Berk Law Group, P.C.

14220 N. Northsight Boulevard
Scottsdale, AZ 85260
United States
Phone: (480) 607-7900
Fax: (480) 607-7300
Email: kent@berkmoskowitz.com
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2016 Arizona Probate and Elder Law Legislation Updates

AZ houseDuring the 2016 State of Arizona Fifty-second Legislature Second Regular Session, the House of Representatives has proposed three bills and the Senate has proposed one bill with proposed amendments to Arizona’s elder laws.  The proposed revisions involve powers of attorney, claims for financial exploitation under Arizona’s Adult Protective Services Act, A.R.S. 46-451 etc. and guardianships.

Powers of Attorney

A.R.S. § 14-5501 sets forth, among other things, the requirements to create a valid durable power of attorney in Arizona.  Basically, a “durable” power of attorney is one that either (a) stays in effect notwithstanding that the principal (the one granting the power) becomes incapacitated or disabled or (b) becomes effective when and if the principal becomes incapacitated or disabled.

Pursuant to A.R.S. § 14-5501(B), the intent to create a durable power of attorney may be expressed by the following or similar language in the power of attorney:

1. “This power of attorney is not affected by subsequent disability or incapacity of the principal or lapse of time.”
2. “This power of attorney is effective on the disability or incapacity of the principal.”

House Bill 2394 includes one proposed substantive amendment to A.R.S. § 14-5501.  If approved, the Bill would add Subsection F to the statute and require that, in addition to the other requirements, powers of attorney must include a warning notice to the agent and a space for the agent to initial acknowledging that the agent has read the warning.  Specifically, proposed Subsection F would require:

F. IN ADDITION TO THE OTHER REQUIREMENTS OF THIS SECTION, A POWER OF ATTORNEY MUST CONTAIN A NOTICE IN SUBSTANTIALLY THE FOLLOWING FORM AND A SPACE FOR THE AGENT TO INITIAL TO INDICATE THAT THE AGENT HAS READ THE FOLLOWING LANGUAGE:

BY ACCEPTING THE RESPONSIBILITY AS AGENT UNDER THIS POWER OF ATTORNEY, I UNDERSTAND THAT:

1. AN AGENT IS SUBJECT TO SPECIFIC DUTIES UNDER ARIZONA STATUTES THAT GOVERN THE EXERCISE OF AUTHORITY UNDER A POWER OF ATTORNEY.

2. A PERSON IN A POSITION OF TRUST AND CONFIDENCE TO A VULNERABLE ADULT, INCLUDING AN AGENT DESIGNATED IN A POWER OF ATTORNEY, MUST USE THE VULNERABLE ADULT’S ASSETS SOLELY FOR THE BENEFIT OF THE VULNERABLE ADULT.

3. FAILURE TO CARRY OUT THESE DUTIES MAY SUBJECT AN AGENT TO CIVIL PENALTIES UNDER SECTION 46-456, ARIZONA REVISED STATUTES, OR CRIMINAL PENALTIES UNDER TITLE 13, ARIZONA REVISED STATUTES.

This proposed amendment really does not change anything in the law.  Agents under powers of attorney are almost always acting in a position of trust and confidence to the principal, such that the agent is required to comply with A.R.S. § 46-456.  So, in my view, the proposed amendment is just a way of reinforcing the current law and giving explicit notice to the agent that he/she must use the vulnerable adult’s assets solely for the benefit of the vulnerable adult.

However, the proposed will, in my view, create unintended problems.  The warning notice to the agent is incomplete and inconsistent with Arizona’s financial exploitation statutes.  Arizona’s financial exploitation statute provides certain exceptions to the rule that the fiduciary use the vulnerable adult’s assets solely for the benefit of the vulnerable adult, None of the exceptions are described in the warning notice proposed in HB 2394.  Thus, the notice provided for in the HB2394 proposed amendment to Section 14-5501 will create an inconsistency and potential confusion regarding the agent’s duties.  Most importantly, the warning may prevent fulfillment of the principal’s true wishes.

