What is Improper Execution of a Will

Emily recently sat across from me, visibly distraught. Her mother had passed away a few months prior, leaving a will that disinherited her entirely in favor of a new caregiver. But Emily suspected something wasn’t right. The will had been signed just weeks before her mother’s rapid decline into dementia, and Emily couldn’t shake the feeling that the caregiver had pressured her mother into making the change. She’d hired an attorney to contest the will, but unfortunately, that attorney had failed to properly investigate the execution of the document – specifically, whether her mother was of sound mind when she signed it, and whether two witnesses were truly present as required by law. Emily lost her case, and the caregiver walked away with everything. The cost? Over $300,000 and years of family turmoil.

Proper execution is the bedrock of a valid California will. Without it, even a beautifully drafted document can be tossed out by the probate court. It’s a deceptively simple concept – the testator (the person making the will) must sign the will while in the presence of two witnesses, who then sign the document themselves – but the devil is always in the details. After 35+ years as an Estate Planning Attorney & CPA, I’ve seen countless wills challenged on technicalities, and I can tell you with certainty that these challenges often succeed, even when the testator’s intentions were clear. This is where my unique background as a CPA becomes invaluable.

What Does “Proper Execution” Actually Mean?

California law dictates a very specific process. Probate Code § 6110 requires that the testator:

• Sign the Will: This seems obvious, but the signature must be made freely and voluntarily.
• Declare to Witnesses: The testator must declare to the witnesses that the document is their will. They don’t need to read the will aloud, but they need to acknowledge it as such.
• Witness Presence: The testator must sign the will in the simultaneous presence of both witnesses. They can’t sign it in front of one witness and then later in front of another.
• Witness Signatures: The witnesses must then sign the will themselves, in the testator’s presence.

These rules aren’t merely suggestions. Failure to follow them meticulously can render the entire will invalid, regardless of how well-intentioned the testator was.

Why is Witness Testimony So Critical?

The witnesses aren’t just signing a piece of paper; they’re attesting to the testator’s state of mind and the circumstances surrounding the signing. Did the testator seem to understand what they were doing? Were they under duress? Were they coerced or manipulated? This is where the investigation becomes crucial. A careless attorney will simply take the witnesses’ word for it. A thorough attorney will dig deeper.

What Happens If The Will Isn’t Properly Executed?

If a will is deemed improperly executed, it’s as if it never existed. The estate will then be distributed according to California’s intestacy laws – meaning the deceased’s property will go to their closest relatives, even if that’s not what they would have wanted. This can lead to protracted legal battles, family disputes, and a significant waste of assets.

The Importance of Mental Capacity

Even if the will is properly executed, it can still be challenged if the testator lacked the mental capacity to understand what they were doing. Probate Code § 6100.5 sets a surprisingly low bar for capacity. In California, a person is considered of ‘sound mind’ unless they lacked the ability to understand the nature of the testamentary act, the nature of their property, or their relationship to living family members (or suffered from a specific delusion). This is why documenting the testator’s cognitive abilities around the time of the signing is so important. As a CPA, I’m uniquely positioned to assess this, as I can review financial records and identify any sudden or unexplained changes that might indicate cognitive decline. We often look at things like changes in bill payments, unusual transactions, or the addition of beneficiaries who weren’t previously included in the estate plan.

What About Caregivers and Undue Influence?

This is a particularly sensitive area. Probate Code § 21380 establishes a presumption of undue influence if a gift is made to a caregiver of a dependent adult. The burden of proof then shifts to the caregiver to prove they did not coerce the senior. I’ve seen far too many cases where a vulnerable senior was preyed upon by a caregiver who stood to benefit from a change in the estate plan.

Standing: Who Can Even Challenge a Will?

You can’t just contest a will because you think it’s unfair. Probate Code § 48 requires that you be an “interested person” – meaning you would financially benefit if the current will is overturned (e.g., a child disinherited by a new will, or a beneficiary named in a previous version).

Execution Fraud vs. Inducement Fraud

It’s important to understand the distinction between these two types of fraud. Proving a signature is fake often requires a forensic handwriting expert, whereas proving fraud in the inducement requires evidence that the testator relied on a lie (e.g., ‘your son is stealing from you’) to change their estate plan.

What separates an efficient California probate process from a drawn-out conflict over authority and assets?

Success in probate court depends less on the size of the estate and more on the accuracy of the petition and the behavior of the fiduciary. Whether the issue is a forgotten asset, a contested creditor claim, or a disagreement among siblings, understanding the procedural triggers for court intervention is the best defense against prolonged administration.

California probate is most manageable when authority is documented early, assets are classified correctly, and procedure is followed consistently from petition through closing. When the process is approached with realistic expectations about notice, claims, accounting, and dispute risk, the estate is more likely to move toward closure without avoidable conflict or delay.

Verified Authority on California Will Contests

• The 120-Day Statute of Limitations: California Probate Code § 8270
  Time is the enemy in a will contest. Under Section 8270, an interested person may petition the court to revoke the probate of a will, but this petition MUST be filed within 120 days after the will is admitted. Missing this deadline is usually fatal to the case.
• Mental Competency Standard: California Probate Code § 6100.5 (Unsound Mind)
  This statute defines exactly what “mental incompetency” means in probate. It is not just general forgetfulness; the contestant must prove the deceased did not understand the nature of the testamentary act, could not recollect their property, or was suffering from a specific hallucination or delusion that dictated the will’s terms.
• Presumption of Undue Influence (Caregivers): California Probate Code § 21380
  To protect vulnerable seniors, California law automatically presumes undue influence if a will leaves assets to a paid care custodian or the lawyer who drafted the instrument. This shifts the heavy burden of proof onto the accused to prove their innocence.
• No-Contest Clause Enforceability: California Probate Code § 21311
  Many wills contain threats to disinherit anyone who challenges them. This statute limits the power of those clauses. A beneficiary cannot be penalized for a contest if the court finds they had “probable cause” to file the lawsuit.
• Standing to Contest: California Probate Code § 48 (Interested Person)
  Not everyone can sue. To contest a will, you must qualify as an “interested person”—typically an heir who would inherit under intestate succession (if there were no will) or a beneficiary named in a prior valid will.
• Financial Elder Abuse Remedies: California Probate Code § 859 (Double Damages)
  Will contests often overlap with elder abuse claims. If the court finds that a person used undue influence, fraud, or bad faith to take assets (or change a will) to the detriment of the estate, they can be liable for twice the value of the property taken, plus attorney fees.