What constitutes a valid will? Can great Aunt Sally create a valid will by writing “I leave all of my earthly possessions to my cockatiel Cornelius. – Sally” in lipstick, on her vanity mirror? Does it need to be witnessed or notarized?
A testator (the person making the will) generally must be 18 years old to make a valid will in California, unless they’re an emancipated minor. They must also be mentally competent to create the will. A person lacks capacity to make a will if:
1) they don’t understand the nature of their testamentary act (i.e., the making of the will), they don’t understand and recollect the nature their property, or they don’t remember and understand their familial relations and that those interests can be affected by their will;
2) they suffer from a disorder which entails delusions or hallucinations, and which result in the individual drafting their will in such a way that, but for the delusions or hallucinations, the individual would not have done.
These tests are not exclusive, however; there may be other circumstances under which a person can lack capacity to make a will.
Generally speaking, the will itself must be in writing, signed by the testator (with some exceptions), and witnessed by two people who understand what it is the testator is signing. Both witnesses should be “disinterested witnesses” (not receiving anything under the will), otherwise a presumption of undue influence, duress, menace and/or fraud may arise.
If the material provisions of the will, and the signature, are in the handwriting of the testator, then a will may be admitted to probate as valid, even absent signatures by witnesses; this is called a “holographic will.”
A valid will may be revoked by subsequent, valid wills which expressly revoke the prior will(s), or is simply inconsistent with prior will(s). It can also be revoked by physically destroying the will itself, if it’s the testator’s intent to revoke the will by doing so (so if the will is destroyed by a house fire, or gets eaten by the dog, it doesn’t count as revocation.) If a will was duplicated, only one needs to be destroyed.
If, after executing the will, the testator/decedent gets divorced, any provisions that do the following become null and void:
- bequeaths/devises/gives property to the ex, or
- confers a power of appointment to the ex, or
- nominates the ex-spouse as executor, trustee, conservator, or guardian.
In other words, the ex gets ex’d out of the will.