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Can a handwritten will on a legal document be written by someone other than the gurantor? Is this legal and acceptable?

Yucaipa, CA |

The guarantor is giving everything to his cargiver and has been notarize by a notary public and has been witnessed by 3 people who will not be affected by this will. My next question is: The guarantor has 2 living sons who have a copy of his first will, which was executed in 2001 and everything was to go to both of them. However, he has disinherited them since they have shown no interest in him whatsoever. Will this second will, supersede the first one?

Attorney Answers 3


You mean "testator" (the maker of a will) not a guarantor which deals with loan agreements.

With that being said, the new will supersedes the old will (since newer in time) and it appears that you had it properly witnessed and notarized. All looks good except for can happen next -- let me explain:

If the testator is elderly then they are potentially subject to undue influence or duress -- especially if there is a person (the caretaker) who is in a confidential position relative to the testator. In all likelihood the two disinherited children will challenge the new will on these very causes of action. They might prevail unless you take additional steps to fend off such allegations. Did an independent attorney and doctor evaluate the testator so they could execute an affidavit (contemporaneously) that he was of sound mind and understood what he was doing?

Was the caretaker present when the new will was signed? Potential intimidation if so.

is there any videotape of the will signing showing the demeanor and competency of the testator to fend off arguments to the contrary?

My answer is not intended to be giving legal advice and this topic can be a complex area where the advice of a licensed attorney in your State should be obtained.

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Charles Adam Shultz

Charles Adam Shultz


I will virtually guarantee this is written by the caretaker looking to protect the second Will. In California, without a certificate of independent review, this gift fails under the Probate Code.

John P Corrigan

John P Corrigan


I agree with you and good to know something new in CA.


There are special rules in the probate code about caregivers. If the boys attack the will they will be successful. The caregiver is a disqualified person and without a certificate of independent review, the Will will fail. In addition, the facts sound like undue influence should be easy to prove without the caregiver statutes. Im guessing by the rhetoric that this is written by the caregiver.

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As a practical matter, it's almost impossible to uphold a handwritten will that favors a non-family caregiver. The Probate Code makes caregivers disqualified from receiving an inheritance unless certain conditions are met. You are almost never going to see those conditions met with a handwritten will.

The caregiver here is very likely going to end up in probate court facing charges that is guilty of undue influence. And, unlike a criminal case where you are "innocent until proven guilty," caregivers are "guilty until proven innocent." Like I said, it's not going to work. Not likely.

This is legal information only and not meant to provide legal advice. Many issues that seem straightforward at first are often complicated by facts not revealed in a hypothetical posed by a member of the public. You should always consult directly with your attorney in order to ensure the issue is thoroughly discussed and that the proper course of action is taken.

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