For example, A.R.S. §§ 46-451(D), 46-456(A) & (J)(3); and 13-1802(C) contain the following 6 exceptions to the rule that the person in a position of trust and confidence (such as an agent under a power of attorney) use the vulnerable adult’s assets solely for the benefit of the vulnerable adult:

  1. The Superior court gives prior approval, finding that the transaction is for the benefit of the vulnerable adult;

The transaction is specifically authorized by the adult in a valid durable power of attorney or a valid trust;

  1. The transaction is required in order to obtain or maintain eligibility for Arizona’s medicaid program, AHCCCS [A.R.S. § 36-2901 et. seq.];
  2. The person in the position of trust to the vulnerable adult is the adult’s spouse and the transaction furthers the interest of the marital community, including applying for benefits pursuant to title 36, chapter 29 or for supplemental security income, medicare or veterans’ administration programs;
  3. The transaction is consistent with the clearly stated wishes of the vulnerable adult found by the court to be made without coercion and while the vulnerable adult was of sound mind; or
  4. The transfer is given as a gift, which is consistent with a pattern of gifting before the adult principal became vulnerable.

Just taking, for example, the second exception from the list, the power of attorney may  specifically provide for the agent to make a transfer or engage in a transaction that is not solely for the benefit of the vulnerable adult.  But, the required warning will specify that the agent must only use the vulnerable adult’s assets for the benefit of the vulnerable adult, or face civil or criminal liability.  As a result, agents may decline to exercise otherwise proper authority specifically granted in the power of attorney.  If so, the fundamental purpose of probate law – to ascertain and give full force and effect to each person’s true wishes, will be frustrated or destroyed.  At a minimum, the proposed amendment will create confusion and inconsistency in the law, thus likely leading to more litigation.

The problem with HB 2394 can be easily resolved.  I suggest simply revising the Subsection 2 of the proposed warning notice to provide:

2.  A person in a position of trust and confidence to a vulnerable adult, including an agent designated in a power of attorney, must use the vulnerable adult’s assets solely for the benefit of the vulnerable adult, UNLESS ONE OF THE EXCEPTIONS TO THE “SOLE BENEFIT” REQUIREMENT ARE MET.

It will be interesting to see whether the Arizona legislature adopts, revises or rejects the amendment to Section 14-5501 proposed in HB 2394.

Indeed, another proposed amendment, House Bill 2576, would accomplish the same purpose of HB 2394 without creating the inconsistencies and problems presented by HB 2394.  Like HB 2394, HB 2576 would also require durable powers of attorney to include a warning notice to agents.  But, the warning notice that would be required in new subsection (F) of A.R.S. § 14-5501 under HB 2576 would simply state that:

F. IN ADDITION TO THE OTHER REQUIREMENTS OF THIS SECTION, A POWER OF ATTORNEY MUST CONTAIN A NOTICE THAT BY ACCEPTING AUTHORITY UNDER THE POWER OF ATTORNEY THAT THE AGENT IS SUBJECT TO SPECIFIC DUTIES UNDER STATE LAW THAT GOVERNS THE EXERCISE OF AUTHORITY UNDER A POWER OF ATTORNEY, WHICH MAY INCLUDE DUTIES TO A VULNERABLE ADULT UNDER SECTION 46‑456. THE POWER OF ATTORNEY SHALL INCLUDE A SPACE FOR THE AGENT TO INITIAL TO INDICATE THAT THE AGENT HAS READ THE NOTICE. AN AGENT IS NOT RELIEVED OF CRIMINAL LIABILITY UNDER SECTION 13-1802 OR 13-1815 SOLELY BECAUSE THE POWER OF ATTORNEY DOCUMENT DOES NOT CONFORM TO THE REQUIREMENTS OF THIS SUBSECTION.

This warning notice is consistent with Arizona’s financial exploitation statute and would avoid the confusion presented by HB 2394.

HB 2576 also includes a proposed new section, A.R.S. § 14-5508, which would provide for liability of an agent under a power of attorney:

A. AN AGENT IS LIABLE TO THE PRINCIPAL FOR DAMAGES IF THE AGENT, WITHOUT LAWFUL AUTHORITY, KNOWINGLY TAKES CONTROL, TITLE, USE OR MANAGEMENT OF THE PRINCIPAL’S PROPERTY WITH THE INTENT TO DEPRIVE THE PRINCIPAL OF THE PROPERTY. PROOF THAT AN AGENT TOOK CONTROL, TITLE, USE OR MANAGEMENT OF THE PRINCIPAL’S PROPERTY WITHOUT ADEQUATE CONSIDERATION TO THE PRINCIPAL MAY GIVE RISE TO AN INFERENCE THAT THE AGENT INTENDED TO DEPRIVE THE PRINCIPAL OF THE PROPERTY.

