are the requirements of a formal attested will?
What is a conditional will and when is it probated?
What is a holographic will and what are its requirements to be valid?
What is an interested witness?
What is probate?
What is the consequence of having an interested witness?
