BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 1986 (Silva)
As Introduced
Hearing Date: June 10, 2010
Fiscal: No
Urgency: No
TW:jd
SUBJECT
Statutory Wills: Form
DESCRIPTION
This bill, sponsored by the Trusts and Estates Section of the
State Bar, would conform the requirements of the California
statutory will form to the provisions of statutory law whereby
witnesses to a will are not required to sign the will in each
other's presence. This bill would also make technical revisions
to the statutory will form by removing language providing that
notarization alone is not sufficient and modifying the form
regarding nomination of a guardian for a child under age 18.
BACKGROUND
In 1983, the Legislature revised the Probate Code and prescribed
the California statutory will form and the California statutory
will form with trust with which California residents could
dispose of their property upon death. (AB 25 (McAlister,
Chapter 842, Statutes of 1983).) Although not substantively
required under probate statutes prescribed by AB 25 or
then-existing law, the statutory will form required witnesses to
sign the statutory will in the testator's and each other's
presence. The form did not contain language relating to
notarization. AB 759 (Friedman, Chapter 79, Statutes of 1990),
among other things, made revisions to the statutory will form,
but the witness requirements remained intact. SB 271 (Kopp,
Chapter 1055, Statutes of 1991) provided the current statutory
will form which combined the prior statutory will form and
statutory will form with trust into one document. The current
statutory will form includes the prior witness requirement but
(more)
AB 1986 (Silva)
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adds certain notarization and guardian appointment language.
This bill would comport the statutory will form with statutory
law by removing the requirement that witnesses be in each
other's presence when signing the statutory will. This bill
would also clarify the statutory will form regarding
notarization and revise the provision under which a testator may
appoint a guardian for a child under the age of 18.
CHANGES TO EXISTING LAW
Existing law permits the execution of the California statutory
will form to dispose of a testator's property. (Prob. Code Sec.
6226(c).)
Existing law provides that witnesses to a California statutory
will must be present when the testator executes the will.
(Prob. Code Sec. 6221.)
Existing law provides that each witness to a California
statutory will must sign the will in the presence of the
testator. (Prob. Code Sec. 6221.)
Existing law prescribes the statutory will form, which includes
instructions that witnesses must sign the will in each other's
presence. (Prob. Code Sec. 6240.)
Existing law prescribes on the statutory will form that
notarization of the form is not enough to satisfy the witness
requirement. Statutory law does not require notarization of the
form.
This bill would remove from the California statutory will form
the requirement that witnesses must sign the will in each
other's presence.
This bill would remove the reference to notarization from the
California statutory will form.
This bill would make a technical modification to the California
statutory will form regarding nomination of a guardian for a
child under age 18.
COMMENT
1. Stated need for the bill
AB 1986 (Silva)
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The author writes:
Existing law requires that to be valid a will must be
witnessed and signed by two independent adult witnesses. The
current statutory will form creates confusion because it could
be read to imply that notarization of statutory wills is
required. Under existing law, notarization of a statutory
will is neither necessary nor sufficient to satisfy the
witness requirement for a valid statutory will. The statutory
will form also states that the two witnesses to the will must
sign the will in each other's presence. There is no
requirement under California law that both witnesses sign in
each other's presence. . . . Further, the existing statutory
will form also contains language regarding the appointment of
a guardian that has caused some confusion amongst members of
the public.
2. Witnesses to a statutory will are not required to sign in each
other's presence
This bill would clarify that, although required to sign a
statutory will in the presence of the testator, witnesses to a
statutory will are not required to sign the will in each other's
presence. The Legislature adopted attestation requirements when
executing a will to protect the intent of the testator and guard
against fraudulent transfers of the testator's property. In
Estate of Saueressig v. Goff (2006) 38 Cal.4th 1045, a case
regarding witness attestation, the California Supreme Court,
quoting the California Law Revision Commission, explained that
"[t]he formalities for execution of an attested will are to
ensure that the testator intended the instrument to be a will,
to minimize the opportunity for fraudulent alteration of the
will or substitution of another instrument for it, and to
provide witnesses who can testify that the testator appeared to
be of sound mind and free from duress at the time the testator
signed or acknowledged the will. (Citation omitted.) The
opportunity for fraud is obviously greater once the testator is
dead." (Estate of Saueressig v. Goff, supra, 38 Cal.4th at p.
1055.) Although the court's analysis in Estate of Saueressig
pertained to a formal will and not a statutory will, the
reasoning behind witness formalities remains the same - to make
sure the will was not procured fraudulently.
