Legal Question in Wills and Trusts in California

No, that is not true. One of the witnesses or both witnesses can be beneficiaries. The will is still valid but the beneficiaries may not be able to take under the will.

At common law, a witness who was a beneficiary under the will on the day of execution was deemed incompetent and barred from testifying in court as the acts of execution. If one of the witnesses was interested in the will, the will could not be probated.

California has a different setup. A will or any provision thereof is not invalid just because one of the attesting witnesses is also a beneficiary. Unless there are two other disinterested subscribing witnesses, the fact that the will makes a gift or devise to one witness creates a presumption affecting the burden of proof that the witness procured the devise by duress, menace, fraud or undue influence. (Prob. Code, sect. 6112.)

The burden is then on the beneficiary witness to rebut this presumption. If the witness cannot rebut this presumption, then the witness gets the proportion of the devise that does not exceed the share of the estate that would be distributed to the witness under the laws of intestate succession.

If you are drafting a will, do everyone a favor and avoid this by using disinterested witnesses, and not beneficiaries to attest the will.

If all parts of the Will are solely in the handwriting of the testator [person making the Will] then it is a holographic will and no witnesses are required [but nothing on the paper used to write the will can have anything typed, including the date, etc].