I.
Power to Transmit Property at Death
GENERAL RULE: Freedom of Disposition: Testator can do whatever he wants with his property
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Shapira v. Union National Bank: Decedent conditioned son’s inheritance under his will upon him
being married to or married w/in 7 years of decedent’s death to a Jewish girl. Executor will hold
share for 7 years, if son fails condition, will give share to State of Israel. P claimed condition was
unconstitutional and contrary to public policy bc he should not be restricted in who he marries.
Constitutional component: the state is not enforcing a restriction on who son may marry (which
Loving v. VA, and Shelley v. Kraemer prevent); the court is enforcing the testator’s restriction.
Testator may restrict a child’s inheritance/children have no right of inheritance
o Public Policy: a partial restraint on marriage is valid so long as reasonable: (1) restraint must
be definite (2) devisee must have ability to satisfy the condition.
o Ct feels it’s important that there’s not a full forfeiture. B/c the funds go to Israel, it’s
acceptable.
o Note: what appears to be a partial restraint, due to certain conditions, can end up being an
absolute restraint (not possible to fulfill the required condition – Maddox v. Maddox (1854):
there were only 4 or 5 unmarried girls of a particular sect).
Examples:
o Cannot marry African American girl- under Shapira, this would not violate public policy (it’s
repulsive but still reasonable).
o Note: what if son was gay? (pg 13) Attorney argued this would be a “sham” marriage, forced to live
in celibacy or engage in extramarital activity, contrary to public policy.
Public Policy Points:
o A total restriction or restraint on a first marriage is VOID (leave to my daughter on the condition she
does not marry = invalid, would receive interest w/out any such condition)
o 2nd marriage – if leave estate to wife on condition that she not re-marry is generally VALID. Will
likely need a co-habitation provision and also need to define cohabitation, it is difficult for a trustee
to enforce this; Becker doesn’t like this.
o Provisions intended to disrupt family relations (encouraging separation or divorce) violate public
policy and are VOID. Can have a provision that gives daughter extra $ if she divorces so that she is
adequately provided for – motivation cannot be to encourage divorce. (no contact w/ other parent)
o Religion – Generally VALID
o Allow personal habits – leave 1/3 of estate to son on condition he quit smoking, VALID
o Education/Occupation – Restrictions generally VALID
o Hate groups – Generally VALID unless in furtherance of criminal activity (Harry McCorkel)
Destruction of Property at Death: (Generally not permissible)
o In general, can do whatever you want w/ your property during life, but at death there are restrictions
concerning destruction- absent a convincing justification, it will be deemed to be in violation of
public policy.
o Note: destruction of animals pisses Becker off bc he loves animals.
ARIZONA STATUTORY REQUIREMENTS:
o Wife: First $37,000 (or to minor children if no SS)
o IRS after $5,490,000 (fair mkt value of everything owned) every $1 taxed at 40%.
Arizona: Property Right after Death:
o One of few states that allows transfer of property after death (follows UPC sec 2-602)
o ARS § 14-2602 “a will may provide for the passage of all property the testator owns at death and all
property acquired by the estate after the testator’s death.”
o Counter (majority): Shaw Family Archives Ltd. v. CMG Worldwide, Inc.: Marilyn Monroe photo;
Court held MM could not devise by will a property right she did not own at the time of her death.
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Constitutional issues w takings- state taking 100% at death unconstitutional, but unsure what rate is.
 Hodel v. Irving: Congress enacted Land Acts that divided communal reservations in
allotments un-allotted lands for non-Indian settlement. If a piece of land represents 2% or
less of the total acreage of the tract and has earned its owner less than $100 in the preceding
year it will escheat. Basically, Act prevents tribal members from passing small parcels of
property—instead they go back to tribe so everyone can benefit. Rule: Right to pass
on/transmit property to one’s heirs is a constitutionally protected right. Therefore, Act
violates 5th Amendment.
 No right to receive property- it’s a right to transmit property that is a protected right.
 Note character of regulation: Congress cannot abolish devise (wills) and descent
(intestacy)- State could enact legislation that an individual at death can only transfer
by will, or it could prohibit wills and follow intestacy, but cannot do both.
II.
Probate Administration
§14-1201: Definitions
Child: one entitled to take under intestacy.
o ≠ step-child, foster-child, grand-child
o Does include adopted children
 Community Property: (ARS § 25-211) property of H & W acquired during marriage, except:
o property acquired by 1) gift, devise, or descent (and excludes the increase, rents, issues, and
profits from such properties) or 2) after service of petition for divorce if the petition results in
an actual divorce.
o Note: Petition for divorce does not alter the status of existing CP, change status of CP used to
acquire new CP, alter management of CP.
 Separate Property: (ARS § 25-213) all property owned before marriage; property acquired by gift,
devise, or descent during marriage; rents, profits, earnings, dividends on separate property; property
acquired after filing and petition of divorce if petition leads to divorce.
 Descendant: All generations of decedent’s descendants w/relationship of parent/child.
 Interested Person (person w/standing): Can challenge will.
o Any trustee, heir, devisee, child, spouse, creditor or beneficiary
o Or any other person w a property right or claim of decedent’s estate
14-1107: Death
 Absent 5 continuous years without being heard from and has been searched for.
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** Devise- received by will. Descent- received through intestacy**
Probate: property that passes under decedent’s will or by intestacy.
 Probate performs 3 main functions:
 1. Provides evidence of transfer of title to new owners, making the property marketable again
 2. Protects creditors by providing a procedure for payment of the decedent’s debts
 3. Distributes the decedent’s property to those intended after the decedent’s creditors are paid
 Choice of Law:
o Personal Property – disposition governed by law of state where decedent was domiciled at death
 (primary/domiciliary jurisdiction)
o Real Property – disposition governed by law of state where real property is located
 (ancillary probate)
 What is in the probate estate?
o Defined in context of whether decedent is married or single
 Married: All of decedent’s separate property, and ½ of community property
 Single: Everything will be titled in decedent’s name (presumably)
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Non-Probate: property that is not controlled by will; passes outside terms of probate estate
1. Property that passes w/ right of survivorship: if property is owned as joint tenants w/ right of
survivorship, upon the passing of the 1st joint tenant property passes to the other joint tenant by
operation of law – will has no control over this property (can own real or personal property w/ right of
survivorship).
2. Community Property w/ right of survivorship: property owned by H & W, on passing of 1st spouse the
property vests in SS by operation of law (can be real or personal property).
3. Life Insurance: proceeds of policy are paid to beneficiary named in contract at time of decedent’s death
(when company presented with death certificate); operates independently of probate administration.
4. Pay On Death Contracts: 401K, 403B, other accounts that are payable to beneficiary outside of probate
estate (age limitations on retirement account; spouse is required to be beneficiary on retirement acct
unless he/she signs by waiver).
5. Multi Party Bank Accounts: pass to surviving parties and outside of probate estate (recognized in AZ)
6. Interests in Trusts: when property is put in trust, trustee holds it for benefit of one or more named
beneficiaries and avoids probate by passing in accordance with terms of trust.
7. Deed of real property that passes to named beneficiary outside of probate estate. ARS § 33-405
Example 1: Married couple, S1 dies and leaves SS.
Analysis – 1st: probate property, 2nd: non-probate and to whom, 3rd: make sure have accounted for all wealth.
 List of assets: Totaling $2840
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Real Estate – in name of both
spouses
Bank Account, multiparty w/ right
of survivorship
Husband’s 401k, wife is beneficiary
Brokerage Account – in name of
both spouses
Cars – held as joint tenants w/ right
of survivorship
Personal Property – in name of both
spouses
Cabin – in name of both spouses
$420K
Life Insurance – wife is beneficiary
Wife’s 401k, husband is beneficiary
$500K
$120K
CP – ½ (210K) probated; other ½ is wife’s ½ CP and passes
outside probate.
Passes outside of probate, goes directly to named beneficiary.
$30K
$680K
$700K
Passes outside of probate, goes directly to named beneficiary.
CP – ½ (350K) probated; other ½ is wife’s ½ CP and passes
outside of probate.
Passes out side of probate, goes directly to joint tenant.
$70K
CP – ½ (30K) probated; other ½ is wife’s ½ CP and passes
outside probate.
CP – ½ (130K) probated; other ½ is wife’s ½ CP and passes
outside probate.
Passes out side of probate, goes directly to beneficiary.
Passes outside of probate, goes directly to beneficiary.
$60K
$260K
S1’s community property: ½ residence 210, ½ brokerage 350, ½ cabin 130, ½ PP 30 = $720
SS’s community property: same, $720
Non-probate: bank account 30, life insurance 500, auto 70, S1’s 401K 680 = $1280
SS’s separate property: her 401K 120 = $120
Example 2: Single person, dies
 List of assets: totaling $2,660,000
Residence – deed w two children
Bank acct 1 – D + child 1 (agent)
Bank acct 2 – D’s name
Personal property – no title
Ind. 401K – children as bs
Life insurance – children as bs
Farm in ND – D’s name
Passes outside probate
Probate
Probate
Probate
Passes outside probate
Passes outside probate
Probate
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PROBATE PROCESS
1. Open Probate/Apply for Administration of Estate:
 Minimum period before probate can be commenced is 120 hours.
 Presenting decedent’s death certificate opens probate- in AZ applicant (usually heir or devisee or
creditor) needs to have standing.
 Find the will- it’s not recorded anywhere so you have to know where the decedent left it.
o If original document is in safety deposit box, someone can to bank, under
ARS § 6-1008, bank is required to open it, take out original estate planning docs, and give to
estate planner. FYI worst place to keep docs.
 Documents prepared and decision made whether to proceed formally or informally.
o Formal: petition filed, goes in front of probate judge, notice given ahead of time to interested
persons, takes longer and is more expensive.
o Informal: prepare application, applicant takes action in front of probate registrar/clerk, notice
given afterwards to interested parties (within 30 days); disinherited heirs may file petition for
formal probate.
 After filing, PR is appointed:
o Wills can/should name PR- generally spouse
o Required to post a bond in case they misappropriate estate assets (insurance company often
pays and would step in and make estate whole then goes after PR); Court then issues letter
testamentary that says PR has legal authority to act on behalf of estate.
o Entitled to reasonable compensation- track time at 1/10ths of an hr and track activities
o In AZ, cannot be a minor
 Note if small amt of probate assets (<$5k), ARS § 14-3971 applies (small estate procedure)- applies
to real and personal property.
2. Provide Notice
 Formally: notice given ahead of time to interested persons.
 Informally: notice given afterwards to interested parties (within 30 days).
3. Prepare Inventory of Estate:
 PR takes possession of decedent’s assets.
 Prepares inventory and appraisal of assets of probate estate within 90 days of appointment- needs to
reflect everything in probate estate.
 Files inventory appraisal with court, gives copy to heirs/devisees/other interested party who requests
copy, files proof with the court.
 Supplement additional assets if found after inventory.
4. Marshall Assets and Protect Them: theft is very common; PR notifies insurance company that house is vacant
if decedent lived alone (otherwise insurance co will deny coverage if something happens).
5. Distribute the Estate:
 Attorneys and dependent children get paid first.
 Creditors get paid before heirs/devisees ARS § 14-3802 – creditors have two-year statute of
limitations to present claims but by statute can shorten that period (see ARS § 14-3801).
o Unknown creditors: publish notice in newspaper of general circulations for three consecutive
weeks (there’s an approved list); cut off after 4 months from original notification.
o Known creditors: get actual notice and have 4 months from that notice.
 If not enough money to go around, different categories of preference: attorneys, reasonable funeral
expenses, taxes and debts under federal law, medical and hospital expenses, taxes under state law, all
other claims (ARS 14-3805).
 All creditors will take less than what decedent owed and the decedent’s credit no longer matters, so
go back to them and say if you want to get paid now, you’re gonna take a haircut, otherwise you’re
gonna have to wait- most of the time they’ll settle.
o Interest does not accumulate after death.
 If assets appear after estate has been probated, ARS § 14-3108 allows opening a closed probate.
6. Close Probate: either with judicial approval (supervised) or by filing sworn statement of completion
(unsupervised) (more common).
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III.
Professional Responsibility
§14-5652: Fiduciary Duties (p.50)
A. Absent an express agreement, the performance of legal services for a fiduciary, settlor or testator does not by itself
establish a duty in contract or tort to a third party. Third party does not mean the personal rep., settlor or testator.
B. An attorney acting as a P.R. or trustee shall:
1) disclose to all adults who have an interest in the estate/trust, the names of any person who has an interest in
the estate/trust to who is also the attorney’s current client or former client.
2) Disclosure must be in writing and made within a reasonable time of realizing the conflict
3) The conflict is not grounds for removal from PR or trustee, unless the attorney is unable to perform fiduciary
duties w/out violating the attorney’s ethical resp.
FIDUCIARY DUTY
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Simpson v. Calivas: Decedent executed a will, left all real estate to P except for a life estate in “our
homestead located at Piscataqua Road” which he left to P’ss step-mom. Attorney’s notes: all real
property to son, except life estate in house to step-mom. Dispute over meaning of “homestead.” P
and step-mom filed petition in probate ct to determine what “homestead” referred to. Probate ct said
“homestead was ambiguous” but did not allow extrinsic evidence (atty notes) to clarify decedent’s
intent. Probate ct interpreted will to provide stepmom with life estate in all real property, son then
paid step-mom $400k to buy out life estate, sued atty for malpractice. Atty’s defenses: (1) Privity:
atty owed a duty to client but not intended beneficiary (fails- foreseeability of injury to beneficiary;
atty owes duty to intended beneficiary even if not on the face of the will); (2) Collateral Estoppel:
probate ct already determined the meaning of homestead (fails- probate ct construes testator’s intent,
and appellate ct looks what testator actually did- serve different functions).
RULE: Duty runs from atty to intended beneficiary.
Comes out differently in AZ bc ARS 14-5652. But so far this has not been tested.
 Only 9 states follow the old rule that lack of privity between the drafter and an intended
beneficiary bars a malpractice claim by the beneficiary
 Be exceedingly careful when there is a 2nd marriage involved.
 Courts are reluctant to admit extrinsic evidence.
CONFLICTS OF INTEREST
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A v. B: H & W retained atty 1 to prepare estate plan. Clerk who opened their file spelled last name
wrong. Mother of H’s potential child retained atty 1 to pursue paternity claim against H. Conflict
check did not produce anything b/c of misspelling. H hired another law firm to represent him in
paternity action, it is determined he is the father, atty 1 asks for H’s financials, H’s atty 2 responds
they already have them from being his estate planner. Atty 1 feels obligated to disclose confidential
info (that H has this child) to W bc if W dies first her estate could ultimately go to the illegitimate
child. RULE: lawyer may disclose confidential information about one client to another client if the
matter is an exceptional case w/ a compelling reason for disclosure. Firm was not permitted to
disclose identity of mother and child.
In Practice: atty should utilize a Client Engagement Letter with every client.
o Identify who is the client.
 When representing a couple have an agreement re: joint representation and confidentiality.
Should discuss confidentiality and have an express waiver of confidentiality between
spouses.
o Determine and define scope of representation, prior to accepting engagement
o Determine if there are any conflicts of interests
o Does either spouse have legal obligations to each other (e.g. prenuptial, child support)
o Describe his or her fees. Needs to be clear. How billing, when and how much.
 Should include fees #/when you expect to be paid (estate planning is generally a flat fee –
need language that allows you to raise the price).
o Be explicit as to scope of rep. Note: need new engagement letter for each new matter.
o Letter must be agreed to, signed and returned.
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o Client termination letter. (Must be clear, but polite) [“happy to assist, but you must contact me”]
In re Estate of Fogleman (AZ): Intestate will provide for wife and children. Partner of Snell & Wilmer
appointed as PR BUT firm also represents some of the creditors of the estate. Ruling concerns 3 things; did
Snell violated ethical rules, was it a violation of fiduciary duties, and was it bad faith? Court finds: beneficiaries
are not clients so no violation of ethical rules; PR & law firm representing PR owes a fiduciary duty to the
creditors (higher and conflicting duty of single allegiance) and a duty of fairness and impartiality to
beneficiaries of estate (anyone w/ an interest in the estate) ARS § 14-3703.
 In practice, as PR, atty should:
 have a separate client engagement letter when acting as fiduciary that describes the capacity
you are representing. Could be representing as fiduciary or as devisee/heir. Cannot do both
unless there are no other parties w/ an interest.
 ensure PR is meeting required duties.
 deal w/ creditor’s property.
 when there is an antagonistic relationship, get out (Snell should have petitioned the court
much sooner to be removed).
 be aware of conflicts, confidentiality issues.
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IV.
Intestacy
Most ppl die intestate.
Intestacy statutes are based on presumed intent.
Common examples (1) decedent dies w/out valid will (2) decedent dies w/ valid will but will is not
effective to dispose of all of probate estate (3) will itself invokes intestacy “I leave to my heirs” (4) will
is invalidated.
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Intestacy Statutes
§14-2101: Intestate estate: modification by will
Any part of the decedent’s estate not provided for in a will passes through intestacy.
Generally, intestate property passes to decedent’s heirs unless the will says otherwise.
Important: Decedent may exclude or limit the rights of a person or class. If this is done, the excluded person is
disclaimed and their share passes as if they pre-deceased decedent.
§14-2102: Spouse
1. Takes all of the separate property + ½ of decedent’s interest in the CP if the decedent either doesn't have any
issue or if the issue is decedent and spouse’s.
2. Takes ½ of the separate property and none of the CP if the decedent has 1+ issue who is not also issue of
spouse.
 Remember: the surviving spouse still has his/her share of the CP.
 If #2, it would go to all the decedent’s children- not just the one who isn’t related to spouse.