B. IF IN A CIVIL ACTION BROUGHT BY OR ON BEHALF OF A PRINCIPAL THE COURT FINDS THAT THE AGENT HAS VIOLATED THIS SECTION, THE COURT SHALL AWARD THE PRINCIPAL ACTUAL DAMAGES AND REASONABLE COSTS AND ATTORNEY FEES, AND THE COURT MAY AWARD ADDITIONAL DAMAGES IN AN AMOUNT UP TO TWO TIMES THE AMOUNT OF THE ACTUAL DAMAGES.

Proposed section 14-5508 is consistent with A.R.S. § 13-1802(B).

Financial Exploitation

A.R.S. § 46-456(A) requires a person who is in a “position of trust and confidence” to a vulnerable adult to use the adult’s assets solely for the benefit of the adult unless an exception applies.  Section 46-456(J)(5) defines “position of trust and confidence” for purposes of Arizona’s financial exploitation statutes:

5. “Position of trust and confidence” means that a person is any of the following:
(a) A person who has assumed a duty to provide care to the vulnerable adult.
(b) A joint tenant or a tenant in common with a vulnerable adult.
(c) A person who is in a fiduciary relationship with a vulnerable adult including a de facto guardian or de facto conservator.
(d) A person who is in a confidential relationship with the vulnerable adult. The issue of whether a confidential relationship exists shall be an issue of fact to be decided by the court based on the totality of the circumstances.
(e) A beneficiary of the vulnerable adult in a governing instrument.

HB2394 and HB 2576 would add a subsection (f) to A.R.S. § 46-456(J)(5) and include “AN AGENT UNDER A POWER OF ATTORNEY OF WHICH A VULNERABLE ADULT IS PRINCIPAL” as a person in a position of trust and confidence for purposes of Arizona’s financial exploitation statute.

This amendment, in my view, is not necessary, since subsection (d) includes “A person who is in a confidential relationship with the vulnerable adult.” Certainly, an agent under a power of attorney is in a confidential relationship with the principal/vulnerable adult. But, the amendment would clarify and reinforce that an agent under a power of attorney is required to comply with the standards in A.R.S. § 46-456.

Guardianships

Senate Bill 1102 includes a couple of amendments to Arizona’s guardianship statutes.

First, SB 1102 would add a new subsection (C) to A.R.S. § 14-5312, which sets forth the guardians general powers and duties. The new section would impose new duties on guardians:

C. A GUARDIAN SHALL MAKE GOOD FAITH EFFORTS TO MAINTAIN THE WARD’S HISTORICAL RELATIONSHIPS AS EVIDENCED BY PAST PATTERNS AND PRACTICES AND ENSURE THAT THE WARD HAS REASONABLE ACCESS TO FAMILY AND FRIENDS.

Second, SB 1102 would add a new section, A.R.S. § 14-5316, requiring the guardian to give notice to family members of an adult ward’s hospitalization or death:

A. A GUARDIAN SHALL NOTIFY THE FAMILY MEMBERS OF AN ADULT WARD IF EITHER OF THE FOLLOWING OCCURS:

1. THE ADULT WARD IS ADMITTED TO A HOSPITAL FOR A PERIOD OF MORE THAN THREE DAYS.

2. THE ADULT WARD DIES. THIS NOTIFICATION SHALL INCLUDE INFORMATION ABOUT ANY FUNERAL ARRANGEMENTS AND THE PLACE OF BURIAL.

B. FOR THE PURPOSES OF THIS SECTION, “FAMILY MEMBERS” MEANS:

1. THE ADULT WARD’S SPOUSE.

2. THE ADULT WARD’S PARENTS.

3. ALL THE ADULT CHILDREN OF THE ADULT WARD.

4. ANY PERSON WHO HAS FILED A DEMAND FOR NOTICE.

5. IF NO PERSON LISTED UNDER PARAGRAPH 1, 2, 3 OR 4 OF THIS SUBSECTION CAN BE NOTIFIED, AT LEAST ONE OF THE ADULT WARD’S CLOSEST ADULT RELATIVES, IF SUCH AN ADULT RELATIVE CAN BE FOUND.

