What is Lack of Due Execution?
If the proponent—who has the burden of proof on this issue [Probate Code § 8252(a)!—is unable to prove that the will was executed with the formalities required by law, the will fails even in the absence of formal opposition to its probate. [In re Fletcher’s Estate (1958) 50 Cal.2d 317]. The basic formalities for a witnessed will are due execution by the decedent and attestation by two disinterested witnesses. [Probate Code § 6110]. The basic formalities for a holographic (handwritten by the testator) will are signature by the decedent and material provisions in the decedent’s handwriting. [Probate Code § 6111].
