Smith v. Goff

38 Cal. 4th 1045

• Court: California Supreme Court
• Decided: June 22, 2006
• Docket: No. S129110
• Status: Published

Opinions

Opinion

CORRIGAN, J.

A will that meets statutory requirements is effective upon the testator’s death. (Cook v. Cook (1941) 17 Cal.2d 639, 646 [111 P.2d 322] (Cook); Estate of Lopes (1984) 152 Cal.App.3d 302, 305 [199 Cal.Rptr. 425] (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 Background²

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: “DEC. 26th, 2000” and “TIMOTHY K SAUERESSIG’S LAST WILL AND TESTAMENT.”

The public administrator filed objections and exceptions to the petition, asserting that the proposed will failed to comply with the statutory requirements. He also filed a competing petition for letters of special administration. On December 16, 2002, the trial court denied the petition for probate, finding that the will did not qualify as holographic because its material terms were typed. Nor did it qualify as a formal will because, having been signed by only one witness, it failed to meet the two-signature requirement of section 6110. The court granted the petition for letters of special administration.

A week later, Estate of Eugene (2002) 104 Cal.App.4th 907 [128 Cal.Rptr.2d 622] (Eugene) was filed. Eugene held that under its particular circumstances, the signature of a witness subscribed after a testator’s death was valid under section 6110. (Eugene, at p. 909.) Relying on Eugene, Smith filed an “alternative motion” for relief from the order denying probate of Saueressig’s will.

Smith urged there was a second qualifying witness, Theodore Boody, who was notary Shin’s husband. According to his March 25, 2003 declaration, Boody heard decedent ask Shin to notarize the will, saw decedent sign the document, and saw Shin notarize decedent’s signature. Boody understood that the document signed and notarized was decedent’s will, and was “ready and willing to sign the will as a witness to the signing of the will by [decedent] on December 26, 2000.” Shirley K. Goff and the public administrator opposed Smith’s motion, which the trial court denied.

The Court of Appeal reversed, concluding that the trial court abused its discretion in denying relief to Smith and excluding the will from probate.

We granted Goff’s petition for review.

II. Discussion

The right to dispose of property by will is entirely statutory. (Kizer v. Hanna (1989) 48 Cal.3d 1, 10 [255 Cal.Rptr. 412, 767 P.2d 679].) “The Legislature may withhold the right altogether, or impose any conditions or limitations upon it which it chooses.” (Estate of Burnison (1949) 33 Cal.2d 638, 640 [204 P.2d 330], affd. sub nom. United States v. Burnison (1950) 339 U.S. 87, 95 [94 L.Ed. 675, 70 S.Ct. 503].)

Before 1985, a formal will required attestation by two witnesses in the presence of the testator. (Former § 50, as amended by Stats. 1982, ch. 187, § 1, p. 569, and repealed by Stats. 1983, ch. 842, § 18, p. 3024.) The required presence of the testator foreclosed any argument that a witness’s signature affixed after the testator’s death would satisfy the statute.

In 1982, in response to an Assembly resolution, the California Law Revision Commission (Commission) submitted its Tentative Recommendation Relating to Wills and Intestate Succession. (16 Cal. Law Revision Com. Rep. (1982) p. 2301; see Stats. 1980, Res. ch. 37, p. 5086.) As relevant here, the Commission observed that “[t]he formalities for execution of an attested will are to ensure that the testator intended the instrument to be a will, to minimize the opportunity for fraudulent alteration of the will or substitution of another instrument for it, and to provide witnesses who can testify that the testator appeared to be of sound mind and free from duress at the time the testator signed or acknowledged the will. These purposes are served by the existing requirements that the will be in writing, be signed by the testator, and be signed by two witnesses who understand that the instrument is the testator’s will and who were present at the same time to witness the testator’s signing of the will. The proposed law continues these requirements.” (16 Cal. Law Revision Com. Rep., supra, p. 2320, fns. omitted.)

In 1983, effective January 1, 1985, the Legislature substantially revised the Probate Code.⁴ As part of that revision, section 50 was repealed and replaced by section 6110.⁵ (Stats. 1983, ch. 842, §§ 18, 55, pp. 3024, 3049.) Section 6110, subdivision (c) (section 6110(c)) provides a 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.”