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§14-2103: Heirs Other Than Spouse
Estate not passing to the spouse or if there is no spouse, is distributed in this order:
o Decedent’s descendant by representation
o If no surviving descendants-> decedent’s parents (equally or 100 % to survivor) or their descendants by
representation.
o No spouse, issue, or parents/parent descendant then:
 ½ to both maternal/paternal grandparents (or the survivor of them), or their descendants by
representation.
 Or 100% to either side if one side is completely gone.
§14-2104: General Rules
In order to take the heir needs to survive the decedent by 120 hrs.
o Survival must be proven by clear and convincing evidence (unless it would otherwise escheat)
o Child in gestation @ decedent’s death is treated as a surviving child if born and lives 120 hours. (2108)
Half-bloods take as whole
If an heir can somehow take through multiple lines, they only take the larger share.
§ 14-2105: If no one is qualified to claim the estate under this section, the intestate estate escheats.
Note: AZ doesn’t recognize heirs beyond grandparents’ heirs (pg. 86)
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§14-2106: Passing of Estate by Representation
Go to generation with surviving heir
If someone in that generation is deceased:
o Their share goes to their issue- if there is more than 1 pre-deceased then you pool their shares and
redistribute among the next generation of heirs.
o If no issue, share is pooled and redistributed to the next generation with surviving heirs.
§14-2109: Advancements
Property the decedent gave during his/her lifetime to an heir is treated as an advancement only if:
o The decedent declared in a writing or the heir acknowledged in a writing that the gift was an
advancement
o Or: if the decedent or heir has a written acknowledgment indicating the gift was to be taken into
account in computing the distribution of the intestate estate.
Property treated as an advancement is valued as of the time the heir came into possession or enjoyment of it
If the recipient of an advancement fails to survive the decedent, the property is not taken into account when
computing division and distribution of the intestate estate to the recipient’s heirs, unless decedent has a writing
expressing that intent.
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§14-2110: Debts
A debt owed to the decedent is not charged against the intestate share of any person other than the debtor.
If the debtor doesn't survive, the debt is not taken into account when computing the share of debtor’s
descendants.
o Maybe if the loan is disproportionate you could take it to probate court
§14-2114: Parent–child relationships
Person is a child of that person’s natural parents regardless of their marital status.
An adopted person is the child of the adopting parent- not the natural parents
o Adoption by a divorced spouse’s new H/W has no effect on the relationship between the child and natural
parent.
A natural parent and their family are precluded from inheriting from the child unless the natural parent had
openly treated the child as a natural child and had not refused to support.
Minor children are presumptively included in gift by another to adoptive parent’s children/heirs.
§14-8101: Adult Adoption
A. Any adult may adopt either another adult between 18-21 or who is a stepchild, niece, nephew, cousin, or
grandchild of the adopting person. (in jurisdiction where either of them resides)
 A foster parent may adopt an adult who was placed in their care as a juvenile if the foster parent has
maintained a continuous relationship with that person for 5+ years.
B. The adoption agreement must: 1) be in writing 2) executed by the adopter 3) state that the parties intend to be
seen as parent/child and to have all the rights and obligations that come with that relationship.
C. A married person cannot adopt an adult without the consent of the other spouse (providing they are competent
to give consent). A married person cannot be adopted without the consent of the other spouse. Natural parents
are not required to consent.
F. Petition for adoption shall state: 1) length and nature of the relationship 2) degree of kinship 3) the reason for
the adoption and why it would serve the public interest and interests of both parties 4) name of adoptee’s
parents and adult children 5) whether the adopter or adopter’s spouse has previously adopted an adult.
- May not adopt spouse
Three types of estate distribution:
 English Per Stirpes: ARS § 14-2709(B) (type Becker uses)
o Treats each line of descent equally. Property divided into as many shares as there are living
children or deceased children who have living descendants.
o Children effectively move into their deceased parents’ places of “inheritance.”
o Produces unequal shares among grandchildren, but equal across the decedent’s issue.
o Example: D has 3 children, C1, C2, C3. C1 has G1, G2, G3. C2 has G4. C3 has G5. If all three
children were deceased, each share would get dropped straight down – 1/9 to G1, 1/9 to G2, 1/9
to G3, 1/3 to G4, 1/3 to G5.
 Modern Per Stirpes:
o Distributes decedent’s estate equally at the generational level nearest to the decedent with one or
more descendants still alive.
o Treats equally each line of descent beginning at the closest living generation.
o Example: Generation w/ surviving member is grandchildren; would create a share for each
member of generation 1/5 to each G. If C3 had survived, would create shares at children, and
would be 1/3 for each surviving member and each deceased member that has surviving
descendants. C3 would get 1/3, G1, G2, and G3, would each get 1/9; G4 would get 1/3.
 Per Capita at Each Generation: ARS § 14-2106 AZ uses this one!!
o Initial division of share is made at closest generation with one or more surviving descendants. If
any of descendants have predeceased, their shares get potted together, and drop down equally
among descendants at next level.
o Example: If C1 and C2 are dead, share = 1/3 for C3. C1 and C2’s shares are combined (2/3), and
divided equally between descendants of deceased members, here into four shares, 1/6th each.
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Surviving Spouse:
o Valid marriage in AZ requires ceremony with solemnization and license (ARS § 25-111)
o Void or prohibited marriages: (ARS § 25-101)
o Marriage between parents and children, same sex, brothers and sisters (half and whole),
uncles/nieces, aunts/nephews, first cousins.
o Must terminate previous marriage before re-marrying
o Common law marriages not valid, but AZ does recognize these from other states.
 5 elements in CL marriage: capacity, agreement, cohabit. openly and continuously,
parties hold themselves out as being married, reputation (ie taking husband’s name, file
taxes together etc.)
o Note: If marriage contracted outside of AZ, valid here, unless void and prohibited.
o Grant Case: Divorce – if H and W are in process of divorce and one dies, they are considered to
be married until final decree/order dissolving marriage under ARS § 14-2802.
Decree of separation by itself does not terminate status of husband and wife.
Simultaneous Death ARS § 14-2104:
A. Person must survive decedent at least 120 hrs for purposes of homestead allowance, exempt property,
intestate succession.
B. Survivorship requires clear and convincing evidence.
C. Does not apply if property would otherwise escheat to AZ (policy play)
 Janus v. Tarasewicz: S and T were mourning recent death of S’s brother who had died earlier
that day from contaminated Tylenol. S & T unknowingly took the same contaminated Tylenol
while at the house. Issue of who died first, to determine inheritance (either T’s family or S’s). S
lists first beneficiary as wife T and second is his mother. Survivorship must be proven by a
preponderance of the evidence by the party whose claim depends on survivorship (T’s father).
Court finds there is some evidence that T survived for longer, so property passed to T and
ultimately T’s father.
***Note this case did not follow the 120-hour rule.
 How to tell if someone is dead? ARS § 14-1107: Determination of death must be made in
accordance w/ accepted medical standards. (1) certified or authenticated copy of a death
certificate isQA prima facie evidence (2) certified or authenticated copy of record/report of
governmental agency that a person is missing is prima facie evidence (3) If someone is overseas
(4) Death may be established by clear and convincing evidence, including circumstantial
evidence (5) If absent for continuous period of 5 years
Transfers to Children:
 Adopted Kids
o Hall v. Vallandingham: Adopted children lost right to deceased biological father’s
brother’s estate. Ct held children were no longer able to inherit bc adoption confers upon
an adopted child all rights and privileges of natural child, but cuts ties from natural
parent.
Counter to AZ & Shapira (right to transfer property can’t be denied by state).
o ARS § 14-2114: Adopted Children
(A) For purposes of intestate succession, a person is the child of that person’s natural
parents, regardless of their marital status.
(B) (1) When both parents give up rights of child and child has new M and F (severance
adoption), child is a child of new M and F, no longer a child of the OG M and F. [[Child
can no longer inherit through natural parent, and natural parents can no longer inherit
from and through child.]] (2) Adoption by spouse of natural parent allows child to inherit
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from M, F, and M’s new H. [[Adopting parent and child have full inheritance rights in
both directions.]]
(C) If a parent has refused to provide child support or other support to a child and then
the child passes having an estate, the parent who has not supported the child is not
entitled to inherit (refuse to support – no clear definition)
o ARS § 14-2113: Heirs related through two lines: A person who is related to decedent
through two lines of a relationship is entitled to only a single share based on the
relationship that would entitle the person to the larger share.
o ARS § 14-2107: Half-blood inherit same share they would as full blood.
Adult Adoption
o Most intestacy structures draw no distinction bw adoption of minor and adoption of adult.
o Justice Holmes- adoption for purpose of preventing will contest is perfectly proper.
o Probable intent of donor is evidenced by fact of adoption.
o Issues: most states do not have mechanism for undoing adoption (see Doris Duke case),
most states do not allow parent and child to marry (bigger issue for same-sex couples
who used adult adoption to give standing in a will contest to the other spouse)
o ARS § 14-8101: allows adoption of an adult if adult is bw 18-21. After that, there’s a
required relationship (stepchild, niece, nephew, cousin, or grandchild).
o Minary v. Citizens Fidelity Bank & Trust Co: Amelia had a will devising her residuary
estate to a trust to pay income to H and 3 sons. Trust was to terminate on death of H and
3 children, and then be distributed to surviving heirs, if no heirs, to the church. H died,
James died w/o descendants, Thomas died leaving 2 kids. Alfred adopted his wife to
prevent the trust from going entirely to Thomas’s kids (½ would go to Myra, ¼ to each
nephew). CT: Adoption did not make Myra eligible to inherit. Public policy must prohibit
adoption of an adult for purpose of bringing that person under provisions of a pre-existing
testamentary instrument bc that person was clearly not intended to be covered. Maybe
could be different if will said, “To Alfred and HIS heirs.” instead of Alfred and MY
heirs.
In AZ: wife older than 21, adoption not be permissible bc requires relationship.
o Practice note: Draft a document that provides expressly for inclusion of adopted persons
but exclusion of adopted adults in wills and trusts.
Equitable Adoption (virtual adoption/adoption by estoppel)
o Usually only relevant to intestacy
o Requires clear and convincing evidence of contract to adopt
o Applies when express/implied contract to adopt didn’t get completely performed or
technicality.
o Allows child to inherit from parent, but parent cannot inherit from child if he/she
predeceases.
o O’Neal v. Wilkes: Child raised by aunt and uncle, who referred to her as his daughter and
identified her children as his grandchildren. Uncle died intestate with no SS or legal
children. Ct found no equitable adoption b/c aunt didn’t have authority to enter into K for
adoption.
AZ would have allowed an equitable adoption.
AZ – Doctrine of Equitable Adoption, applies in 2 situations:
1. Legal technicality occurs where adoption is not considered to be complete
2. Implied or explicit contract to adoption that is unperformed
Posthumously Born ARS § 14-2108: child in gestation at time of D’s death is treated as living
if child lives at least 120 hours after birth (rebuttable presumption for “in gestation” is 280 days)
o Woodward v. Commissioner of Social Security: H diagnosed w leukemia and preserved
sperm in case he became sterile from treatment but he ended up dying. W gave birth 2 yrs
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
later to twins conceived through artificial insem. using H’s sperm. W applied for benefits
and SSA rejected claims bc she hadn’t established that H was father. Three interests cts
consider: 1) best interests of children, 2) state’s interest in orderly administration of
estates, 3) reproductive rights of decedent parent. Ct allowed them to get benefits.
In AZ, would come out differently bc child has to be in gestation at time of D’s
death, but 9th Cir. is willing to recognize other mechanisms for getting benefits.
o In re Martin B: Grantor died with a SS and descendant son with two adult children, but
was predeceased by son James. 3 years later, James’s wife under went in vitro with
James’s semen and gave birth to two boys. Paternity undisputed, but do they qualify as
issues? Statutes are silent on children born w new tech children born in this manner w
consent of parent are entitled to same rights. Grantor’s intent also important.
Nonmarital Children: All states now permit inheritance by a nonmarital child from the child's
mother. Rules respecting inheritance from the father still vary (most states permit paternity to be
established by evidence of subsequent marriage of parents, acknowledgment of the father, an
adjudication during the life of the father, or clear and convincing proof after his death; many
states allow DNA testing).
Gifts to Children--- must have donative intent:
1. Advancements: an inter vivos gift does not count against an heir’s share unless it is an advancement.
o ARS § 14-2109
a. In writing:
i. When gift is being made decedent declares, in writing, it’s an advancement or
ii. Heir at any time acknowledges in writing it was an advancement or
iii. Decedent or heir otherwise indicates in writing that it is to be taken into
consideration in computing division and distribution.
b. Property advanced during decedent’s lifetime is valued as of time the heir came into
possession or as of time of decedent’s death: (whichever occurs first)
c. If recipient of property fails to survive (predeceases), the property is not taken into
account in computing intestate estate unless decedent’s contemporaneous writing
provides otherwise.
o How it works: all inter vivos gifts to the child are added back (on paper, the child is not
forced to give the gift back) into parent’s probate intestate estate to create the “hotchpot.”
Hotchpot is divided equally among decedent’s heirs. Any advancement is counted against
that child’s share of the hotchpot. The child actually receives from the parent’s intestate
estate only their share of the hotchpot minus any advancement that the child received.
o Note: it makes no difference what child does with their advancement $
o Examples:
 Probate estate worth $1 million, gifts, C1 – 100K, C2 – 200K, C3 – 200K, made it clear gifts

would be taken into account in a contemporaneous writing
o Step 1: add inter vivos gifts to probate est. (100 + 200 + 200 + 1m = “hotchpot” = 1.5m)
o Step 2: divide the probate estate equally (1.5m / 3 = 500K per kid)
o Step 3: because C1 received 100K inter vivos, C1 receives 400K from the probate estate
(500K – 100K); because C2 received 200K inter vivos, C2 receives 300K from the
probate estate (500K – 200K); because C3 received 200K inter vivos, C3 receives 300K
from the probate estate (500K – 200K).
Probate estate worth $200K, gifts: C1 – 200K, C2 – 0, C3 – 600K (anyone who has received a
share greater than the share they would have received from the hotchpot is ignored, C3 is not
added in. Hotchpot = 400K. C3 is not included, 200 each, C2 gets all $.
2. Loans: ARS § 14-2110 – debt is included in probate estate, so if a parent gives a child a loan- the
loan becomes a part of the parent’s estate. If the parents die before the loan is paid off, the note
receivable is passed down to the child who is responsible for the loan. If the child owes $ and dies
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before the parents, do not take that loan into consideration in computing intestate share of his estate
to be passed down to his descendants.
o Remember to look to intent – is it a loan or a gift?
o
Example:
 Probate estate: $900K ($800K cash, $100K promissory note); allocate note to person who owes
it; C1 gets $200K cash plus $100K note, C2 and C3 each get $300K cash.
 If C1 predeceases parent, when the child died the parent became a creditor and had the ability to
collect the amount at that time, if parent failed to collect it, will not charge it against the share of
the decedent’s descendants. C1, C2, and C3 take 1/3 equally and C1’s share is allocated equally
bw G1 and G2.
Property Passing to Minors
Minors lack legal capacity to hold property. Necessary to have conservator appointed to handle property.
Most ideal Will w/ Guardian + Trust
1. Guardianship: AVOID THIS
o Takes care of child
o Does not have control of minor’s property
o Duty to preserve property left to minor and delivering to ward at age 18
o Can use income only to support the ward
o Strict supervision- time consuming and expensive
o May nominate guardian in will- generally given preference
o Between ages 14-18, child can express preference
2. Conservatorship: More flexible than guardianship
o Takes care of property bc minors are not allowed to own property in Arizona
o Has title as “trustee” to the property & investment powers similar to a trustee
o Appointment and supervision by court is required
o Terminates when child reaches majority
3. Custodianship: Better, mainly for smaller estates
o Given property to hold for benefit of a minor – eliminates necessity of drafting a trust
instrument; creation is fairly simple.
o Allows payments directly to custodian to take care of needs of the minor; custodian has right
to manage property and reinvest it.
o No need to deal w/ court
o Child must receive property by age of 18 or 21.
4. Trust: Best for large estates – most flexible
o Testator can tailor trust specifically to family circumstances and desires
o Can postpone until testator thinks child is competent to manage property
ARS 14-5206: if no will, court will determine who is going to act in best interest of child.
Note: Good idea to separate trustee and guardian roles bw 2 ppl so they check & balance one another.
Bars to Succession (apply to wills, intestacy and non-probate transfers)
 Murder (AZ): ARS § 14-2803
A. When person feloniously and intentionally kills decedent, forfeits all benefits of estate;
B. Same if property was going to pass under will, trust, beneficiary designation.
i. Slayer loses everything; property will pass as if slayer predeceased decedent. Covers anything you
would receive from decedent property held w/ right of survivorship becomes tenancy in common.
1. Slayer’s heirs: different approaches in different states:
a. If W kills H and W has a kid from prior marriage, that kid won’t get anything
b. If W kills H and they have a kid between them, that kid would get everything by intestacy
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c. If W kills H and they have a will, whereby H names W’s kids as beneficiaries directly –
our statute does not address this, it would go to all children, there is no basis to exclude.
E. Catchall – if something is not described in statute, the slayer is not permitted to profit from his wrong
F. In the absence of a conviction, court determines by preponderance of evidence standard.
K. Constructive trust: decedent’s estate may petition court to establish constructive trust on property or
estate of killer to secure payment of all damages and judgments from conduct that resulted in criminal
conviction of either spouse in which the other spouse or a child was the victim.
Castro Case (AZ): SS forged spouse’s name on life insurance before she killed spouse. (Was not
charged criminally) Argued she gets ½ of life insurance (CP). Held: b/c it is a term policy you do not
have ½ the value of a term & applied ARS § 14-2803(E) to find she was not permitted to benefit.
