MORENO, J., Dissenting. Shortly before his death, Timothy Kirk Saueressig prepared his will, without the help of a lawyer, leaving his property to three friends. The majority holds that Saueressig’s will is invalid, and his 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. I dissent.
The facts of this case are undisputed. On December 26, 2000, 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.”1
Saueressig took the will to his friends Joongok Shin and her husband Theodore Boody at the Mail Boxes 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.
[1058]Saueressig delivered a copy of the will to Smith, who kept it until Saueressig’s death on August 30, 2002. Smith “took care of [Saueressig]’s affairs after his death,” paying for his funeral expenses and making the mortgage, insurance, and maintenance payments for his residence. Smith petitioned to probate the will, but the public administrator objected. On December 16, 2002, the court denied the petition, finding the will did not qualify as a holographic will because 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 Probate Code section 6110, subdivision (c).2
One week after the superior court denied the petition to probate the will, the Court of Appeal published its decision in Estate of Eugene (2002) 104 Cal.App.4th 907, 912 [128 Cal.Rptr.2d 622], holding that a witness will may sign the will after the death of the testator. In light of this new authority, Smith renewed his petition to probate the will, providing the declaration of Boody that both he and Shin had watched Saueressig sign the will and he was prepared to sign the will as the necessary second witness. Shirley Goff opposed the motion, alleging that Saueressig had “intestate heirs.”3 The public administrator joined the opposition and the superior court denied the motion. But the Court of Appeal reversed, stating: “We find nothing in the language of section 6110 ... to preclude an otherwise qualified witness from signing a will after the death of the testator.”
I agree with the Court of Appeal.
If Boody is permitted to sign the will as the second witness, which he is prepared to do, the requirements of section 6110, subdivision (c) will be satisfied. Section 6110, subdivision (c) requires that “[t]he will shall be witnessed by being signed by at least two persons each of whom . . . 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 . . . .” The statute thus requires that the will be signed by two persons who were present at the same time to witness the signing or acknowledgment of the will, but the statute places no restrictions on when the witnesses must sign the will. Boody and Shin were “present at the same time” and “witnessed ... the signing of [1059]the will.” Nothing in the statute requires that Boody must have signed the will before Saueressig died.
In interpreting a statute, we are guided first and foremost by its language. “ ‘ “We begin by examining the statutory language, giving the words their usual and ordinary meaning.” ’ [Citation.]” (State of California v. Altus Finance (2005) 36 Cal.4th 1284, 1295 [32 Cal.Rptr.3d 498, 116 P.3d 1175].) “If the plain, commonsense meaning of a statute’s words is unambiguous, the plain meaning controls.” (Fitch v. Select Products, Co. (2005) 36 Cal.4th 812, 818 [31 Cal.Rptr.3d 591, 115 P.3d 1233].) Nothing in the language of section 6110, subdivision (c) states or even suggests that there is a limit upon when the witnesses may sign the will.
The majority does not dispute that the statute, by its terms, does not limit when a witness may sign a will, stating: “Plainly, section 6110(c) contains no express temporal limitation on when the witnesses must sign the will in order for the document to be valid.” (Maj. opn., ante, at p. 1050, fn. omitted.) But the majority concludes that this lack of any express limitation on when a witness may sign the will renders the statute “ambiguous as to whether it permits postdeath attestation.” (Ibid.) I fail to see how the circumstance that the statute does not limit when a witness may sign a will renders the statute ambiguous with respect to postdeath attestation.
But even if we assume for purposes of argument that section 6110, subdivision (c) is ambiguous,4 the majority’s review of the legislative history of the statute does not support its conclusion that the Legislature meant to require witnesses to sign a will before the testator dies.
California law never has expressly required that witnesses sign a will while the testator is alive. The prior version of the applicable statute, however, required the witnesses to sign the will in the testator’s presence. (Former § 50, as amended by Stats. 1982, ch. 187, § 1, p. 569.) Former section 50 stated: “There must be at least two attesting witnesses, each of whom must sign the instrument as a witness, at the end of the will, at the testator’s [1060]request and in his presence.” (Ibid.) The former requirement that witnesses sign the will in the testator’s presence meant, as a practical matter, that they had to sign the will while the testator was alive.
