California Probate Code Section 6110(C)(2) : How Big is the Hole in the Dike?

Whether a document constitutes a validly executed will is a function of two variables: (1) the state’s Wills Act formalities, and (2) the degree of judicial compliance the courts require with respect to the statutory requirements. Historically, most jurisdictions, including California, required strict compliance with each and every statutory requirement. Even the slightest defect in the execution ceremony led to a document being declared invalid. In 1990, the Uniform Law Commission adopted a harmless error provision. In 2008 California’s legislature finally relented and amended California Probate Code section 6110 to include a harmless error provision. The California legislature adopted a “modified” version of the UPC harmless error doctrine. In doing so the California legislature ended up with a statutory provision that raises questions concerning the scope of the doctrine. The article raises and analyzes these questions by examining the two recurrent classes of cases that the UPC harmless error doctrine was intended to remedy. First, does the California harmless error doctrine apply to handwritten alterations to attested wills? Proper analysis of that issue requires resolution of two sub-issues. First, does the California harmless error doctrine apply to attested wills only or to both attested and holographic wills? Although the statutory location of California’s harmless error doctrine might lead one at first blush to conclude that it applies to attested wills only (it is housed in Probate Code section 6110, the statutory provision historically associated with attested wills), both the statutory language and the legislative history support the conclusion that the California doctrine applies to both attested and holographic wills. Second, does the California harmless error doctrine apply to codicils? Although the legislature history clearly states that the modified doctrine does not apply to codicils, the statutory language of the amendment does not support the legislative history. The comment in the legislative history appears to be based on revisions to the proposed amendment, but the comment fails to take into consideration the final statutory language adopted which, like the California Probate Code, draws no distinction between the a will and a codicil. The California harmless error doctrine applies to handwritten alterations to an attested will just like the UPC version does. Second, does the California harmless error doctrine apply to the ‘near miss’ failed will execution ceremony? The California harmless error doctrine has an added temporal requirement that there must be clear and convincing evidence that the testator intended the document to be his or her will at the time the testator signed the will. Interestingly there is no legislative explanation for the added temporal requirement. While the added temporal requirement should not affect the doctrine’s application to the classic ‘near miss’ failed attested will execution ceremony (curing the defect just as the UPC doctrine does), the added temporal requirement raises questions about how the doctrine will be applied (1) to the ‘near miss’ failed acknowledgment execution ceremony, and (2) to the ‘bare naked’ failed will. The bare naked failed will is the increasingly common, downloaded will: a completely typed and signed document that purports to be the decedent’s will but: (1) it is not witnessed nor was there even an attempt to have it witnessed, and (2) the material provisions are not in the testator’s handwriting. While arguments can be advanced on both sides of the ‘bare naked’ failed will, it will be up to the California courts to decide how the doctrine should be applied in such a case