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66 Cards in this Set

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FORMALITIES OF EXECUTION
Arizona requires that wills be formally executed to be valid. The Arizona Statute of Wills requires a will to be a signed writing, made with testamentary intent, witnessed by two persons who sign at the time the will is executed or within a reasonable time thereafter.
WRITING
SIGNED
INTENT
WITNESS
TIMING
PROOF OF WILLS
An uncontested will may be admitted to probate as long as it appears on its face to have been validly executed.

If contested a formal testacy proceeding must be held and the burden of proof of due execution is on the proponents.
UNCONTESTED
VALIDLY EXECUTED
CONTESTED
FORMAL TESTACY
BURDEN OF PROOF
PROPONENTS
SELF PROVED WILL
A will may be self-proved if the testator and both witnesses sign a self-proving affidavit under oath before a notary public. The affidavit must recite all the elements of due execution. A self-proved will is conclusively presumed to be properly executed.
SELF PROVING
AFFIDAVIT
OATH
NOTARY
INCORPORATING BY REFERENCE
To incorporate an extrinsic document by reference there must be:

1. a writing in existence at the time the will was executed

2. the will manifests an intent to incorporate the document, which

3. describes the writing sufficiently to permit its identification.
AT THE TIME
INTENT TO INCORPORATE
SUFFICIENTLY DESCRIBING
PERMIT IDENTIFICATION
WHEN MAY A WRITTEN STATEMENT BE REFERED TO?
In Arizona a will may refer to a written statement, written before or after the will is executed, or list that disposes of tangible property (other than money) not specifically disposed of by the will so long as the written list:

1. is signed by testator (or if not, be in T’s handwriting)

2. describes the property with reasonable certainty.
FACTS OF INDEPENDENT SIGNIFIGANCE
Acts having an independent lifetime motive will alter the will.

A will may dispose of property by reference to acts, such as the execution or revocation of another person's will, 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 before or after the testator's death.
INTESTACY
Any part of a decedent's estate not effectively disposed of by will passes by intestate succession to the decedent's heirs.
INTERESTED PERSON AS WITNESS
A beneficiary under the will may act as a witness. Neither the will nor the testamentary gift to the witness is affected by the fact that the witness benefits under the will.
SIGNED BY TESTATOR
The will must be signed by the testator or by someone at her direction and in her conscious presence. The testator must be 18 years old and of sound mind.
WITNESS REQUIREMENT
The witnesses must have witnessed either the signing or the testator's acknowledgement of the signature or the will.
TESTAMENTARY INTENT
Intent that a document constitute the testator's will can be established by extrinsic evidence.
HOLOGRAPHIC WILL
A holographic will is a will written in ones own handwriting without attesting witnesses. In Arizona a holographic will is valid if it was:

1. signed by testator, and

2. lists all material possession, i.e. it identifies the property and the beneficiaries who are to receive it.
HOLOGRAPHIC WILLS ON PRINTED FORMS
A holographic will on a printed will form is valid if the blanks identifying the property and beneficiaries is in the testators handwriting.
HOLOGRAPHIC CHANGES
Holographic changes to a holographic will are effective.

Holographic changes to a typewritten will are not effective unless the will is re-executed or re-published by codicil, or the change (interlineation) is signed and constitutes a complete disposition.
HOLOGRAPHIC WILLS AND EXTRINSIC WRITINGS
A holographic will can incorporate an extrinsic writing. Whether the incorporated writing must be in the testator's handwriting is undecided in Arizona, but the statutory language simply refers to "a written document," indicating that it need not be.
SEPERATE WRITING TO IDENTIFY DEVISE OF TANGIBLE PROPERTY
In Arizona, a seperate writing may dispose of tangible personal property even if the elements of the doctrine of incorporation by reference are not satisfied, so long as it is signed by the testator or in the testator's handwriting and it describes the property to a reasonable certainty.
ORAL WILLS AND REVOCATIONS
In Arizona oral wills are INVALID. But a will may be revoked orally.
REVOCATION BY PHYSICAL ACT
In Arizona, a revocation by physical act requires:

1. intent to revoke

2. physical act – AZ Statute refers to “burning, tearing, canceling, obliterating, or destroying”
REVOCATION BY CODICIL
Where a codicil makes no reference to a will but contains slightly inconsistent provisions, to the extent possible the will and codicil are read together.

To the extent that any inconsistent provisions, the later document controls and thereby revokes by inconsistency the prior will.
REVOCATION BY SUBSEQUENT WILL
When there are two wills and the second does not by its terms revoke the first

1. If the second will has no residuary clause, it is presumptively a codicil to the first and there is an implied revocation only to the extent of any inconsistencies.