In 1983, the Legislature repealed former section 50 as part of a wholesale revision of the statutes governing the execution of wills and replaced it with section 6110, which became effective in 1985. (Stats. 1983, ch. 842, § 55, pp. 3049-3092.) The chairperson of the California Law Revision Commission described this statutory revision as a “comprehensive statute governing wills and intestate succession” that was designed to “replace the comparable portion of the California Probate Code” and was “drawn in part from the Uniform Probate Code.” (16 Cal. Law Revision Com. Rep. (1982) p. 2305.) The chairperson observed that the revision “makes some significant changes in existing California law. These changes are designed primarily to simplify the administration of an intestate estate and to carry out more effectively the intent of the decedent who dies leaving a will.” (ibid.)5 The Law Revision Commission subsequently described section 6110 as follows: “Section 6110 relaxed the formalities required under former Section 50 by eliminating the requirements (1) that the testator’s signature be ‘at the end’ of the will, (2) that the testator ‘declare’ to the witnesses that the instrument is his or her will, (3) that the witnesses’ signatures be ‘at the end’ of the will, (4) that the testator ‘request’ the witnesses to sign the will, and (5) that the witnesses sign the will in the testator’s presence.” (20 Cal. Law Revision Com. Rep. (1990) pp. 1001, 1420.)
The Legislature thus removed from the statute the requirement that the witnesses sign the will in the testator’s presence, which was the only provision that, as a practical matter, had required that the testator be alive when the witnesses sign the will. As a result, section 6110 contains no provision that states or even suggests, in any manner, that a witness must sign the will while the testator is alive.
[1061]As noted above, the majority agrees that “section 6110(c) contains no express temporal limitation on when the witnesses must sign the will” (maj. opn., ante, at p. 1050), but concludes nevertheless that this court should interpret the statute to include an unstated requirement that the witnesses sign the will while the testator is alive. The majority proffers two reasons for reading such a requirement into the language of the statute. I find neither reason convincing.
The majority concludes that “nothing in the language or legislative history of section 6110 indicates that by modifying the execution requirements, the Legislature intended to permit postdeath attestation.” (Maj. opn., ante, at p. 1052.) I disagree. The Legislature’s repeal of the only provision in the former statute that required, as a practical matter, that the witnesses sign the will while the testator was alive is a strong indication that the Legislature intended to permit a witness who was present when the testator signed the will to sign the will at any time, even after the testator has died. This conclusion is supported by the fact that section 6110, subdivision (c) was patterned in large part upon the Uniform Probate Code, which since has been interpreted to permit a witness to sign a will after the death of the testator.
Section 6110 was proposed by the California Law Revision Commission as part of a “new comprehensive statute governing wills and intestate succession” that was “drawn in part from the Uniform Probate Code.” (16 Cal. Law Revision Com. Rep., supra, p. 2305.) At that time, the Uniform Probate Code imposed no restriction on when the witnesses must sign the will. In 1983, the Uniform Probate Code required that a nonholographic will “shall be signed by at least 2 persons each of whom witnessed either the signing or the testator’s acknowledgment of the signature or of the will.” (8 West’s U. Laws Ann. (1998) U. Prob. Code (1969) § 2-502, p. 351.) The comment accompanying this provision notes that “[t]he formalities for execution of a witnessed will have been reduced to a minimum. . . . The intent is to validate wills which meet the minimal formalities of the statute.” (Id., com. to § 2-502, p. 351.)
The Uniform Probate Code upon which section 6110 was based in part did not restrict when a witness could sign a will. It later was amended to include a temporal restriction on when a witness could sign a will, but it was not the restriction the majority assumes is implicit in section 6110 that the witness must sign the will while the testator is alive.