Berk Law Group is Here to Help

If you have questions regarding powers of attorney, financial exploitation of a vulnerable adult or guardianships in Arizona, please do not hesitate to contact our Arizona probate and elder law attorneys.

Attorney Kent Berk Featured on Money Radio 1510

Scottsdale Money Radio | Kent BerkLast week one of our very own was featured on Money Radio 1510AM – Phoenix to discuss several topics, including elder abuse and financial exploitation.

Click here to listen to the full interview.

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Kent Berk to be Interviewed on Money Radio

Join Kent for a discussion regarding elder law on Friday, January 29, 2016 from noon to 1:00 PM on Money Radio 1510 AM or 99.3 FM.  The show can be heard live on www.moneyradio1510.com.  Kent will discuss claims and remedies for financial exploitation of vulnerable adults under Arizona’s Adult Protective Services Act, including:

  • Purposes & Construction of the Act.
  • Who is protected?
  • Who is subject to the Act?
  • What are the requirements of the Act?
  • What are the remedies?
  • Other issues.

Mark your calendars for this informative broadcast.

Whitney Houston’s and Daughter’s Estates Embroiled in Disputes

Whitney HoustonThe death of Whitney Houston was a devastating loss to the music and acting communities, and the world. The talented singer was found dead in February of 2012. Trouble regarding the singer’s estate began brewing almost immediately. Her ex-husband, Bobby Brown, and Houston’s family were not getting along. Brown left Houston’s funeral. Concerns circulated that Brown would use the couple’s daughter, Bobbi Kristina, in order to gain access to Houston’s estate. It is speculated that Whitney Houston’s estate is valued between $12 million and $20 million.

Unfortunately, Bobbi Kristina was struggling with her own battle with substance abuse at the time of her mother’s death. Family members worried that if Houston left her assets to Bobbi Kristina, Bobbi Kristina would not be responsible enough to handle it all, or that father Bobby Brown would attempt to gain conservatorship over Bobbi Kristina in an effort to get his hands on the money. In fact, according to James Alexander of the Express, shortly after Houston’s death, Bobby Brown did express interest in obtaining conservatorship of his daughter if she did not clean up and change her life.
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Alzheimer’s Disease and Sleep

Almost everyone these days could use more sleep.  But, Alzheimer’s disease and sleep is now apparently a special concern for the elderly and their family members.  With over 5 million Americans currently suffering from Alzheimer’s, and that number is expected to double within ten years, researchers are trying to determine additional risk factors in order to attempt new treatment methods.  Dr. Matthew Walker of the University of California, Berkeley, recently discussed the link between sleep deprivation and Alzheimer’s disease.Human brain

Alzheimer’s disease is caused by a buildup of the protein known as beta-amyloid as well as the tangled fibers of the protein called tau.  These sticky, brain-clogging proteins build up inside of spaces between nerve cells as well as inside cells.  New research revealed that sleep deprivation can spur these proteins to grow and further cause disruption in the sleep cycle.  This vicious cycle results in an accumulation of the Alzheimer’s causing plaques and tangles and has been linked to poor memory.

Dr. Walker’s team discovered during its research that sleep problems can interact with the Alzheimer’s disease process.  This information helps to explain how the plaque and tangles can begin to damage the brain long before symptoms and problems develop.  The good news is that sleep is modifiable and researchers are looking at improving people’s sleeping patterns as a new form of treatment.  Certain sleep disorders, such as sleep apnea, contribute to the risk of Alzheimer’s disease, but treatment is available to correct these disorders.

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Financial Exploitation Finding Affirmed by Court of Appeals

Arizona’s Adult Protective Services Act protects Arizona’s large population of vulnerable adults from abuse, neglect and financial exploitation. The current version of the statute provides that a person who is acting in a position of trust and confidence must use a vulnerable adult’s assets solely for the adult’s benefit.  That statute was recently the subject of an Arizona Court of Appeals’ decision in the Estate of Domingo Rodriguez.

Factual Background

Domingo was an immigrant of Spain and did not speak or write English.  He had three adult children: John Rodriguez, Santiago Rodriguez, and Manuela Graca.  Domingo’s wife died in 2001, whereupon Domingo, then 80 years old, began living with Manuela and her husband, Manuel Graca.  At the time, Domingo had a pacemaker and needed assistance managing his finances.

