Some people either to save money or due to urgent circumstances, decide to write their own Wills. It creates a sad situation when those Wills do not meet the statutory requirements to be enforceable. I recently encountered several such situations, so I felt this important to share.
In Arizona, a Will must be signed by the Testator (the person whose Will it is) or Testatrix (a female Testator) and at least two witnesses, who either witnessed the Testator’s signature or the Testator’s acknowledgement of his signature. A.R.S. §14-2502(A). Then, to admit such a Will to probate would require testimony of the witnesses that it was the signature of the Testator, who had the intent that it be his Will. Arizona statutes also provide that intent that a document be considered a Will may be established by other evidence, (A.R.S. §14-2502(B)); however, that would require testimony of a witness that could overcome cross-examination that the witness was simply testifying to benefit himself or herself.
To make a Will “self-proving” and avoid the need for any testimony to prove the signatures and intent, the Testator’s signature, as well as the signatures of the witnesses, should be notarized. Thus, a self-proving Will should be signed by the Testator and the two witnesses in front of a notary licensed by the State of Arizona.A.R.S. §14-2504.
Arizona also provides for Wills to be valid as “holographic.” A holographic Will must have all material provisions in the Testator’s own handwriting and be signed by the Testator and then it does not need to be witnessed or notarized. A.R.S. §14-2503. However, if contested at all, a handwriting expert would be required to testify that the material provisions of the Will and signature match other known specimens of the Testator’s handwriting.
In a recent situation, a Testator asked her daughter to write out her Will and then the Testator signed it without witnesses other than the daughter, who was one of the beneficiaries. Thus, the Will was not valid as holographic, as none of the material provisions were in the Testator’s handwriting and the only witness was one who stood to inherit more under the proposed new Will. Any contest would easily set that Will aside in favor of a prior, fully self-proving Will.
In another recent situation, my client’s mother wrote a letter to revise her fully self-proving Will. The mother wanted to include provisions for her long-term boyfriend to stay in her house cost-free for the remainder of his life and receive additional funds. The letter was typed, but signed and dated. There were no witnesses to the letter. Thus, it did not qualify as a holographic Will and no one could sufficiently testify as to the mother’s signature and intent to overcome the prior self-proving Will.
Finally, I was asked if a friend could type up the Will for the Testator and for the Testator to sign it. They could not arrange for any other witnesses or a notary. I advised that in Arizona, it would be difficult to prove that as a Will, especially if the person preparing the Will also benefits under it.
The long and the short of it is, it is less costly to prepare a self-proving Will with all of the statutory requirements than to have to go to Court to later prove the Will valid. Our office can assist with self-proving Wills, usually as part of an estate planning package, which includes financial and health care powers of attorney.
