Trusts and Estates

Ca. Trs. & Estates Quarterly 2015, Volume 21, Issue 1

APPLICATION OF THE HARMLESS ERROR DOCTRINE IN CALIFORNIA AND BEYOND

By Jessica A. Uzcategui, Esq.*

I. THE HARMLESS ERROR DOCTRINE

The traditional definition of a "will" is changing. Historically, state courts insisted on strict compliance with statutory will formalities. In California, strict compliance means that a will must be signed by the testator, or in the testator’s name, by another person in the testator’s presence and under the testator’s direction.1 The California statute also requires at least two witnesses, each of whom must be present at the same time, either to witness the testator signing the will or to acknowledge the testator’s signature on the will, and each of whom must understand that the witnessed instrument is the testator’s will.2

California also recognizes holographic wills, which do not need to be witnessed, provided that the signature and material provisions of the will are in the testator’s handwriting.3 A California holographic will does not need to be dated, as long as the lack of a date does not create doubt as to whether a different will with inconsistent provisions controls.

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