Section 6110 eliminated several technical requirements, including “that the witnesses sign the will in the testator’s presence.” (Sen. Rep., 3 Sen. J., supra, p. 4872; 16 Cal. Law Revision Com. Rep., supra, p. 2393.) Section 6110 continued “the requirements of former Section 50 that (1) the will be in writing, (2) that the will be signed by the testator or by someone else who signs the testator’s name in the testator’s presence and by the testator’s direction, (3) that the will be signed or the testator acknowledge the signature in the presence of two witnesses who are present at the same time, and (4) that the witnesses sign the will.”⁶ (Sen. Rep., 3 Sen. J., supra, p. 4872; 16 Cal. Law Revision Com. Rep., supra, p. 2393.)

The issue here is the scope of the legislative intent in eliminating the requirement that the witnesses sign the will in the testator’s presence. 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.⁷ Thus, it is ambiguous as to whether it permits postdeath attestation.

The Courts of Appeal have reached differing conclusions as to whether section 6110(c) permits attestation after the testator’s demise. Thus, in Crook v. Contreras (2002) 95 Cal.App.4th 1194, 1199, 1201, 1203 [116 Cal.Rptr.2d 319] (Crook), the trial court denied a probate petition, concluding in part that proffered codicils were invalid because they lacked two signatures.

The Court of Appeal affirmed, observing that the question of whether valid attestations could be made after the testator’s death “has never been addressed in California and has been repeatedly rejected by the courts in other jurisdictions. We are unpersuaded that we should chart a new course. Our independent construction of Probate Code section 6110, in light of its legislative history, discloses no indication that the Legislature intended by its 1983 statutory revision to permit postdeath subscription of a will. A conclusion otherwise would attribute to the Legislature an intent to allow the validity of a will to depend upon the will or caprice of one who had been requested to perform the very simple act of becoming a witness by allowing such a person to wait until after the testator’s death to decide whether or not to subscribe his or her signature to the will. Such an interpretation would invite fraud and subvert the basic intent of will authentication requirements. We conclude that the subscription of a will by two witnesses must occur prior to the testator’s death, and a will that has not been subscribed by two witnesses at the time of the testator’s death neither complies nor substantially complies with Probate Code section 6110.” (Crook, supra, 95 Cal.App.4th at p. 1205, fn. omitted.)

Subsequently, in Eugene, supra, 104 Cal.App.4th 907, 909, two heirless sisters prepared mutual wills. Each left her estate to the other, and upon the death of the surviving sister, to charity. (Ibid.) The sisters’ attorney, who was also a witness, inadvertently signed only the will of the first sister to die. (Ibid.) Upon the second sister’s death, the attorney apparently sought to satisfy section 6110 by executing a proof of subscribing witness, and providing a declaration that he had prepared both wills and observed their execution. He “had believed he had signed both wills at the time they were executed.” (Eugene, at p. 909.) The public administrator objected to the petition for probate. The trial court denied the petition because the attorney had not signed the will during the testator’s lifetime. (Eugene, at p. 910.)

The Court of Appeal reversed. (Eugene, supra, 104 Cal.App.4th at p. 914.) In directing that the will be probated, the Court of Appeal placed heavy reliance on the fact that neither the “public administrator or anyone else” opposed the charitable beneficiary’s appeal, and that “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.” (Id. at pp. 910, fn. 1, 912, 914, fn. 5.) It distinguished the authorities on which Crook, supra, 95 Cal.App.4th 1194, relied as all involving actual disputes, either by will contest or by competing petitions for probate. (Eugene, at p. 914, fn. 5.) The court emphasized that it was presented with no such dispute, and disfavored escheat rather than the testator’s intended charitable disposition. (Ibid.) Eugene therefore “disagree[d] with the absolute rule articulated” in Crook, and concluded “instead that, at least on the facts of this case, a postdeath subscription of a will is not prohibited by section 6110.” (Eugene, at p. 914.)

