Do It Yourselfers Beware! – Holographic Will Held Invalid
By Kent Berk on June 8th, 2015 in LITIGATION, Probate, PROBATE LITIGATION, WILL CONTESTS
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.
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 intestacy laws, such that Elisa was entitled to Jones’ estate.
The Will Was Invalid Under Arizona Probate Law
Before specifically addressing the requirements to create a valid will, the Arizona Court of Appeals noted that there was no right to create a will under the common law. Rather, the right to create a will is granted by statute. And, the statutory requirements must be followed. “As a result, failure to comply with statutory requirements may render a purported will invalid even if it accurately reflects the testator’s wishes.”
In order to create a valid will, it must be signed by at least two witnesses, pursuant to ARS § 14-2502(A)(3). Here, since Jones’ will was only signed by one witness (the notary), the Court held that it was invalid and could not be enforced.
But, since the will reflected Jones’ handwritten changes, Elisa also argued that the will was a valid holographic will. According to ARS § 14-2503, “A will that does not comply with section 14-2502 is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator.” As stated by the Court, “to be valid, the handwritten language of a holographic will must demonstrate testamentary intent.”
Unfortunately for Elisa, the Court also found that the document was not a valid holographic will. Jones did not handwrite the material provisions of the document and, disregarding the typed portion of the document, the handwritten changes that Jones did make did not clearly reflect an intent to make a will. Thus, the document was not a valid holographic will under Arizona probate law and Jones died without any will (intestate).
Elisa Was Not Entitled to Inherit as Jones’ Legal Heir
Next, the Court addressed Elisa’s claim that she was Jones’ legal heir, entitled to her estate under Arizona’s intestacy laws. But, since she was adopted, the Court also rejected that argument. The Court easily reached that conclusion based upon ARS § 14-2114(B). That statute provides, in part, that “an adopted person is the child of that person’s adopting parent or parents and not of the natural parents.” Since Elisa was adopted, she was no longer considered to be the child of Jones’ daughter and, thus, was not Jones’ descendant. Unfortunately for Elisa, her “adoption severed all legal relationships with her natural parents, including her right of inheritance.”
The Arizona Probate Attorneys at Berk Law Group Can Help
The Wagoner case is a perfect example of someone wanting to save some money by preparing her own will. By doing so, it created confusion and substantial costly litigation, all the way to the Arizona Court of Appeals. Most importantly, it was apparently undisputed that Jones truly wanted her granddaughter to inherit 25% of the sale proceeds, but that intent was not fulfilled.
Will and trust contests arise in many contexts. In the unfortunate situation where a dispute arises, our experienced Arizona probate lawyers are here to help. If you have any questions or need assistance in a will or trust contest or other Arizona estate dispute, please do not hesitate to contact us. And, please register for our free email newsletter to keep in touch and receive periodic updates.
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