Arizona law recognizes three different types of wills. Most importantly, a will must be signed and must represent the true wishes of the person. In other words, the person must have been of sound mind and not have been unduly influenced or directed what to put in the will by another person.

Arizona law generally provides that there is a presumption of testamentary capacity (that the person is competent and has sound mind). Thus, the person attacking or trying to cancel a will generally bears the burden of proving lack of capacity before the proponent (the party trying to enforce the will) has any burden.

Grounds for a Will Contest or Challenge

If there are questions about the validity of the will, an heir or other interested person may file a will contest.  In Arizona, a will may be set-aside (canceled) when

Similar rules may apply to trusts, deeds and other transfers of property.

Actions to Interpret or Construe a Will

A will contest may also involve interpreting or construing the will to ascertain what the person meant by a particular provision.  The overriding purpose of probate and estate law is to ascertain and give full force and effect to the person’s true intentions.    When possible, that intent is exclusively determined from the language of the will itself.

In Pass v. Stephens, the Arizona Supreme Court explained:

The fundamental rule in the construction of both wills and deeds is to give effect to the intention of the party executing the instrument, and this is to be arrived at by the language used, as found in the entire writing. Every clause, and even every word, should, when possible, have assigned to it some meaning. It is only when the terms of the writing are not clear that collateral evidence may be received to ascertain its intent. Otherwise the intent will be gathered from the instrument itself.

So, where there is an ambiguity or the intent of the person cannot be determined from the will or trust, extrinsic evidence (evidence in addition to the document itself) may be admitted to determine the person’s intent.  For example, sometimes it is necessary to interview witnesses or review other documents in order to ascertain what the person meant by a particular provision.

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Contact our Experienced Estate Litigation Attorneys

Our Scottsdale, Arizona probate lawyers work with medical professionals, such as neuropsychologists, to review medical records, interview witnesses, and perform psychological examinations in order to determine whether the person lacks or lacked testamentary capacity or was susceptible to undue influence.

Please contact our experienced probate attorneys if you think that a will or codicil (an amendment to a Will), trust, or other transfer was signed when the person lacked testamentary capacity.

Our attorneys have extensive experience resolving virtually all types of will contest disputes and lawsuits, as well as other legal disputes over inheritances, probate and estates. We are here to help if you have a legal matter involving a will, a trust or other inheritance or property dispute.