A will that fails usually fails on form, not on content
Section 1705 of the Civil and Commercial Code says it plainly: a will, or a clause of a will, made contrary to the provisions on form is void.
Void means of no effect from the beginning. Not partly valid, and not correctable later.
And the people who find out it is void are the ones left behind, not the person who wrote it.
Which is why an error of form is far more serious than an error of wording.
Ambiguous wording can still be construed. A defective form is simply the end of it.
What hurts more is that the most common failures are all small things.
People writing their own use two forms, and the rules are not the same
The law provides several forms of will, but somebody doing it without going to a government office is usually using one of these two.
The wholly handwritten will under section 1657, which needs no witnesses at all.
The ordinary will under section 1656, which may be typed but needs two witnesses.
Confusion arises because so many people mix the two: they type a document and sign it, with no witnesses.
The result satisfies neither form.
The handwritten will has to be handwritten, every character of it
Section 1657 provides that a will may be made as a document written entirely by the testator, meaning that the testator must write with their own hand the whole of the text, the day, the month, the year, and their signature.
Read the word whole again.
The whole of the text means not one typed line.
The day, the month, the year means all three, not just the year.
Their signature means signed.
And the section closes with the sentence people trip over most: that section 9 of this Code shall not apply to a will made under this section.
Section 9 is the provision that allows a fingerprint or another mark to stand in for a signature where it is certified by witnesses.
Since section 1657 says section 9 does not apply, a wholly handwritten will cannot use a thumbprint in place of a signature.
That bears directly on elderly people who can no longer write, and is precisely why they should use a different form.
The same section also deals with alterations: any erasure, omission, insertion or other change is ineffective unless the testator has made it with their own hand and signed alongside it.
So crossing out one child's name and writing another over it, without signing beside the change, is an ineffective alteration.
The ordinary will may be typed, but the witnesses must be there together
Section 1656 requires the testator to sign in the presence of at least two witnesses present at the same time, and those two witnesses must then sign to certify the testator's signature at that moment.
Two phrases carry the weight: at the same time, and at that moment.
At the same time means both witnesses in the room together, not one in the morning and one in the afternoon.
At that moment means they sign there and then, not take it home and bring it back the next day.
This goes wrong constantly in busy families, because getting two people into one room seems like a small matter, right up until it is the reason the will is void.
The day, month and year of making it must also be stated, and that is not a formality.
Because where two wills exist, the date is what says which one is later.
Who cannot witness, and who cannot benefit
This is the trap that destroys a will which got everything else right.
Section 1653 provides that the writer of a will, or a witness to it, cannot be a beneficiary under that will, and applies the same rule to the spouse of the writer or witness.
Read the word spouse slowly.
The son witnesses the will, and the will leaves the house to his wife. That clause is in trouble.
The daughter writes out the will as her mother dictates, and the will names the daughter as a beneficiary. That clause is in trouble.
The safest arrangement is two witnesses who receive nothing under the will, and whose spouses receive nothing either.
Neighbours, colleagues or acquaintances outside the family do this job better than children do.
As for who is barred from witnessing at all, section 1670 excludes a person who has not reached majority, a person of unsound mind or one whom the court has declared quasi incompetent, and a person who is deaf, mute or blind in both eyes.
The ten most common failures
In the order they actually occur, not in order of severity.
- No day, month and year, or only the year, which is the leading failure.
- A typed document signed with no witnesses, in the belief that it counts as a handwritten will.
- A thumbprint on a wholly handwritten will, which section 1657 expressly shuts out.
- The two witnesses not present together, or signing on different days.
- A beneficiary as witness, or the spouse of a beneficiary as witness.
- The person who wrote it out being a beneficiary themselves.
- Pen alterations with no signature beside them, leaving the change ineffective.
- Property described loosely, such as the house I currently live in, when there have been two moves since.
- Leaving property that has already been sold, because the will was never revised after the sale.
- Nobody knowing where it is, and a will that cannot be found has the same effect as no will.
Notice that the first five make it void, while the last five do not, but they do start the argument.
