Mutual Wills Between Sisters
In Estate of Eugene (2002) 104 Cal.App.4th 907, two sisters had mutual wills prepared. They signed their wills in the presence of two witnesses.
One witness signed both wills, but the other witness signed only one, inadvertently failing to sign the other. That omission was not discovered until after the testator's death.
The court observed it was undisputed that the sisters executed mutual wills at the same time and in the same place, that both witnesses intended to sign both wills, that the omission of one witness's signature was an oversight, and, "perhaps most importantly--there is not the slightest hint of fraud or any wrongdoing by anyone involved at the time the wills were executed or at any time thereafter ... ." In light of those facts, the court read the plain language of section 6110 to express legislative intent to admit both wills to probate, and found substantial compliance with both the letter and the spirit of the rules governing the execution of formal wills. (Estate of Eugene, supra, 104 Cal.App.4th at pp. 912-913.)
"Formal attestation rules exist to prevent fraud, not to encourage it by penalizing candor about the condition of a will when it is examined after the testator's death. For this reason, we conclude that, in the absence of legislative direction to the contrary, judicial inquiry should focus on a rule that best accommodates all circumstances surrounding the actual witnessing of a testator's unquestioned intent concerning the disposition of her estate." ( Id. at p. 914.)
The court disagreed with the absolute rule articulated in Crook v. Contreras, and concluded that "at least on the facts of this case, a postdeath subscription of a will is not prohibited by section 6110." (Ibid.)