Will Contests

When a will is contested, the case proceeds similarly to that of a case going through the civil litigation process.  A scheduling conference will be scheduled by the court to determine when the written response is due, and at this time the court will order the parties to submit a stipulated scheduling order, which will include the deadline for initial discovery; the deadline for the disclosure of witnesses, both expert and non-expert; the deadline for discovery requests including Interrogatories, Request for Admissions, and Request for Production, Inspection, and Copying of Documents and Tangible Things; the date by which discovery is to be concluded; and the date all pretrial motions must be filed, among many other issues.  At some point in the process, typically at or near the conclusion of discovery, the court will order the parties to participate in mediation in the hopes they will come to a settlement, thus avoiding a trial.  The scheduling order is a road map of the litigation, and there are likely to be detours along the way.

Grounds to Contest a Will

There are a number of reasons a will may be contested, including an invalid will, insanity, revocation, undue influence, fraud, or forgery.

Pursuant to statute, there are a number of formalities that must be followed for a will to be properly executed and, therefore, valid.  For example, a will must be in writing, signed by the testator or by someone at the testator’s direction, and signed by at least two witnesses.  But even if the document does not meet all the requirements, it may still qualify as a holographic will, which Arizona law recognizes.  The contestant may also attack the testator’s testamentary intent.

A will is not valid where the testator was insane when he or she created the will.  The contestant must show, by a preponderance of the evidence, that the testator was not of sound mind when he or she executed the will.

A will may be revoked by the testator executing a later will that includes language that expressly revokes all prior wills or contains inconsistent terms from the prior wills.  A will can also be revoked by performing a revocatory act with the intent that the will be revoked, such as burning, tearing, or otherwise destroying the will or any part of it.  Finally, a will is presumed to be revoked if the will was last seen in the testator’s possession and cannot be found.

A presumption of undue influence arises if the testator and the influencer have a fiduciary or confidential relationship between them, the influencer was actively involved in the preparation of the testator’s will, and the influencer is a beneficiary under the new will.  Arizona courts have held that, if any element of the presumption is absent, a question of fact may still arise about undue influence if all of the following factors exist:  the person exerting undue influence had a disposition to exercise undue influence, the person had an opportunity to exercise undue influence, some influence was exerted, and the will seems to be the result of the influence.

With respect to fraud in a will contest, Arizona courts have recognized fraud as any trick, deception, or artifice by which the testator is so circumvented, cheated, or deceived as to fall into error respecting the disposition of his property.  Regarding forgery, while it is helpful to prove the signature on the will is not that of the testator, pursuant to Arizona law it is possible for a testator to have a third party sign for the testator in the testator’s conscious presence.  The fact that the signature is not that of the testator alone should not be dispositive of the question of forgery.

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