August 1, 2013:
Challenging the Will
By: Roger D. Curley
Wills are generally challenged because of failure to comply with the execution requirements, lack of testamentary capacity, or undue influence. The statutory requirements are set forth in the Arizona Revised Statutes.
The other items are briefly described below.
a. Lack of Testamentary Capacity. In order to have testamentary capacity, the testator must be able to understand at the time the Will is executed the following:
(1) the natural heirs of his bounty;
(2) the nature and character of his or her property; and
(3) the nature of the act that he is doing (that he is disposing of his property at his death).
b. See Estate of O’Connor, 74 Ariz. 248, 246 P.2d 1063 (1952)
c. The burden of proving lack of testamentary capacity is on the challenger. A.R.S. §14-3407. The standard of proof is a preponderance of the evidence. A.R.S. §14-2712 D.
2. Undue Influence. A person exercises undue influence when that person through his or her power over the mind of the testator makes the testator’s desires conform to his own wishes and does not conform to the wishes of the testator.
a. See Evans v. Lister, 116 Ariz. At 220, 568 P.2d at 1118
b. The burden of proving undue influence is on the challenger. A.R.S. §14-3407. The standard of proof (which previously was under case law clear and convincing evidence) is a preponderance of the evidence. A.R.S. §14-2712 D.
c. A.R.S. §14-2712 E provides for a presumption that a Will or other governing instrument is the product of undue influence if either: 1. A person who had a confidential relationship to the creator of the governing instrument was active in procuring its creation and execution and is a principal beneficiary of the governing instrument, or 2. The preparer of the governing instrument or the preparer’s spouse or parents or the issue of the preparer’s spouse or parents is a principal beneficiary of the governing instrument. Number 2 would not apply if the governing instrument was prepared for a person who is a grandparent of the preparer, the issue of a grandparent of the preparer or the respective spouses or former spouses of persons related to the preparer. This presumption may be overcome by a beneficiary of the Will by a preponderance of the evidence. A.R.S. §14-2712 F.
3. Other Arizona statutes allow certain provisions in a Will to be set aside with respect to certain individuals.
a. Under A.R.S. §14-2803, an individual who feloniously and intentionally kills a testator is barred from taking under the victim’s Will.
b. Provisions for a former spouse under a Will are revoked upon divorce unless the Will provides otherwise. A.R.S. §14-2804. Provisions for relatives of the former spouse who are not relatives of the testator are also revoked.