This is heartbreaking problem and is nearly impossible to fix after someone dies. Typically, the problem arises when someone creates a Will decades before death and sets out his wishes at that time. But over time he changes his mind and wants to leave the estate to different people. The decedent may even tell people he wants them to have his estate, or that he intends to change his Will to leave them everything, but the Will is never changed. So the old Will, from decades ago, is the only valid Will at death, and that old Will will govern how the estate is distributed.
What Happens if an Oral Will is Not Followed?
There is no procedure for the court to consider testimony from witnesses who heard the decedent change his mind before death. The problem is that there is no such thing as an oral Will in California. A Will must be written to be valid. Whatever is written in the last Will applies, legally speaking, and nothing can change that in court. Even if the Will was written fifty years before a decedent’s death, and everything has changed over time, that Will is the ONLY legal Will to govern the decedent’s assets come time of death.
Why Doesn’t California Recognize Oral Wills?
Why such a harsh rule? Our laws of Will creation in California are meant to ensure that a written document truly represents the decedent’s wishes. Since the decedent is not around to testify to his or her wishes, we have to use a written Will document as proof of his desires. But there is room for wrongdoing since anyone could simply write different wishes on a piece of paper and claim it is a Will of the decedent. The same is true of oral testimony, anyone could say anything they like after the decedent died and claim it was the decedent’s final wishes.
Formal Requirements of a California Will
To avoid these problems, the law imposes formalistic requirements on all Wills. The formal requirements states that a Will must be (1) in writing, (2) signed by the decedent, and (3) witnesses by two witnesses. If a Will does not meet these three formalities, then the Will simply is not valid under California law.
Alternatively, a Will that is written in the decedent’s own handwriting (called a holographic Will) can be a valid Will provided it is (1) in writing, and (2) signed by the decedent. There is no requirement for two witnesses with a holographic Will.
Either way the Will must be written, so oral testimony of the decedent’s true wishes do not apply and cannot be used by the court to change the terms of the Will. We have seen many cases where peoples’ intent changes over time, but they fail to create a new Will.
Example of How a Deceased Person’s Assets Can End Up in The Wrong Hands
For example, take someone (let’s call him Fred) who has a few close friends that have helped Fred out in the last few years of his life. Fred has no children, has never been married, and only has a few distant cousins that he hasn’t talked to in decades. Fred wants his estate to pass to his two closest friends. Fred created a Will twenty-five years ago leaving everything he has to charity. But that charity has since gone out of existence. Fred tells his friends many times that he wants them to inherit all his property, but Fred never gets around to creating a Will. Fred goes so far as to have a Will typed up by one of his friends, but it is never signed or witnessed.
After Fred dies, can the friends go to court to implement Fred’s true wishes to leave the estate to them? Is the case better for Fred’s friends since the charity is no longer in existence? Unfortunately, no; Fred’s friends are out of luck. The only written, signed, and witnessed Will is the old Will created decades ago, that is the only Will that applies. The new typed Will was never signed, so it cannot meet the formal requirements of a Will and is therefore invalid. There is no oral Will in California, so the friend’s testimony about Fred’s intent is irrelevant and cannot be considered by the court. The fact that the charity is no longer in existence does not invalidate the old Will. It just means that the estate assets will likely be distributed to Fred’s heirs-at-law, which would be his distant cousins. In the end, the cousins receive everything and Fred’s friends receive nothing.
This is a tragic result because Fred could have either signed the Will that was typed for him, or he could have handwritten his own Will. Imagine if Fred had just written down what he wanted for his estate on a piece of paper and signed it—that could have been a valid Will. Without that, all is lost for Fred’s friends. The formality requirements of Will creation can have harsh results. But the law prefers harsh results for Wills to ensure the written document is truly a reflection of the decedent’s intent. That’s just the way it is.
The law presumes that people know how the Will creation works, even though many don’t. So if you want your true wishes to be implemented, you had better write it down.