A number of states have construed statutes similar to section 6110 as prohibiting postdeath attestation. In re Estate of Flicker (1983) 215 Neb. 495 [339 N.W.2d 914], construed Nebraska’s statute “to require that the witnesses to a will must sign it before the testator’s death. A line must be drawn, and we believe that it is unreasonable to follow the alternative of permitting witnesses to sign a will at any time after the testator’s death and prior to the 3-year statute of limitations for probate or testacy proceedings .... As a practical matter, we can think of no good reason for a delay in signing by witnesses until after the testator’s death. Permitting witnesses to sign a will after the death of a testator would erode the efficacy of the witnessing requirement as a safeguard against fraud or mistake. We must bear in mind that we are dealing with an instrument allegedly signed or acknowledged by a man who is now dead. He is not present to confirm or reject it. Requiring completion of formalities of execution prior to death is likely to minimize miscarriages of justice.” (Id. at p. 915.) Other states have made similar observations. “[I]f 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.” (Matter of Estate of Royal (Colo. 1992) 826 P.2d 1236, 1238-1239; see Matter of Estate of Mikeska (1985) 140 Mich.App. 116 [362 N.W.2d 906, 910-911]; Rogers v. Rogers (1984) 71 Ore.App. 133 [691 P.2d 114, 115].)⁸

We find Crook, supra, 95 Cal.App.4th 1194, and the cases from other states following a similar rule, to be persuasive. Such an interpretation is consistent with the critical principle that a will is operative following the death of the testator. (Cook, supra, 17 Cal.2d at p. 646; Lopes, supra, 152 Cal.App.3d at p. 305.) It is not effective a week or a year later, or whenever purported witnesses manage to-comply with the statutory requirement. While the dissent superficially acknowledges this rule, it nonetheless maintains that postdeath attestation is permitted. (Dis. opn., post, at pp. 1058, 1061, 1062, 1063.) The dissent does not, however, cite to any statutory provision that requires probate or intestate procedures be delayed because a purported will might be posthumously attested. Nor does the dissent provide any other example in which a will was not valid at the time of death, but became so later.

Moreover, nothing in the language or legislative history of section 6110 indicates that by modifying the execution requirements, the Legislature intended to permit postdeath attestation. The Senate Committee on the Judiciary and the Commission specifically enumerated the changes section 6110 effected in the statutory scheme, and did not note that postdeath attestation was now permitted. (Sen. Rep., 3 Sen. J., supra, p. 4872; 16 Cal. Law Revision Com. Rep., supra, p. 2393; see ante, p. 1049.) Such a dramatic change would logically have merited mention.

Indeed, the elimination of the requirement that a will be attested by two witnesses in the presence of the testator is discussed in the legislative history along with the elimination of other clearly inconsequential requirements. The Commission observed that these “ritual requirements” “often invalidate wills on technical grounds where there is no reasonable doubt that the testator intended the instrument as a will and there is no suspicion of fraud.” (16 Cal. Law Revision Com. Rep., supra, pp. 2314, 2320.) Thus, section 6110 eliminated “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.” (Sen. Rep., 3 Sen. J., supra, p. 4872; 16 Cal. Law Revision Com. Rep., supra, p. 2393.) The requirement that the testator be alive when the witnesses sign cannot reasonably be termed a mere “ritual.” Rather, the specific reference to these items makes it all the more unlikely that by eliminating the technical requirement that the witnesses sign in the testator’s presence, the Legislature intended to make a vast and sweeping change as to when a will is effective.

The dissent relies on the fact that the Uniform Probate Code, through a comment regarding the actual statutory language, allows postdeath attestation. (Dis. opn., post, at pp. 1061, 1062.) However, we are governed by section 6110(c), not the Uniform Probate Code. As noted above, the 1990 comment to Uniform Probate Code section 2-502 was not before the Legislature in 1983 when it enacted section 6110(c). Nor did the Legislature adopt language consistent with the 1990 comment either when section 6110 was repealed and reenacted without change in 1990, or when it was amended in 1996. Nor has the Legislature adopted a “harmless error” provision similar to Uniform Probate Code section 2-503, added in 1990, which provides, “Although a document or writing added upon a document was not executed in compliance with Section 2-502, the document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute (i) the decedent’s will. ...” In sum, there is no evidence our Legislature is persuaded by or has adopted the Uniform Probate Code’s approach.⁹