Court did not address this but Becker said – other type of insurance is whole life, if she’s responsible
for death of husband and proceeds are $1m, and cash surrender value is $100K, she has a $50K CP
interest in the cash proceeds, but not in the other $9.5m
Vulnerable/Incapacitated Adult ARS § 46-456
 Deals w/ elder abuse, designed to preclude someone who violates his/her responsibilities from taking
any part of the probate or non-probate estate. Guilty of theft, subject to treble damages (up to 2x amount
of actual damages), forfeits all benefits w/ respect to decedent’s estate
Disclaimer Individuals can voluntarily decide to not take property as an heir, beneficiary of a trust, share as a
devisee. To be valid devise, there must be acceptance. Must satisfy State Law and IRC.
 Ppl often disclaim for tax purposes (gift tax issues) to avoid creditors – not fraudulent – but does not
work against the IRS.
 Effect is as if you predeceased the decedent.
 Requirements (State Law): ARS § 14-10005(C)
1. Disclaimer must be in writing or other record
2. Must describe property being disclaimed
3. Must be a declaration that the person is disclaiming this part of the property
4. Signed by the person making the disclaimer
5. Cannot have any acceptance of the property / or benefits of the property
6. Disclaimer must be delivered to PR of estate or person w property ARS § 14-10012(B)(1)
 Requirements (Federal Law): IRC § 2518: same basic requirements – additional requirement that the
disclaimer be completed 9 months after creation of the interest (generally the death of the decedent), if
the disclaimer is properly done, then person making the disclaimer is not treated as if they made a gift.
 Exceptions:
o Cannot disclaim share so child gets larger share – if disclaimant is an individual, disclaimed interest
passes as if the disclaimant had died immediately before time of distribution – your share goes
straight down and splits between your descendants rather than going back in the bucket to be
distributed against all descendants at that level. ARS § 14-10006(A)(3)(a)
Example: D has C1, C2; C1 has GC1, GC2, GC3, GC4; C2 has GC5. If C2 has predeceased,
and C1 disclaims so that children will get more – under the statute GC5 will still get ½ and
GC1-4 will split ½. DO NOT POOL SHARES, drops straight down.
o Disclaimers + Medicaid: In AZ, can’t disclaim to remain on ACCESS – ppl sometimes will disclaim
to remain eligible for ACCESS, but when you enroll in Medicaid you agree not to do disclaimer.
o Undue influence. ARS § 46-456: Protection of vulnerable adults.

V.
Wills
Statute of Wills, 1540: Devise of land had to be in writing, but no signature or witness required.
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

Statute of Frauds, 1677: Testamentary disposition of land had to be in a written will, signed by testator,
in presence of 3 witnesses (less stringent for disposition of personal property).
Wills Act, 1837: eliminated distinction bw real and personal property, reduced number of witnesses to 2,
added requirement that witnesses be present when will signed/acknowledged, testator sign at end of will.
 Many jurisdictions have modeled statutes on Wills Act. Will void if it does not satisfy requirements.
Formalities serve four functions: 1) ritual (impresses significance); 2) protective (use of witnesses protects
testator from undue influence of others); 3) evidentiary (all requirements ensure doc reflects testator’s last
wishes); 4) procedural/channeling (easy for courts to determine the last will- encourages ppl to consult atty).
EXECUTING A WILL
Who may make a will? ARS § 14-2501 A person who is 18+ and of sound mind may make a will.
Requirements for a valid will: ARS § 14-2502 – A will shall be:
1. In writing
 Doesn’t have to be on paper
 Doesn’t have to be in English
 AZ does not recognize oral trusts
 Statutes allowing electronic wills have failed to pass
2. Signed by testator
 Proxy signature okay- third party can sign for testator, in testator’s name, at testator’s direction,
and in testator’s conscious presence.
o /s/ JRB
By Winston Becker
At JRB’s direction and in his conscious presence
/s/ WB [actual signature of proxy]
Signed by proxy, statement as to what was done, signature of proxy (not required, but
good idea)
 You can use a rubber stamp and electronic signature on printed out will probably valid too (if
witnesses sign and in a cursive font) (see Godfrey, pg 162)
 Does not need to be full legal name (can be initials or a mark).
 Testator does not have to initial each page of the will or sign at the end of the will (subscription)
 Does not need to say this is his/her will (publication) if testator acknowledges signature or
witness sees testator sign.
3. Attested- two witnesses
 Signature (both must sign w/i reasonable time after witnessing testator’s sign. or acknowledg.)
o What is reasonable? 400 days is too long in AZ. But can be after testator died (see Jung).
 Competence (must be competent at time of signing for attested and holographic wills)
o See ARS § 14-2505: a) person generally competent to be a witness may act as witness to
a will; b) if witness is interested party, that does not invalidate will or any provision of it.
 Witness one of three things: 1) testator signing his/her will or proxy signing, 3) testator’s ack.
that it’s his/her signature, 3) testator’s ack. that it’s his/her will.
 AZ does not require: witnesses to be a certain age; witnesses to be present at same time;
witnesses to be disinterested note some states have purging statutes which allows will attested
by interested witness to be admitted to probate, but voices any bequest to interested witness
(Estate of Morea).
In re Groffman: UK applies Wills Act; Groffmans are married and both have child from
previous marriage. Atty prepares will and gives to Mr. Groffman to execute on his own.
Groffmans are at friends’ house and ask them to witness his will and he points to his coat where
will was located. He had already signed it. Friend 1 goes to dining room and signs, Friend 2 later
goes to dining room and signs. Statute requires witnesses to be present and sign at same time, so
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court refuses to admit it to probate. Would be admitted in AZ (valid acknowledgment,
witnesses do not have to be present at same time).
Stevens v. Casdorph: Casdorph’s take Miller to bank to execute will. At bank, Miller signs will
and bank employee notarizes and takes will to two other employees to sign as witnesses.
Witnesses did not see him sign and he did not meet them. Will appears valid but not properly
executed. Even though everyone knew why he was at the bank, he did not comply with statute.
Will set aside and passes through intestacy. In AZ, probably not a valid will either.
Conscious Presence: Testator signs/acknowledges in a way that allows witness to tell from sight, sound,
general awareness of events that signing/acknowledging is being performed. AZ follows this and rejected line
of sight test where testator signs/acknowledges in witness’s presence so the witness actually sees the act. See
page 159-160.
In re Jefferson: attorney takes will to T’s home, T signs and attorney signs as witness. Attorney returns
to his office, secretary calls T on the phone, by phone T requests secretary be a witness, secretary signs.
Held: Witnessing over the phone or skype will not pass conscious presence test.
In re Weber: T goes to bank, president of bank goes to T’s car, T signs the will, then president signs.
Bank teller sitting at the bank window signs; waves at customer who waves back. Held: did not satisfy
conscious presence test – testator could see teller, could not see the pen and will as the teller signed.
Allowing this would be slippery slope.
Order of signing doesn’t matter: Testator could sign after the witnesses in AZ and would still be a valid will.
Self-proving affidavit: ARS § 14-2504: Not required in AZ but below standard of care to not do it.
 Notarized acknowledgements of testator and affidavits by witnesses that are valid to execute, attest, and
self-prove a will.
 Allows will to be probated quickly, works well if witnesses are dead or cannot be located.
 Creates presumption that will was properly executed- questions of due execution cannot be contested
unless evidence of fraud or forgery.
 Signature affixed to self-proving affidavit attached to a will is considered a signature affixed to will.
Choice of Law: ARS § 14-2506
 A written will is valid if executed in compliance with 2502; or
 If its execution complies with the law at the time of execution of the place where the will is executed; or
 Or if it complies with the law of the place where at the time of execution or at the time of death 1) the T
is domiciled, 2) has a place of abode or 3) is a national.
COMPLIANCE
I.
Strict Compliance: NOT THE RULE IN AZ
 Creates conclusive presumption of invalidity for an imperfectly executed will.
 Unless every last statutory formality is complied with exactly, instrument is denied probate.
In re Pavlinko’s Estate Pavlinko’s died 6 years apart and mistakenly signed each other’s
will. Both were compliant in every other area but the court held that the wills could not
be probated. Dissent disagrees bc the intent is unmistakably clear when both wills are
taken together- similar devise to one another. Recourse is malpractice against atty (which
had a language barrier in this instance).
In re Snide Snides executed mutual wills but mistakenly signed each other’s will. H died
before W and they had 3 children- 2 consented to admission of W’s will, but 1 refused
(bc if will probated, he would get nothing). Court allows will to be admitted for probate
bc it was a genuine mistake; testamentary intent does not attach to the instrument but
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II.
III.
rather the conveyance—the wills were identical except for the names. Further, no
evidence of fraud. Very narrow holding.
Substantial Compliance – NOT THE RULE IN AZ
 Even if will is not executed in strict compliance w/ formalities, court may probate the will if:
1. Clear and convincing evidence shows that T intended this document to constitute his will,
2. Clear and convincing evidence shows that will substantially complies w/ statutory Will
Act formalities in a way that serves the purposes of the formalities.
 Creates rebuttable presumption of invalidity for imperfect execution- but can be overcome with
strong evidence of evidence and satisfaction of the purposes of the Wills Act.
Harmless Error
 AZ does not have a harmless error statute, but arguably has come through common law- it’s
worth a shot in court to make the argument; could argue that ARS 14-2506 choice of law applies
(will executed in another state that has codified harmless error and AZ court should apply it).
 Allows courts to excuse noncompliance if the error was harmless.
 Codified in 10 states and UPC (§2503).
 BOP on proponent of defective instrument- overcome with clear and convincing evidence.
 Notarized wills usually upheld: UPC effectively treats notary as equivalent of 2 attesting Ws.
 Restatement says harmless error statute: cannot validate a will not in writing; among excusable
defects, lack of signature is hardest to excuse.
In re Estate of Hall: H had a will, later H and W executed joint will (bad idea). Both
went to review draft with atty, signed and notarized final draft, no witnesses present. W
tore up H’s old will, H died, W applied to probate joint will. Court held that harmless
error applies when there are attestation issues. Innocent error is not the issue- only
testamentary intent is. There was intent.
Note in AZ, presumption of destruction with intent to revoke when OG will cannot
be found (ARS § 14-3415).
In re Probate of Will and Codicil of Macoo: W and H were married 40 yrs w/o children,
but W raised H’s 7 children from prior marriage. W also had close relationship w niece.
W drafted will 1 naming H as sole beneficiary and children as contingent beneficiaries.
W then executed codicil naming stepchildren as contingent co-executors. H died and W
went to change will- atty used her written notes as a guide which included naming niece
as residuary beneficiary. W died one hour later. Niece brought action to invalidate W’s
will and codicil and to admit the drafted new will into evidence. Court held that though
intent for devise was clear, not clear and convincing evidence that W intended document
denoted as “rough” draft to be her last and binding will.
Plaintiff must prove by clear and convincing evidence that decedent actually intended this
doc to be her will (reviewed doc in question and expressed his/her final assent to it).
Note in AZ, this would not meet requirements for holographic will- notes lack
intent.
Erlich: Atty died with no SS, no children. Next of kin were deceased brother’s children
(3). Atty only had close relationship w/ 1 nephew- J. J learns of death two months after
death and finds copy of purported will in atty’s home—at top it said OG version w
executor. J filed action to have copy admitted to probate. Court applies harmless error—
proponent can clearly and convincingly evidence that decedent intended this to be his
will. Dissent argues this is a case of proving the existence of a lost will (14-3415), not
harmless error (Becker agrees).
Harmless error should not apply to situations where OG will cannot be located.
HOLOGRAPHIC WILLS
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
ARS § 14-2503: a will that does not comply w/ 2502 is valid as a holographic will whether or not
witnessed as long as material provisions and signature are in testator’s handwriting.
o Components:
 Signature: actual signature (no proxies); location usually doesn’t matter.
 Material provisions need to be in testator’s handwriting: issues arise with commercially
printed will forms where D fills in blanks but the preprinted words express the intent.
o Complete only once testator dies- can keep adding/subtracting as long as all in
testator’s handwriting.
o Extrinsic evidence allowed – ARS § 14-2502(B): intent can be est. by extrinsic
evidence, including for portions of holographic will that are not in testator’s
handwriting.
o 1/3 of states require will to be entirely written, signed, and dated- super strict.
o 1/5 of states + UPC require material provisions and signature to be handwritten and
as long as they make sense w/o preprinted portions, instrument given effect.
 Testamentary intent (“I am making these dispositions of property on my death”). Precatory
language does not count.
 Still need to satisfy 2501 (18+ and of sound mind).
 Does not need to be attested by witness.
 Low-cost alternative to intestacy, improves overall quantity of will-making, functions as
safety-net for testators who suddenly fall ill, rarely result in litigation.
Holographic Codicil: if testator has attested will and there is handwriting on will and signed or initialed, it may
rise to holographic codicil. No requirement that it be separately attested or on separate paper.
In re Kimmel’s Estate: Father wrote letter to 2 sons – letter very poorly written, discussed the
weather, a possible trip, also said “if enny thing happens” he wanted all of his stocks, $ in bank, and
house to go to his 2 sons. Signed “father,” and dated. Held: Valid holographic will - letter was
testamentary, signature was sufficient for Wills Act. Informality character of document not an issue
when making conditional gift. “If enny thing happens” = testamentary intent, shows a gift that is
conditional upon the occurrence of Kimmel’s death. “Father” was intended as a complete signature.
Conditional Wills: Conditions are typically ignored and viewed as inducements. Most courts will
not find the will to be invalid if the condition does not occur and will still probate it. Would be
different if it were explicit (if I return from the trip I don’t want this will to be probated). Dumb.
In re Estate of Gonzalez: Gonzalez filled out a preprinted will form and signed it; not signed by any
witnesses; gave blank copy to brother and sister to sign. Gonzalez died suddenly. Held holographic
will valid—printed portions of form can be incorporated into will where ct finds testamentary intent.
In AZ would find witnesses and have them sign b/c they can sign even after testator’s
death.
•If testator had not signed will, could argue printed name at top satisfies signature.
•Donor card: a donor card indicating intent to make a will in the future (had signature, but lacked
testamentary intent). Not a holographic will.
In re Estate of Kuralt: Kuralt had wife and mistress. 1989 – executed a holographic will giving his
MT land to mistress. 1994 – executed attested will, does not mention MT property (this revoked
1989). 1997 – deeded 20-acre parcel of MT land to mistress (70 acres still remain). 1997 – wrote a
letter to mistress saying he’d be sure she “inherited” the rest of the place in MT. Dies in 1997. Ct
held letter is valid holographic codicil to 1994 will– applied holographic statute and harmless error.
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Court applied MT law because real property is located in MT; looked to extrinsic evidence to
determine intent. In AZ: this would not come out the same way, no harmless error statute.
Estate of Krokowsky v. LaChance (AZ): D executed holographic will appointing Brown (friend) as
power of attorney, leaving home to Brown, investments to sister, disinheriting Feitler (nephew) and
Shlay (niece) – her only surviving heirs. Not disputed as to authenticity or validity. Problems: (1) no
residuary clause (2) has named sister as devisee of substantial property but her sister predeceased
her. Brown has been declared incompetent. Lower courts give everything to Brown. Court reversed:
Niece and nephew each received ½ of the estate – this case would not come out the same today b/c
AZ enacted 14-2101(B) that says a valid will can change the class of heirs, and since she had no
other heirs, estate would escheat.
REVOCATION OF WILLS
ARS § 14-2507 Requirements
A. T may revoke a will in whole or in part:
1. By executing a subsequent will that revokes the previous will by inconsistency.
2. By physical act performed by T or by someone else in T’s presence and with T’s direction.
 Includes burning, tearing, canceling, obliterating, or destroying the will/part of it (whether or
not it damages the actual words).
 Requires testator to have capacity, intent to revoke, and physical act- all at same time.
B. If W2 does not expressly revoke W1, the execution of W2 wholly revokes W1 by inconsistency if the
testator intended W2 to replace rather than supplement W1.
 Applies when W2 doesn’t mention W1
C. T is presumed to have intended W2 to replace rather than supplement W1 if W2 makes a complete
disposition of T’s estate.
 If this presumption arises and is not rebutted by clear and convincing evidence, W1 is revoked
and W2 is operative on T’s death.
D. T is presumed to have intended W2 to supplement rather than replace W1 if W2 does not make a
complete disposition of T’s estate.
 If this presumption arises and is not rebutted by CCE, W2 revokes W1 only to the extent it is
inconsistent with W1, and each will is fully operative to the extent they are not inconsistent.
 Applies to holographic and attested wills.
o But in states that recognize holographic wills, addition of handwritten words to typewritten will
not enough to constitute a will (even with signature). If entire will was written, would be valid.
 So, a writing executed with the Wills Act formalities may revoke an earlier will in whole/part by:
 Express revocation (“I make this my will and revoke all prior wills and codicils.”)
 Implied revocation thru inconsistency (W2 makes complete disposition of testator’s estate).
 Codicil (testamentary instrument that supplements, rather than replaces, an earlier will, and
supersedes the earlier one to the extent of inconsistency bw them- any property not disposed of
in W2 is disposed in accordance with W1).
Thompson v. Royall: Kroll signed typewritten will, attested by three witnesses. Codicil dated 15
days later was signed in presence of two witnesses. 4 days later, Kroll wanted to destroy will and
codicil but kept them as memoranda and had judge note/sign on back of manuscript cover and
back of codicil that they were null and void. Kroll died and will and codicil were admitted to
probate. Court held the revocation was ineffectual.
In AZ, writing on back of manuscript cover would not revoke the will, but writing on back
of codicil would revoke codicil. Note: other states might apply harmless error.
