SMITH v. SHIRLEY K. GOFF

Filed 6/22/06

IN THE SUPREME COURT OF CALIFORNIA

ESTATE OF TIMOTHY KIRK )

SAUERESSIG, Deceased. )

)

SCOTT SMITH, )

)

Petitioner and Appellant, )

) S129110

v. )

) Ct.App. 2/4 B167907

SHIRLEY K. GOFF, )

) Los Angeles County

Objector and Respondent. ) Super. Ct. No. BP076076

__________________________________ )

A will that meets statutory requirements is effective upon the testator's death. (Cook v. Cook (1941) 17 Cal.2d 639, 646 (Cook); Estate of Lopes (1984) 152 Cal.App.3d 302, 305 (Lopes).) Probate Code section 6110 requires a will be signed by two witnesses.^[1] 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.

I. Factual and Procedural Background^[2]

On December 26, 2000, Timothy Kirk Saueressig asked Joongok Shin, a notary public, to notarize the execution of his will.^[3] Ms. Shin did so, and Saueressig delivered copies to Scott Smith and Harry Ernst. Under the will, Smith was named executor. He, Ernst, and Cliff Thomas were beneficiaries.

Saueressig died in August 2002. In October, Smith filed a petition to probate the will, supported by a proof of subscribing witness, executed by Ms. Shin. Smith argued that, although the will was typewritten, it qualified as a holographic will. Smith based the claim on the fact that the typed will was found in an envelope on which decedent had handwritten: â€