martindale Avvo Rating  Berk Law Group, P.C. Super Lawyers | Kent S. Berk | Berk & Moskowitz, P.C.

Can a Technically Defective Will be Admitted to Probate in Arizona?

defective willIf your loved-one passed away with a will that wasn’t prepared by an attorney, you may be wondering whether that will can be admitted to probate in Arizona. Maybe he or she didn’t have a formal will and wanted to make sure that you and other loved ones received his or her property, and just left a handwritten note. Or maybe he or she intended to change the terms of a prior will.  Or, the will refers to a list of property or another document that was never prepared or cannot be located.  More on those issues, after we explain the basic requirements for a valid will in Arizona.

Requirements for a Valid Will

Who may make a will in Arizona?  Anyone who is 18 years of age or older and of “sound mind” may make a will.

Because a will is an important legal document, to be valid, an Arizona will must meet certain technical requirements.  With certain limited exceptions, in order to be valid in Arizona, a will must be:

  1. In writing.
  2. Signed by the testator [the person making the will] or in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction.
  3. Signed by at least two people, each of whom signed within a reasonable time after that person witnessed either the signing of the will as described in paragraph 2 or the testator’s acknowledgment of that signature or acknowledgment of the will.

A.R.S. § 14-2502(A).

Importantly, “intent that the document constitute the testator’s will can be established by extrinsic evidence, including, for holographic wills under § 14-2503, portions of the document that are not in the testator’s handwriting.”  A.R.S. § 14-2502(B).  So, other documents that refer to the will as a will or statements that the testator made confirming that a will was intended, in certain circumstances, may be used in court to prove that the document in question (such as a note, letter, list  or memorandum) was actually intended as a will.

One of the exceptions to the requirement that a will be witnessed is for hand-written (holographic) wills.  “A will that does not comply with § 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.”  A.R.S. § 14-2503.

Can a Defective Will be Admitted to Probate in Arizona

So, what happens if a will does not comply with Arizona’s requirements?

Some states have rules for wills and changes to wills that don’t comply with the technical requirements of the law.  For example, in states that have adopted the Uniform Probate Code (“UPC”) § 2-503, a will that is technically invalid may still be enforced.  Under that provision, 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 [the beneficiary or other person trying to admit the will to probate] of the document or writing establishes by clear and convincing evidence that the decedent [person who died] intended the document or writing to constitute:

(1) the decedent’s will,

(2) a partial or complete revocation of the will,

(3) an addition to or an alteration of the will, or

(4) a partial or complete revival of his [or her] formerly revoked will or of a formerly revoked portion of the will.

The so-called harmless error doctrine may leave room for documents that don’t comply with the will statute to be admitted to probate.  Although Arizona has not adopted the UPC’s harmless error doctrine, there is room for some non-complying wills in Arizona.

A.R.S. § 14-2502 includes three requirements for a will (see above). Despite not adopting the harmless error doctrine of the UPC, ARS 14-2503 does allow some wills that don’t strictly comply with ARS 14-2502 to be admitted to probate.

As explained above, holographic wills are recognized in Arizona.  The handwritten portion of a holographic will or other/extrinsic evidence must confirm a testamentary intent.  In other words, the document or other evidence (such as statements by the testator) must reflect an intent to distribute his/her property upon death or the testator must have expressed that he or she intended the written document to be his/her last will and testament.

As an example, in one Arizona case from 1978, a handwritten, signed letter was found to be a valid holographic will.  The letter included a postscript saying, “P.S. You can have my entire estate.” Kozla v. Benza, 120 Ariz 552 (App. 1978).  Based upon that sentence and other evidence, the court found that the will was valid and required to be admitted to probate.

In another more recent case in 2011, the court found that a handwritten note that was signed by the testator was a valid will to be admitted to probate, even though it referenced a list of property that was never written and never attached.  There, the note said, among other things, that “after I am deceased Jack has full instructions from me. Attached is a list of final instruction.  I want to leave Jack Howard Zimmerman a sum of $3,000,000 or more Three Million dollars, or More.”  Since the note reflected a testamentary intent (the intent to dispose of her property upon her death), the document was a valid will.  The “gap” left by the absence of the list did not invalidate the will.  It merely left an issue as to how to distribute any property that was not specifically dealt with in the note itself.  In re Estate of Waterloo, 226 Ariz. 492 (Ct. App. 2011).

Contact an Experienced Arizona Probate Attorney

If your loved-one has passed away in Arizona or had property in Arizona, leaving behind a document that doesn’t technically satisfy the requirements for a will under Arizona law, you may need an experienced Arizona attorney to ascertain and attempt to give effect to your loved-one’s wishes.  Our firm will work to help ensure that your rights are respected in a probate dispute. Whether you believe that the document should be honored as your loved-one’s will, or that the document was not intended to be his or her will, you may face a very challenging battle in court. A competent probate dispute attorney in Arizona may help you ensure that your loved-one’s final-wishes are honored.  If you have any questions, please give us a call.