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In re Estate of Stoker: Stoker executed will and nominated his gf to be executor. She and
another friend were beneficiaries, with residue going to Stoker Trust. Stoker died. Daughter
objected to probating will, claiming Stoker had executed a more recent will since he and gf broke
up. He also took photocopy of W1 and urinated on it and threw in fire (which evidence intent to
revoke). W2 was handwritten and signed (valid holographic will) and expressly provided for the
revocation of 1997 trust; W1 was thereby revoked by inconsistency.
Revocatory act must be performed on OG will, but if done on photocopy by mistake, ct might
impose constructive trust on devisees of will in favor of persons who would have taken had the
will be revoked.
ARS § 14-2508 Change of circumstances does not revoke a will in whole or in part.
 Exceptions: divorce or slayer statute
ARS § 14-3415 Lost and Missing Wills
A. If T’s will cannot be located upon death, T is presumed to have destroyed will w intention of revoking it.
B. If will is found to be valid and unrevoked and OG will is not available, its contents can be proved by
copy of will and testimony of at least one credible witness that copy is a true copy of OG.
 Witness does not have to be an attesting witness to the will.
 Same rules to copy of will probated in another jurisdiction.
C. If will is found to be valid and unrevoked and copy of OG will is not available, its contents can be
proved by CCE.
 Recent trend moving in direction of preponderance of the evidence.
Harrison v. Bird: Daisy executed attested will (H main beneficiary). OG will w atty, duplicate w H.
Daisy called atty and told him to revoke will- atty tore up and sent pieces to Daisy w note that she had
officially revoked will. Daisy died. OG will never found. H filed for probate of duplicate OG. Ct held no
valid will. Presumption of revocation when will lost- only rebutted by CCE from proponent of will.
In AZ, physical act of revocation can be done by third party at T’s direction and in T’s conscious
presence- over the phone is not in conscious presence, so atty tearing up will would not be valid.
ARS §14-2509 Revival Statute
A. If T revokes W2, which wholly revoked W1, W1 remains revoked unless it is revived.
 W1 is revived if it is evident from the circumstances of the revocation of the subsequent
will of from the T’s contemporary or subsequent declarations that the T intended W1 to
take effect as executed.
B. If T revokes W2, which only partly revoked W1, the revoked part of the will is revived unless it is
evident from the circ. or T declarations that T did not intend the revoked part to take effect as executed.
(Presumptively revived).
C. If a T revokes a will that revoked another will in whole or in part, the previous will remains revoked in
whole or in part unless T revives it or it is revoked in part.
 The previous will or its revoked part is revived to the extent it appears from the terms of
the later will that the T intended the previous will to take effect.
Dependent Relative Revocation Doctrine
 Common law doctrine of presumed intent.
 If testator revokes will w intention of making new one immediately and doesn’t, or new one is invalid
for any reason, it’s presumed that testator preferred old will to intestacy and old one is admitted to prob.
 Different with attested and holographic wills bc you can make any changes to a holographic will you
want at any time up until death.
LaCroix v. Senecal: Dupre’s will had a residuary clause leaving ½ to nephew and ½ to friend. Valid
codicil intended to change nephew’s nickname to legal name (she didn’t have to do that). Witness to
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
codicil was interested, which violated Mass. law and would render codicil void. Court applied DRR
and held no error bc decedent intended to make minor change for clarification purposes.
DDR Problems (page 231)
1. Clause in T’s typewritten will provides “I bequeath $1K to my nephew.” T crosses out $1K and writes $1500.
T writes her initials and date in margin.
 Under §14-2507, this is a partial revocation.
 $1500 is not considered valid though, absent application of harmless error or DRR.
2. If two witnesses observe the modifications and sign will? Valid—delayed attestation.
3. In state does not permit partial revocation by physical act. No legal effect, $1000 still valid.
4. In state that does permit partial revocation by physical act? Apply DRR and $1000 still valid.
5. T crosses out $1000 and substitutes $500. State permits partial revocation by physical act. If the amt goes
down too much, the state will not apply DRR.
**Note for all of these, if will had been holographic, markings are valid bc holographic wills amendable until
death.
In re Estate of Alburn: A had W1 and later executed W2 (revocation of W1); A later destroyed
W2 by physical act. Ct held that W2 was revived by DRR doctrine bc her failure to make W3
indicates that she believed W1 still was valid. In AZ, same result- previous will can be revived
if it is apparent from circumstances. ARS § 14-2509.
Revocation by Operation of Law: will is still valid but there may be a reordering of devises in the will.
1. Will made prior to testator’s marriage to omitted SS (ARS §14-2301): reorders disposition of property
by creating share for SS, same as she would receive through intestacy, but will remains valid. Kids and
grandkids from before marriage collect shares first, then SS, then everyone else. Unless will was made
in contemplation of marriage, will expresses intent to supersede marriage, T provides for SS outside
will.
2. Divorce, Annulment, Decree of Separation (ARS §14-2804): divorce severs interests of SS in T’s estate.
Revokes all interests to SS and his/her relatives too.
3. T creates will prior to birth of omitted child (ARS §14-2302): reorders disposition of property by
creating share for omitted child from estate left to accounted for children (i.e. if T executes will after C1
and later has C2, C2 will get an equal share).
4. Devisee predeceases T (ARS §14-2603): if will is silent on predeceasing, share will be revoked. Devisee
will be deemed to have lapsed unless devisee is T’s grandparent, descendant of T’s grandparent, or T’s
stepchild which creates substitute gifts taken by representation.
5. Slayer Statute (ARS §14-2803): wrongdoer’s share is taken away.
6. Devisee abuses T (ARS §14-46-456): share will lapse, may face criminal charges, treble damages.
7. T devises more than what’s available in the estate: devise is adeemed by extinction, devisee doesn’t
take.
8. Changes in feelings (ARS §14-2508): two individuals living together that break-up—doesn’t revoke
will; absent something written, will is valid.
9. Incapacitated adult (ARS §46-456): duty owed to incapacitated adults; if breached, provisions in favor
of that person are taken away.
COMPONENTS OF A WILL
First ask:
 Does document have testamentary life on its own? (qualify as a will or codicil?)
 If not, was document in existence at time will was executed?
 If not, was the will republished and thereby re-dated to a time after the document was executed?
Integration (common law): all papers that are present at the time of execution and intended to be part of the
will are treated as part of the will.
 External: establishing testator’s will by putting together anything incorporated by reference (codicils).
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
Internal: all papers present at the time of execution that are intended to be part of the will are treated as
part of the will (more common).
In re Estate of Rigsby: 2 pages were found folded together, but not otherwise fastened. Both hand
written, initialed, and dated at top, one page was signed at bottom. 1st page had testamentary intent,
2nd page did not refer to 1st page – it was a list of personal property, followed by the name of an
individual but was inconsistent w/ 1st and seemed more like a worksheet. Ct held first page alone
was complete holographic will. Where the instrument offered consists of more than one sheet of
paper, it must be made clearly apparent the testator intended that together they should be the will.
Practice note: guard against this by (1) T initials each page of the will, (2) all pages fastened
together, (3) pagination (pg 1 of 6), (4) same type of paper/font, (5) don’t leave big blank spaces,
(6) carry over sentences.
Republication by Codicil: a validly executed will is treated as re-executed/republished as of the date of the
codicil, whether or not the codicil expressly re-publishes the prior will, unless the effect would be inconsistent
w testator’s intent.
 Gives life to a testamentary document that once had testamentary life but is now void.
 Majority rule: doc being republished has to have been valid as a will at one point.
 Minority rule: republication by codicil is effective to give life to wills that are invalid for some reason
other than faulty execution.
 Not automatically applied, only when it will further testator’s intent.
 Can have a holographic codicil that republishes an attested (typewritten) will.
o Example: will 1 (2005), will 2 (2008), which revokes will 1 expressly. Codicil (2013) says it’s
re-publishing 2005 will – 2005 will now has life, is now dated as of date of codicil.
Incorporation by Reference: ARS § 14-2510 – allows for a writing that was in existence but not present at the
time of execution and that was not itself executed w testamentary formalities to be absorbed into the testator’s
will. Requires (all three):
1. Document that is being incorporated exists at time of will,
2. Will’s language manifests this intention, AND;
3. Will’s language describes w/ sufficient specificity to identify
Clark v. Greenhalge: Testator had will devising all of her estate except items she designated in a
memorandum to be given to others; T later drafted memorandum; T also had a notebook with
specific bequests of personal property that she told nurse to add a painting to; T then executed two
codicils (which court held were valid republication of will). Ct held that writings in notebook were
incorporated by reference: testamentary intent was clear, doc existed at time of codicils, and more
than one memorandum is okay. Note: only incorporated by reference if nurse’s notation existed
prior to date of second codicil. It did not but court hated Greenhalge so it did not care.
 Tangible Personal Property List: ARS § 14-2513 – allows testator’s after date of will to make
dispositions of TPP (other than money).
o Has to be in handwriting or signed by T.
o Must describe items and devisees with reasonable certainty.
o Writing may be: (1) referred to as one to be in existence at time of T’s death, (2)
prepared before or after execution of the will, (3) altered by testator after its
preparation, (4) a writing that has no significance apart from its effect on the
dispositions made by the will.
o Does not need to rise to level of 2503 or 2504 to be valid.
o Practice Note: Attach a picture to list, dated, signed, describing what happens if
intended recipient predeceases and addressing who is responsible for shipping costs.
Doctrine of Acts of Independent Significance: ARS § 14-2512 – a will may dispose of property by reference
to acts/events/facts that have significance apart from their effect on the dispositions made by the will whether
they occur before or after the execution of the will or the testator’s death. The action likely was prompted by
something other than a desire to change the beneficiaries under the will/what the beneficiaries actually get.
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o Examples:
 T makes a devise in will – 10K to each person who I employ at of date of my death – after date of
will, hiring and firing of individuals are acts of independent significance.
 Devise car to son (no description), have a much nicer car when you die than you did when you made
the will, fact that one car is sold and one is purchased is an act of independent significance.
 Devises of contents (safe at house, safe deposit box), after the date of the will additions/subtractions
are acts of independent significance.
o Issue you run into w/ content devises: what if there are keys in the desk drawer? Get into
issues of interpretation w/ content type gifts – in most cases individual receives the contents
o No Precatory Language –a devise cannot contain precatory language – I would like, It would
be nice, I recommend, I suggest, I devise w/ the hope that. Get $ w/out having to fulfill hope
Contracts Relating to Wills: ARS § 14-2514 – contract to make a will or devise, or not to revoke a will or
devise, or to die intestate.
A. Requires:
1. Provisions of a will that state the material provisions of the contract (Becker likes this one), OR
2. An express reference in a will to a contract + ex evidence proving the terms of the contract, OR
3. A writing signed by the decedent evidencing the contract.
B. Execution of joint will or mutual will does not, by itself, give rise to a presumption of contract – contract
must be proved by CCE (majority view).
o Most common types are prenups/postnups and divorce decrees.
o Contract law, not the law of wills, applies.
o If there has been a breach, will is probated in accordance with law of wills (not invalidated!), but
contract beneficiary is entitled to a remedy for the breach through law of contracts: depending on
state, remedy could be damages or constructive trust.
o To enforce, contract beneficiary must sue under law of contracts and prove a valid contract existed.
o So…two-step process:
o Step 1: apply law of wills – can do what you want w/ your property, fact that it breaches contract
is immaterial (if breach contract, will is still valid)—must satisfy 2502 and 2503.
o Step 2: apply law of contracts – can sue as a creditor.
Keith v. Lulofs: H & W executed reciprocal wills, leaving estate to SS and then to C1 and C2 equally
(each had 1 child from a prior marriage). H died, his estate passed to W. W then executed a new will
leaving estate to her child and none for H’s child. H & W had taken out a life insurance policy naming
C1 and C2 as 50/50 beneficiaries – W changed this so her child received 100%. H’s child challenged
this arguing that the reciprocal wills were irrevocable contracts upon death of either party. Ct held that
just because the wills were reciprocal, the language of the wills did not make them irrevocable contracts.
Wills are generally unilaterally revocable and modifiable. Proof of contractual nature comes from
language of instrument, competent witnesses who testify to admissions of testators, or implications from
circumstances and relations of parties.
Note: under dead man statute could not use testimony of dead H w/out it being corroborated.
Practice note: in a 2nd marriage situation w/ prior children it’s better to do a trust offering a beneficial
interest for SS – would structure so SS could not control disposition on her passing. 2nd wife will
always take control of the will and change it after death.
CAPACITY & CONTESTS
A. Mental Capacity: ARS § 14-2501 – If 18 yrs > and of sound mind, may make a will – testamentary
capacity.
o Purpose: protects testator and testator’s family and implements freedom of disposition – respects
testator’s personal autonomy while also assuring that the disposition testator desires will be carried out.
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o Law favors testacy if will is validly executed – presumption that it was done with requisite capacity;
shifts burden of proof to contestant who has to prove by preponderance of the evidence that testator
lacked capacity at time the will was signed (ARS § 14-3407).
o To invalidate the will, contestant needs to prove testator lacked one the following:
In ARIZONA: Testator has to have the ability to understand: (1) the nature and extent of his or
her property; (2) the natural objects of his/her bounty (generally heirs); (3) the disposition he/she
is making; (4) the ability to know the relationship of these elements so as to form an orderly plan
for the disposition of his/her property. FYI similar to Restatement.
o Testator has to have capacity at a time he/she signs his/her will. As an attorney, you can make a
judgment call on whether or not your client has capacity.
o If testator has a guardian, that doesn’t mean testator lacks capacity.
o If two wills and W2 signed by testator and he/she lacks capacity, will invalid and W1 still controls.
o Practice Note: As an atty, you should document the circumstances of testator’s signing, especially if
there is going to be a question of the person’s testamentary capacity.
In re Wright’s Estate: T had a properly attested will. Drafter of will, notary, and two subscribing
witnesses all testified T was of unsound mind. Ct held that T was of sound mind and
testamentary capacity cannot be destroyed by showing a few isolated acts or mental irregularities
unless they bear directly on and have influenced the testamentary act.
Wilson v. Lane: T had proper will. Drafting atty and several friends testified T was competent.
Ct held that eccentric/strange beliefs, peculiarities, irrational fears do not establish testamentary
incapacity. Look to rational desire regarding disposition of property. Testimony by atty telling.
Dissent was concerned w physician’s testimony that T needed guardian for herself and her
property. Evidence taken all together would allow jury to find that T had dementia.
B. Insane Delusion: extravagant belief to which a person adheres against evidence, argument, reason; belief
which does not exist and no rational person would believe exists.
4 Elements:
1. Mistaken/false belief in a fact (broadly defined – includes conditions, moral duties, facts)
2. Insane delusion must affect the will
3. Belief has no evidentiary basis (majority), no basis in fact (minority)
4. Not correctable with any evidence – cannot explain to the person and correct it in their mind
o Contestant must show testator labored under insane delusion and the will or some part thereof was a
product of the delusion.
o Eccentricities, idiosyncrasies are not considered insane delusions – must be distinguished from
prejudice, hate, bad judgment, ill will.
o Typical delusion involves false belief about a member of the testator’s family (hostility).
o Biggest challenge: testator is dead, so you cannot ask them their basis for this belief – in order to
overcome, some states (CA) have allowed probate of wills before the testator dies (pre-mortem probate).
o The part of the will that is a product of the insane delusion is struck and the rest of the will stands if
possible. If the insane delusion does not affect the dispositions, then the will stands.
o It is not uncommon to have a lucid interval; if will is executed during this time, the will is valid.
Tests to challenge testator’s soundness of mind (not mutually exclusive):
Mental Capacity Test: (Cunningham Test) requires (1) T understands nature of his act (2) T knows extent of
his property (3) T understand the proposed testamentary disposition (4) T knows the natural objects of his
bounty (5) Will represents T’s wishes.
o Insane Delusion Test: persistent belief in that which has no existence in fact, and which is adhered to against
all evidence. Insane delusion must materially affect the disposition in the will.
o
In re Strittmater’s Estate: T had an attested will, left property to feminist group. Heirs proved she was insane
b/c the feminist group hated men. Note: Today this would obviously come out differently – product of times.
Breeden v. Stone: T killed himself after he was involved in a hit and run. T left valid holo. will leaving
everything to Stone but had previously executed a formal will and holographic codicil leaving everything to
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others. Other argue T lacked capacity bc he used alcohol/cocaine + was irrational, paranoid, delusional. Ct holds
T was of sound mind at the time he executed holo. will.
 Cunningham test: T knew of his home and rental address, identified devisee by name and provided
her current address, will was legible and logical, intent reasonably ascertainable.
 Insane Delusion test: though T was suffering from insane delusions at time he executed will, his
insane delusions did not affect disposition of property made in the will.
In re Estate of Killen (AZ): T thinks that her nephew, niece, and deceased husband were trying to kill her,
when they were actually taking care of her. Different nephew visited and took her to change will. Ct held will
invalid – insane delusions materially affected terms of will. If at time of execution of a will, testator knew the
natural objects of her bounty but suffered from insane delusions that affected her perception of those persons
and the terms of the will, the testator did not have the requisite testamentary capacity, and the will is invalid.
C. Undue Influence: when a person, through his power over the mind of the testator, makes the testator’s
desire conform to his own so that the will does not conform to the wishes of the testator, but conforms to the
person exerting the undue influence (“substituted intent”).
Factors in AZ: ct considers these when determining whether will was fair & voluntary (don’t need all):
1. Fraudulent representations – Did the person allegedly exercising undue influence make any fraudulent
representations to induce the making of the will?
2. Hasty execution – Was the will hastily executed? Did the person allegedly exercising undue influence assist
testator with preparation of a new will after testator expressed a desire to change a will? Done quickly and
hastily?
3. Secrecy – Was the new will concealed from family members? Did testator use services of new attorney in
preparation of this will?