2. If the second will has a residuary clause it revokes the first will in its entirety.
REVOCATION BY ANOTHER
Revocation may be done by another at testator’s direction and in testator’s presence.
"VOID" WILLS
“Void” (or any line across) written anywhere on will is valid revocation as long as it is on the actual will and not a copy.
REVOCATION "ONE FOR ALL"
An act of revocation of one executed copy revokes all copies.
REBUTTING PRESUMPTION OF REVOCATION
The presumption that the will was revoked by the testator shifts the burden of persuasion to the proponent. The presumption may be overcome by circumstantial evidence indicating the physical act was not done by the testator, or that it was not done with the proper intent.
REVOCATION BY CHANGED CIRCUMSTANCES
The only changed circumstances that revoke a will are felonious and intentional killing of the decedent and termination of marriage.
REVOCATION BY TERMINATION OF MARRIAGE
A divorce or an annulment revokes any:

1. Disposition or appointment of property to the former spouse

2. provision conferring a power of appointment

3. provision nominating the former spouse or a relative to serve in any fiduciary or representative capacity, including a personal representative, executor, trustee, conservator, agent or guardian.
REMARRIAGE
Revoked provisions are revised if the couple remarries or if they get a nullification of the divorce or annulment.
ADDITION OF OMITTED SPOUSE
If the testator marries after executing her will and the willl does not provide for her spouse, the surviving spouse is entitled to a share equal to the share he would have recieved had the decedent died intestate.
DEPENDENT RELATIVE REVOCATION
If a testator destroys a prior will by mistaken belief that another document is effective as his will, the court will determine whether or not the testator would have wanted the first will to stand had he known the second document was not valid.
LOST WILLS STATUTE
In Arizona a lost or destroyed will mandates a formal testacy proceeding where proponents have the burden of proving the contents of the will.
OMITTED CHILDREN
Children born or adopted after a will is exercised may be is deemed pretermitted and may be entitled to an intestate chare under certain circumstances. If the testator had at least one child living when the will was executed, an omitted child may share in the devise the testator made to the other children unless there is testamentary intent to the contrary.
OMITTED SPOUSE EXCEPTIONS
The surviving spouse is not entitled to a share equal to the share he would have recieved intestate if:
1. it appears that the will was made in contemplation of the testator’s marriage to the surviving spouse;
2. the will states that it is to be effective notwithstanding a subsequent marriage; or
3. the testator provided for the purpose by transfer outside the will, and that such transfer be intended in lieu of a testamentary provision.
REVOCATION - PROOF OF INTENT
All courts admit declarations of the testator made at the time of performing the revocatory act.

If at the time of the revocatory act the testator has been in continuos possession his intent to revoke is presumed.
REVOCATION OF SUBSEQUENT WILL BY LATER WILL
If the testator, by a later will, revokes the subsequent will that revoked the previous will in whole or in part, the previous will remains revoked in whole or in part unless revived.
REVOCATION OF A SUBSEQUENT WILL
If a testator wholly revoked a previous will by subsequent will, the previous will remains revoked unless revived.

If a testator partially revoked a previous will by subsequent will, the revoked part is revived unless it is evident it is not to be.
CODICILS
A supplement or addition to a will that explains, modifies, or revokes a previous will provision or that adds an additional provision. A codicil must be signed and witnessed with the same formalities as those used in the will's preparation.
TESTATOR - CAPACITY
The contestants must show the testator did not know or understand:

1. the nature of the act he was doing

2. nature and character of his property

3. the natural objects of his bounty

4. at or near the time the will was executed
TESTATOR - UNDUE INFLUENCE
To prove undue influence existed, the contestant must show:
1. an existence and exertion of the influence
2. the effect of which is to overpower the mind and will of the testator
3. so that the will would not have been executed but for the influence.

Undue influence can apply to the whole will or to one gift of the will.
TESTATOR - CONFIDENTIAL RELATIONSHIP
In Arizona a presumption of undue influence arises upon a showing that a principal-beneficiary under the will who stands in a confidential relationship with the testator draws or procures the execution of the will.
TESTATOR - OPPORTUNITY TO INFLUENCE
A mere opportunity to exert influence, susceptibility to influence due to age or illness, or an unnatural disposition is not enough.
MISTAKE IN WILL
– If there is a latent ambiguity in the will extrinsic evidence may be used to clear it up. If no extrinsic evidence sufficient to clarify exists the gift fails and falls to the residue. Evidence is admissible to show an intent which is consistent with any reasonable interpretation of the words used.
INSANE DILLUSION
Where testator is otherwise sane but the will or a gift in the will is a product of insane delusion, having no basis in fact or reason, which testator adheres to against all reason and evidence, and where the will is a product of the insane delusion.
GROUNDS FOR WILL CONTEST
Testamentary Capacity
1. Age
2. incompetent
3. insane dillusion
4. undue influence
5. fraud
6. mistake
FRAUD
To show fraud sufficient to invalidate a will, the contestant must show that:
1. a beneficiary made a false representation of material fact;
2. knowing the representation to be false (innocent misrepresentation is not sufficient;
3. the beneficiary made the representation to induce a will in his favor;
4. the misrepresentation resulted in the testator making a will favorable to the beneficiary
FRAUD REMEDY
If only a portion of the will is affected by fraud, by the majority and better doctrine, the remainder will be enforced unless it is so interrlated to do so would be contrary to the testators wishes.
LAPSE
When a beneficiary in a named will dies before (or within 120 hours of) the testator, the gift lapses and falls to the residue. The gift will pass to the residuary unless it is saved by the anti-lapse statute.
ANTI-LAPSE STATUTE
The anti-lapse statute applies when the predeceasing beneficiary is the:
1. testator’s grandparent

