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) Page 2 of ? 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) Page 3 of ? 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 AB 1986 (Silva) Page 4 of ? 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 AB 1986 (Silva) Page 5 of ? "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) Page 6 of ? 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) **************