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Sixteenth Century Statute Reviewed By Colorado Courts

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Under English practice before the sixteenth century there were no standardized requirements for making a valid will. Disposition of a decedent’s property was determined by each court under local rules and customs, and the actual division was therefore unpredictable.

Henry VIII approved Parliament’s “Statute of Wills” in 1540, and the law was further developed in 1677. For the first time a requirement was introduced that all wills be in writing, signed by the decedent and witnessed.

The requirement of a signed, witnessed, writing was adopted in the United States from early days and has held sway for three centuries of Anglo-American law. In a handful of other countries the requirement of witnessing has been relaxed somewhat; Israel and the provinces of Manitoba and South Australia have all permitted wills that do not meet the formal requirements if they can be proven to be the actual wishes of the decedent.

In the United States there has been a national movement to reduce the formal requirements of probate proceedings. The Uniform Probate Code, first promulgated in the early 1970s (and adopted in Arizona in 1973), has been a leading force in relaxing probate and estate planning requirements. In recent years the Uniform Probate Code has even suggested a partial return to the law before Henry VIII and the Statute of Wills.

Colorado was the first U.S. state to adopt the Uniform Probate Code’s new provision on acceptance of wills which do not meet the Statute of Wills standards. The first case testing the meaning of Colorado’s law has now been decided in that state’s courts.

The decedent’s name was Sky Dancer, and her death in December, 1997, was attributed to gunshot wounds. When police investigated they found a four-page typewritten document titled “Last Will and Testament of Sky Dancer” and a two-page affidavit stapled to the longer document. The notarized affidavit was signed by Sky Dancer and two witnesses, and acknowledged that the attached document was her will. Apparently Sky Dancer had signed the affidavit, but not the will, in front of the witnesses and notary.

If Sky Dancer’s “will” was valid, all her property would pass to her companion Lawrence Barnes. If she died without a will, all her property would pass to her mother, Laura J. Fisher. The Colorado courts were required to interpret the meaning of Colorado’s liberalization of the probate law.

Sky Dancer’s “will” was determined to be invalid. The Colorado Court of Appeals reasoned that even under the new standards there must evidence that the decedent intended a particular document to be her will, and Mr. Barnes had not produced enough evidence. Estate of Sky Dancer, October 12, 2000.

Arizona has not yet adopted the revisions to the Uniform Probate Code which would permit unwitnessed wills to be admitted in some circumstances. Even if the law changes it will be important to have two witnesses in nearly every case. While a notary is not required, it can make admission of the will to probate somewhat easier, particularly if the witnesses are unavailable after the death of the will’s signer.

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Robert B. Fleming


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


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


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


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.