X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Lars Ingerman Iversen had three children during his first marriage, which ended in 1975. His second marriage, to the woman who is now known as Anna E. Iversen Schoenwandt, ended in 1993, and he did not remarry prior to his death in August 2003. In a one-page, typed document dated April 2, 2000, Iversen bequeathed all of his estate to Schoenwandt and granted her full power of attorney. Iversen’s signature was notarized, but the document did not include the signatures of two attesting witnesses. When Schoenwandt attempted to probate the purported will, her stepdaughter and daughter-in-law filed affidavits stating that they saw Iversen sign the will and declared that his property should pass to Schoenwandt. The trial court admitted the will to probate and named Schoenwandt as the estate’s independent administratrix. Iversen’s children from his first marriage appeal, saying the will doesn’t comply with Probate Code 59(a), which requires that a written, nonholographic will: 1. be signed by the testator in person or by another person for him at his direction and in his presence; and 2. be attested by two or more credible witnesses over 14 “who shall subscribe their names thereto in their own handwriting in the presence of the testator.” Schoenwandt counters that the will is in “substantial compliance” with that section. HOLDING:Reversed and remanded. The court agrees that Probate Code also allows a will to be self-proven so that the testimony of the attesting witnesses becomes unnecessary to probate the will if affidavits of the testator and the witnesses are made in “substantial compliance” with an affidavit form prescribed in 59(b). The court, however, finds that nowhere in 59(b) does it state that the concept of “substantial compliance” applies to the attesting signature requirements of the will itself. Additionally, no self-proving affidavits were offered in this case. “None of the cases cited by Schoenwandt stand for the principle that”substantial compliance’ is sufficient for the attesting witness requirement of a written nonholographic will not accompanied by a self-proving affidavit.” OPINION:McCoy, J.; Holman, Walker and McCoy, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.