Caution When Gifting To An Interested Witness

When drafting your will it is not unusual that your first instincts may be to want your partner or spouse to act as a witness. You may be thinking it would make the process easier and faster. Ah, but hold on a minute. If you are planning on leaving a gift to someone that also acts as a witness to your will, they may end up with less than what you intended or nothing at all.

But why? Under California Probate Law there is a presumption that if a witness is an interested witness, someone that stands to gain from your estate, then those gifts left to them were obtained by fraud, menace, or other means of undue influence. If you are adamant about having someone with interest also witness your will, that can still be done, but there must be at least two other disinterested witnesses. Otherwise, the will could be found to be invalid and the interested witness would have to forfeit the portion of the gift that exceeds the value they would have been entitled to as if the testator had died without a will, or intestate.

The best way to avoid any disruption in the probate of your estate would be to just not use an interested witness. If you explain the reasons to your spouse or partner why they should not witness the will it can be certain that they will understand.

As always, it is best to consult with a professional estate litigation Attorney when drafting your will and trust documents.

*This blog entry was not written by an Attorney and should not be constituted as professional legal advice.

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