In addition, while the Legislature did not expressly address the question of whether section 6110(c) permitted postdeath attestation, comments in the legislative history regarding a related area are instructive. As originally introduced, section 6110(c) required “at least two persons” be “present at the same time” to witness “either the signing of the will or the testator’s acknowledgement of the signature or of the will.” (Assem. Bill No. 25 (1983-1984 Reg. Sess.) as introduced Dec. 6, 1982.) The section was amended on February 1, 1983, to delete the requirement that the witnesses be “present at the same time.” (Assem. Bill No. 25, as amended Feb. 1, 1983.) On April 5, 1983, the Executive Committee of the Estate Planning, Trust and Probate Law Section of the State Bar of California wrote to the Assembly Committee on the Judiciary. As relevant here, the executive committee opposed validation of “a will which is witnessed by two witnesses who are not present at the same time .... We believe there is value in having two witnesses together at the same time as an additional protection to the testator. We are concerned that under the new legislation, a testator will have one person witness but may never get around to obtaining a second witness. This will inevitably result in an increasing number of wills which are invalid on their face.” (State Bar, Exec. Com. of Estate Planning, Trust and Probate Law Section, letter to Assem. Com. on Judiciary Apr. 5, 1983, p. 6.) This concern was quoted in an Assembly Committee on the Judiciary analysis of Assembly Bill No. 25. (Assem. Com. on Judiciary, analysis of Assem. Bill No. 25 (1983-1984 Reg. Sess.) as amended Apr. 11, 1983, p. 5.)

On April 11, 1983, the California Law Revision Commission wrote to the Assembly Committee on the Judiciary, apparently in response to the executive committee’s concerns. (Cal. Law Revision Com., letter to Assem. Com. on Judiciary re Assem. Bill Nos. 25 and 68 (1983-1984 Reg. Sess.) Apr. 11, 1983, pp. 1-2.) As relevant here, the letter stated that the “proposed law eliminates the requirement that both witnesses be present ‘at the same time.’ Thus, for example, a will is not invalidated merely because one witness temporarily leaves the room during the execution ceremony if the testator acknowledges his or her signature to the witness when that witness reenters the room.” (Id., p. 2.) The Commission observed that deleting this requirement “would adopt the Uniform Probate Code rule and the rule that is in effect in the large majority of states.” (Id., pp. 2-3.) The “justification of the change recommended by the Commission is given in more detail” in an attached December 17, 1982 letter from Professor Jesse Dukeminier. (Id., p. 3.) In that letter, Professor Dukeminier responded to the executive committee’s concern “that abolishing the simultaneous presence requirement might result in wills failing because testator, knowing that the witnesses do not have to be present at the same time, may delay securing a second witness so long that he dies without a second witness to his will. ... I think it would be an extremely rare case where a person would get one witness on a will and then wait for a month or a year to secure a second. . . . [I]t is my belief . . . that many more wills will fail because of the simultaneous presence requirement than will fail because the testator procrastinates in securing a second witness and dies in the meantime. ... I see no reason to penalize [testators] out of a fear that someone will too long delay securing the second witness. If the will of the procrastinator is invalid, I shall shed few tears.” (Professor Jesse Dukeminier, letter to Mr. John DeMoully, executive secretary, Cal. Law Revision Com., Dec. 17, 1982, pp. 2-3.)¹⁰

On April 20, 1983, Assembly Bill No. 25 was amended to place back into section 6110(c) the simultaneous presence requirement. (Assem. Bill No. 25 (1983-1984 Reg. Sess.) as amended Apr. 20, 1983, p. 28.) Thus, it appears that the Legislature was cognizant of concerns that a testator might delay too long, i.e., until his death, to procure a second witness, and that his will would thereby be invalid. There is no hint in any of this discussion that a witness could render a will valid by signing it after the testator’s death.

Our conclusion regarding the legislative intent is consistent with sound public policy. As the Commission observed, “The formalities for execution of an attested will are to ensure that the testator intended the instrument to be a will, to minimize the opportunity for fraudulent alteration of the will or substitution of another instrument for it, and to provide witnesses who can testify that the testator appeared to be of sound mind and free from duress at the time the testator signed or acknowledged the will.” (16 Cal. Law Revision Com. Rep., supra, p. 2320, italics added, fn. omitted.) The opportunity for fraud is obviously greater once the testator is dead. The lack of any requirement that the testator be living when the witness signs the will would deprive the testator of the chance to dispute the attestation and the consequent validity of the will. Only if he is still alive can the testator say, “This will is not mine,” or “I did not ask this person to witness my will.” Interpreting section 6110(c) to allow postdeath attestation would, for example, permit a witness to validate a will that the deceased testator executed, but deliberately did not have signed because of changed intent.