This bill centers on whether the requirement that witnesses sign
in each other's presence is a necessary formality. The current
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California statutory will form instructs the testator that the
witnesses to the testator's will "must sign their names in [the
testator's] presence and in each other's presence." (Prob. Code
Sec. 6240.) However, the statutory will provisions in the
Probate Code only require that the testator complete the
appropriate blanks and sign the statutory will, and each witness
shall observe the testator's signing and sign his or her name in
the presence of the testator. (Prob. Code Sec. 6221.)
California courts have long held that witnesses are not required
to sign in the presence of each other. (See Estate of Dow v.
Hanley, et al. (1919) 181 Cal. 106, 115; Estate of Armstrong v.
Gross, et al. (1937) 204, 209.) In 1983 when the Probate Code
was substantially overhauled, the Legislature continued this
tradition and did not enumerate a specific provision requiring
witnesses to a statutory will to sign in each other's presence.
(See AB 25 (McAlister, Ch. 842, Stats. 1983); Prob. Code Sec.
6200 et seq.) Requiring witnesses to sign in the presence of
the testator is the safeguard to protect the testator's intent
and is sufficient evidence to a subsequent court interpreting
the provisions of the will that the testator intended to create
the statutory will and devise his or her property as set forth
therein. Thus, it is appropriate to remove the instruction from
the statutory will form that the witnesses must sign in each
other's presence.
3. Notarization instruction
This bill would remove the text from the statutory will form
that notarization of the will is insufficient to satisfy the
witness requirement. The Probate Code prescribes a presumption
that a witness receiving a devise in a will procured the devise
by duress, menace, fraud, or undue influence over the testator.
(Prob. Code Sec. 6112.) To help eliminate potential problems
regarding witness attestation, many testators request a notary,
who in most instances is unknown to the testator, to act as a
witness to a will. An example of this situation is demonstrated
in Estate of Saueressig v. Goff, supra, 38 Cal.4th 1045. The
testator had his will notarized, and thereby one witness, the
notary, signed the will. But the will did not conform to the
requirements of Probate Code Section 6110 because a second
witness did not sign the will. The court speculated that "the
only reasonable inference to be drawn from the decedent's
conduct is that he believed the notarization would validate his
will." The sponsor, the Executive Committee of the Trusts and
Estates Section of the State Bar (TEXCOM), argues that
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"notarization of a statutory will is neither necessary nor
sufficient to satisfy the witness requirement for a valid
statutory will. [T]he current language appears to create
confusion by implying that notarization is required. . . . There
is anecdotal evidence that this language is confusing to members
of the public. One of the most common inquiries received by the
Trusts and Estates Section from members of the public is whether
or not a statutory will needs to be notarized."
SB 271 (Kopp, Chapter 1055, Statutes of 1991) added the language
"NOTARIZATION ALONE IS NOT SUFFICIENT" to the statutory will
form. Although the legislative history of SB 271 does not
specify why this language was added, it is confusing in that it
suggests that the statutory will must be notarized. The current
form of the bill deletes the statement "NOTARIZATION ALONE IS
NOT ENOUGH" from the end of the statutory will form contained in
Probate Code Section 6240. However, many individuals executing
the statutory will form may still be confused as to whether this
type of will must be notarized since other types of wills are
required to be notarized. For this reason, the better
clarification of the notarization and witness requirements is to
advise the executor of the statutory will form that notarization
is not required. Accordingly, the author has agreed to take the
following amendment in committee:
Suggested Amendment :
Page 5, line 29 add "*You do not need to have this document
notarized. Notarization will not fulfill the witness
requirement."
4. Guardianship provision
TEXCOM states that people executing the statutory will form
typically only execute one will in their lifetime. Since family
planning changes over time, if a minor child exists at the time
of the testator's death and there is no other living parent, the
testator should be able to specify on the statutory will form
potential guardians for the minor child. However, in many
instances, unless a child exists at the time the statutory will
form is executed, many people entirely overlook this provision.
People who expect to have children in the future, but who may
not subsequently execute an amended will, should understand that
the guardianship provision on the statutory will form can be
completed for prospective children in the event the testator
dies and the child has no living parent.
AB 1986 (Silva)
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However, the bill's current language does not clearly provide
for the instance when the testator has living children when
executing the will and the instance when the testator is
contemplating having children when executing the will. For this
reason, the guardianship provisions of the statutory will form
should provide for each situation. Accordingly, the author has
agreed to take the following amendment in committee:
Suggested Amendment :
Page 9 at Paragraph 6, after "18" add ", whether such child is
alive at the time this will is executed or born after the date
this will is executed,"
Support : None Known
Opposition : None Known
HISTORY
Source : Trusts and Estates Section of the State Bar
Related Pending Legislation : None Known
Prior Legislation : See Background.
Prior Vote :
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Floor (Ayes 76, Noes 0)
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