April 17, 2008

Ask The Lawyer

A real-life example of how not to do your trust or will

This week's question:
I have often read that handwritten wills are OK in the state of California as long as they are entirely handwritten, dated and signed. Is this true? If so, I may want to just write out my own will and save a lot on attorney’s fees. I can also keep things private that way.

Victoria V.
Almaden Valley


Dear Victoria,
In order to make a long story short, yes, handwritten wills in the state of California may, repeat, may, be OK, but I certainly wouldn’t risk it. It is much better to see your own attorney about your estate planning needs. An example of a case in real life illustrates why this is true.

The case is entitled Estate of Williams, and it was decided by the Court of Appeal in September 2007. It arose in Santa Clara County, so it is especially interesting.

In this case, the decedent, Homer Williams, left a two-page handwritten or holographic will. After Homer died, the handwritten will was found in a desk drawer by his stepdaughter, Deborah Cox.

Of course, there was a big family fight over the issue of whether the will was a valid will since substantial assets were involved. If space permits, a copy of the two-page handwritten will accompany this article. It starts out by saying, “Last Will etc. or What?”

You will notice that the document is not signed as is generally required under California Probate Code §6111. However, the Court of Appeal for the Sixth District in San Jose upheld the trial court and held that the holographic document was written with testamentary intent and was a valid will where there was testimony regarding Homer’s express wishes upon his death and which testimony was consistent with the provisions of the will.

It was also noted by the court that the document was titled “Last Will,” the decedent had carefully set forth the names and addresses of those identified in it and had disposed of some of his property in express terms. Also, the court found that the handwritten will had an “indicia of completeness.”

What can you learn from this case? First of all, it seems to me that a more formal typed will would be much better, one that is prepared with the assistance of one’s attorney. Secondly, you would want to pay a visit to your attorney and see about a living trust so as to maximize your opportunities for savings in a number of areas.

The expense of professional assistance in this area is not that great, especially compared with family fights in the context of litigation in Superior Court, often with permanent family friction.

You can read the Estate of Williams case yourself by going online to: www.lexisnexis.com/clients/ CACourts/. After you agree with the terms and conditions, select “view opinions.” After that, select CA Court of Appeal Published Cases. Finally, enter the docket # H030830 and hit “Go.” It should be on your screen in about a half a second. As always, read the case with the assistance of your own attorney who is best suited to guide you in your estate planning.

Donald J. DeVries
Almaden Valley


Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by e-mail at don@almadenvalleylawyers.com, fax at (408) 268-6502, telephone at (408) 268-9500, or mail at, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. To view Almaden Times columns since 1986 visit www.almadenvalleylawyers.com. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.