Lind v. Muder

OPINION BROOKS, Presiding Judge. This is an appeal from an order admitting a document to probate which purports to be the Last Will and Testament of Edward Frank Muder. The instrument in question is a printed form with certain handwritten insertions. We reverse. [327] Edward Muder died on March 15, 1984. Subsequently, Retha F. Muder, his surviving spouse, submitted an application for the informal probate of decedent’s last will dated January 26,1984. The will was later admitted to informal probate and appellants, daughters from decedent’s prior marriage, filed a Petition to Adjudicate Intestacy. Following a hearing, the trial court found the will to be valid and admitted it to formal probate. This appeal followed. Although inartfully presented, there are two issues on appeal: 1. Is the relevant document a validly executed will pursuant to A.R.S. § 14-2502? 2. Alternatively, is the document a valid holographic will executed pursuant to A.R.S. § 14-2503? The daughters contend in this appeal that their father died intestate. They argue that the document at issue fails to meet the requirements of due execution in various respects and that the surviving spouse failed to carry her burden of proving due execution. The surviving spouse contends that the document is at least valid as a holographic will.1 I. Arizona Revised Statute § 14-3407 provides in relevant part: In contested cases ... [proponents of a will have the burden of establishing prima facie proof of due execution in all cases____ Proof of due execution requires a written document, signed by the testator, and also signed by two or more persons, each of whom must witness the testator’s signature or the testator’s acknowledgement of that signature. A.R.S. § 14-2502. Although the surviving spouse testified that the disputed document was handwritten and signed by her late husband, she failed to establish the witness requirement of A.R.S. § 14-2502. There is no evidence in the record, and apparently none was offered, that the witnesses who signed the document witnessed either decedent’s signature or his acknowledgment thereof. In addition, the purported will does not meet Arizona’s statutory requirements for a “self-proved” will. The self-proving affidavit fails to conform to the statutory formality in that it does not state that the testator signed or acknowledged his signature, or the will, in the presence of the witnesses. See A.R.S. § 14-2504; In re Estate of Mackaben, 126 Ariz. 599, 617 P.2d 765 (App.1980). We thus turn to the issue of whether the document is a valid holographic will. II. Arizona Revised Statute § 14-2503 provides: A will which does not comply with § 14-2502 is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator. The daughters cite In re Estate of Johnson, 129 Ariz. 307, 630 P.2d 1039 (App. 1981), as support for their contention that the document lacks testamentary intent. When both the printed and the handwritten parts are considered, both the document at issue here and the instrument in Johnson reveal prima facie evidence of testamentary intent, i.e., a present intent to create a will. See In re Estate of Blake, 120 Ariz. 552, 587 P.2d 271 (App.1978). However, when the printed portion is excluded, the remaining handwritten portion reveals neither a testamentary nor a donative intent, both of which are necessary to qualify as a valid holographic will. Excluding the printed language, the relevant handwritten provision states: My wife Retha F. Muder, our home and property in Shumway, Navajo County, car — pick up, travel trailer, and all other earthly possessions belonging to me, livestock, cattle, sheep, etc. Tools, [328] savings accounts, checking accounts, retirement benefits, etc. The surviving spouse cites Blake as support for admitting the document as a holographic will, based on the phrase “and all other earthly possessions belonging to me.” The letter postscript at issue in Blake, however, is clearly distinguishable from the handwritten language here. The Blake postscript was definite in its terms and instructed the recipient to save it for future purposes: P.S. You can have my entire estate. s/Harry J. Blake (SAVE THIS). Id. at 553, 587 P.2d at 272. See also, In re Johnson, (handwritten portion of holographic will must clearly express testamentary intent.) On this issue, we note Judge Contreras’ special concurrence in Johnson. The basic intent of the Uniform Probate Code is to validate a will whenever possible. As in Johnson, the result here is contrary to that expressed purpose. The document in question, when considered as a whole, clearly and unequivocally evidences testamentary intent. However, as in Johnson, when the printed portion of the first paragraph is excised, neither testamentary nor donative intent is established and the document fails as a valid holographic will. The order of the trial court is reversed and this matter is remanded for proceedings consistent with this opinion. Footnotes [1] We note with disapproval the cursory manner in which the surviving spouse’s three-page brief addressed the issues before us.