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Stroke, Paralysis Do Not Prevent Revocation of Will

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Many court cases deal with the level of capacity required to make a valid will. From Maryland now comes a case dealing with the capacity to revoke an existing will.

Doris and Max Showe married in 1978. Both had been married before; Doris had one son (William) and Max had two daughters (Denise and Debra). In 1992, Doris and Max signed wills with identical provisions. Each left everything to the other, and on the second death the remaining estate was to be divided, with half going to William and half split between Denise and Debra.

In July, 1994, Doris suffered a stroke. She was paralyzed on the right side, and was unable to care for herself. She was also left unable to speak, except for a few words at a time, and did not recognize long-time friends and acquaintances.

Max died about a year after Doris’ stroke. Doris’ son William went to the safe deposit box and removed both Max’ and Doris’ wills. He visited his mother, with her will in hand, and read it to her; he later testified that she “indicated that that was not what she wanted.” He told her that if she revoked the will, all her estate (including what she had inherited from Max) would come to him.

William then consulted a lawyer in his home state of Pennsylvania. That lawyer told him to prepare a simple form revoking the will and have his mother sign it in front of two witnesses, and that the will could then be physically destroyed.

In September, three months after Max’ death, William prepared a one-sentence form for his mother to sign. In its entirety, it read: “I, Doris Showe, as of 10 Sept 1995 declare this will dated 7 Feb 1992 and all preceding wills to be invalid.” Doris signed the revocation with what the court later described as “a handwritten mark that resembles the letter ‘x’ or the letter ‘t,’ tilted at a 60 degree angle to the left.” Two daycare workers witnessed the signature. Then William physically tore the old will in half.

When Doris died eight months later, William filed for probate saying that she had not left any will. Her two stepdaughters objected, and attempted to introduce a copy of her 1992 will leaving half her estate to them. The legal question then became whether Doris Showe had understood the effect of her signature on the form prepared by her son.

At trial one of the witnesses to the revocation testified that Mrs. Showe understood what was said to her, and that she could communicate her wishes with simple “yes” and “no” answers. Another caretaker, however, testified that her mental capacity had been affected by the stroke, and that she could not have understood the revocation of her will. Furthermore, Maryland law requires more than the document Mrs. Showe signed; in order to revoke a will in Maryland, the testator must burn, cancel, tear or obliterate the will, or have someone do it for them while in their presence. In other words, the act of William tearing up the will, allegedly at his mother’s direction, turned out to be more important than the document he had her sign.

After review of the evidence, the Maryland Court of Special Appeals decided that William had shown that his mother was competent to revoke her will. Furthermore, the court ruled that, despite the obvious self-interest, his testimony about her instruction to tear the will was believable. Mrs. Showe died without a will, and her entire estate passed to her son William. Oliver v. Hays, 5/4/98.

In Arizona the result would likely be the same. Like Maryland, Arizona does not permit a revocation to be by a separate writing (unless it is part of a new will). It is not clear whether it requires as much capacity to revoke a will as to execute a new one, although Mrs. Showe’s case might suggest that a lower level of capacity may be enough for a revocation.

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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.