Drafting a will without a knowledge of the law puts validity at risk

A recent California case highlights the problems that may result when a person decides to draft a will unassisted. A mother with two children and many friends decided she could do just fine writing her own will, documenting her wishes for distributing her assets and personal property on her death. So, she used her home computer to do just that. Once completed, she printed it out and decided a notary public would trump having mere witnesses acknowledge her signature on the will.

The notary public notarized the will, which provided for her son to receive the father's tool set and all the life insurance proceeds. The daughter did not receive money but was named the executrix, which would allow her to collect a fee for administering the estate. The rest of her possessions were divided among seven people in three different families. When the mother finally died, all the heirs were relatively happy. The only problem is the will proved invalid in California.

A California law requires witnesses to a will, and a notary public cannot be substituted for that obligation to prove a will valid. According to the law, the woman died intestate, without a will. When that happens, California statutory law decides who gets what. The statutes do not recognize friends, so the son and daughter would stand to divide the estate equally. That possible result did not sit well with the woman's friends, and so they retained an attorney to protect their interests.

Meanwhile the woman's son went to collect the tool set, figuring he would end up with it anyway. However, he soon discovered that his mother had given it away to a friend several years before. He requested its return but the friend resisted, saying the set was a gift made during the mother's lifetime, which means it was not the friends to give away after the woman's passing.

While the court case is said to be still pending, it is clear that the woman's "will" is invalid. Pressed to make a decision, the court will presumably apply California statutory law, though the parties may decide to come to a formal settlement among them.

The case demonstrates that, to draft a will, it is prudent to consult a California attorney experienced in estate planning and knowledgeable of the laws and procedures governing the proper execution of wills and other estate documents.

Source: The SDGLN, "When it comes to wills, do mothers know best?," Christopher Heritage, Sept. 16, 2011

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