Content that starts a fight even when the will is valid
A will perfect in form can still break a family if it is written carelessly.
Describing property in words whose meaning shifts over time, like the car I drive or the money in my bank account, which may all have changed by the time the will is opened.
Better to give the title deed and parcel numbers, the vehicle registration, and the bank name with the account number.
Appointing no estate administrator, leaving the heirs to petition the court among themselves, which is where conflict most often begins.
Ignoring mortgaged property, because the house being given still carries debt at the bank, so whoever receives the house receives the debt, and the will should say who bears it.
Saying nothing about the remainder. Anything not mentioned passes by the statutory order of heirs, which may not be what was intended.
A single sentence covering where all unmentioned property goes prevents that entirely.
Safer routes for anybody who does not want to gamble on form
If all of this reads as a lot of conditions to satisfy, that reaction is correct.
A will made as a public document at the district office, with officials conducting it in the form the law prescribes.
The advantage is that the risk on form drops sharply, because the officials do this as routine work and an original is kept on the government record.
A second advantage people rarely mention is that it is harder to challenge, having been made by a public official with an official record behind it.
Having a lawyer draft it and hold the original, for a complicated estate, a business, several plots of land, or a family with a history of conflict.
The cost of drafting a will properly is not remotely comparable to the cost of litigating over one.
Where to keep it, and who to tell
A perfectly valid will that nobody can find is worth nothing.
Do not leave it in a safe whose combination nobody knows, because by the time it is opened an administrator may already have been appointed.
Do not leave it in a bank box without telling anybody, for the same reason.
Tell at least two people where it is, one of whom should receive nothing under it, which removes the incentive for it to go missing.
Keep a copy, and write on the copy where the original is, understanding that a copy is not a will but a map to one.
If you make a new one, destroy every copy of the old, because a surviving old will is the seed of a dispute.
And revisit the will whenever life changes: marriage, divorce, a birth, buying or selling a house, or an heir dying first.
If you are thinking about this now, read it alongside giving the house to your children now against leaving it as inheritance, because the two decisions cannot be made separately.
Frequently asked questions
Can a will be typed?
Yes, as an ordinary will under section 1656, which needs the day, month and year, and the testator's signature in the presence of at least two witnesses together, who then certify it at that moment. A wholly handwritten will under section 1657 cannot be typed at all.
Is it valid without a date?
No. Both forms require the day, month and year, and the date is also what identifies which of several wills is the later one.
Can a thumbprint replace a signature?
Not on a wholly handwritten will, because section 1657 states that section 9, which allows a fingerprint, does not apply to this form. An elderly person who can no longer write should use a different form.
Can a child witness a parent's will?
They may witness, but if they also take under it, that clause is in trouble under section 1653, which extends to the witness's spouse as well. Use witnesses who receive nothing at all.
Can I cross something out and write over it?
On a wholly handwritten will, an erasure, omission, insertion or other change is ineffective unless the testator makes it in their own hand and signs beside it. Writing a fresh will and destroying the old one is safer.
I made two wills. Which one applies?
As a rule the later one prevails so far as they conflict, which is why the date matters and why every copy of the old one should be destroyed when a new one is made.
What happens to property the will does not mention?
It passes by the statutory order of heirs, which may not match the intention. One sentence covering where all unmentioned property goes prevents that.
In short
- Section 1705 makes a will defective in form void, and that cannot be repaired later.
- A wholly handwritten will must be written by hand throughout, including day, month, year and signature.
- A wholly handwritten will cannot use a thumbprint in place of a signature.
- An ordinary will may be typed, but both witnesses must be present together and sign at that moment.
- Neither the writer nor a witness may benefit, and the bar extends to their spouses.
- Alterations to a handwritten will must be in the testator's hand and signed beside.
- Identify property by deed number and account number, not by phrases like the house I live in.
- Appoint an estate administrator so the heirs do not have to fight over petitioning the court.
- A will made as a public document at the district office reduces the risk on form the most.
- Store it where it will be found, and tell two people, one of whom takes nothing under it.