A rule allowing postdeath attestation would essentially substitute oral testimony for the Legislature’s requirement of a written signature. It would encourage will contests and put witnesses, not the testator, in control of the disposition of an estate. As one court observed decades ago, if witnesses could sign after the testator’s death, “ ‘[t]he final disposition of the estate would thereby be made to depend, not solely upon the intention of the testator, but upon the will or caprice of one who had been requested to perform the very simple act of becoming a witness. The legislature never intended to give to subscribing witnesses such power. ... A will must be a valid, perfect instrument at the time of the death of the testator. It takes effect at the instant the testator dies. If invalid then, life cannot be given to it by the act of a third party.’ ” (In re Cannock’s Will (1948) 81 N.Y.S.2d 42, 42-43.)

The dissent expresses the concern that by concluding postdeath attestation is not permitted by the statute, we are “supplying language the Legislature omitted.” (Dis. opn., post, at p. 1064.) Similarly, the dissent states, “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.” (Ibid.)

In fact, the opposite is true. Section 6110(c) requires that the will “be witnessed by being signed by at least two persons.” If we were to conclude that postdeath attestation is available, we would be adding the language “before or after the testator’s death” to the current statutory requirement. We agree that it is not for us to draft statutes in the Legislature’s stead. Rather, the task here is to discern what the Legislature meant by the language it has chosen. The Legislature may at some point conclude that postdeath attestation offers sufficient safeguards against fraud to allow it. That is its prerogative. However, in the absence of any evidence the Legislature has added this option to the Probate Code, it is not up to this court to do so. Given the history and context of section 6110(c), the most reasonable interpretation of the statutory language is that postdeath attestation is not an act the Legislature has authorized.

The understandable desire to effect apparent testator intent led to the outcome in Eugene. Subsequent cases, however, including this one, highlight Eugene's potential pitfalls. While one purpose of section 6110(c)’s requirements is to prevent fraud, the courts are not empowered to rewrite the code simply because evidence of fraud may be absent. Such an approach would require the trial courts to examine each case on its own facts before admitting a will to probate. This ad hoc procedure, with its attendant delay and potential for inconsistency, is avoided by our holding that section 6110(c) requires attestation prior to the testator’s death. We disapprove Estate of Eugene, supra, 104 Cal.App.4th 907, to the extent it interprets section 6110(c) as permitting postdeath attestation.

Disposition

The Court of Appeal’s judgment is reversed. The matter is remanded to that court with instructions to direct the trial court to reinstate its previous order denying probate of Saueressig’s will.

George, C. J., Kennard, J., Baxter, J., and Chin, J., concurred.

1 All further undesignated statutory references are to the Probate Code.

2 Because there was no petition for rehearing in the Court of Appeal, we take our statement of facts largely from that court’s opinion. (Cal. Rules of Court, rule 28(c)(2); People v. Hernandez (2004) 33 Cal.4th 1040, 1045 [16 Cal.Rptr.3d 880, 94 P.3d 1080].)

3 As Smith conceded below, “the only reasonable inference to be drawn from the decedent’s conduct is that he believed the notarization would validate his will.”

4 Assembly Bills Nos. 25 and 68 were “introduced to effectuate” the Commission’s Tentative Recommendation. (Sen. Com. on Judiciary, Rep. on Assembly Bills Nos. 25 & 68 (1983-1984 Reg. Sess.) (hereafter Senate Report) 3 Sen. J. (1983-1984 Reg. Sess.) p. 4867.)

5 Section 6110 provides:

“(a) Except as provided in this part, a will shall be in writing and satisfy the requirements of this section.

“(b) The will shall be signed by one of the following:

“(1) By the testator.

“(2) In the testator’s name by some other person in the testator’s presence and by the testator’s direction.

“(3) By a conservator pursuant to a court order to make a will under Section 2580.

“(c) 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.”

