Gregory v. McCabe

Opinion

STONE (W. A.), Acting P. J.

The Case and the Facts

When decedent, James I. McCabe, executed a will on November 19, 1988, 15 days before he died, he was too weak to sign his name and therefore made his mark above his typewritten name. An independent witness acknowledged decedent’s mark, signed her name and wrote the date, her address, and the word “witness” near the mark. Two other persons then signed as subscribing witnesses. We attach as an appendix a copy of that

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portion of the will containing the textator’s mark and the signatures of the subscribing witnesses and the independent witness.

Respondent, decedent’s widow, contested the admission of this will to probate. The trial court granted respondent’s motion for summary judgment and denied probate of the will. The court found the will was improperly executed because the witness to the mark did not write decedent’s name near his mark as required by Civil Code section 14 and Code of Civil Procedure section 17.

Discussion

Probate Code section 6110, applicable to estates of decedents who died on or after January 1, 1985, provides that a will must be signed either by the testator or in the testator’s name by some other person in the testator’s presence and at the testator’s direction. Section 6110 relaxed some of the “formalities” which had been previously required. Civil Code section 14 and Code of Civil Procedure section 17 both provide in pertinent part that “ . . . signature or subscription includes mark, when the person cannot write, his name being written near it, by a person who writes his own name as a witness . . . .” (Civ. Code, § 14.) These provisions have been construed together with Probate Code section 50 to permit subscription of a will by mark when the testator cannot write.

(Estate of Mangeri

(1976) 55 Cal.App.3d 76, 81 [127 Cal.Rptr. 438].)

Here, decedent made his mark on the signature line above his typewritten name. The witness to the mark signed her name as required but did not write decedent’s name again near his mark. The issue we now decide is whether this omission invalidated the execution of the will.