4. Procurement – Did the person allegedly exercising undue influence get involved in procurement of the will?
(drive testator to atty’s office, arrange services of atty, pay for atty)
5. Inconsistency – Is the new will inconsistent with the testator’s previous testamentary disposition?
6. Unnatural or unjust gift? Subjective factor. Are will provisions reasonable or unnatural in view of testator’s
situation with respect to family attitude and so forth?
7. Testator’s susceptibility to influence – Look at use of drugs and alcohol, recent deaths of individuals close to
testator, history of susceptibility.
8. Confidential relationship – Is person allegedly exercising undue influence in a confidential relationship with
testator? Confidential relationship: fiduciary (atty-client, principal-agent POA), reliant (doctor-patient, financial
advisor, spiritual advisory), dominant-subservient (incapacitated person and caregiver; neighbors; friends).
Burden of Proof/Presumptions
 Burden of proof initially on proponent of will – if properly executed, deemed to be valid.
 Burden shifts to contestant to prove undue influence – presumption if contestant proves ARS § 14-2712(E):
1. Confidential relationship, AND
2. Proponent was actively involved in procurement, AND
3. Proponent is principal beneficiary (defined in ARS § 14-2712(g))
 Burden shifts back to proponent to prove will is fair and voluntary by preponderance of evid.
o ARS § 14-1311 statute changed standard of proof to preponderance of evidence rather than clear and
convincing evidence when the burden shifts (still a difficult standard).
Mullin v Brown (AZ): Legal mal case. P’s attys failed to file timely a petition contesting the will of
P’s grandfather. P has to prove that but for the fact they filed on time, he would have won. Ct finds
7/8 of the factors are present (not all 8 are required), evidencing undue influence, and P not
precluded from his portion just bc it was too late to contest.
Estate of Lakatosh: Roger befriends Rose (older widow, no children). Took her to appointments,
she becomes dependent on him. Roger’s cousin was Rose’s attorney. Rose named Roger as her agent
under a POA; left bulk of estate to him through her will. Roger unlawfully transferred $200K of her
assets for his own benefit. Ct found sufficient evidence of undue influence, Roger could not show
otherwise, imposed constructive trust on Roger, and ordered him to repay $ he stole.
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Note: POA is clear sign of confidential relationship.
In re Estate of Reid: Cupit (law student) + Reid (elderly lady). Reid adopts Cupit & gives him POA
(confidential relationship). Set up life estate w a remainder in property for C and holo will devising
all property to C. Ct sets aside will bc C could not overcome presumption of undue influence.
He needed to show by POE: (a) good faith (b) grantor’s full knowledge and deliberation of
consequences of action (c) grantor’s independent consent and action (difficult to overcome).
Note: Undue influence applies to lifetime transfers too.
Most courts require showing of confidential relationship AND suspicious circumstances surrounding
preparation, formulation, or execution of the donative transfer for presumption to arise.
In AZ, adoption would not have been valid.
Will of Robert Kaufmann (pg 298)- ct finds undue influence bc of same-sex marriage bc it was a
dominant relationship; product of the times, would probably come out different today.
Note: in this situation, leave $ in revocable trust, not a will.
Lipper v. Weslow: T left estate to 2 children (whom she had w husband 2), nothing to 3 grandkids of
her deceased son (whom she had w husband 1). T’s will executed by her son (a beneficiary and
executor of the will). He lived next door, had a key to the house, hated deceased brother. Will
included section re why she was disinheriting other son and grandchildren. T died at 81. Ct held that
Frank had a confidential relationship w/ mother, and the opportunity and motive for undue influence,
but she was of sound mind and told witnesses what she had done w her property and the reasons.
Stage is set for undue influence, but no proof of undue influence.
o No-Contest Clauses: deprives an unsuccessful contestant of his/her bequest under the challenged will
(contestant is put to the choice of taking the certain but smaller provision in the will, or challenging the
will for a chance at more if the will is set aside, but at the risk of taking nothing if the will is upheld).
o If disinheriting people, it’s stupid to include this because they have nothing to lose if they
contest.
o ARS §14-2517: no-contest clauses are unenforceable when probable cause exists for a challenge
(majority rule).
o Disinheritance Explanations: never state the reason the disposition being made – reopens door to
contest, language itself may annoy an heir such that he/she pursues an action, testamentary libel is a
thing.
o Bequests to attorneys and fiduciary appointments – presumption of undue influence arises; you usually
are ethically unable to do that (Model Rule 1.8) unless family.
o Do not appoint yourself as personal rep – if you are acting as fiduciary, you do not have insurance.
Planning for & Avoiding a Will Contest
When anticipating a will contest:
o Ask for prior documents (wills) to understand how will you are preparing differs.
o Create atty’s note to file for reason for dispositions- memorialize unnatural dispositions (disinheritances,
omissions, or greater dispositions).
o If question concerning capacity of an individual, send client to another attorney to have will executed,
two attys are opining this person has capacity; other attys have clients professionally examined (Becker
does not).
o Other strategies: use witness who will present well in court (community leaders or close friends); ask
tough questions about disposition; have witnesses sign affidavits relating their impressions of testator
and what they saw, heard, talked about at the time of disposition; inter vivos trust or gift instead of will
(tough to set aside revocable trust, bc every day trust existed, capacity and undue influence would be
factors, not just the time of executing of will).
Duress: when undue influence crosses the line into coercion – when wrongdoer threatened to perform or did
perform a wrongful act that coerced the donor into making a donative transfer that the donor would not
otherwise have made.
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Latham v. Father Divine: Lyon executed a will where she devised her property to cult leader. She later
wanted to revoke it but by reason of false representations, undue influence, and physical force by cult
people, she couldn’t. Cult people conspired to kill and did kill the deceased by means of surgical
operation without consent or knowledge of relatives of the deceased. Ct created constructive trust as
equitable solution where T was prevented from revoking her will and making a new one.
Fraud: if wrongdoer knowingly/recklessly made false representation to the donor about a material fact that was
intended to and did lead the donor to make a donative transfer that he donor would not otherwise have made.
1. Fraud in Execution: person intentionally misrepresents the character or contents of the instrument signed
by the testator, which does not in fact carry out the testator’s intent.
2. Fraud in Inducement: misrepresentation causes testator to execute or revoke a will, to refrain from
executing or revoking a will, or to include particular provisions in the wrongdoer’s favor.
o Different from claim of undue influence: with fraud, testator retains her free agency and
freely makes a new estate plan, but does so as a result of having been misled. However, this
is often alleged with undue influence.
Requirements: 1) person makes false statements, 2) person making statements knows they are false,
3) statements are material, 4) statements are made with intent to deceive, 5) testator relies on those statements.
Tortious Interference: Intentional interference w an expected inheritance or gift.
 Tort action to recover damages, not will contest to set aside will.
 NOT RECOGNIZED IN AZ – still plead it bc the Restatement recognizes it and 25 other states do too.
 Cannot be invoked if challenge is based on testator’s mental capacity.
 Plaintiff must first pursue probate remedies if they are adequate.
 Advantages: punitive damages may be recovered in tort (almost never in will contest or restitution
action), SOL is longer, rules barring testimony by interested witness may not apply, derivative claim
whereby beneficiary is authorized to sue to recover damages primarily to protect testator’s interest
rather than disappointed beneficiary’s expectations, may be mitigated in federal court.
Elements: 1) existence of expectancy, 2) intentional interference with the expectancy through tortious conduct
(ie undue influence, duress, fraud), 3) causation (proof amounting to reasonable degree of certainty the devise
would have been in effect at T’s death if there had been no such interference), 4) damages.
Schilling v. Herrera: 996: T named P as sole beneficiary of will, PR, pwr of atty, agent for health care
decisions. T became ill, eventually lived w/ caregiver. 2003: caregiver, D convinced T to execute a new
pwr of atty, new will, named D as agent, PR, sole beneficiary. 2004: T died, D did an informal probate,
did not notify P of T’s death until after she filed for discharge of probate. Ct held that P has a cause of
action under tortious interference and was not barred from filing claim (if fraud not discovered until
after probate, P can bring claim for relief since relief in probate was not possible).
In AZ, you have to notify all heirs that testator dies, so SOL would not be an issue.
In AZ, this would have likely been undue influence – confidential relationship, D principal
beneficiary, aiding in procurement. D would not have been able to overcome presumption when burden
shifted to show voluntary and fairness.
Anna Nicole Smith: Marries Howard Marshall who has promised her ½ of his estate. His child from
previous marriage is unhappy about the marriage. Marshall agrees to do prenup but it never gets done.
Marshall has trust prepared that gives ½ value of increase in wealth from date of marriage to ANS. Son
fires these attys and prevents ANS from receiving anything. Marshall dies and ANS is cut off and files
for bankruptcy. She receives her share – all elements of tortious interference w expectancy are present.
Relief in Restitution
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
Restitution cause of action for constructive trust for fraud in a probate matter is well established –
available to rectify wrongdoing in connection with probate administration. Can argue alongside tortious
interference.
Restitution action for a constructive trust in situations to prevent unjust enrichment where wrongful
interference prevents a donative transfer (making or revocation of will, codicil, or bequest; alteration of
prior dispositions (substitution of insurance or trust beneficiaries); or making of intended inter vivos gift.
CONSTRUCTION OF WILLS
Mistaken/Ambiguous Language
 Plain Meaning Rule (note similar No Reformation Rule): in construing and giving effect to a will, the
words used in the will should be given their plain meaning. Followed in AZ.
o Extrinsic evidence NOT admissible to show that the testator used the words to mean something
other than their plain meaning, but IS admissible to resolve ambiguity.
 Exception – Fraud: Fleming v. Morrison (pg 33) – where atty drafted valid will and client
later admits to doing it only to induce T to sleep with him, testimony from atty allowed to
show fraud and lack of testamentary intent.
 Types of ambiguity (many cts have eliminated the distinction):
i. Patent: evident from face of will – under traditional law, no extrinsic evidence
allowed, but courts becoming more lenient.
ii. Latent: manifests itself when terms are applied to facts – extrinsic evidence
okay to resolve ambiguity.
 Equivocation: description for which multiple ppl/things fit exactly
(personal usage: when testator habitually used a term in
idiosyncratic manner, evidence admissible to show personal usage,
not ordinary meaning applies) OR
 No exact fit: description for which nothing fits exactly but multiple
things/ppl fit partially).
Mahoney v. Grainger: T’s will’s residuary clause: “all the rest and residue of my estate, both real and
personal property, I give, devise, and bequeath to my heirs at law living at the time of my decease
absolutely; to be divided among them equally, share and share alike.” Statement to atty was that she has
25 cousins- let them share it equally. Problem is her cousins, the intended beneficiaries, are not her heirs
at law, her aunt is. Ct looked at circumstances surrounding testator at time of disposition (like relationship
w aunt), but did not allow in statement to atty, and estate went to aunt bc there is no doubt as to

the meaning of the words heirs at law. With modern application, atty notes come in.
In re Estate of Cole: T’s bequest to friend in “sum of two hundred thousand dollars ($25,000).” Ct
admitted testimony of scrivener re the contradictory language. Ct’s primary purpose is to (1) avoid
doing any violence to words employed in instrument and to distrust reliability of looking to
sources outside the instrument for info about its meaning, and (2) to effectuate T’s intent. Ct
eliminated patent/latent distinction and adopts modern approach where, if after examining
surrounding circumstances at time of will’s execution an ambiguity or inconsistency persists, ct
may admit extrinsic evidence to determine T’s intent. With modern application, less
contorted.
Movement to allowing ex ev of testator’s actual intent over contrary but mistaken language in will.
Arnheiter v. Arnheiter: T’s will had instruction “to sell ½ interest in 304 Harrison Ave” and to use
proceeds to establish trusts for her 2 nieces. She did not own 304, owned 317. Court cannot correct the
mistake, instead relies on falsa demonstratio non nocet doctrine to exclude the street number
(less essential particulars) from the description. By excluding street #, there is an ambiguity, and
extrinsic evidence can be admitted to concerning the specific property. Ct holds valid devise.
In re Gibbs: Gibbs each had wills with similar provision “to Robert J. Krause, now of 4708 N 46th
Street, Milwaukee, WI, if he survives me, one per cent.” Address was incorrect, but extrinsic evidence
admitted to find the property RJK. Where details of identification are involved, particularly middle
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initials, street addresses, etc. which are highly susceptible to mistake, particularly in metropolitan
areas, should not be accorded such sanctity as to frustrate an otherwise clearly demonstrable
intent.
Openly Reforming
In re Snide: example of first step toward reformation of wills in general.
In re Estate of Herceg: T’s will’s residuary clause was missing the name of the person. The residuary
of previous will went to Sergio Pastorino or his wife if he predeceased, but Will 2 revoked Will1. Ct
holds there was clear and convincing evidence that Pastorino was intended beneficiary of residuary of T’s
estate. Arguably, Will 2 did not have life since it failed to name a devisee, so if DRR applies, Will 1 was
not revoked and has life.
Erickson v. Erickson: extrinsic evidence of scrivener error is admissible and, if proved by clear
and convincing evidence, the court may reform the will to reflect the testator’s actual intent
(UPC § 2-805)
 Note: AZ has not followed UPC/Restatement on this, but might in near future. PLUS…
 Revocable Trusts (ARS §14-10415) – court may reform the terms of a trust even if
ambiguous to conform the terms to the settlor’s intention if it is proved by clear and
convincing evidence that both settlor’s intent and terms of the trust were affected by
mistake of law or fact, whether in expression or inducement.
Taxes: modern courts routinely reform a will or other donative instrument to correct a mistake
that would prevent a tax advantage sought by the donor. Codified in UPC and is in Restatement.
But, IRS not bound by local decision (probate ct), absent ruling by state’s SC.
Duke: Duke prepared holographic will leaving all property to wife, with clause that if wife and he die at
same moment, estate equally divided between two charities. Also included statement that he specifically
was disinheriting all other persons. Wife died. Then Duke died. Radins (Duke’s nephews) claimed Duke’s
estate should pass via intestacy bc Duke did not predecease his wife and they did not die at the same
moment. Ct holds that unambiguous wills may be reformed to conform to the testator’s intent if
clear and convincing evidence establishes that the will contains a mistake in the testator’s
expression of intent at the time the will was drafted. Remanded.
Death of Beneficiary Before Death of Testator
 If devisee does not survive testator, devise fails and is said to have lapsed.
o Examples of devise lapsing: slayer statute, 120 hr rule, leaving $ to pet
 Many states have enacted antilapse statutes that, under certain circumstances, substitute another
beneficiary for the predeceased devisee.
 CL default rules for lapsed devises (apply if will doesn’t provide otherwise, and no antilapse statute):
a. Specific or General devise: if lapses, devise falls into residue; person getting residue takes all.
b. No-residue-of-a-residue rule: if residuary devise lapses, the heirs of the testator take by intestacy;
if only a share of the residue lapses, lapsed share passes by intestacy to testator’s heirs rather
than to remaining residuary devisees. (see Russell). Overturned in most states, including AZ.
c. Class gifts: if a devise is to a class of persons and one of them predeceases the testator, the
surviving members of the class divide the gift (pg 368: group-minded, T uses group label, can be
increased by birth or death, does not specify exact share to exact person).
d. Void devise: if a devisee is already dead at the time the will is executed, or the devisee is a dog
or cat or some other ineligible taker, the devise is void and falls into residue.
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Types of Devises
 Specific Devise: devise of property that the testator intends to be limited to that specific distinguishable
property. Most of the time can identify b/c testator uses words of possession “I devise my house to x,” or
words of identification “I devise my car w/ VIN # to x” or devise money from specific bank account. Real
property is unique and almost always specific devise.
o If property does not exist on death of testator, devisee does not receive property.
 General Devise: devise not limited to a specific property/source/asset is intended to be satisfied from assets of
probate estate. Most of the time are pecuniary or monetary (10K to my son Winston).
 Demonstrative Devise: devise that testator intends to be satisfied from a specific source but to the extent that it
is insufficient, it is to be paid out from general assets of probate estate (partially a specific devise, partially a
general devise). Ex: devise sum of 10K to son Winston to be paid from apple stock, if insufficient to be paid
from other assets of probate estate.
 Residuary Devise: devise of everything that remains in probate estate after the expenses of administration have
been paid, creditors have been paid, specific, general, and demonstrative devises have been satisfied.
ARS §14-2602: A will may provide for the passage of all the property the T owns and all property acquired by
the estate after T’s death.
ARS § 14-2604: Failure of a devise
 If specific, general, demonstrative devise fails, that gift will lapse and become a part of the residue.
 If residue is devised to two or more persons, the share of a residuary devisee that fails for any reason
passes to the other residuary devisee or to other residuary devisees in proportion to the interest of each in
the remaining part of the residue. Ex: 25% to son 1, 25% to daughter, 50% to son 2. Daughter
predeceases testator, her share goes to other two in proportion to their stated interests.
***AZ HAS ABOLISHED NO RESIDUE OF A RESIDUE RULE.
ARS § 14-2603: Substitute gifts; class gifts
 Required relationship: If devisee fails to survive T and is a grandparent of T, descendant of a grandparent
T, or stepchild of T then the following apply:
1. If devise is not in the form of a class gift and the deceased devisee leaves surviving descendants, a
substitute gift is created in the devisee’s surviving descendants and they take by representation.
2. If the devise is in the form of a class gift (other than a devise to issue, descendants, heirs of the
body, next of kin, relatives, or a class described by similar language) a substitute gift is created in
the surviving descendants of the deceased devisee.
 The property the devisees would have been entitled had all survived, passes to surviving
devisees and the surviving descendants of the deceased devisees.
 Each surviving devisee takes what they would have been entitled to had they all survived
and the portion of the deceased devisee goes to the deceased’s descendants by
representation.
