The comprehensive guide to probate, trusts, estate planning, and inheritance litigation.

Can A Beneficiary Witness A Will In California?

Yes.  A beneficiary can witness a will in California, BUT doing so is more trouble than it’s worth.

How Many Witnesses Are Required for a Valid California Will?

In California, two witnesses must sign the will, along with the testator.  The witnesses must be present at the same time and witness either the signing of the will or the testator’s acknowledgement of signing the will.  The witnesses must understand that they are signing the testator’s will.  The witnesses must be “generally competent.”

What If One Of The Witnesses To The Will Is Also A Beneficiary?

A witness that is also a beneficiary is called an “interested witness.”  This is because the witness has something to gain (an inheritance) as a result of the will.  California probate code section 6112 addresses the witness requirements in California and states:

(a) Any person generally competent to be a witness may act as a witness to a will.

(b) A will or any provision thereof is not invalid because the will is signed by an interested witness.

(c) Unless there are at least two other subscribing witnesses to the will who are disinterested witnesses, the fact that the will makes a devise to a subscribing witness creates a presumption that the witness procured the devise by duress, menace, fraud, or undue influence. This presumption is a presumption affecting the burden of proof. This presumption does not apply where the witness is a person to whom the devise is made solely in a fiduciary capacity.

(d) If a devise made by the will to an interested witness fails because the presumption established by subdivision (c) applies to the devise and the witness fails to rebut the presumption, the interested witness shall take such proportion of the devise made to the witness in the will as does not exceed the share of the estate which would be distributed to the witness if the will were not established. Nothing in this subdivision affects the law that applies where it is established that the witness procured a devise by duress, menace, fraud, or undue influence.

A California Will Is Not Invalid Because of a Beneficiary Witness

The first ground rule for beneficiary witnesses in California to know is that just because the witness is “interested” does not mean that the entire will is invalid.  It is legal under California law for an interested witness to witness a will.  But just because a beneficiary can witness a will in California doesn’t mean they should.

A Presumption Exists That The Bequest To a Beneficiary Witness Is Invalid

A bequest to an interested witness creates the presumption that the witness procured the devise by duress, menace, fraud, or undue influence.  This presumption is a presumption affecting the burden of proof.  The beneficiary witness has the burden of overcoming this presumption.  If the beneficiary witness can overcome the presumption, then the witness can take under the will.

If the beneficiary witness fails to meet the burden of overcoming the presumption, and the devise to that witness is not inconsistent with and can be separated from the devise of the will, only the devise to the witness fails and not the entire will.

Why Have A Beneficiary Witness to The Will?

Unless there are truly no other options (as in no one else available to serve as a witness), the obvious approach is to have two disinterested witnesses sign the will.  Or, have more than two witnesses so that the beneficiary witness is not actually necessary to the validity of the will.

Having a beneficiary witness a will in California, while permitted, creates unnecessary hurdles because in order for the beneficiary to inherit, they need to overcome the presumption that the bequest was procured by duress, menace, fraud, or undue influence.  It is much easier to have disinterested witnesses sign the will.  This will increase the likelihood of the will being admitted to probate, and all of the terms of the will being honored.

 

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