Estate of Tracy
182 P.2d 336, 80 Cal. App. 2d 782, 1947 Cal. App. LEXIS 1388 (1947)
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Rule of Law:
The requirement that witnesses sign a will or revocation in the testator's 'presence' is satisfied under the 'conscious presence' rule, which provides that the testator does not need to physically see the witnesses sign as long as the witnesses sign within the testator's hearing, the testator knows what is being done, and the signing constitutes one continuous transaction.
Facts:
- On July 18, 1945, Nell B. Tracy executed a will naming Janice Lehman as a beneficiary.
- Later, Tracy became ill with cancer and was confined to her bed in a small bedroom.
- On September 30, 1945, Tracy decided to revoke her will, and signed a revocation document in front of her nurse, Eeba Thornton, and a neighbor, Leora B. Blot.
- Tracy asked Thornton and Blot to witness the revocation.
- Because there was no convenient place to sign in the bedroom, Tracy instructed the witnesses to take the document into the adjoining dining room and sign it on the table there.
- The witnesses walked about 20 feet into the dining room and affixed their signatures.
- From her bed, Tracy could hear the witnesses in the dining room but could not physically see the act of signing.
- After signing, a witness returned to Tracy's bedside, and Tracy expressed her satisfaction with having revoked the will.
- Nell B. Tracy died on October 14, 1945.
Procedural Posture:
- Janice Lehman, the proponent, filed a petition in the probate court (trial court) to admit the alleged will of Nell B. Tracy to probate.
- The probate court held that an instrument revoking the will was executed in accordance with legal requirements.
- The probate court entered an order denying the proponent's petition for admission of the will to probate.
- Proponent Janice Lehman appealed the probate court's order to the intermediate court of appeal.
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Issue:
Does the statutory requirement that witnesses to a will revocation sign in the testator's 'presence' necessitate that the testator physically see the act of signing, or is it satisfied if the testator is aware of the act and it occurs as part of a single, continuous transaction?
Opinions:
Majority - McComb, J.
No, the requirement that witnesses sign in the testator's 'presence' does not necessitate that the testator physically see the act of signing. The court adopts the 'conscious presence rule,' which is satisfied if the signing occurs as part of a single, continuous transaction of which the testator is aware. The court reasoned that 'presence' is not limited to line-of-sight. Instead, it adopted the modern 'conscious presence rule,' which requires that: (1) the witnesses sign within the testator's hearing, (2) the testator must know what is being done, and (3) the signing by the witnesses and the testator must constitute one continuous transaction. In this case, all three elements were met: Tracy heard the witnesses, knew they were signing the revocation per her instructions, and the entire event was one continuous process. Therefore, the witnesses signed in the decedent's presence as required by the Probate Code.
Analysis:
This decision formally adopts the 'conscious presence' rule in California, moving away from a stricter, more traditional 'line of sight' test for will execution. It aligns California law with a growing number of jurisdictions that prioritize the testator's intent over rigid formalities, provided the statutory purpose of preventing fraud is still met. The ruling provides clarity and flexibility, particularly for cases involving testators who are elderly, ill, or confined to a bed, making it less likely that a will or revocation will be invalidated on a technicality when the testator's wishes are clear and the process is contiguous and transparent.