[1062]In 1990, the Uniform Probate Code was amended to provide that a witness to a will must sign the will “within a reasonable time” after witnessing the signing or acknowledgement of the will. (8 West’s U. Laws Ann. (1998) U. Prob. Code (1990) § 2-502, subd. (a)(3), p. 144.) The comment to the amended provision states: “The witnesses must . . . sign within a reasonable time after having witnessed the signing or acknowledgment. There is, however, no requirement that the witnesses sign before the testator’s death; in a given case, the reasonable-time requirement could be satisfied even if the witnesses sign after the testator’s death.” (Id, com. to § 2-502, p. 145.)
The Arizona Court of Appeals relied upon the above quoted comment in In re Estate of Jung (2005) 210 Ariz. 202 [109 P.3d 97], to hold that an Arizona statute that codified this provision of the Uniform Probate Code did not require that a witness sign the will prior to the death of the testator, noting that the statute required only that the witness sign the will “within a reasonable time” and adding: “The language of the statute does not limit that reasonable time to a time before the decedent’s death and the comment to the [Uniform Probate Code] provision on which it is based expressly notes that a witness signing after the testator’s death is not prohibited.” (Id, 109 P.3d at p. 101.)
The majority’s conclusion that this court should read into section 6110, subdivision (c) an unstated requirement that the witnesses must sign the will while the testator is alive also is based upon the fact that “a will is operative following the death of the testator.” (Maj. opn., ante, at p. 1052.)6 This argument has a stronger basis and, in fact, the high courts of two of our sister states relied upon this basis in concluding that statutory language similar to section 6110 does not permit a witness to sign a will after the death of the testator. (Matter of Estate of Royal (Colo. 1992) 826 P.2d 1236 [“Therefore, if 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.”]; In the Matter of the Estate of Rogers (1984) 71 Or.App. 133, 136 [691 P.2d 114] [“A will takes effect at the time of the testator’s death. [Citation.] ... If the requirements of execution have not been met at the time of the death of the testator, then the will is not valid and the purported testator has died intestate.”].) But another of our sister states [1063]reached the opposite conclusion based upon reasoning that I find more convincing.
In Matter of Estate of Peters (1987) 107 N.J. 263 [526 A.2d 1005], the testator signed his will in the presence of several witnesses, including two persons who had come for the express purpose of witnessing the signing of the will, but the witnesses inadvertently failed to sign the will. The testator died 15 months later. Eighteen months after the testator died, the trial court ruled that the witnesses who were present when the testator signed the will could sign the will at that time, because the governing statute, like section 6110, did not restrict when a witness could sign the will. The Supreme Court of New Jersey disagreed, ruling that a witness must sign the will “within a reasonable period of time from the execution of the will,” and concluding that, under the circumstance, 18 months was not a reasonable time. (In the Matter of the Estate of Peters, supra, 107 N.J. at pp. 275, 278.) In so holding, however, the court expressly declined to adopt a “bright-line rule” that a witness could not sign a will after the death of the testator, observing: “There may indeed be cases in which the affixation of witnesses’ signatures after the testator’s death would be reasonable, particularly if the witnesses were somehow precluded from signing before the testator died.” (Id. at p. 278.)
I agree with the Supreme Court of New Jersey that there is no bright-line rule prohibiting a witness from signing a will after the death of the testator. It is within the power of the Legislature to adopt such a rule, but it has not done so. And there is nothing inherent in the common law governing wills that requires such a rule, as is demonstrated by the fact that the Uniform Probate Code permits a witness to sign a will after the death of the testator.
The majority understandably is concerned that “[t]he opportunity for fraud is obviously greater once the testator is dead” (maj. opn., ante, at p. 1055), but the same is true when the testator falls into a coma or becomes mentally incompetent. Thus, a requirement that a witness must sign the will within a reasonable time after witnessing the testator’s signature, as required by the Uniform Probate Code, would be a far more effective deterrent against fraud than a bright-line rule prohibiting a witness from signing a will even a few minutes after the testator has died but not years after the testator has become mentally incompetent. But the wisdom of such provisions is for the Legislature to debate, not this court. We must apply the law as the Legislature has written it, and section 6110, subdivision (c) does not prohibit a witness from signing a will after the death of the testator.
