ESTATE PLANNING LAW REPORT: September 2016
Frequently Asked Questions About Wills

Why is it so important to preserve an original will?

The answer to that question is right in the Arizona probate code:

If an original will that was last seen in the possession of the testator cannot be found after the testator’s death, the testator is presumed to have destroyed the will with the intention of revoking it. This presumption may be rebutted by a preponderance of the evidence. If this presumption arises and is not rebutted the will is revoked.

Hannah

Nathan Hannah, Attorney

Here’s how I describe that rule in layman’s terms: if your will was last seen in your possession and it can’t be found after you die, the law presumes that you tore it up, and you died without a will. That’s one reason why preserving the original of your will is so important.

If the original of a will can’t be found, is a copy good enough?

That question is also answered right in the probate code, but the application of the rule is a little more complicated than the first rule:

If a will is found to be valid and unrevoked and the original will is not available, its contents can be proved by a copy of the will and the testimony of at least one credible witness that the copy is a true copy of the original. It is not necessary for this person to be an attesting witness to the will.

To apply this rule, you first have to get past the first rule, that is, you have to establish that the will is valid and unrevoked even though you don’t have the original. If you get past that rule, then you have to have (1) a copy of the will, and (2) someone who can testify that the copy is a true copy of the original.

What if there isn’t even a copy of the will, but we know what it said?

Practically speaking, I think you are likely to be out of luck if you find yourself in this situation, but there is a rule in the probate code for this scenario as well:

If a will is found to be valid and unrevoked and a copy of the will is not available, its contents can be proved only by clear and convincing evidence. For this purpose it is not necessary for a witness to be an attesting witness to the will. On a finding of clear and convincing evidence of the contents of such a will, the court, by order, shall set forth the contents of the will in reasonable detail.

I don’t think I have ever seen this rule applied in real life. The reason for that seems pretty obvious to me: it’s probably going to be pretty hard to come up with clear and convincing evidence of what the will said if you don’t even have a copy. I suppose the person who prepared the will (e.g, your estate planning attorney) could testify as to what it said (but of course that situation wouldn’t happen with me because I would have a copy). Again, you still have to get past the first rule that presumes the will was revoked if it was last seen in the testator’s possession and you can’t find it. Maybe if the house burned down, killing the testator and destroying the will, you could get past the first rule and take advantage of the rule about proving what the will said.

But if you have followed my instructions, your will is kept in a fireproof box, so that scenario can’t happen, right?

 

Keeping The Issues Straight When Discussing the
“RIGHT-TO-DIE”

There is a story getting national attention about a 14 year old girl who has a fatal degenerative disease. It’s getting national attention because the girl has asked that treatments be withdrawn. Unfortunately, two discussions of the situation that I saw recently, one in USA Today and one in NRO’s The Corner, only confuse the issues the situation raises.

There are two clear issues raised by this situation. First, does a person have a right to refuse treatment, even if the treatment is necessary to keep the person alive? The answer is clearly, yes. A living will, recognized in Arizona and, I believe, all other jurisdictions in the United States, allows a person to direct that treatment be withheld or withdrawn. A health care power of attorney allows a person to delegate the decision to withhold or withdraw life-saving treatment to someone else if the person is no longer able to make or communicate the decision.

Second, can a fourteen year old child refuse treatment? I’m not sure, but I don’t think so. Fourteen year olds generally are considered legally incompetent to make decisions, with certain exceptions not relevant to this discussion. The child’s parents or legal guardian are the people who have the legal authority to make that decision for the child.

There is one big issue that this situation doesn’t appear to implicate: assisted suicide. Unfortunately, both of the discussions I mentioned earlier bring up that issue, without distinguishing it from the issue of refusing treatment. It seems obvious to me that assisting a person in causing the person’s death is different from withholding treatment at the request of the person receiving the treatment. Why bring up the difficult issue of assisted suicide when it doesn’t have anything to do with the situation?

I recommend that every adult should at least consider signing a living will. If you have not signed a living will and would like to consider it, let me know. I’ll send you the Arizona form, at no cost to you.

JOHN LITHGOW


Nathan B. Hannah is a Shareholder in the Tucson office, and practices in the areas of estate planning and administration, real estate, and commercial transactions.  He is also a noted blogger, and you can find more of his articles on his private blog,

Contact Attorney Hannah:   nhannah@dmyl.com  or  520/ 322-5000


This communication is designed to bring legal developments of interest to the attention of our clients and others. It should not be relied upon as a substitute for specific legal advice in a particular matter. For further information on any of the subjects discussed, or for legal advice in connection with any particular matter, please contact us.
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