The Gracas had extensive involvement in Domingo’s care and finances.

Over the next ten years, the Gracas provided all of Domingo’s care: arranged for and transported him to all medical appointments, administered his medications, assisted in all of his social and recreational activities, and cared for his dog. Manuela quit her job in 2001 to care for Domingo, but she eventually returned to work part-time and, later, full-time.

In 2002, they sold Domingo’s house and used some of the proceeds to expand their home to accommodate Domingo and make other renovations.  Later, they sold the home and used the funds to purchase another home.

While Domingo was living with them, the Gracas used funds from Domingo’s savings account, his monthly pension and Social Security to supplement their own income and help with household expenses.  However, importantly, the Gracas did not keep an accounting of their use of Domingo’s funds.

During at least the last two years of his life, Domingo suffered from dementia.  Domingo died in 2012 and John was appointed as personal representative of Domingo’s estate.  John then filed a complaint against the Gracas in which he alleged that they were liable for financial exploitation under Arizona’s Adult Protective Services Act, breached their fiduciary duties to Domingo, converted his money and enriched themselves with his property.  The Gracas denied wrongdoing and counter-sued for the value of the services that they rendered to Domingo as caregivers.

The Superior Court’s Decision

After a one day trial, the superior court found that the Gracas committed financial exploitation in violation of A.R.S. § 46-456 and breached their fiduciary duty to Domingo. The Court ordered the Gracas to pay Domingo’s estate damages in the amount of $15,527.26 and attorneys’ fees of $35,000.  The Gracas then appealed. [Read more…]

Sadomasochistic Relationship Leads to Exploitation Claims

What do sex, sadomasochism and financial exploitation have to do with each other?  This is not a joke!  Read more and find out.

In a recent Florida lawsuit, 68-year-old Alex Abrams claims that his sadomasochistic relationship with Judith Gumbrecht, also known as “Goddess Jude,” Goddess Judeallowed her to financially exploit him.  The allegations set forth in the lawsuit against Goddess Jude are intriguing and troubling, perhaps revealing a new method of financial exploitation of the elderly.

The Allegations

In 2011, Alex Abrams, then 63-years-old, divorced his wife of 32 years and was living alone. During this time, Abrams’ lawyers claim that he was suffering from severe clinical depression, an unspecified dementia condition and Alzheimer’s disease.  Abrams also had a history of ADHD and anxiety.  Because of Abrams’ age, medical and mental disabilities, his lawyers argue that Goddess Jude used their sadomasochistic relationship, which began in 2011 after Abrams’ divorce, for the purpose of financially exploiting Abrams.

According to the complaint filed against Gumbrecht in July 2015, she advised Abrams that it was “of the highest honor to be her financial slave.”  As a result, Abrams opened a new joint financial account with Gumbrecht, as well as made her an authorized user on Abrams’ credit card accounts.  Gumbrecht rewarded Abrams for these financial changes with sexual favors, but also threatened to punish him if he did not adhere to her financial instructions and requirements.

As a result of Gumbrecht’s control, Abrams claims that he transferred his Florida home to her via a Warranty Deed.  Gumbrecht also took more than $500,000 of Abrams’ money from his bank and credit card accounts.  Abrams’ attorneys claim that Gumbrecht was well aware of Abrams’ medical and mental health issues, as she attended a doctor’s appointment in which he was diagnosed with Alzheimer’s disease.  Abrams alleges that in violation of Florida Statute §825.103, Gumbrecht exploited Abrams by using her relationship with Abrams to create a relationship of trust and confidence in order to knowingly obtain or use his funds, assets, or property for her benefit.

Much like Arizona’s financial exploitation statute, Florida law defines exploitation as, among other things, “knowingly obtaining or using, or endeavoring to obtain or use, an elderly person’s or disabled adult’s funds, assets, or property with the intent to temporarily or permanently deprive the elderly person or disabled adult of the use, benefit, or possession of the funds, assets, or property, or to benefit someone other than the elderly person or disabled adult, by a person who:  1.  Stands in a position of trust and confidence with the elderly person or disabled adult; or 2.  Has a business relationship with the elderly person or disabled adult.”

