People should know the legal requirements for the proper execution (signing) of wills.

Under California law, the execution of a will must be witnessed by two persons generally competent to act as witnesses.

Wills are not notarized. An exception exists for handwritten wills – so-called “holographic wills” – which do not require any witnesses.

Let us examine the significance of witnesses when the will is later offered for probate.

California requires that the subscribing witnesses be present together when the testator either signs or affirms his/her signature, and the witnesses must understand that the instrument is the testator’s own will.

If a testator is unable or unwilling to find two disinterested witnesses then he or she might decide to proceed with a holographic (handwritten) will and avoid the witness requirement.

Furthermore, the two witnesses should be disinterested persons who receive nothing under the will. Otherwise, the law presumes that the interested witness procured such gift by duress, menace, fraud or undue influence. In that case, unless the presumption is overcome, the gift is invalidated.

When an unopposed will is offered for probate, these requirements must be shown to be satisfied. Accordingly, the subscribing witnesses sign an “attestation clause” under penalty of perjury to that effect.

Such so-called “self proving” wills may then be admitted without further evidence regarding execution. Otherwise, an affidavit or declaration of a witness and a copy of the will must also be submitted. This may become a problem if the witness is unavailable after the testator’s death.

If the will’s attestation clause is irregular or incomplete, then provided there is proof of the genuineness of the subscribing witnesses' signatures, this may be sufficient to show due execution.

When one of the witnesses’ signatures cannot be proven to be genuine then the person offering the will must then establish by clear and convincing evidence that the testator intended the document to constitute his or her will.

Such evidence may be credible testimony from someone to whom the testator declared the document to be his or her will.

When a will is opposed, an additional requirement applies. Then each subscribing witness must be produced and examined both as to whether the will was properly executed and whether the testator had testamentary capacity.

If a witness is forgetful or doubtful when examined then the proper execution of the will may be proved based on other evidence as discussed above.

A presumption of proper will execution exists when the testator's and the witnesses' signatures are proven to be genuine.

If the genuineness of any signature on the will comes into question, the court may order the will to be examined by a handwriting expert.

Accordingly, the names of each subscribing witness are typically printed below the signature together with the witnesses’ legal street address. Otherwise, an illegible signature without any way to prove the identity and genuineness of the signature may result in the court finding that the will was not properly executed.

What if one or both subscribing witnesses is unavailable?

If one subscribing witnesses is unavailable then the court may admit the will based on the testimony of the other subscribing witness.

If neither subscribing witness is available the court may then consider the evidence of other non-subscribing witnesses, if any, to prove the will’s proper execution.

In sum, a person making a will should have two credible and disinterested persons, who are expected to outlive the testator, witness either the signing of the will or affirmation of the testator’s signature on the will, as relevant.

The subscribing witnesses should sign the will’s sworn attestation clause regarding the proper execution of the will. Notarization is not required.

Dennis A. Fordham, attorney (LL.M. tax studies), is a State Bar Certified Specialist in Estate Planning, Probate and Trust Law. His office is at 55 First St., Lakeport, California. Dennis can be reached by e-mail at This email address is being protected from spambots. You need JavaScript enabled to view it. or by phone at 707-263-3235. Visit his Web site at www.dennisfordhamlaw.com .