[1064]The majority apparently concludes that the Legislature must have 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. If this is so, it is a mistake that is beyond the authority of this court to correct. This court cannot correct a statute by supplying language the Legislature omitted, except to avoid an anomalous result that is at odds with the statutory language.7 (State of South Dakota v. Brown (1978) 20 Cal.3d 765, 775 [144 Cal.Rptr. 758, 576 P.2d 473] [“It is a fundamental rule of statutory construction that statutes should be construed to avoid anomalies.”].) That is not the case here. The result that would follow if we applied the statute according to its terms is hardly anomalous. Rather, this result would be consistent with the Uniform Probate Code and would be fair in the circumstances of this case by giving effect to the clearly expressed wishes of the decedent.
Werdegar, J., concurred.
Appellant’s petition for a rehearing was denied July 26, 2006. Werdegar, J., and Moreno, J., were of the opinion that the petition should be granted.
The will repeatedly directs the beneficiaries to care for Saueressig’s four cats, stating: ‘They are my family!!”
Probate Code section 6110, subdivision (c) states: “The 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.”
Further statutory references are to the Probate Code.
No supporting declaration was included and the record does not reflect in what manner, if any, Goff is related to the deceased.
Only if the language of the statute is ambiguous, do we consult legislative history to decide which of two reasonable interpretations of the statutory language the Legislature intended. “ ‘If the language contains no ambiguity, we presume the Legislature meant what it said, and the plain meaning of the statute governs.’ [Citation.] If, however, the statutory language is susceptible of more than one reasonable construction, we can look to legislative history [citation] and to rules or maxims of construction.” (MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works Co. (2005) 36 Cal.4th 412, 426 [30 Cal.Rptr.3d 755, 115 P.3d 41].)
The introduction to the recommendation of the California Law Revision Commission states: “The California law of wills and intestate succession has had no thorough substantive revision for over a century. Changes have been piecemeal. Much of the Probate Code has not changed since it was copied from the Texas Code in 1850 or modified by the Field Code in 1872. It remains a nineteenth century code in its premises, its phraseology, and its excessive detail. H] Existing California law contains technical requirements that often invalidate a will, even where there is no reasonable doubt that the testator intended the instrument as his or her will and there is no suspicion of fraud. Other provisions of existing law set forth mechanical rules that produce results that are inconsistent with the testator’s intent. [][]... [][] The Commission recommends enactment of a new comprehensive statute, drawn in part from the Uniform Probate Code, to govern wills, intestate succession, and related matters. The proposed law will make probate more efficient and expeditious. It will provide rules that are more likely to carry out the intent of the testator . . . .” (16 Cal. Law Revision Com. Rep., supra, pp. 2318-2319, fns. omitted.)
In support, the majority cites our decision in Cook v. Cook (1941) 17 Cal.2d 639, 646 [111 P.2d 322], which states the rather unremarkable proposition that, “A will does not become operative until death; prior to death it is revocable at the whim of the testator . . . .” The majority also relies upon the statement in Estate of Lopes (1984) 152 Cal.App.3d 302, 305 [199 Cal.Rptr. 425], that a will “becomefs] effective only following the death of such person.”
The majority counters by asserting that applying the statute as I propose would effectively add to the statutory language requiring that the will “ ‘be witnessed by being signed by at least two persons’ ” the phrase “ ‘before or after the testator’s death.’ ” (Maj. opn., ante, at p. 1056.) This is incorrect. The phrase “before or after the testator’s death” neither limits nor expands the meaning of the statutory language and thus does not alter its meaning. The statutory language, as written, requires only that the will be signed by two witnesses and places no limitation on when those witnesses may sign the will. Accordingly, the statutory language, without embellishment, permits the witnesses to sign the will at any time.