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Unsigned Will Invalid Despite Clear Intentions of Decedent

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Christel McPeak thought she had done her estate planning properly. She had hired an attorney, reviewed drafts of a will, durable power of attorney for financial purposes and health care directive, and she had approved the drafts. Then she went to her lawyer’s office and signed the final documents, just like she was supposed to do. Trouble was, the lawyer forgot to have her sign the will.

Part of the problem may have been that Ms. McPeak’s lawyer was in the habit of having his clients sign multiple original documents. In fact, Ms. McPeak signed four original living wills and designations of her health care agent, and three original financial powers of attorney. Each of those documents was witnessed and notarized, and even the will itself (though unsigned) had witness and notary signatures. All of that signing, and the shuffling of paper to Ms. McPeak, the witnesses and the notary, appeared to have been the only reason that she did not sign her will.

Ms. McPeak’s unsigned will would have left her estate to her niece, Bonnie Allen, and others. If she died without a will, her estate would pass according the Florida’s law of “intestate succession,” and her half-sister Margarete Dalke would receive a share. That set up a will contest between Ms. Allen and Ms. Dalk, and required the probate court to determine whether Ms. McPeak had a properly executed will.

English and American law has for centuries required that wills be properly signed and witnessed by the appropriate number (usually two) of witnesses. Ms. McPeak’s will, even though witnessed, did not meet that basic requirement. Ms. Allen argued, however, that by attesting to her “signature” Ms. McPeak approved the will, and it was clear that her oversight was just that. Even if the her name typed on the will form was not an adequate signature, Ms. Allen argued, it was clear that the will reflected Ms. McPeak’s wishes, and the court could order that its terms be carried out by imposing a “constructive trust” on the assets and ordering that they be distributed in accordance with the will.

The probate court agreed with Ms. Allen’s arguments and ordered that the estate be distributed in accordance with Ms. McPeak’s “will.” Her half-sister appealed, and the Florida Supreme Court reversed the probate court’s determination and ordered that Ms. McPeak had died without leaving any will. Even though her intentions may have been clear, Ms. McPeak did not properly sign her will. Allen v. Dalk, August 29, 2002.

Arizona also requires strict compliance with the requirements for execution of a will. Except for “holographic” wills (those in the testator’s handwriting and signed by the testator), all wills must be witnessed by two individuals. Failure to comply, even accidentally, makes a will invalid.

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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.