Timothy Saueressig typed his will, which left his property to his friends, Scott Smith, Harry Ernst, and Cliff Thomas, and named Smith as his executor. Saueressig had no brothers or sisters, and his parents were deceased. He never married and had no children. To his beneficiaries’ knowledge, he had “no known next of kin.”
Saueressig took the will to his friends Joongok Shin and her husband Theodore Boody at the Mailboxes Etc. franchise that Shin owned to have Shin notarize his will. Saueressig explained to them that he had drafted his will to eliminate one of the beneficiaries under a previous will. Boody watched as Saueressig signed the will, and Shin notarized his signature.
The lower court disallowed the will, finding that it did not qualify as a holographic will be cause its material terms were typed, and it did not qualify as a formal will because it was signed by only one witness, the notary Shin, rather than two witnesses as required by the Probate Code.
One week later, the Court of Appeals decided a different case (Estate of Eugene, 104 Cal.App.4th 907) in which it held that a witness may sign the will after the death of the testator. In light of this new authority, Saueressig’s will was resubmitted to probate with a declaration from Boody that both he and Shin had watched Saueressig sign the will and that he was pr e pared to sign the will as the necessary second witness. The lower court again disallowed the will, but the Court of Appeals reversed, stating: “We find nothing in the language of the statute to preclude an otherwise qualified witness from signing a will after the death of the testator.” This case is an appeal from that decision.

The Court’s Opinion:

A will that meets statutory requirements is effective upon the testator’s death.
Probate Code section 6110 requires a will be signed by two witnesses. The question here is whether the signature of a witness affixed after the testator’s death satisfies the statute. We conclude that such postdeath subscription is not permitted, and reverse the contrary Court of Appeal judgment.
Before 1985, a formal will required attestation by two witnesses in the presence of the te s tator. The required presence of the testator foreclosed any argument that a witness’s signature affixed after the testator’s death would satisfy the statute.
That year the Legislature substantially revised the Probate Code [to read] a will “shall be witnessed by being signed by at least two persons each of whom (1) being present at the same time, witnessed either the signing of the will or the testator’s acknowledgment of the signature or of the will and (2) understand that the instrument they sign is the testator’s will.”
The issue here is the scope of the legislative intent in eliminating the requirement that the witnesses sign the will in the testator’s presence. Plainly, [the statute]
contains no express temporal limitation on when the witnesses must sign the will in order for the document to be valid. Thus, it is ambiguous as to whether it permits postdeath attestation.
A number of states have construed statutes similar to [this] as prohibiting post death attestation. In re Estate of Flicker (1983) 215 Neb. 495 [339 N.W.2d 914], construed N e braska’s statute “to require that the witnesses to a will must sign it before the testator’s death. A line must be drawn, and we believe that it is unreasonable to follow the alternative of permitting witnesses to sign a will at any time after the testator’s death and prior to the 3-year statute of limitations for pr o bate or testacy proceedings.
. . . As a practical matter, we can think of no-good reason for a delay in signing by witnesses until after the test a tor’s death. Permitting witnesses to sign a will after the death of a testator would erode the efficacy of the witnessing r e quirement as a safeguard against fraud or mistake. We must bear in mind that we are dealing with an instrument allegedly signed or acknowledged by a man who is now dead. He is not present to confirm or reject it. Requiring completion of formalities of execution prior to death is likely to minimize miscarriages of justice.” Other states have made similar observations. “[I]f the will speaks as of the date of the testator’s death, it follows that the document should be complete at that time. Consequently, we adopt the bright line rule that witnesses’ signatures should be affixed to the document at least by the time it becomes operative, the death of the testator.” ( Matter of Estate of Royal (Colo. 1992) 826 P.2d 1236; Matter of Estate of Mik e ska (1985) 362 N.W.2d 906; Rogers v.
Rogers (1984) 691 P.2d 114)............

Question

1. What makes the California statute ambiguous as to whether it permits post death attestation?
2. What does the court believe would happen if witnesses were permitted to sign a will after the death of a testator?
3. What did the Colorado court say about the issue in the Estate of Royal case?
4. What does the court believe a rule allowing post death attestation would do?
5. What is the main thrust of the dissenting judge’s argument that the second witness be pe r mi t ted to sign the will and the will be allowed?
6. Do you agree with the dissenting opinion? Why or why not?