In May of 2015, Abrams formally demanded that Gumbrecht promptly return his property or pay for the full value of his property, funds and assets.  Gumbrecht apparently denied this request and, instead, threatened to expose their relationship to his children.

According to Court documents, using her status as a dominatrix, Goddess Jude was able to exploit submissive Alex Abrams, receiving his home and over $500,000.  While a lawyer for Abrams did state that Gumbrecht’s advertisement of “financial slavery” was within the bounds of legality, she went too far by exploiting the elderly man due to his mental and physical condition.

Berk Law Group is Here to Help

Typically, financial exploitation of elderly or disabled adults is committed by a family member, friend or caregiver.  However, a business relationship, such as the sadomasochistic relationship between Abrams and Gumbrecht, can also lead to financial exploitation.  If you believe you or a loved one may be a victim of financial exploitation, or would like to learn more about financial exploitation and elder abuse claims in Arizona, please contact us.

New Protections for Vulnerable Adults

Senior CitizenFinancial exploitation of vulnerable elderly adults is a serious problem.  Many seniors suffer from dementia or Alzheimer’s disease, which limits their ability to protect themselves from abuse, neglect or financial exploitation.  It makes them easy targets for unscrupulous caregivers, family members, friends or strangers.

Elder abuse costs about $3 billion dollars a year, according to Mary Mack, the president of Wells Fargo Bank’s brokerage division.  Combating exploitation requires new methods of protection.  What more can be done to help protect the financial security of our beloved vulnerable senior citizens?  Fortunately, there are some new ways.

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B.B. King’s Estate Dispute

The recent death and loss of blues legend B.B. King was saddening. Shocking, however, are the allegations that King was murdered by his longtime business manager and executor of his estate, Louise LaVerne Toney. A dispute regarding the estate is now in court with two of King’s daughters, Patty King and Karen Williams, leading the charges against Toney.Blues legend B.B. King

According to BBKing.com, the Official Website, “He started life as Riley B. King in one of America’s most impoverished places, the Mississippi Delta. He had little but the dream in his heart and a destiny that would take him around the world. Now he’s an international music icon, and Blues aficionados from all over the planet want to hear more and know more about B.B. King.”

Estate disputes are not uncommon.  The rich and famous are not immune.  Patty King and Karen Williams have raised allegations of elder abuse, neglect and financial exploitation against Toney.

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Do It Yourselfers Beware! – Holographic Will Held Invalid

When a loved one dies, it is a time of grieving, pain and sorrow.  The grief and sorrow can turn to frustration and even anger when the deceased’s wishes for his estate are not followed.  Sometimes the person’s wishes are not followed because the person did not have testamentary capacity (was of unsound mind) or was unduly influenced.  Other times, the person’s wishes are not followed because those wishes were not properly adopted in a legally enforceable will.  Irrespective of the reason for the question or dispute, it is often helpful to consult with an experienced Arizona probate attorney.

The question in Wagoner v. Aleman, decided by the Arizona Court of Appeals on May 19, 2015, was whether Jeanine Jones’ partially typed and partially hand-written will was valid and enforceable under Arizona probate law.

In that case, Elisa Aleman was Jones’ natural granddaughter.  Elisa’s natural mother died shortly after Elisa was born and Elisa was legally adopted six months later.  Despite the adoption, Jones reconnected with Elisa and they remained close until Jones died on August 31, 2012.

Before she died, Jones prepared what was labeled a “Last Will and Testament” on a computer.  The document provided that Elisa was to inherit 50% of the sale of Jones’ property in Lake Havasu City, Arizona.  Later, Elisa stated that she was present when Jones made handwritten changes to the Will.  The changes reduced Elisa’s share to 25%.  Jones initialed all of the changes, except one that remained basically unchanged from the original document.  Only Jones and a notary signed the document.

After Jones died, her sister opened probate, claiming that Jones died intestate (without a will).  Elisa then filed a petition seeking to admit the typed/handwritten will to probate, whereby she would inherit 25% of the sale proceeds of the Lake Havasu City, Arizona property.  Elisa claimed that the will was a valid holographic will and Jones’ sister objected.  Elisa also argued that even if the will was not valid and Jones died without a will that she was Jones’ heir under Arizona’s intestatcy laws, such that Elisa was entitled to Jones’ estate.

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