Expert Counsel. Exceptional Solutions.

+1 (916) 822-8700

News & Analysis
Latest legal news and recent law changes.

A Will without a Witness

Normally, a typed (nonholographic) will must be signed by at least two persons who witnessed the testator’s signature of the will or the testator’s acknowledgment of the document as the testator’s will. The law requiring these formalities was amended in 2008 through the changes to Probate Code § 6110(c)(2) to provide an exception allowing a will to be valid, “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.” There has been little caselaw interpreting this language as of yet, but the recent decision in Estate of Berger is the third and provides the most thorough analysis of any reported case on this subject.

In Estate of Berger, the testator typed and signed a letter addressed to her fiancé dated August 16, 2002. This document named the fiancé as her “sole beneficiary.”[1] The testator contemporaneously emailed the fiancé (who was on vacation in Spain) of the “will,” its contents, and the location of a copy. Further emails complained about the lack of any response. This document was never mentioned again apart from these several emails over several days. Their relationship continued for six months before terminating without marriage, lasting for less than a year in total. All contact ceased thereafter. The testator died in 2020 without ever designating the (ex)fiancé as a beneficiary for her retirement account.

Within the year before her death, the testator became more religiously active and expressed her intent to bequeath her estate to her church. However, this was never “memorialized.”[2] The testator’s pastor discovered and disclosed the letter amongst the testator’s personal effects sparking the dispute between the testator’s sister (the sole intestate heir) and the ex-fiancé. The question was whether that letter was intended to be the will. The trial court decided it was not.

The appellate court rejected the ex-fiancé’s analytical limitation to the letter’s “four corners”: “In this particular context, an unbroken line of precedent squarely establishes that extrinsic evidence is always admissible on the question of the drafter’s intent.”[3] The trial court’s use of extrinsic evidence imposed a substantial evidence review standard for Estate of Berger. Normally, this would all but doom the ex-fiancé’s position. Proving error under substantial evidence review is “difficult” normally, “particularly onerous” when the ruling was against the proponent, “[a]nd the bar for obtaining reversal is even higher where, as here, the party’s burden below required her to produce clear and convincing proof—that is, proof that establishes the fact at issue to a high probability or so clearly as to leave no substantial doubt.”[4] Nevertheless, “[t]his is one of those rare cases where this very heavy burden has been met.”

Estate of Berger used the following factors to find “as a matter of law” that the letter was intended “to have testamentary effect.”:[5]

  • The letter’s contents:
    • Naming the ex-fiancé as the “sole beneficiary.”
    • Granting the ex-fiancé “full discretion” of disposing of all property.
    • Listing the most important assets.
    • Contemplating competing inheritance claims.
  • The letter’s formality:
    • Existence on the testator’s work stationary.
    • Full recital of testator’s name, address, and social security number.
    • Addressed to “whom it may concern.”
    • Recitation of the testator’s “sound mind and excellent health.”
    • Recitation of the signing’s date and location.
    • Testator’s signature.
  • Surrounding circumstances:
    • The letter was written shortly before “having major surgery” (gender reassignment).
    • The letter was contemporaneously referred to as a “will” in an email by the testator.
    • Sending a copy to the beneficiary and keeping the original in a safe place “likely to be found.”

The arguments against probating the letter as a will principally relied on an intuitive perception of what people would normally do in similar circumstances—common sense. Berger may have feared that the probate court attempted to impose social norms beyond the law. For example, “the [probate] court cited the ‘questions’ it had about Melanie and Maria’s ‘relationship’ as well as the possibility that Melanie may have ‘forgotten’ about the will. These concerns are irrelevant to the pertinent question of intent.” [6]  Whether the testator and the beneficiary “were, in the probate court’s eyes, a conventional or unconventional engaged couple more generally is wholly irrelevant.” [7]

The resulting principles promulgated by Berger are quite broad. Testamentary intent is relevant only “at the time she drafted the will.”[8] Silence thereafter is irrelevant. Although the probate court reasoned that the testator forgot about the letter, a forgotten will is still valid. The wisdom of the will’s terms of “leaving all of her possessions to someone she started dating six months earlier is irrelevant to whether she intended the document she drafted to be a will.” Subsequently failing to change the beneficiary of the retirement account lacked any bearing on the question. Claims regarding competency and undue influence “are irrelevant to the question of whether the document was intended as a will, which is the only question before us. Whether it is enforceable as a will is a distinct and separate issue not presently before us.”[9]

            Estate of Berger is a reminder that a testator’s intent is paramount, but only as expressed in the will the testator wrote the will. This case effectively lowers the threshold for what constitutes a probatable will. It also serves as a warning. A routinely updated estate plan should be considered, even when without a prior estate plan, creditors (whether private or governmental entities), vulnerable dependents (human or animal), or any desire to bequeath property to anyone other than intestate heirs (such as charities). A well-written will or trust instrument minimizes the chances of fraud and gives peace of mind to all involved. In some circumstances it may also serve to prevent an ex-lover from appearing after seventeen years of absence to enforce an unwitnessed will seemingly forgotten in the bottom of a desk drawer.

If you have questions or concerns about how these news reports may affect you or your estate planning, please contact The Burton Law Firm at: 916-822-8700 or email for a consultation.

[1] In full:

“’I, Melanie Perry Berger, with sound mind and excellent health, name Maria L. [Coronado], [lists Maria’s then-current address], as my sole beneficiary in the event of my death. She will take ownership of all my personal possessions and property located at [address of Melanie’s house in Pasadena]. She will make the sole determinations as to what she will keep, and what personal belongings that may, or may not, be distributed to any inquiring family members. She will also receive, and have full discretion of:

  1. My [Pasadena] home located at [listing address].
  2. My retirement Thrift Savings.
  3. My 1984 Mercedes Benz 300 CD, license [listing number].
  4. My Washington Mutual checking account [listing number].
  5. Any and all wages paid to my account, post mortem.

It should be noted that I would prefer to have some of the above Thrift assets set aside for the education of [Maria’s] three daughters, [naming each]. This is, however, only a suggestion, and Maria … shall have the final decision on these matters.’

The letter closes with ‘Sign[ed] and dated 8-16-02 in Pasadena, California,’ and beneath it, Melanie’s signature.” Est. of Berger, 309 Cal.Rptr.3d 194, 200 (2023).

[2] Est. of Berger, 309 Cal.Rptr.3d 194, 200 (2023).

[3] Est. of Berger, 309 Cal.Rptr.3d 194, 204 (2023)(emphasis in original).

[4] Est. of Berger, 309 Cal.Rptr.3d 194, 206 (2023)(omitting internal brackets and quotation marks).

[5] Est. of Berger, 309 Cal.Rptr.3d 194, 206 (2023).

[6] Est. of Berger, 309 Cal.Rptr.3d 194, 207-208 (2023).

[7] Est. of Berger, 309 Cal.Rptr.3d 194, 207 (2023).

[8] Est. of Berger, 309 Cal.Rptr.3d 194, 208 (2023)(emphasis in original).

[9] Est. of Berger, 309 Cal.Rptr.3d 194, 209 (2023)(emphasis in original).