 If the will makes an alternative devise, that supersedes substitute gift.
 Words of survivorship “if he survives me” or “my surviving children” are sufficient indication (in
absence of clear and convincing evidence) that this section will not apply.
In re Estate of Russell: T died testate, leaving validly executed holographic will. Left everything to her
dog, which had predeceased her, and her friend and companion, Chester. Ct held that the gift to dog was
void, so it passed to heir-at-law rather than Chester. While trial court construed language as being
indicative of T’s wish that Chester care for the dog, the Ct held that a disposition in equal shares for two
beneficiaries cannot be equated with a disposition of the whole to one of them to use on behalf of the
other. Minority Rule.
In AZ, failure of residue would result in Chester (other residue beneficiary) taking all.
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Practice Note: Becker would have used address book that said “don’t let my niece take” and would have
tried to use it under ARS § 14-2102(b) (disinheriting heirs via will) to settle with niece.
Ruotolo v. Tietjen: T executed will leaving ½ residue to Hazel if she survived him. She predeceased
testator by 17 days. Antilapse statute provided that issue of predeceased devisee shall take estate unless
a provision has been made in will for such a contingency. Ct held that mere words of survivorship (“if
she survives me”) do not defeat antilapse statutes. T wants to avoid intestacy, and antilapse statutes are
remedial/applied liberally. In AZ, words of survivorship would move the devise outside antilapse
statute and it would pass to other residuary devisees.
Dawson v. Ucus: T died testate, devised 1/5 interest in farm lands to 2 nephews as follows: ½ to
Steward, ½ to Gene. Residue of estate to Ucus and Degelow. Gene predeceased. Ct held that devise to
nephews not a class gift bc she left out some individuals of class of “nephews.” Gene’s share lapsed and
passed into residue.
Note: ARS 14-2603 only applies if there is the required relationship, and Gene was T’s husband’s
nephew, not hers. Could have tried arguing that she intended contrary intention under 2601 (to go to
husband’s side).
Changes in Property After Execution of Will
Ademption by Extinction:
 Applies to specific devise of real or personal property that T has sold or given away before death.
 Does not apply to general, demonstrative, or residuary devises. (bc other property must be sold to satisfy
those devises).
 Can have partial ademption by extinction.
 Different theories:
o Identity theory: if specifically devised item is not in testator’s estate, gift is extinguished;
presumption that testator intended to revoke the devise.
o Intent theory: if specifically devised item is not in the testator’s estate, the beneficiary may
nonetheless be entitled to replacement or cash value of original item, if beneficiary can show that
this was what testator would have wanted (has burden of proof).
 Ways to avoid: classify a devise as general or demonstrative rather than specific, classify the inter vivos
disposition as a mere change in form, not substance.
 In re Estate of Anton: T (mother of Robert and Nancy) married Herbert (father of Gretchen). H died
and T became sole owner of duplex. T executed will bequeathing ½ interest in duplex to G (specific
devise) and ½ to R (specific devise), w remainder to N and R. T gave POA to N who got loan from H’s
trust to pay for mother’s care but had to sell all T’s assets before receiving loan, including duplex. At
time of T’s death, there was a remaining balance from proceeds of duplex sale. Ct held no ademption by
extinction bc there were proceeds from sale in the estate AND sale was involuntary to T. Where specific
devises are removed from estate as result of involuntary act, the devisee is entitled only to the proceeds
still in estate.
ARS § 2606 Right to specific devises
a) Specific devisee has a right to specifically devised property in testator’s estate at death and:
1. Balance of purchase price, together w security agreements, owing from purchaser to testator at
death by reason of sale of property.
2. Any amount of condemnation award for taking of property unpaid at death.
3. Any proceeds unpaid at death on fire or casualty insurance or other recovery for injury to
property.
4. Property owned by testator at death and acquired as a result of foreclosure or obtained in lieu of
foreclosure of security interest for a specifically devised obligation.
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b) If specifically devised property is sold or mortgaged by conservator or agent acting w/i authority of
durable POA for incapacitated individual, the specific devisee has right to general pecuniary devise
equal to net sale price, amt of unpaid loan, condemnation award, insurance proceeds, or the recovery.
Stock Splits: Most courts have held that a devisee of a stock is entitled to additional shares received by testator
as a result of a stock split; stock dividends are treated the same under the UPC.
Ademption by Satisfaction:
 Applies when testator has a will and decides to make transfer to devisees in her/his lifetime (inter vivos
transfer to devisee after executing the will).
 Applies to both gifts and loans.
 Rebuttable presumption that the gift is in satisfaction of the devise made by the will (kind of like an
advancement under intestacy law).
o Example: T’s will devises $50,000 to her son, and residue to daughter. After executing will, T
gives son $30,000. There is a presumption that the gift was in partial satisfaction of devise, so S
only takes $20,000 at T’s death.
 Usually applies to general bequests, not specific bequests (e.g. if T devises family Bible, gift is adeemed
by extinction).
ARS § 14-2609: Satisfaction of devise during testator’s life
a) Property T gave to person while still alive is treated as a satisfaction of a devise if:
1. Will provides for deduction of the gift,
2. T declared in contemporaneous writing that the gift is in satisfaction of the devise or that its
value is to be deducted from value of the devise,
3. The devisee acknowledged in writing that the gift is in satisfaction of the devise or that its
value is to be deducted from value of the devise.
b) For purposes of partial satisfaction, property given while T is alive is valued as of the time the devisee
came into possession or enjoyment of the property or at T’s death, whichever occurs first.
c) If devisee predeceases T, the gift is treated as full or partial satisfaction of the devisee.
**Compare w intestacy where descendants do not get less bc of advancement to devisee.
Exoneration of Liens: Devisee takes property free of mortgage/lien – presumption T wanted the debt to be paid
out of residuary estate. Many states have reversed this.
Abatement: reduction – arises if estate lacks sufficient assets to pay decedent’s debts and devises.
 Apply at time of distribution, not death (AZ case – Goldman).
 When distributing $ to devisees, it is in proportion to their interest in the general devise. To calculate,
add up $ owed to all general devisees and then divide each devisee’s bequest by total amount; then take
each devisee’s share and multiply it by the amt of $ that is available for distribution.
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ARS § 14-3902 Distribution in Abatement
a) Divides up limited pie among claimants of different priorities – (1) property passing by intestacy, (2)
residuary devises, (3) general devises, (4) specific and demonstrative devises (reduced proportionally).
b) If will expresses order of abatement, or if the testamentary plan or express/implied purpose of devise
would be defeated by default order of abatement, shares abate as necessary to give effect to T’s intent.
c) If estate of decedent consists partly of SP and partly of CP:
1. Community debts shall be charged against CP.
2. Separate debts shall be charged against SP and balance of decedent’s ½ of CP.
3. Expenses of administration shall be charged against SP and decedent’s ½ of CP in proportion
to relative value thereof, but any special expenses attributable to management of CP may be
charged against entire CP.
ARS § 14- 2605: Securities – if T executes a will that devises securities and T then owned securities that meet
the description in the will, the devise includes additional securities owned by T at death to the extent that
additional securities were acquired by T after the will was executed as a result of T’s ownership of the described
securities, and come through: actions initiated by entity, result of merger, if T participates in dividend
reinvestment program.
ARS § 14-3904: Interest – Devisee is entitled to devise in due course of administration- but will not receive a
check next day. If it takes too much time, the devisee is entitled to interest which begins accruing one year after
appointment of PR.
ARS § 14- 2607: Nonexoneration – Devisee of a specific devise takes the property w mortgage, regardless of
general directive in will to pay debts.
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
VI.
Trusts
Legal arrangement where one person (trustee) holds title to property for benefit of another (beneficiary)
who has equitable ownership (bifurcation).
Parties to the relationship: Creator of trust (trustor/settlor/grantor) (individual or corporation) (AZ uses
settlor), Trustee, Beneficiary.
Property always titled in name of trustee, describes trust, describe day it was created.
Common trusts: revocable, for incompetent person, discretionary, marital trust, trust for minor.
Types ARS § 14-10401
Inter Vivos
Created during grantor’s lifetime by:
1. Declaration of trust: settlor is trustee and can be
beneficiary if duty owed to someone other than
himself (so no merger), or
2. Deed of trust: settlor transfers to trustee property to
be held in trust.
Nonprobate (will substitute to avoid probate)
Revocable (settlor can change, becomes irrevocable at
settlor’s death) or irrevocable (settlor cannot change)
Can be oral or written for personal property but must be in
writing for real property to satisfy SOF
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Testamentary
Created by testator’s will
Transfers through probate
Irrevocable- always
Must be in writing to comport with
Wills Act
ARS § 14-10402 Requirements for Creation
Requires: (1) settlor has capacity to create a trust (same standard as a will), (2) settlor indicates an intention to
create the trust (true intention, more than wish or desire; but does not need to use word “trust”), (3) trust has
definite, ascertainable beneficiary, (4) trustee must have duties to perform, (5) same person not sole trustee and
sole beneficiary.
**Do not need beneficiary if trust is charitable, for care of animal (ARS § 14-10408), for noncharitable purpose
w/o ascertainable beneficiary but for an otherwise valid purpose selected by trustee (ARS § 14-10409).
**Trust is subject to Rule Against Perpetuities – vests/terminates within time period of lives in being + 21 yrs.
ARS § 14-10404 Trust Purpose
Cannot be against public policy. Must be possible to achieve and for beneficiaries’ benefit.
ARS § 14-10407 Oral Trusts
Trust does not have to be in writing – terms must be est by preponderance of evidence & existence by CCE.
Exception: If real property, must be governed by written instrument (SOF)
If trust created by written instrument, it may be amended/revoked only by written instrument executed by settlor.
ARS § 14-10406 Fraud, Duress, Undue Influence
Trust is void, in whole or in part, to the extent its creation was induced by fraud, duress, or undue influence.
Trustee’s Fiduciary Administration
 Fiduciary relationship – trust cannot be sued, hold property, or transact in its own name, only trustee
can.
o 3rd party’s perspective: modern law effectively splits trustee into two distinct persons: a natural
person contracting on behalf of himself & an artificial person acting on behalf of beneficiaries.
 Duties: (1) administer trust by its terms, (2) duty of skill and care, (3) duty to give notices, (4) duty to
furnish info to beneficiaries (copy of trust itself and as much info as possible), (5) duty to account (on
annual basis, to show the beneficiary the value of assets at beginning of the year, receipts and
disbursements that have taken place during the year, and balance at the end of the year), (6) duty of
loyalty (trustee must administer trust solely in interest of beneficiaries), (7) duty to avoid conflicts of
interest, (8) duty to segregate trust property apart from personal assets of trustee, (9) duty of impartiality
bw beneficiaries equally and not to give preference to one over the other, (10) duty to invest the property
held in trust, (11) duty to enforce and defend claims against trust, (12) duty of confidentiality.
 Compensation: Depends on what trust document says. Courts have power to terminate a trust, deal with
a trust, and change provisions of a trust (often sometimes it’s to provide for compensation). If it is silent,
statute reads in reasonable compensation (depending on degree of responsibility and risk assumed, time
required, value of trust and income, customary fees charged, whether or not extraordinary services were
required, novelty of issues involved other relevant factors).
 Breach of duty: Compensatory damages to restore trust estate and distributions to what they would have
been but for the breach. Disgorgement by trustee of any profit to trustee owing to breach.
Denial/removal of trustee.
Jiminez v. Lee: 2 gifts made for benefit of P (daughter of D). Grandma purchased $1K bond for
P’s education, and $500 from one of D’s clients to fund education (sketch). D put $ in bank acct
as custodian. Ct held: D violated duty to beneficiary to administer trust when he attempted to
create custodianship (bc money isn’t required for education and there’s a SOL when kid turns
18); trust was created for P and the words “in trust” do not need to be used so long as a transfer
of property is made w intent to vest beneficial ownership in 3rd party. Remedy: P gets
constructive trust on stock and is entitled to be credited for any dividends or increment in value.
But unfortunately, P will be disinherited by D and will only be $2000 richer by getting her stock.
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Ascertainable Beneficiaries
 Beneficiaries need not be ascertained when trust is created, only ascertainable.
 If when trust becomes effective the beneficiaries are too indefinite to be ascertainable, the attempted
trust will fail for want of ascertainable beneficiary.
 Clark v. Campbell: Decedent’s will names “his friends” as trustees. Ct held that the devise fails bc
“friends” has no accepted statutory limitation and is not precise enough. Leaves it to discretion of
trustees to determine who the beneficiaries are, which is against public policy. Property to be disposed
of as part of residue.
In AZ, this case comes out differently bc under ARS § 14-10402 a power in a trustee to select a
beneficiary from an indefinite class is valid.
Note: Option to achieve what Clark wanted – created list/memorandum (ARS 14-2513) during lifetime
of recipients stating that he wants that list to control and to the extent he fails to include a specific
property, it goes to Frank to dispose of as he chooses.
 Power of appointment – Discretionary, nonfiduciary power where trustee can convey property to such
members of class as he may suggest. No ascertainable beneficiary required. UTC has adopted this.
 In re Searight’s Estate: D’s will bequeathed $1000 to his dog T to be used by executor to pay Florence
at a rate of .75/day for keep and care of Trixie as long as she lived. Ct willing to enforce honorary trust
as long as Florence undertakes obligation and if it satisfies RAP ($1000 at .75/day + interest def okay).
In AZ, we recognize honorary trusts and trusts for animals (ARS § 14-10402 and § 14-2907)
Trust Property
 Any interest that is transferrable may be put in trust – but it needs to be a specifically identified property
that trustee is responsible for (even $10 is okay).
 An expectation or hope of receiving property in future, or an interest that has not come into existence,
cannot be held in trust (Restatement).
 Trust may be created by declaration of trust w/o transfer of property- all that is required is manifestation
of intent by settlor to hold certain of his property (which he has legal title to) in trust for beneficiary.
 Unthank v. Rippstein: C wrote personal letter to R before death that he would send her $200/month for
next 5 yrs, provided he lived that long, but added to margin that he struck words ‘provided I live that
long’ and was binding his estate to make the monthly payments. Ct finds no holographic codicil, bc it’s
not a testamentary instrument. Ct also finds it’s not a declaration of trust bc at most he intended to make
monthly gift to R, but no evidence of intention to place certain amt of property in trust.
Note: R could argue equitable charge bc he conditioned bequest to estate on giving $200/month to R.
Note: C should have said my personal rep should set aside amt necessary to make X amt payments.
Note: Could be holographic will if there’s proof (CCE) that decedent considered doc to be his will
(harmless error would apply for attestation issue)
Written v. Oral
 In re Estate of Fournier: F delivered two boxes each containing $200k to some friends to store in their
home until his death and then to deliver to sister Faustina. At death, Faustina petitioned ct for dec action
that F created oral trust for her benefit. Ct held there was overwhelming evidence that F created oral
trust. Later, other sister, Juanita found note written by F a yr after delivering $ referencing $400k that
was to be used to reimburse Juantia, Faustina, and King. Ct held that trust was for benefit of those three.
In AZ, case comes out different bc of ARS § 14-10407.
 Olliffe v. Wells: D’s residuary estate went to Rev. Wells to distribute at his discretion. Ct holds a trust
not declared on face of will cannot be set up by ex evidence to defeat rights of heirs at law or next of
kin.
o Secret trust – will does not indicate a trust exists but identifies a legacy – traditionally, cts
willing to admit evidence of promise to prevent holder of legacy from being unjustly enriched v.
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o Semisecret trust – will indicates a trust but does not identify beneficiary – traditionally, cts do
not enforce for lack of ascertainable beneficiary.
Resulting Trust
 Equitable reversionary interest that arises by operation of law if 1) express trust fails or makes
incomplete disposition, or 2) one person pays purchase price for property and causes title to the property
to be taken in the name of another person who is not natural object of purchaser’s bounty.
 Hieble v. Hieble: Mother transferred title to real property from herself alone to herself in joint tenancy
with son and daughter to avoid probate if cancer returned. S and D agreed to reconvey property to
mother if she remained healthy. S refused to do so. Ct conluded constructive trust should be imposed on
basis of oral agreement and confidential relationship of parties.
 Pappas v. Pappas: Andrew conveyed real estate to S and S agreed to transfer property back to A once
his marital difficulties were over. Ct did not impose constructive trust bc A misrepresented nature of
transfer in divorce action, perpetuated fraud on ct, and had unclean hands.
Other things that aren’t trusts
Legal Life Estate (“to A for life, remainder to A’s descendants”)
o No power to sell fee simple unless such power is granted in instrument creating life estate
o Duty to pay taxes and maintain real property and manage personal property
o Subject to creditors
o Govt may exercise eminent domain
Equitable Charge (devise subject to/conditioned on payment of certain sum of money to third person)
o Creates a security interest in the transferred property, but no fiduciary relationship (it’s more like
debtor/secured creditor).
Inter Vivos Gift: Must be donative intent and delivery. Sometimes when invalid gift, cts will look for
declaration of trust.
Hebrew University Ass’n v. Nye: Wife declared she would make a gift of the rare book collection to
HU. She began cataloguing the material for shipment to Israel, sent them to warehouse in CT, and died.
If library asset of her probate estate, it passes under her will to D, if did a declaration of trust, it goes to
HU. Ct found that the library is an asset of wife’s estate and HU not entitled to library as beneficiary
under trust. On remand, HU argues it was a gift instead and there was sufficient symbolic delivery (gift
made by public announcement, accompanied by doc itemizing what was being given).
Constructive delivery sufficient if manual delivery is impractical or inconvenient (key to warehouse).
Symbolic delivery symbolizes the object of the gift (memorandum or inventory).
Debt: Issue arises when trust property is deposited in a bank – ordinarily creates a debt not segregated from the
bank’s general funds – bank’s debt to depositor can serve as a res (for a trust) if depositor declares a trust over it
or transfers it to another to hold in trust.
