From my research, California does not require or prohibit a notary certificate on a standard will. But, a notary certificate alone is not a substitute for the two or more required signing witnesses. See CA Probate Code Section 6110(c), Execution of Wills.
(c) (1) Except as provided in paragraph (2), the will shall be witnessed by being signed, during the testator’s lifetime, by at least two persons each of whom (A) being present at the same time, witnessed either the signing of the will or the testator’s acknowledgment of the signature or of the will and (B) understand that the instrument they sign is the testator’s will.
(2) If a will was not executed in compliance with paragraph (1), the will shall be treated as if it was executed in compliance with that paragraph if the proponent of the will establishes by clear and convincing evidence that, at the time the testator signed the will, the testator intended the will to constitute the testator’s will.
The danger to the public is that a person might wrongly assume that a notarized will is valid, without including two signing witnesses. If the notary is uneducated about witnessing CA wills, and does not speak up, the customer assumes tacit approval that the will is compliant and valid, but the notary has created a ticking time bomb disaster.
Read the legal analysis of CA court case Estate of Saueressig (2006) 38 Cal.4th 1045 by a CA law firm
https://www.jdsupra.com/post/contentViewerEmbed.aspx?fid=0d1755f8-7b2b-4731-9016-af13c98eb8e8
The court did not reject the will for being notarized. It rejected the will because it did not include the two witnesses required by statute. It counted the notary signature as one valid witness.
A female notary at a Mail Boxes Etc store notarized a typewritten will of walk-in customer Saueressig. The notary's husband was also observing as a witness, but did not sign the will. (They owned the store.)
Saueressig was a single male with no surviving next of kin, and was naming three friends as his beneficiaries.
When Saueressig died, the court ruled the will was deficient and invalid because it did not include two signing witnesses as required by statute. Saueressig's will was not honored. His three friends received nothing. The assets passed by the law of intestate succession, as if no will existed.
Guess who receives the assets if there are no surviving relatives, the State of California, not the three friends of the deceased. The court followed the law, but justice was not served. Thanks to the CA Bar Association, the law was changed after the Saueressig case to add a "clear and convincing evidence" clause, 6110(c)(2). Saueressig clearly intended his three friends to receive his estate.
If the notary knows and follows CA probate law, the notary could decline, or sign as a civilian witness, a second person could sign as a second witness, the will with two witnesses would likely be ruled valid, the beneficiaries would receive their intended inheritance, and the deceased could rest in peace.
Notarizing a defective will may drag the notary into lawsuits and court appearances. Even if the notary is found not liable, the notary will have stress, lost time, expenses for legal defense, bad reviews, and negative publicity.
The CA Bar Association website provides a free basic California Statutory Will PDF form, defined under CA Code 6240, which states: You do not need to have this document notarized. Notarization will not fulfill the witness requirement.
The two witnesses for the Statutory Will make an unsworn declaration of truth under penalty of perjury. An unsworn declaration under penalty of perjury is made under CA Code 2015.5. It is used, with like force and effect, in lieu of a notarized oath or affirmation, so a notary is not needed. Many states and the federal govt have laws authorizing an unsworn declaration on govt forms to eliminate the need for a notary.
This information is not legal advice or a legal opinion. Do your own research. Read and follow the law.
Consult with an attorney for legal advice or a legal opinion. |