Section 6110 was repealed in 1990 and reenacted that same year without change. (Stats. 1990, ch. 79, §§ 13-14, pp. 463, 684.) It was amended in 1996 to add a provision unrelated to the issue in this case regarding the signing of a will by a conservator. (Stats. 1996, ch. 563, § 20, p. 3155.) Because the relevant terms of section 6110 have not changed since its 1983 enactment, we refer to both former and current section 6110 as section 6110.

6 On July 14, 1983, the Senate Committee on the Judiciary published a report in the Senate Journal stating, “Except for the new and revised comments set out below, the Law Revision Commission Comments to Assembly Bills 25 and 68 reflect the intent of the Senate Committee on Judiciary in approving Assembly Bills 25 and 68. The new and revised Comments set out below also reflect the intent of the committee in approving this bill.” (Sen. Rep., 3 Sen. J., supra, p. 4867.) Included in the comments to section 6110 is the excerpt quoted above in the text and on page 1053, post, regarding the retained and deleted execution requirements. (Sen. Rep., 3 Sen. J., supra, p. 4872.) This identical passage also appears in the Commission’s tentative recommendation. (16 Cal. Law Revision Com. Rep., supra, p. 2393; see Jevne v. Superior Court (2005) 35 Cal.4th 935, 946-947 [28 Cal.Rptr.3d 685, 111 P.3d 954].)

7 Likewise, the Uniform Probate Code, on which the Commission at times relied in drafting its recommendations, contains no express language addressing whether a witness may sign a will after the testator’s death. (Former U. Prob. Code, § 2-502; 16 Cal. Law Revision Com. Rep., supra, p. 2319.) A comment to Uniform Probate Code section 2-502 added in 1990 notes that there is “no requirement that the witnesses sign before the testator’s death” and that the attestation requirement, “in a given case,” could be “satisfied even if the witnesses sign after the testator’s death.” (8 pt. 1 West’s U. Laws Ann. (1998) U. Prob. Code, com. to § 2-502, p. 145.) The comment was of course not before the Legislature when it enacted section 6110 several years earlier. Moreover, nothing in the legislative history of the enactment, reenactment, or amendment of section 6110 refers to this comment or contains any similar language regarding postdeath attestation.

8 Other states have concluded witnesses may sign a will after the testator’s death so long as the signing occurs within a reasonable time after witnessing the testator’s signature or acknowledgement of the signature or of the will. (Matter of Estate of Peters (1987) 107 N.J. 263 [526 A.2d 1005, 1013]; see In re Estate of Jung (2005) 210 Ariz. 202 [109 P.3d 97, 102].)

9 This point distinguishes In re Estate of Jung, supra, 109 P.3d 97, on which the dissent relies. (Dis. opn., post, at p. 1062.) Prior to Jung, the same Arizona Court of Appeals, interpreting a statute with language similar to that of section 6110(c), held that postdeath attestation was not permitted. (Gonzalez v. Satrustegui (1993) 178 Ariz. 92 [870 P.2d 1188, ].) Subsequent to Gonzalez, “the Arizona Legislature repealed the then-existing version of the statute and enacted the current version,” which was based on Uniform Probate Code section 2-502. (Jung, at p. 100.) At that time, Uniform Probate Code section 2-502 contained the 1990 comment stating that postdeath attestation was permitted. Jung observed that “[mjinutes of a judiciary committee meeting considering the proposed revision reflect that the change . . . was recommended by a committee of the State Bar of Arizona ‘in order to conform Arizona law with revisions made to the Uniform Probate Code in 1990.’ ” (Jung, at p. 101.) “In light of the legislative history and the comment to [Uniform Probate Code section] 2-502, we hold that the Legislature has superseded Gonzalez.” (Ibid.) Hence the Arizona Legislature expressly referenced the 1990 Uniform Probate Code in amending the relevant statute. The California Legislature has not done so with section 6110(c).

10 Typically we do not ascribe legislative intent to letters written to the Legislature. The letters here, however, came from the Commission, which had been asked to propose changes to the Probate Code, and which drafted the provisions on which Assembly Bill No. 25 (1983-1984 Reg. Sess.) was based, and a letter that the Commission expressly stated set forth its own reasons for recommending deletion of the simultaneous presence requirement.