## Facts

- Nell B. Tracy executed a will on July 18, 1945.
- A few months later, Tracy was bedridden with cancer and decided to revoke that will.
- On September 30, 1945, Tracy signed a written instrument stating that she revoked her prior will.
- Tracy’s nurse and a neighbor watched Tracy sign the revocation document and acted as the two attesting witnesses.
- Because Tracy’s bedroom was cramped, the nurse and the neighbor went into an adjoining room to sign the document as witnesses.
- From her bed, Tracy could see into the adjoining room and could hear the witnesses, but she could not see the exact moment they put pen to paper and signed.
- After the witnesses signed, the neighbor returned to Tracy’s bedside, and Tracy made statements showing she understood the will had just been revoked and that the document had been witnessed.
- Tracy died on October 14, 1945.
- After her death, the revocation document was challenged on the ground that the witnesses did not sign “in the presence” of the testatrix, as required by California Probate Code formalities.
- The probate court found the written revocation validly executed and upheld the revocation; the case was appealed.

## Issues

1. Whether a written revocation of a will satisfies the statutory requirement that witnesses sign “in the presence” of the testatrix when the witnesses sign in an adjoining room that the testatrix can see into and hear, but where she does not actually see the act of signing.
2. Whether, on these facts, the revocation instrument was executed with the same formalities required for a will, making the revocation effective.

## Decision

- The court held that the witnesses signed “in the presence” of the testatrix within the meaning of the Probate Code.
- The court held that the revocation instrument was executed with the formalities required for a will and therefore validly revoked Tracy’s prior will.
- The probate court’s order upholding the revocation was affirmed.

## Legal Principles

- A will may be revoked by a later writing executed with the same formalities required for executing a will.
- California will formalities require, among other things, attestation by two witnesses who sign in the testator’s presence.
- “Presence” does not require that the testator actually watch the witnesses sign; it is enough if the signing occurs nearby in a way that is within the testator’s awareness and where the testator could perceive the act by ordinary use of the senses from the testator’s position.
- When witnesses sign at the testator’s direction in a location adjacent to the testator—such as an adjoining room visible from the testator’s bed—and the testator understands what is occurring, the statutory presence requirement can be satisfied even if the testator does not see the precise pen-on-paper act.
- Courts will not invalidate a revocation for a purely technical objection when the evidentiary and anti-fraud purposes of the witnessing requirement are met and the testator’s intent to revoke is clear.

## Conclusion

In re Tracy’s Estate upheld a written will revocation where the testatrix signed in her bedroom and the two witnesses signed in an adjoining room due to limited space, because the witnesses’ signing occurred within the testatrix’s awareness and possible view, satisfying the Probate Code’s “presence” requirement and making the revocation effective.


In re Tracy's Estate, 182 P.2d 336 (1947)