Agency Agreement: individual gives authority to someone – “I grant power over my property to my son
Winston and he has power to sell and give proceeds to me.”
Custodianship: where you go to bank and transfer $ to self as custodian for minors (see Jiminez v. Lee)



VII.
Nonprobate Transfers
Operate outside state-operated transfer system of probate administration (so outside law of wills and
intestacy)
Five types: revocable inter vivos trusts, life insurance, POD bank accounts, TOD securities accounts,
pensions.
Asset-specific, so central issue with modern estate planning is dealing w multiplicity of transfers and
coordinating them into a sensible plan and keeping beneficiary designations up to date.
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
Good news is most wealth is held in financially intermediated account forms that invite nonprobate
transfers.
Revocable Trusts
 Most flexible will substitute and most will-like.
 Avoids probate and allows settlor to consolidate disposition of her property under one instrument (need
only amend revocable trust): trust receives property during lifetime by 1) retitling property into trust, 2)
for certain types of property change beneficiary designation to trust, 3) pour-over will.
 Pros: no need to change title by probate admin., ensures continuity in property mgmt upon death, avoids
delays in disbursement of property, doesn’t have to be filed w court unless dispute arises, not subject to
ongoing ct supervision after settlor’s death, settlor may be able to choose which state law governs.
 Settlor remains free to amend or revoke the trust at any time and for any reason.
 Does not have to follow wills act formalities but courts have subjected will substitutes to subsidiary law
of wills (except life insurance policies and pensions which are governed by federal law).
 Can be contested for lack of capacity and undue influence- generally more difficult than with will bc
heirs cannot see trust instrument.
 Real property - deed property from settlor to trustee of trust. Note: if transfer real estate w/ quitclaim
deed lose title insurance, always want to transfer real estate into revocable trust w/ a “special warranty
deed” so that insurance carries over**
Farkas v. Williams: Farkas died intestate – had 4 stock certificates in safe deposit box that were in his
name as trustee for Williams. He purchased stock, executed written application instructing company to
issue stock in his name as trustee for Williams, company accepted each application in writing by
signature on the front of each application. Farkas also signed separate declarations of trust which
provided that during lifetime all dividends would be paid to him individually for his own use and upon
death stock and right to subsequent payments shall be vested absolutely in beneficiary (Williams).
Instruments did not satisfy statute of wills, so was it a failed testamentary attempt (bc he would transfer
property at death) or did they create valid inter vivos trust? Ct holds for Williams – Williams acquired
present interest when trust was created even though beneficiary was contingent upon existence of certain
state of facts + reserving powers to revoke and amend trust do not invalidate inter vivos trust. *Crux of
the opinion – formality of the transaction, he manifested his intention in a solemn and formal matter.
Case not relevant today- it’s historic. ARS § 14-10603 says opposite, so not good law.
Moon v. Lesikar: Dad established family trust, put 10K of airport stock in it. Dad would receive all
income during life, upon death separate trusts would be created for children, wife, grandchildren. At
some point, Dad removed wife as beneficiary, transferred airport stock to a trust established for
grandchildren (irrevocable). Later drafted new agreement put wife back as beneficiary. Sold airport
stock to son for benefit of trust, Dad died making family trust irrevocable. Daughter was pissed bc it was
supposed to be part of residuary since it was not mentioned specifically in the trust. Ct held: a contingent
beneficiary cannot complain of a transaction by the settlor of a revocable trust prior to the vesting of her
interest upon the death of the settlor (lack standing). Settlor can do what he wants with assets during
lifetime and any action that diminishes interest of beneficiary is an implied revocation.
Note: Compare with Farkas- Farkas said Williams had some interest (contingent equitable interest in a
remainder). This court and UPC completely abandon that – beneficiary during settlor’s lifetime has no
interest in the trust.
IN AZ: ARS § 14-10603: While trust is revocable by settlor, rights of beneficiaries are subject to
control of, and duties of trustee are owed exclusively to the settlor.
o When 3rd party removes property or money from revocable trust without settlor’s knowledge or
consent, after the death of settlor, the beneficiaries of revocable trust have standing to challenge.
Practice note: ALWAYS state whether a will is a revocable or irrevocable trust.
If drafting trust to avoid probate, will draft revocable trust
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If drafting an ongoing trust, irrevocable
In lifetime of settlor will create an irrevocable trust for tax transactions.
Revocation of a Revocable Trust
§14-10602- Revocation or amendment of a revocable trust
A. Unless the terms of the trust say it is irrevocable, it is presumed revocable.
B. If a revocable trust is created or funded by more than one settlor:
1. If the trust consists of CP, the trust may be revoked by either spouse acting alone in regard to that spouse’s
share of the CP, but can only be amended by joint action of both settlors.
2. If the trust consists of SP, each settlor may revoke or amend the trust with regards to the portion of the trust
the settlor contributed.
***Do not comingle separate property into a single trust
C. The settlor may revoke or amend a revocable trust either:
1. By substantial compliance with a method provided in the terms of the trust
2. If the terms of the trust do not provide a method or the method provided in the terms is not expressly
exclusive, by either:
A. A later will or codicil that expressly refers to the trust or specifically devises property that would
otherwise pass according to the terms of the trust.
B. Any other writing signed by the settlor manifesting clear and convincing evidence of the settlor’s intent.
D. On revocation of a revocable trust, the trustee shall deliver the trust property as the settlor directs.
E. A settlor’s power to revoke, amend, or distribute trust property may be exercised by an agent with durable p.o.a.
only to the extent provided in the terms of the trust. Otherwise a conservator may unless prohibited by trust terms.
Or a court appointed guardian.
F. A trustee who does not have actual knowledge that a trust has been revoked or amended is not liable to the settlor
or settlor’s successors in interest for distributions made and other actions taken on the presumption the trust is still
valid.
In re Estate of Pullafas (AZ): Trust provided it could be revoked in writing, there was also a pour over
will. Original will and trust were last in possession of T; he dies. Will and trust cannot be found. If will
last in possession of T and cannot be found at death there is a presumption of revocation. Held: rules w/
respect to wills apply to wills. The trust itself said it would only be revoked by writing, there was no
writing, court refused to apply law of wills to a revocable trust. Trust was valid, will was not. This has
been overridden by and large by UTC.
Patterson v. Patterson: Darlene created an inter vivos trust where she reserved the power to revoke or
amend the trust in whole or in part, upon her death her children were to receive remaining trust property.
Executed a written amendment removing her son, Ron as a beneficiary since she already provided for
him. Ct held: amendment was valid, UTC overruled Banks. Old case law – Banks: held a settlor could
only revoke/amend trust by following precisely the method for amendment/revocation specified in the
trust document. UTC: unless a trust document specifies a method of amendment that is expressly made
exclusive, settlor of a revocable trust has wide latitude in method of amendment/revocation/modification
(so can override this by having trust say “only way you can amend trust is as follows” – absent this,
statute is very broad concerning what constitutes revocation).
Revocation by Physical Act (pg. 457)
 Will, yes. Trust – problematic, likely not valid under AZ law.
o Revocation of Will: ARS § 14-2507: capacity and intent at same time. Yes.
o Revocation of Trust: Text book says YES, Becker says maybe.
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Subsidiary Law of Wills
State Street Bank & Trust Co. v. Reiser: Dunneiber, (homebuilder) created an inter vivos trust w/ power
to amend/revoke/direct disposition of principal and income. Conveyed stock of 5 corporations to trust.
Immediately after, executed a will leaving residuary estate to trust. 13 months later, got $75k unsecured
loan from bank. Died ~4 months later. Apparently, no probate assets (that’s where creditors would look
first for payment of obligations) so bank is trying to reach the trust to pay debt. Ct held: Bank can reach
assets of trust to pay debt owed by the estate of the settlor of the trust. Technically, no creditor
protection during settlor’s lifetime – ct thinks that’s stupid. Where a person places property in trust and
reserves the right to amend/revoke, or to direct disposition of principal/income, the settlor’s creditors
may, following the death of the settlor, reach in satisfaction of the settlor’s debt to the extent not
satisfied by the settlor’s estate, those assets owned by the trust over which the settlor had such control at
the time of his death as would enable the settlor to use the trust assets for his own benefit.
IN AZ:
ARS § 14-10501 - 10507 Statutes say that during lifetime of settlor, all the property in a trust is subject to
claims of the settlor’s creditors during lifetime. Revocable trust offers no protection during lifetime.
 If trust would become irrevocable, would be protected from settlor’s creditors. So long as its properly
drafted.
 On the death of the settlor, to the extent the probate state is insufficient, the assets of a revocable trust
can be reached by settlor’s creditors.
 Certain types of assets exempt from creditors (death proceeds from life insurance, retirement act)
 These statutes do not provide a mechanism for how the creditor reaches trust assets.
ARS § 14-6102: Provides a method for creditors to reach non-probate transfers and for statutory allowances to
be satisfied from non-probate estate/property interests. BUT IT’S VERY DIFFICULT.
 Property not subject to claims of creditors at death includes: retirement benefits, life insurance, joint
tenancy property.
 Method for creditor to reach trust asset: PR has to has to receive from SS or child a written demand for
proceeding, creditor knows probate estate is insufficient, if PR declines or fails to commence proceeding
after the demand, a person making the demand may commence the proceeding in the name of the
decedent’s estate, at the expense of that person.
ARS § 14-6103: Known creditors get actual notice, unknown creditors get publication in a newspaper once a
week for 3 consecutive weeks. Unknown creditors are barred 4 months after first publication, same method that
shortens SOL for creditors of probate estate. This statute allows notice to be provided even if no assets in
probate estate; so do not have to open probate.
Clymer v. Mayo: Mayo executed Will 1 naming husband, James as primary beneficiary. Also named
husband as beneficiary of life insurance, retirement plans. Then executed Will 2 and revocable trust
unifying disposition of property through trust (pour-over trust). Divorced, changed beneficiary of life
insurance but left him as beneficiary of pension plan and trust. James’ nieces and nephews were
contingent beneficiaries, followed by charity. Ct held: ex-spouse’s interest in the trust is revoked as a
result of the divorce. Legislative intent = divorced spouse should not take under these circumstances.
Subsidiary rules are the product of centuries of legal experience in attempting to discern transferors’
wishes and suppress litigation, these rules should be treated as presumptively correct for will substitutes
as well as for wills.
IN AZ: ARS § 14-2804: Speaks to wills but it applies to trusts and other nonprobate property interests.
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
Applies with two limitations: provisions for former spouses governed by federal law are not
affected by state statute (ERISA and 401ks), and if beneficiary designation was made prior to
enactment of statute, case law says those are unaffected by statute.
 Also revokes provisions in favor of relatives of divorced person’s former spouse  so here
would go straight to charity, not to James’ nieces and nephews.
Pour-Over Wills: O sets up revocable trust with himself or third party as trustee, then executes will devising
his probate estate to trust.
 Incorporation by reference: a will can incorporate by reference a doc in existence at the time the will is
executed but not amendments to the doc made after the will is executed, so trust must be in existence at
time will is executed.
 Acts of independent significance: will may dispose of property by referring to some act or event that has
significance apart from disposing of probate assets (ie reference to a trust that disposes of property
transferred to the trust during life). Requires the trust have property transferred to it during settlor’s life.
 UTATA: validated a pour-over of probate assets into a revocable trust only if instrument was executed
before or concurrently with the will; revised to permit the trust instrument to be executed or amended
after the will.
Other Non-Probate Transfers
Life Insurance
 Life Insurance Company (insurer) agrees to insure the life of the insured (pay death benefit).
 Insurable Interest: must have a relationship bw owner of contract and insured (business partner, spouse).
 Beneficiary can usually pick settlement option (lump sum, interest for years followed by payment of
principal, periodic payments of interest and principal).
 Not subject to income tax, but is subject to estate tax.
 Valid to transfer property on death w/o Wills Act formalities but issues arise w subsidiary law of wills.
 Types:
o Term insurance: Insurance for period of time (generally 1 yr increments); Insurance company
will pay named beneficiary if insured dies within policy’s term; Less expensive option.
o Whole life insurance: Combines insurance and investment; Premiums are higher than term
policies bc it consists of both; Idea behind it is investment component gets invested and over
time they can go to pay the premiums which eventually stop.
Cook v. Equitable Life Assurance Society: H purchased life insurance, named W beneficiary.
Divorced. H stopped paying premiums – whole life policy was converted into term w/ expiration in
1986 (company used cash surrender value to convert policy into term policy based on how much he
had paid in). Policy said can change beneficiary by written notice. H re-married, had a son. H made
holographic will leaving policy to wife and son. Insurance co is asking court where $ should go. Ct
held: cannot change beneficiary of life estate policy by will (majority rule), must change by terms of
the life insurance policy.
Exceptions to this rule: (1) if insurance co waives strict compliance w/ its own rules, (2) if it’s
beyond the power of the insured to comply literally w/ the regulations, (3) if insured has done all in
his power to change the beneficiary, but before new certificate is issued, he dies.
Practice note: do not name a young child as beneficiary – would have to have conservator, $ would
be turned over at 18.
IN AZ: ARS § 14-2804 provisions for ex-spouse are revoked by operation of law  applies to
life insurance. In AZ, beneficiary would have been revoked by statute. If no other beneficiary
stated, most policies say pay it to the probate estate [OVERRIDES COOK]. But this statute is not
applied retroactively.
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Pension and Retirement Accounts
Qualified or Non-Qualified
 Qualified (generally governed by ERISA; spouse must be beneficiary unless he/she signed waiver;
QDRO required if dissolution of marriage to get division)
o Defined Benefit Plan: plan provides benefits to employee based upon employee’s tenure or
service to the company and his or her compensation; usually just govt employees; if married, can
take less of a benefit during lifetime so spouse has an interest upon employee’s passing; this plan
either lasts for employee’s lifetime or employee/spouse’s lifetime, but nothing past that.
o Defined Contribution Plan: (401k, 403b) employer, employee, or both may make contributions
to specific account for employee (amount you can put in it is set by law); at employee’s death
whatever is left in the account passes outside of probate to beneficiary. Contributions are tax
free, but subject to income tax when taken out.
 Non-Qualified (not governed by ERISA; spouse not required to be beneficiary; QDRO not required if
dissolution of marriage)
o Individual Retirement Accounts: owner controls timing and amt of withdrawals; have to start
taking $ out at 70.5, if any left, goes to beneficiary; governed by terms of contract; 2 types –
traditional: pay taxes when take $ out AND roth: don’t pay taxes when take $ out, grows taxfree.
Nunnenman v. Estate of Grubbs: Grubbs named Nunnenman as beneficiary of residue of his IRA.
Later, made will that did not mention the IRA, left everything to his mother, Shervena. Mother also
claims to have found a note that referenced the IRA and left it to her. Ct held: IRA beneficiary was not
changed by a will that did not mention IRA or note that was dubious and even if real, was a holographic
will revoked by express terms of decedent’s will. This jurisdiction follows a minority rule: a change of
beneficiary can in fact be accomplished in a will so long as the language of the will is sufficient to
identify the insurance policy involved and an intent to change the beneficiary.
IN AZ: Cannot change a beneficiary by will – IRA would go to the stated beneficiary, follows
majority rule.
Egelhoff v. Egelhoff: H & W were married; H had a life insurance policy and pension plan (employer
sponsored). Both were governed by ERISA (a federal statute w/ purpose of protecting federal benefits
consistently across states), H designated W beneficiary under both (this is required under ERISA unless
there is a written waiver). Dvorced, H died intestate. H’s children from an earlier marriage are his heirs
at law; sue under state statute that designation of spouse as beneficiary of nonprobate asset is revoked
automatically upon divorce (in AZ, ARS § 14-2804). Ct held: ERISA pre-empts state statutes relating to
plans covered by ERISA. Recourse for children – likely malpractice against divorce attorney (there was
a recent unsuccessful attempt for a constructive trust).
Examples:
(1) H & W have $1m (401K) and $1m (cash), will not split where 1 takes IRA, 1 takes cash b/c have to pay taxes
on IRA. Will split ½ cash, ½ IRA. Split IRA w/ a qualified domestic relations order (QDRO).
(2) If W refuses to sign prenuptial agreement, but signs a waiver of the 401K, the assets are separate, but anything
added after marriage is CP
(3) If divorce decree says ½ to H, ½ to W on ERISA governed acct, must change beneficiaries; this will not work.
Multi-Party Bank Account (PODs and TODs)
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

A and B own bank acct as joint tenants w right of survivorship (A and B have right to draw on acct, but
survivor alone owns balance which does not pass through probate).
Varela v. Bernachea: V & B (B was married) had a romantic relationship; B paid V’s expenses, gave
her lots of gifts. B added V as a joint tenant w/ right of survivorship to his Merrill Lynch CMA account
(cash management account). Banker explained details of transaction to B in Spanish. V had a card for
the acct she frequently used. B had a heart attack, his daughters kicked V out of the hospital and condo.
V wrote a $280K check to herself and deposited it in a new bank account in the same bank. B demanded
the $ back, bank transferred it back. Ct held: a joint bank account w/ right of survivorship had been
created, V gets ½ of CMA. When a joint bank account is established w/ funds of one person, a gift of the
funds is presumed to the other tenant. Presumption may be rebutted only by clear and convincing
evidence to the contrary. Here not able to overcome presumption b/c banker testified that B understood
the effects of the account (he was atty, and details were explained).
IN AZ: ARS § 14-6211– opposite rule: parties own acct in proportion to their net contribution, unless
there is CCE of different intent. if B had put in 560K and named V as co-owner of the account.
