Contesting a Will in Arizona
- posted: Jan. 30, 2021
- Estate Planning
Will contests occur when someone challenges the validity of a will or any of its provisions in probate court. A will can be declared invalid if the person making it did not follow certain procedural requirements, lacked sufficient mental capacity or was subjected to undue influence by a third party.
Under Arizona law, only "interested parties" have the right to contest a will. These include heirs (descendants of the deceased who are not included in the will) and beneficiaries (parties who are named in the will). The interested party must file a petition in probate court claiming that the will is invalid in whole or in part.
Here are the most common grounds for will contests:
- Improper execution or attestation of the will — The person making the will (the testator) must either sign it personally or instruct someone else to sign for them in their presence. Arizona law requires two witnesses to attest that the testator signed the document and declared it to be his or her will. In the case of a "holographic" will — one entirely handwritten and signed by the testator — witnesses are not required. However, such a will can be alleged to be a forgery.
- Lack of testamentary capacity or intent — The testator must be at least 18 years of age and must be of "sound mind," which means possessing the mental faculties to understand the fact that they are creating a will; the nature, extent, and character of their property; and the identity of the family members who would naturally inherit their assets. A will must also show testamentary intent, namely that it is meant to convey the testator’s wishes for the handling of his or her estate.
- Undue influence — A testator may have created or modified a will because of coercion, fraud or another type of undue influence exerted by a third party. This may be a close family member, intimate partner, friend, professional adviser or anyone else who gains the testator’s trust. Undue influence often involves the financial exploitation of vulnerable or incapacitated seniors.
- Ambiguous, conflicting or ineffectual provisions — A will may be challenged on the ground that certain of its provisions cannot be carried out, such as directions to leave money to a beneficiary who is legally barred from the inheritance. In addition, some of the will’s provisions may be unclear or inconsistent with others in the document. In considering such challenges, a court may strike certain provisions and interpret the will most consistently with the testator’s intent.
The probate court will hold a hearing where the person contesting the will has the burden of proof. If the probate judge decides the will is invalid or incapable of being implemented, it will be voided and the estate will be administered under Arizona's intestacy laws.
If you are an interested party who wishes to challenge a will, the Law Firm of Joseph M. Udall, PLC in Mesa, Arizona, can help. For a free consultation, call us at 480-500-1866 or contact us online. Saturday and evening appointments are available.