Metropolitan News-Enterprise


Friday, June 23, 2006


Page 1


Witness Must Attest to Will’s Execution Before Testator Dies—S.C.




The statutory requirement that two witnesses attest to the execution of a will by signing it cannot be satisfied by having one of the witnesses sign after the testator has died, the state Supreme Court ruled yesterday.

Reversing a contrary ruling of this district’s Court of Appeal, the high court said Timothy K. Saueressig’s will is invalid. The Court of Appeal’s Div. Four had held that a purported witness to the signing, the husband of the notary public before whom the testator had signed the will, could sign validate the will by signing it after Saueressig’s death.

In a 5-2 decision, the high court said that Los Angeles Superior Court Commissioner H. Ronald Hauptman, now retired, was correct when he held that Saueressig’s will could not be admitted to probate because the notary was the only witness to Saueressig’s signature who signed the will while the testator was still alive.

Notary Public

The testimony before Hauptman indicated that Saueressig, acting without a lawyer, took the will to Joongok Shin, a notary public, in 2000 to have it notarized. After Shin notarized the will, Saueressig delivered copies to Scott Smith and Harry Ernst.

Scott was named as executor and he and Ernst were among three designated beneficiaries. Saueressig died in 2002, and Smith petitioned to have the will admitted to probate; the public administrator—there were no known heirs at the time—objected.

The commissioner denied probate, declaring that the will lacked the two signatures required by Probate Code Sec. 6110 and rejecting Smith’s claim that the will was a valid, holographic will because it was found in an envelope on which Saueressig had handwritten the date of the will and the words “TIMOTHY K SAUERESSIG’S LAST WILL AND TESTAMENT.”

The document was not a holographic will because its material terms were not handwritten, Hauptman concluded.

Moved for Reconsideration

A week after the commissioner handed down his ruling, however, the Court of Appeal decided Estate of Eugene (2002) 104 Cal.App.4th 907, which held that—in a circumstance where an attorney prepared mutual wills for sisters, signing one of them as a witness but failing to sign the other before the testator died—the will could be probated based on the attorney’s declaration that he saw the testator sign the will and “believed he had signed both wills at the time they were executed.”

Smith moved for reconsideration, citing Eugene and attaching a declaration in which Theodore Boody, the notary’s husband, said that he saw Saueressig sign the will, and that he would sign the will as a witness.

The public administrator and Shirley K. Goff, a putative heir who was allegedly located after the probate petition was filed, objected to the motion, which was denied. The Court of Appeal reversed, holding that the denial was an abuse of discretion and that the will should have been admitted to probate.

But Justice Carol A. Corrigan, writing for the high court, said the Court of Appeal ruling was inconsistent with the legislative history of Sec. 6110.

The statute, he explained, did away with a number of strict, traditional requirements, including that the witnesses sign in the presence of the testator. If the Legislature had intended to allow post-death attestation, contrary to the rule prevailing in many jurisdictions, it would have done so explicitly, Corrigan reasoned.

This is especially true, the justice said, since lawmakers did specifically consider the related issue of whether to retain the requirement that both witnesses be present at the same time. (The requirement would have been eliminated under the bill as it came out of committee, but was put back by amendment in the Assembly, Corrigan explained.)

Public policy, the justice went on to say, also supports the trial court’s ruling.

Corrigan wrote:

“The opportunity for fraud is obviously greater once the testator is dead. The lack of any requirement that the testator be living when the witness signs the will would deprive the testator of the chance to dispute the attestation and the consequent validity of the will. Only if he is still alive can the testator say, ‘This will is not mine,’ or ‘I did not ask this person to witness my will.’ Interpreting section 6110(c) to allow postdeath attestation would, for example, permit a witness to validate a will that the deceased testator executed, but deliberately did not have signed because of changed intent.”

 Chief Justice Ronald M. George and Justices Ming Chin, Marvin Baxter, and Joyce L. Kennard joined in the opinion.

 Justice Carlos Moreno, joined by Justice Kathryn M. Werdegar, dissented, saying it was unfair that “[Saueressig’s] property cannot go to the friends he named as his beneficiaries, because he failed to comply with a requirement that appears nowhere in the applicable statutes.”

Moreno argued that post-death attestation is not precluded by the plain language of the statute and has never been expressly prohibited in California, even though the laws governing wills were comprehensively amended by the Legislature in 1983; and that it is permitted by the Uniform Probate Code, as long as the witness signs “within a reasonable time.”

If lawmakers “made a mistake in removing the requirement that a witness sign a will in the presence of the testator without inserting a requirement that the witness sign the will before the testator’s death,” Moreno declared, “it is a mistake that is beyond the authority of this court to correct.”

The case was argued in the Supreme Court by Los Angeles attorneys Paul Buchberg for Smith and Lynard C. Hinojosa for Goff. Hinojosa said the case should be instructive to attorneys when it comes to getting signatures on wills.

“I always get three,” he told the MetNews. “I can’t imagine why somebody wouldn’t, quite frankly.”

The case is Estate of Saueressig, 06 S.O.S. 3163.


Copyright 2006, Metropolitan News Company