Arizona law requires that a will be in writing, signed by the testator and by two witnesses. A will that does not comply with those requirements can nevertheless be valid if the signature and the material provisions are in the handwriting of the person making the will (that’s the “testator”). A will that is handwritten but not signed by two witnesses is called a holographic will.
A will can be “self-proved” if the signatures of the testator and the witnesses are acknowledged before a notary public. That means that the will can be admitted to probate without any other proof that it was validly executed.
Nathan B. Hannah, attorney
If your will is not self-proved, it can still be admitted to probate. However, if your will doesn’t either (1) have the signatures of two witnesses, or (2) qualify as a holographic will, it cannot be admitted to probate.
A holographic will should be used only as a last resort. Getting the will admitted to probate, and the actual administration of the estate, are likely to be much more complicated with a holographic will than with a conventional will. If you have no alternative, however, it’s better than nothing.
The Arizona probate code says that a holographic will is valid “if the signature and the material provisions are in the handwriting of the testator.” I suggest that if you are going to make a holographic will, you should write the entire thing out in longhand. It’s not going to be that long anyway, and that way you can avoid the problem of having the court determine whether or not the part that is handwritten contains all of the material provisions. And yes, it has to be ink on paper. Electronic versions can’t be filed with the court, at least not yet.
Here’s my template for a holographic will:
First, write this:
“This is my Will.”
Next, write:
“I nominate [insert name here] as my personal representative.”
Then,
“I give all of my estate to [insert name].”
Finally, if you have children under 18, write this:
“I nominate [insert name] as guardian and conservator for my children under age 18.”
Then sign your name and write the date under your name.
Seriously, don’t do this unless you have no alternative. But if you have to make a will this way, it should work (in Arizona, that is; I don’t know what the rules are in other states).
Now, what about the handling of the original of your will? Here are some frequently asked questions, and answers, on that subject.
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.
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 fairly 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 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 testator’s 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?
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.
