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Notarized Will Fails for Lack of Witnesses

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MAY 16, 2016 VOLUME 23 NUMBER 19

Frankly, we are surprised by the number of cases we see in which wills are improperly prepared or signed. The rules governing wills are not really that complicated, and it should be pretty straightforward to comply with them. The cases we see mostly involve people who want to save a couple bucks, and so do their estate planning themselves — who needs legal help to handle those simple rules, right? Except that they keep making mistakes.

One basic rule (there are exceptions, but let’s get the rule straight first): a will needs to be in writing, signed by the person whose will it is (the testator), and witnessed by two people who see the testator signing the will. Ideally, the witnesses should both be in the room together with the testator and sign the will immediately.

So-called “holographic” wills can also be valid in Arizona, so long as they are actually in the handwriting of the testator (and signed). No witnesses are required on a holographic will. Still, we wonder why anyone would rely on this type of will, when it is probably not very difficult to rustle up two witnesses.

Does a will need to be notarized? No. In fact, notarization does not help with the witness requirement, so a will with one witness and a notary is not valid (in Arizona — other states may be different). The notion that the notary makes a will “official” in some way is a misguided one.

Arizona has a case that many might consider surprising, in which a witness signed the will after the testator’s death. Understand that the witness was present when the will was signed, and when another witness signed, but simply did not put pen to paper until the problem was pointed out in probate proceedings. The Arizona courts ruled that the delayed signature was permissible, and the will was valid.

That Arizona case is the background for a Washington will contest concluded last week — with a different outcome. It involved a Washington resident (we’ll call him Ben Hamilton) who spent his winters in Arizona. He had a valid will, signed in Washington in 1988, and a valid codicil, signed (again in Washington) in 1999. They left everything to his brother.

In 2011, when Ben was 77, he had heart surgery in Washington. After the surgery he went to live with his brother, but soon was eager to leave. He contacted friends in Arizona, and two of them drove to Washington, picked Ben up, and took him to Arizona.

While in Arizona, Ben prepared a new will. He and one of his friends went to the office of a local notary public, and Ben signed the will in front of the notary and his friend. The notary signed and applied her notary stamp; the friend did not sign.

Five days later, Ben committed suicide. Back in Washington, his brother filed the 1988 will and 1999 codicil with the probate court. Ben’s Arizona friends tried to figure out what to do with the new will Ben had signed. They sent it to a lawyer in Washington, asking for advice about whether it could be filed with the probate court there.

After the Washington lawyer found the Arizona case on late witnessing, the friend who had actually been present for the signing went to Washington, signed the document as a witness and left it for submission to the Washington court. The lawyer filed it, arguing that it revoked the 1988 will and 1999 codicil.

Ben’s brother moved for summary judgment, arguing that the purported will would be invalid under Arizona law because a notary is not a “witness” in the context of will signing. Although that is a correct statement of Arizona law, the Washington probate judge at first denied the motion. Then Ben’s brother argued that the will should be evaluated under Washington law, and the probate court agreed. The challenge to Ben’s 1988 will and 1999 codicil was dismissed.

The Washington Court of Appeals agreed with the probate court. Since Ben’s friend was actually in Washington when she signed as a witness, ruled the appellate court, and since that was the final step necessary to make it a valid will, it had been executed in Washington. Under Washington law, the late witnessing would be ineffective, and the “will” was not valid. Estate of Hook, May 9, 2016.

Although the Washington court might not have been familiar enough with Arizona law to be comfortable ruling on the validity of the document in Arizona, the outcome would have been the same. Even though Arizona has permitted witnesses to sign even after the death of the testator, Arizona has also ruled that a notary is not a witness, or at least not when they sign using their notarial authority and seal. The notarial act, according to the Arizona courts, is different from witnessing — it is just a determination that the signer is who they claim to be, not an affirmation that they intend the effect flowing from signing the document. So Ben’s will would have been invalid even if Arizona law had been applied.

But that begs the question: why didn’t Ben just get some competent legal advice? Just because a notary public signs legal documents it does not follow that they know the rules for preparing or witnessing a will. Presumably Ben had some specific things he wanted to accomplish when he prepared and signed his new document. Was it not important enough to get some legal advice about how to make it work?

Obviously Ben was under a lot of pressure and, probably, preoccupied. Still, he did not accomplish what he seems to have wanted, and it would have been easy to do so. His story is cautionary — on a number of levels.

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Robert B. Fleming

Attorney

Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman

Attorney

Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson

Attorney

Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour

Attorney

Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.