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  
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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  
                                                                      



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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.
                                                                      



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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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