2. a lineal descendent of T’s grandparent, or

3. T’s stepchild who leaves issue who survives it.

If the statute applies, the gift will not lapse but will pass to the descendants of the beneficiary.
ANTI-LAPSE STATUTE EXCLUSION
The anti-lapse statute does not apply if the will states “if X survives me.”
ADEMPTION
The failure of a bequest of property in a will. The gift fails (is "adeemed") because the person who made the will no longer owns the property when he or she dies.

When a bequest is adeemed, the beneficiary named in the will is out of luck; he or she doesn't get cash or a different item of property to replace the one that was described in the will.
ADEMPTION BY SATIFACTION
A bequest may also be adeemed when the will maker, while still living, gives the property to the intended beneficiary.
EXONERATION OF LIENS
In Arizona, in the absence of an explicit direction to pay out of T’s residuary assets, a specific devise passes subject to any mortgage existing at the date of death, without right of exoneration, regardless of a general direction in the will to pay debts.
PROPERTY NOT ADEEMED
1. property subject to executory contract
2. property taken by eminent domain
3. insurance proceeds from destroyed or damaged property
4. interest recieved on foreclosure
5. sale of property by conservator
HOMESTEAD ALLOWANCE
A decedent's surviving spouse is entitled to a homestead allowance of eighteen thousand dollars.
HOMESTEAD ALLOWANCE AND WILL DEVISES
The homestead allowance is chargeable against any benefit or share that passes to the surviving spouse or minor or dependent child by the decedent's will.
HOMESTEAD ALLOWANCE - NO SURVIVING SPOUSE
If there is no surviving spouse each minor child and each dependent child of the decedent are entitled to a homestead allowance of eighteen thousand dollars divided by the number of minor and dependent children of the decedent.
HOMESTEAD ALLOWANCE, FAMILY ALLOWANCE AND CREDITORS
The homestead and family allowance are exempt from and have priority over all claims against the estate, except expenses of administration.
FAMILY ALLOWANCE
The decedent's surviving spouse and minor children whom the decedent was obligated to support and children who were in fact being supported by the decedent are entitled to a reasonable allowance in money out of the estate for their maintenance during the period of administration.

This allowance shall not continue for longer than one year if the estate is inadequate to discharge allowed claims.
FAMILY ALLOWANCE - NO SURVIVING SPOUSE
The allowance is payable to the children or to persons who have the care and custody of these children. If a minor child or a dependent child is not living with the surviving spouse, the allowance may be made partially to the child or the child's guardian or other person who has the care and custody of the child and partially to the spouse, as their needs may appear.
GIFTS TO CHARITY
Arizona has no restrictions on gifts to charity.
DISTRIBUTION OF ESTATE
Prior to the distribution of the assets, the executor must subtract the creditors’ claims, and family protection. The family protection encompasses the homestead allowance, exempt property and family allowance. If there is no spouse surviving, any minor/dependent child is entitled.
UNSUPERVISED AND SUPERVISED ADMINISTRATION
In unsupervised administration, each step is seperate and may be handled by informal or formal proceedings.

In supervised administration, the entire step is a single in rem proceeding under continuing authority of the court. All steps are formal.
WHEN WILL MAY BE PROBATED?
A will may be probated 5 days (120 hours) after the death of the testator. A petition for formal probate can be made any time after death.
CLASSIFICATION OF GIFTS
1. specific – the gift of a certain piece of real estate to a certain person or persons
2. general – the gift of real property by will
3. demonstrative
4. residuary – the gift of whatever is left (the residue) after specific gifts are given.
ABATEMENT
in a typical case in which there are sufficient assets to pay all funeral and administrative expenses and still satisfy all gifts made by the will, debts, and expenses are charged against the residuary estate. If not sufficient estate assets must be paid in the following order:
1. Intestate property
2. residuary devices
3. general devises
4. specific devises
UNWORTHY HEIR
One who feloniously and intentionally kills testator or intestate and is conclusively convicted or otherwise proven by a preponderance of evidence in probate court will not take.
SPOUSAL PROTECTION
Testator can will away only half of the community property. A will which attempts to dispose of more than the decedent’s half of the community property forces the survivor to elect. Marriage after execution of the will entitles the spouse to intestate share.