Why do Wills need witnesses and who can witness a Will?

When our clients execute documents remotely – that is, outside of our office – one of the simplest to avoid yet easiest mistakes they can make is having the “wrong” individuals witness their Wills. Properly executing a California Will is very different than other estate planning documents such as Trusts and Powers of Attorney. One simply cannot have a notary notarize their signature, but must instead, have two (2) witnesses sign the Will – I.e., you need witnesses for your Will, not a notary. 

The Functions of Witnesses 

Last Wills and Testaments are very old documents meaning older, antiquated rules and principles have survived to the modern day. Witnesses traditionally serve two (2) very important functions for valid Wills: (i) they show/prove the testator (person whom the Will is for and thus the one executing/signing it) had testamentary capacity to create a Will to, and (ii) they show/prove a lack of potentially invalidating factors such as fraud, duress, and undue influence. 

Firstly, there are many factors one can consider when determining whether a party has testamentary capacity. However, in general, a person executing their Will must understand the nature of creating their Will; understand who their beneficiaries would be; know the nature and extent of their assets; and understand what type of disposition/bequest they are making. These factors can be difficult to prove where ambiguities are involved but are extremely critical as a lack of testamentary capacity invalidates a Will. Witnesses help prevent accusations of a lack of testamentary capacity by being exactly what their name implies, being witnesses to the person making and signing their Will. 

Secondly, easy accusations to make yet difficult to prove or disprove are accusations that the testator was being defrauded or under duress or undue influence when executing their Will. Witnesses again, witness the testator executing their Will and therefore can attest they testator was doing so of their own volition. 

Keep in mind, a witness does not need to know what is in the Will (I.e., they do not need to know who you are or are not leaving your estate to), but they do need to know that the document they are witnessing is the testator’s Will. 

Who Can Be a Witness to a Will? 

In California, you need two (2) disinterested witnesses to witness your Will. To be a disinterested witness, they must not have a pecuniary interest in the Will. While pecuniary interest broadly means a financial interest, here it generally means the witness cannot be a beneficiary of the Will. Once someone is selected to be a beneficiary of a Will, they are precluded from then witnessing that same Will in which they are named. If an interested person does witness a Will, the California Probate Code presumes fraud and undue influence, and the burden to prove otherwise falls on the would-be beneficiary. 

However, these rules do not restrict all parties from being witnesses even though they may arguably have an interest in the Will. These include the attorney(s) who drafted the Will; relatives of beneficiaries; creditors of beneficiaries; takers under an anti-lapse statute; and most important to keep in mind (and likely the most common after drafting attorneys) executors nominated under the Will. 

An executor is the person, or persons, a testator nominates to manage their estate after the testator’s passing. Executors are the parties who petition the court to open a probate case on the estate, they marshal the various assets of the estate, and they pay out all outstanding bills, debts, and distributions. In California, executors are entitled to request a fee for their services and this fee matches the attorney fees set by the Probate Code under Section 10810. The fees are set by the Probate Code and based on the gross estate value. 

Thus, it can be argued that since executors are entitled to a fee for their services upon request to the court, they therefore have a pecuniary interest in the estate. However, executors are in a very important role and therefore have important duties to uphold. Executors serve in a fiduciary capacity meaning they must act in the best interest of the estate and the beneficiaries thereof. Executors are not considered to have a pecuniary interest as they are not beneficiaries, their fee is not mandatory, and they operate in a fiduciary capacity. 

However, if the executor is also a beneficiary under the Will, then the executor also being a witness creates the same presumption of fraud and undue influence as mentioned above and thus the burden to prove otherwise falls on the interested witness to prove otherwise. 

If a party is determined to be an interested witness, then their gift under the Will would be invalidated. If the interested witness would have been a beneficiary under the Probate Code’s laws of intestate succession (I.e., distribution where there is no Will) – such as a child of the testator – then the interested witness will receive what their share would have been had there been no Will. 

General Rule of Thumb 

If you are executing your Last Will and Testament, to avoid the problems outlined above and protect your estate, you should have either of the following parties witness your Will: (i) the drafting attorney and a member of their staff; or (ii) a neighbor, friend, co-worker, etc. Generally, you are safe with anyone who is not named in the Will in any capacity whatsoever. Remember, they do not need to know the content of your Will, only that the document they are witnessing is your Will. 

As always, when dealing with matters of one’s estate plan, it is best to speak to an estate planning attorney to ensure your wishes will be carried out as specified and that all formalities to execution are followed. 

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Additional Resources: 

California Probate Code on Subscribing Witnesses -California Probate Code Section 6112 

California Probate Code on Attorney Fees - California Probate Code Section 10810