Gregory v. McCabe

The Case and the Facts

When decedent, James I. McCabe, executed a will on November 19, 1988, 15 days before he died, he was too weak to sign his name and therefore made his mark above his typewritten name. An independent witness acknowledged decedent’s mark, signed her name and wrote the date, her address, and the word “witness” near the mark. Two other persons then signed as subscribing witnesses. We attach as an appendix a copy of that portion of the will containing the textator’s mark and the signatures of the subscribing witnesses and the independent witness.

Respondent, decedent’s widow, contested the admission of this will to probate. The trial court granted respondent’s motion for summary judgment and denied probate of the will. The court found the will was improperly executed because the witness to the mark did not write decedent’s name near his mark as required by Civil Code section 14 and Code of Civil Procedure section 17.

Discussion

Probate Code section 6110, applicable to estates of decedents who died on or after January 1, 1985, provides that a will must be signed either by the testator or in the testator’s name by some other person in the testator’s…