AnalysisThe statutory will form contained in Probate Code Section 6240 is designed to be used in cases where a person does not have any estate taxes (see Question 8 in the bill text). Assembly Bill 1986 adds an instruction to the statutory will form that clearly states, “You do not need to have this document notarized. Notarization will not fulfill the witness requirement.” This is an interesting development given the history of the issue of notarizing wills in California. In 1958, the Supreme Court of California ruled in the case of Biakanja v. Irving, that a Notary was liable for damages resulting from advising a client that a will was valid if it was notarized and bore a valid notarial seal. As a result of advising the client to forgo the requirement of having two witnesses sign the will, the notarized will was denied probate and the client’s beneficiaries suffered great financial loss. This case led to a recommendation that appeared in the California Notary Public Handbook for many years from the State Bar of California advising Notaries to instruct any person who asked to have a will notarized to consult with an attorney first. Only recently was this recommendation from the State Bar of California removed from the California Notary Public Handbook.
Interestingly, last year the National Conference of Commissioners on Uniform State Laws (NCCUSL) published amendments to its Uniform Probate Code which now permits notarization of wills. The drafting committee that wrote the amendments reasoned that notarization should be allowed because when a person goes to an attorney for estate planning, other documents in addition to a will are often drafted and executed that require notarization (for example, a power of attorney for health care and a living trust). The drafting committee said it had received numerous anecdotal stories of individuals who were confused by having to execute certain documents one way and others another way. As of yet, California has not enacted the amendments proposed by NCCUSL, but other states have and may do so in the future.
The issue of notarizing wills is an area where uniformity in the law is sorely needed. However, as the enactment of California Assembly Bill 1986 and the amendments to the Uniform Probate Code illustrate, we are a long way towards achieving this fundamental uniformity with respect to executing wills.
Read Assembly Bill 1986.