Account Statutes
ARS § 14-6201 Definitions – acct includes checking, savings, certificate of deposit, and share acct
ARS § 14-6202 Application – rules do not apply to account established by entity for business purposes or
corporation, or fiduciary governed by another document (not business accounts).
ARS § 14-6203 Types of accounts – can be single party, multiple party, w or w/o survivorship
ARS § 14-6204 Provides sample form (cannot have no right of survivorship w/ POD designation)
ARS § 14-6211 Ownership – account belongs to parties in proportion to the net contribution of each, unless
there is CCE of different intent. If married, net contribution is presumed to be equal.
ARS § 14-6212 Death of party/Right of Survivors
(A) If account is owned by husband/wife/child, upon husband’s death, net contribution of husband
goes to wife. If 2+ parties survive and none is SS, net contribution of decedent is split ½ and ½ to
each party (NOT split based on net contribution to account) and right of survivorship continues.
(B)(2) On an account w/ a POD designation: On death of last survivor, $ goes to beneficiaries equally,
if goes to 2+ beneficiaries, no right of survivorship between them. If no beneficiary survives, sums on
deposit belong to estate of last surviving party.
Example: Dad has bank account, named POD ½ to C1, ½ to C2. C2 has predeceased w/ GC1
and GC2, Who takes? ARS § 14-2706 provides for a substitute gift in certain situations – here
grandchildren take by representation, ½ to C1, ¼ to GC1, ¼ to GC2. (Met required
relationship, no alterative devise, no words of survivorship)
ARS § 14-6213 Alteration of rights
(B) Cannot change a POD beneficiary of an account by will
Note: 14-6301 has a similar series of statutes dealing w/ securities
Non-Probate Real Estate:
 Tenants in Common: (real or personal property) on death of one of co-tenants his interest in property is
part of his probate estate. In AZ if have owners as tenants in common are presumed to have an equal
ownership in the property, an unequal ownership should be stated in the deed itself.
 Joint Tenants w/ Right of Survivorship: (real or personal property) 4 unities – time, title, interest, and
possession. Time – take title at same time, Title – by same instrument, Interest – have exact same
interest / cannot be disproportionate, Possession – have right to use entire property. If joint tenant
passes, his/her interest transfers to surviving tenant by operation of law.
o A joint tenant cannot pass this interest by will (it will fail).
o Avoids probate but exposes surviving joint tenant to deceased tenant’s creditors.
o If spouses hold property in this manner, it is not CP (don’t enjoy same protections); option CP
with right of survivorship (requires both spouses sign off conveyances, offers tax benefits).
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
o When a parent adds a child to the title of real estate to avoid probate, the adding of a child’s
name to a joint tenancy is considered to be a gift.
Example: Mom added C1 and C2 as joint tenants on property. Son died first, mom and C2 own
property; son had creditor issues w/ IRS. IRS put tax lien on property; mom and C2 got property
subject to tax lien.
c. If mom and child own property as joint tenants w/ right of survivorship and mom transfers her
interest to her boyfriend, and dies. Boyfriend and child own as tenants in common
Example: H & W owned house as joint tenants w/ right of survivorship. Before death, H transferred
his interest to his girlfriend. This is not CP so one person can make a transfer, girlfriend owned ½ the
house. If H & W had held as CP, both spouses have to sign the deed (joint tenancy is not CP)
Beneficiary Deeds: generally, a way for individual to own property during his lifetime and upon passing
vests in beneficiaries.
o AZ ARS § 33-405: (A) Beneficiary takes property subject to any indebtedness w/ respect to
property. (B) may have multiple grantees, can designate their ownership as joint tenants, tenants
in common, etc. (C) may have a successor grantor beneficiary (D) if property has multiple
owners must be signed by all of them, if not, only valid if signed by last owner to die (E) deed
has to be executed and recorded prior to death of grantor (F) revocation: must be executed and
recorded before death (G) if more than one beneficiary deed is executed, the last deed recorded
controls (I) beneficiary does not have to know (J) CANNOT be revoked by WILL (K) sample
o Revocable
o Can be used to transfer real property into revocable trust (beneficiary can be revocable trust)
o 120 hr survivorship rule applies and substitute gift rules apply
Example: If Grantor has executed and recorded beneficiary deed where beneficiary is son, Winston,
If Winston predeceases – 14-2702: beneficiary must survive by 120 hours, 14-2706: substitute gift
for non-probate transfer (required relationship, no alternate devise, no words of survivorship).
Planning for Incapacity
A. Conservatorship: (expensive, intrusive, public) – usually given to someone chosen by person (agent
under durable POA or person’s spouse/adult child/parent; if no advanced planning, court will appoint a
conservator to deal w/ property; bonding – conservator’s insurance co posts bond and will ensure person
is solid before doing that; accounting for first 9 months.
B. Revocable Trust: (best option) – successor trustee can act to ensure uninterrupted fiduciary management
of trust property w/o judicial involvement; trust should include mechanism for determining when settlor
has become incapacitated (not physician bc of HIPPA, usually rely on individuals close to settlor or
trustee); trustee can only act with respect to property put in trust by settlor prior to becoming
incapacitated, the rest is only handled by conservator or POA.
C. Durable Power of Attorney: Written doc under which the principal grants power to an agent. Under
traditional agency law, agents’ power ceased upon incapacitation of principal (b/c nobody could monitor
agent). States enacted “durable” power of attorney statutes – where power of agent continues upon
incapacitation of principal. Principal is empowering agent to make financial decisions, agent is held to a
fiduciary standard of conduct. Timing: upon execution/immediately (Becker likes) or at incapacity
(springing POA).
Limits to agent’s power: Majority view is that agent acting under POA cannot make, amend, or
revoke principal’s will or make a gift without specific authorization, but can create, modify, or
revoke a trust if that is expressly granted in instrument.
In re Estate of Kurrelmeyer: Louis appointed his wife, Martina, and his daughter, Nancy as attorneysin-fact. Was competent at this time. Louis had executed a prior will, giving Martina a life estate in the
“Clearwater property.” After incapacity, Martina created a revocable trust, acting under durable POA,
naming herself and Nancy as co-trustees, and transferred “Clearwater property” to the trust. Interest for
wife is better under trust than will. Ct held: POA granted wife power to create revocable trust and to add
assets to trust to accomplish estate planning objectives, but fiduciary duty imposes limits (cannot make
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gifts to oneself and cannot use agency for own benefit). On remand, ct upheld trust determining wife’s
actions were consistent w Louis’s intent and best interests.
IN AZ: ARS § 14-10604(e) – if an agent is going to have the pwr to create a trust, the language to
authorize it needs to be more explicit than it was in this case and Becker is concerned about breach of
fiduciary duty under AZ law.
ARS § 14-5501 Requirements for Creation of Power of Attorney
(A) Written instrument, principal designates agent, contains words that demonstrate intent that authority
conferred in the durable power of attorney may be exercised
(D) Additional requirements – (1) Language clearly indicates principal intends to create a power of
attorney and clearly identifies agent; (2) Signed/marked by principal or signed in principal’s name by
some other individual in the principal’s conscious presence and at principal’s direction (3) Witnessed by
a person other than agent, agent’s spouse, agent’s children, or notary public; (4) executed and attested w/
one witness and notary public
*Greater requirements than a will b/c foreseeable harm of someone acting under a financial power of
attorney is greater
ARS § 14-5506: revert back to 46-456 for misuse of power of attorney
ARS § 14-5504: If the principal dies and the agent is unaware, his actions are valid. If agent knows principal is
deceased, the power ceases and he cannot act under the power of attorney
ARS § 14-5505: An affidavit executed by the agent stating that at the time he acted under the power of attorney
he did not have actual knowledge of termination of power due to principals’ death, creates a rebuttable
presumption of non-termination of power at that time.
Note: if grant power to agent to give gifts on behalf of principal / or another ‘questionable’ power,
require principal to initial. Power to give gifts is generally granted to avoid estate tax – if authorize
should limit to annual exclusion amount (14K) and state class of donee.
Health Care Power of Attorney
ARS § 36-3221: an adult may designate another adult to make health care decisions on that person’s behalf.
Requirements:
1. Language clearly indicates person intends to create a health care power of attorney
2. Dated and signed or marked by person – if person unable to sign, notary or each witness can verify on
the document that the person indicated to the notary or witness that the power of attorney expressed
his wishes and the person intended to adopt the power of attorney at that time
3. Notarized or witnessed by at least 1 adult
o Prohibited witness/notary: the named agent, person directly related w/ provision of health care.
o If only witnessed by 1 person, he/she cannot be related to principal by blood, marriage, or
adoption, may not be entitled to part of principal’s estate by will or operation of law at time
power of attorney is executed.
o If the person’s license as a fiduciary has been suspended/revoked, cannot serve as agent unless
related to principal. Doesn’t apply if person’s license has been reinstated.
If there’s a dispute over the agent, need to have a guardian appointed by the court (often combined action for
a conservator too), an individual can state who they want as their guardian. ARS § 14-5503(B)


It’s best to have 3 agents listed w contact information.
Generally, attach a living will to a health care POA ARS § 36-3261 – deals specifically w/ end of life
decisions, generally provides guidelines from principal so ultimately decision is made by agent so
agent can consult w/ physicians to determine what is best. Include info about organ donation, funeral
arrangements/disposition of bodies (ARS 36-831).
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
Agent has no responsibility for principal’s medical expenses- can either be long-term care insurance,
self-paid, or AXXESS.
VIII. Limits on Freedom of Disposition: Protection of the Spouse & Children
Protection of the Surviving Spouse
ARS § 25-211 Community Property: all property acquired by either husband or wife during the marriage is CP
(doesn’t matter whose name the property is titled in). Excluded = property acquired by gift, devise or descent. If
spouse deposits SP into a joint account, may convert it. CP ends upon death or on filing and service of a petition
for dissolution of marriage if the parties later divorce.
*Note: AZ allows PR to pick and choose what is includible in probate estate, so if have 2 pieces of property held
as CP, can do ½ and ½ or all of one.
Note: presumption that property acquired during marriage is CP.
ARS § 25-213 Separate Property: all property owned before marriage, or acquired during marriage by gift,
devise, or descent. Earnings, profits, increases of separate property. Any property acquired after filing, service of
petition for dissolution of marriage if marriage is ultimately dissolved. Includes: rents, profits, increases of SP;
professional degree or license; social security.
ARS § 25-214 Management and Control:
(A) Each spouse has sole control over separate property
(B) Spouses have equal management, control and disposition rights over CP.
(C) Either spouse may acquire, manage, control or dispose of CP or bind CP, except both spouses
consent is required for:
1. Real property (other than unpatented mining claim or lease of <1 year)
2. Guaranty, indemnity, or suretyship
3. Binding CP after service of petition for dissolution of marriage if marriage ultimately dissolves
ARS § 25-111 Valid Marriage: License is issued, ceremony, solemnized by a person who is authorized; in
front of at least 2 witnesses.
Common Law Marriage: holding yourself out as being husband and wife but have not gone through steps of
25-111. Not valid if originates in AZ. But if it is a valid common law marriage in a state that recognizes it, and
then move to AZ, AZ will recognize it as a valid common law marriage.
Unmarried Cohabitants: upon passing of first, surviving partner has no rights
Covenant Marriage: Look up. Harder to get in and harder to get out. Must have finding of fault for one party to
get out of marriage or both parties agree to split
ARS § 14-2207 Rights of SS; Waiver; Requirements; Effect
A. SS can waive right to statutory allowances
B. SS’s waiver is not enforceable if: (1) not voluntary (2) unconscionable
D. Waiver limited to assets in probate property, not non-probate
As atty, you need date of marriage bc doc needs to be prepared and both spouses need to represented by
counsel.
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Note: this mirrors requirements for a premarital agreement under ARS § 25-202: in writing, signed by both
parties, consideration; person disputing prenup must prove it was involuntary or unconscionable.
Migrating/Inbound Couples
 Law where real property is located controls all issues w/ respect to that property
 Law of marital domicile in which personal property is acquired controls characterization of property
 Law of marital domicile at death of one spouse controls survivors marital rights
NOTE: if stock = personal property, if deeded interest = real property; timeshare = real property
(fractional interest); co-op = personal property; condo = real property
Example: H&W, W has 10m, H has 1m, all SP earned during marriage. What happens when they move
to AZ? If couple divorces, follow AZ law – apply quasi-community property and H will be entitled to ½.
ONLY apply concept of quasi-CP at divorce, NOT death.
If W dies, H entitled to statutory allowances.
Reminder of Statutory Allowances
 CANNOT be defeated by will
 Homestead ($18000) (payable to SS first, then minor and dependent children equally; priority over
creditors’ claims but paid after expenses of administration; dollar per dollar offset if SS receives
nonprobate 
 Exempt ($7000) (valued in kind (stuff) first, if deficient, paid in cash; same priority in assets as
homestead).
 Family ($12000) (payable to SS for use of SS and minor/dependent children, if no SS, payable to
children or guardian) 
Unintentional Omission of Spouse
In re Estate of Prestie: H&W were married, then divorced. H executed a pour-over will and revocable
trust- left everything to his son. Amended trust to grant W life estate in the condo. Then, H&W were remarried. H died. W petitioned court for ½ intestate succession share on grounds that H’s will was
revoked by marriage. Son argued amendment rebutted presumption of revocation bc H providing for W.
Ct holds that an amendment to a trust does not rebut the presumption that pour-over will is revoked as to
an unintentionally omitted spouse. Result – will revoked as to W bc she is omitted.
Note: if atty prepared amendment to trust, need to ask question, if you’re doing this, are you going to
marry, then we need to deal with it within the will.
Becker question this case – should’ve looked at entire estate plan. Under this statute is probably correct
though, could argue incorporation by reference.
In AZ: Amendment would suffice to eliminate the application of statute.
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§14-2301: Entitlement of spouse; pre-marital will
Based on presumed intent – most testator’s would intend to provide for later spouse. So…
A. If T’s SS married T after T executed a will, SS is entitled to receive an intestate share that is not less than the value
of the share of the estate the spouse would have received if T had died intestate as to any portion of T’s estate that
neither is devised to a child of T who was born before T married the SS and who is not a child of the SS nor is
devised to a descendant of that child unless: (the following three make the spouse a non-omitted spouse)
1. It appears from will or other evidence that will was made in contemplation of T’s marriage to SS.
2. Will expresses the intention that it is to be effective notwithstanding any subsequent marriage
3. T provided for the spouse by transfer outside will and the intent that the transfer is in lieu of a testamentary
provision is shown by T’s statements or can be reasonably inferred from the amount of the transfer (in relation
to other prop.) or other evidence.
B. In satisfying the share provided by A, any devises made by the will to T’s SS are applied first. Other devises abate
pursuant to 3902, unless the devise is to a child of T who was born before T married the SS and who is not a child
of the SS or is a devise or sub. gift to a descendant of that child.
 Applies when will executed before marriage
 Creates an intestacy right for spouse if spouse survives 120 hrs.
 Does not revoke the will!
Unintentional Disinheritance of a Child
Gray v. Gray: John was married to Mary, and had 2 children from a prior marriage. John’s will devised
entire estate to Mary. Mary had Jack. Divorced. Divorce decree included a provision creating trust for
Jack, putting ½ of any assets of any kind received by John from his mother’s estate in trust for Jack.
John died w/o changing will. Mary’s share was revoked by law (divorce statute). Ct held Jack not
entitled to share of John’s estate bc omitted child not entitled to a share if when the will was executed, T
had one or more children and devised substantially all of his estate to other parent of omitted child.
In AZ: ARS § 14-2302 – does not apply, Jack is not an omitted child. (A)(1) does not apply b/c T had
children living at time of will, (A)(2) does not apply b/c T did not devise property to any of the children.
In re Estate of Jackson: Jackson and wife established a trust, did not include son as a beneficiary. Ct
held: assets of a revocable trust are not subject to provisions of omitted child statute. Statute pertains
only to wills, not trusts. Unlike a spouse, T can disinherit a child if he shows clear intent to do so.
Would come out the same way in AZ.
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§14-2302: Omitted children; shares; definition
A. If T fails to provide by will for a child who is born or adopted after T executes will, the omitted child receives a
share in the estate as follows:
1. If T had no child living when T executed the will, an omitted child receives a share in the estate equal in value
to what the child would have received if the decedent had died intestate UNLESS the will devised all or
substantially of the estate to the other parent of the omitted child AND the other parent survives T and is
entitled to take under the will.
2. If T had 1+ children living when T executed the will and the will devised property or an interest in property to
one or more of the living children, an omitted child is entitled to share in T’s estate
a. The portion of T’s estate in which an omitted child is entitled to share is limited to devises made to T’s then
living children under the will.
b. The omitted child is entitled to receive the share of T’s estate that the child would have received if T had
included all omitted children with the children to whom devises were made under the will and had given an
equal share of the estate to each child.
B. To the extent feasible, the interest granted to an omitted child of this section shall be the same character whether
equitable or legal as that devised to T’s then living children.
C. In satisfying a share by (A), devises to T’s children who were living when the will was executed abate ratably. In
abating the devises, the court shall preserve to the maximum extent possible the character of the testamentary plan
adopted by T.
D. (A) does not apply if either of the following is true:
1. It appears from the will that the omission was intentional
2. T provided for the omitted child by transfer outside the will and the intent that the transfer be in lieu of
testamentary provisions is shown by T’s statements or can be reasonably inferred from the amount transferred.
E. If at the time T executed the will, T fails to provide by the will for a living child solely because T believes the child
to be dead, the child is entitled to share is the estate as if omitted.
F. Devises abate according to 3902
 Omitted child = a child who was born or adopted after the T executed a will
 Applies only to children (not grandchildren or other relatives)
 Applies to children born/adopted after execution of will that omits them
 Intent to omit does not appear on face of the will and the omitted child is not provided for in transfer outside will
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