Requirements for a Valid Last Will and Testament

Requirements for a Valid Last Will and Testament
A valid last will and testament transfers a person’s property upon their death. The requirements for a Valid Last Will and Testament are set forth in Arizona law.
 
Arizona Revised Statutes (A.R.S.) § 14-2501 states the basic rule for when a person can sign a last will and testament. That statute states, “A person who is eighteen years of age or older and who is of sound mind may make a will.” The “testator” is the one adopting the Will. To be valid the person must:
  • Be at least 18 years old
  • Have testamentary intent. In other words, the person must intend to give instructions for what will happen to their property when they die.
  • Have testamentary capacity. That means that the person has a sound mind.
  • Not be unduly influenced. In other words, no one can be pressuring the person to the sign the document.
  • Sign the will or have someone else sign it at his direction.

Does Mental Illness or Dementia Mean the Person Lacks Testamentary Capacity?

A person could have a mental illness or dementia or Alzheimer’s Disease, and as long as he satisfied those three elements at the time of signing the Will, then the person had testamentary capacity. To have testamentary capacity to execute a Will, the person signing his/her Will must have:

(1) the ability to know the nature and extent of his property;

(2) the ability to know his relation to the persons who are the natural objects of his bounty and whose interests are affected by the terms of the instrument; and

(3) the ability to understand the nature of the testamentary act.
Estate of Killen, Matter of, 937 P.2d 1368, 188 Ariz. 562 (Ariz. App. 1996)

“However, when mental illness that produces insane delusions renders the testator unable to evaluate or understand his relationships with the natural objects of his bounty and this inability affects the terms of his will, the testator lacks the mental capacity to make a valid will.” Estate of Killen, Matter of, 937 P.2d 1368, 188 Ariz. 562 (Ariz. App. 1996)

In other words, you could think that you have the ability to fly, and that the government has planted listening devices in your home, but as long as you satisfy the above three elements, then you have the mental capacity to sign a valid Will.

Next, let’s discuss the different types of Wills in Arizona. There are four types of Will that meet the requirements for a valid Last Will and Testament.

Four Types of Last Will and Testaments

Arizona law recognizes four types of Wills. The first type is a non self-proved or witnessed Will. Second, there is a self-proved Will. There is something called a Holographic (hand-written) Will. And finally, there are now electronic wills. We will explain each of these in more detail below.

When should you update your Last Will and Testament?

Wills do not expire or become invalid after a certain amount of time. But, it is a good idea to review your will now and again. Certain life events or changes in circumstances may warrant changing your will. As a rule of thumb, review your will with an estate planning attorney whenever:
  • Someone is born;
  • Someone dies;
  • Someone gets married;
  • Someone gets divorced;
  • You receive substantial new property or other assets;
  • You move to a new state.

Non-Self Proved Wills

Pursuant to A.R.S. § 14-2502, a non-self proving Will, must meet the following requirements:
  • It must be in writing.
  • The testator must sign it. Another person can sign the Will on behalf of the testator. In this case, the person must sign it in the testator’s name in the testator’s conscious presence and by the testator’s direction.
  • At least two people must witness the Will. Each of those witnesses must sign within a reasonable time after that person saw one of the following. The witness could have seen the signing the will. Or, the witness could have seen the testator’s acknowledgment of that signature. Or, the witness could have seen the testator acknowledge the will as his/her Last Will and Testament.
A non-self proved Will generally requires the testimony of a witness that the Will is authentic and genuine. Thus, “intent that the document constitute the testator’s will can be established by extrinsic evidence, including, for holographic wills under § 14-2503, portions of the document that are not in the testator’s handwriting.”

Self Proved Wills

A self proved will is easier to administer because it does not need testimony of a witness in probate court.
A Will may be self-proved if it is acknowledged “by the testator and by affidavits of the witnesses if the acknowledgment and affidavits are made before an officer authorized to administer oaths under the laws of the state in which execution occurs and are evidenced by the officer’s certificate, under official seal” in substantially the form prescribed in the statute. Because of the affidavit, a self-proved will generally does not need the testimony of a witness to prove that the Will is genuine.

Holographic (Hand-Written) Wills

Hand-written wills are valid in Arizona. A.R.S. § 14-2503 gives the requirement for a hand-written will. It states that a will might be valid as a holographic will if the signature and the material provisions are in the handwriting of the testator.
 
Many people buy form wills online or from supply or stationery stores. Those forms contain printed or boilerplate provisions. There are blanks where the testator identifies the property to be disposed of. The forms name beneficiaries and the percentages of the estate to go to each beneficiary. Prior court cases had decided that those forms did not adequately reflect the testator’s intent to adopt a will (to perform a testamentary act). As a result, the forms were invalid and unenforceable as Wills. Given the current wording of the statue, Holographic Wills on preprinted forms will probably be enforced in Arizona. But, we do not tell people to use such forms. The reason is that preparing a Will is a complicated legal document. It has many variations and can create many unforeseen issues. Thus, it is best to have a qualified attorney prepare a custom Will for your particular situation.

Electronic Wills

Effective June 30, 2019, the Arizona legislature amended our probate code to permit electronic wills. Electronic wills present many issues not applicable to paper wills. To be valid in Arizona, an electronic will must meet several specific requirements. Those requirements are set forth in A.R.S. Sections 14-2518 and 14-2519. 
For most people, it is better use traditional paper Wills. The reason is that a paper document is easier to locate after a person dies. The family can still maintain electronic copies of it. And even if the original is somehow lost, there are ways of demonstrating that an electronic copy or photocopy is a true and correct copy of the original document. On the other hand, if someone only has an electronic will, after a person dies they may not be able to locate where that digital file is maintained.
That being said, it could be more convenient to sign an electronic will. As long as the requirements for a valid last will and testament are met, and someone will be able to locate the electronic will later on, then it might be a good option.

Have Questions About the Requirements for a Valid Last Will and Testament?

Attorney Paul Deloughery assists people with their legal questions every day. To schedule an appointment, call us at 602-443-4888.  Or you can submit your contact information HERE. We offer services for clients throughout Arizona.

ABOUT THE AUTHOR

Founding attorney Paul Deloughery has been an attorney since 1998, became a Certified Family Wealth Advisor. He is also the founder of Sudden Wealth Protection Law.

SPREAD THE WORD

NAVIGATING SUDDEN WEALTH

We wrote the book about Sudden Wealth - literally. Learn more and read the first third of the book now.