Matter of Estate of McKay

802 P.2d 443, 166 Ariz. 292, 75 Ariz. Adv. Rep. 92, 1990 Ariz. App. LEXIS 394
CourtCourt of Appeals of Arizona
DecidedDecember 6, 1990
Docket2 CA-CV 90-0080
StatusPublished

This text of 802 P.2d 443 (Matter of Estate of McKay) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Matter of Estate of McKay, 802 P.2d 443, 166 Ariz. 292, 75 Ariz. Adv. Rep. 92, 1990 Ariz. App. LEXIS 394 (Ark. Ct. App. 1990).

Opinion

OPINION

HATHAWAY, Judge.

This is an appeal from the trial court’s order admitting a document to probate as the Last Will and Testament of Frank R. McKay, dated December 8, 1987. We have jurisdiction pursuant to A.R.S. § 12-2101(J). We affirm.

The sole issue on appeal concerns the execution of the will. The issue is whether a will which is validly self-proved pursuant to A.R.S. § 14-2504 also satisfies the execution requirements of A.R.S. § 14-2502. The document is type-written and consists of pages numbered one to four. Page four satisfies the requirements of the self-proved will statute, A.R.S. § 14-2504, by proper attestations and signatures of the testator, two witnesses and the notary. Page three contains similar attestation clauses and the signatures of the same two witnesses on lines prepared for that purpose, but no signature of the testator. No line for the testator’s signature appears on page three.

Appellant claims that the will is defective because it was never properly executed by the testator’s signature as required by A.R.S. § 14-2502, which provides:

Except as provided for holographic wills, writings within § 14-2513 and wills within § 14 — 2506, every will shall be in writing signed by the testator or in the testator’s name by some other person in the testator’s presence and by his direction, and shall be signed by at least two persons each of whom witnessed either the signing or the testator’s acknowledgment of the signature or of the will. Although the testator’s signature does

not appear on page three, we find that the testator’s signature on page four suffices. A.R.S. § 14-2504(A) provides, in part:

A. Any will may be simultaneously executed, attested, and made self-proved, by the acknowledgment thereof by the tes *293 tator and the affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state where execution occurs and evidenced by the officer’s certificate, under official seal, in form and content substantially as follows:
I, the testator, sign my name to this instrument this .. day of .., 19.., and being first duly sworn, do hereby declare to the undersigned authority that I sign and execute this instrument as my last will and that I sign it willingly (or willingly direct another to sign for me), that I execute it as my free and voluntary act for the purposes therein expressed, and that I am eighteen years of age or older, of sound mind, and under no constraint or undue influence.
Testator
We, .., .., the witnesses, sign our names to this instrument, being first duly sworn, and do hereby declare to the unT dersigned authority that the testator signs and executes this instrument as his last will and that he signs it willingly (or willingly directs another to sign for him), and that each of us, in the presence and hearing of the testator, hereby signs this will as witness to the testator’s signing, and that to the best of our knowledge the testator is eighteen years of age or older, of sound mind, and under no constraint or undue influence.
Witness
Witness
The State of.....
County of......
Subscribed, sworn to and acknowledged before me by ....., the testator and subscribed and sworn to before me by .., and .., witnesses, this .. day of ... (SEAL)
(Signed) ......
(Official capacity of officer)

The formalities required by A.R.S. § 14-2504(A) are satisfied by page four of the McKay document. It is significant that they state the testator’s acknowledgment that it is his will and that he signs it voluntarily and with capacity. Even more crucial, A.R.S. § 14-2504(A) states the legislature’s intention that this form constitute simultaneously the execution, attestation and self-proved components of a will. The execution and attestation requirements are identical to those of A.R.S. § 14-2502, and thus satisfaction of A.R.S. § 14-2504 at the same time fulfills A.R.S. § 14-2502.

Furthermore, in Arizona, a self-proving statement, properly signed, creates a conclusive presumption of proper signature when a will is submitted to probate. A.R.S. § 14-3406(B) provides:

B. If the will is self-proved, compliance with signature requirements for execution is conclusively presumed and other requirements of execution are presumed subject to rebuttal without the testimony of any witness upon filing the will and the acknowledgment and affidavits annexed or attached thereto, unless there is proof of fraud or forgery affecting the acknowledgment or affidavit.

The only valid objection to admission to probate, according to this statute, would be fraud or forgery, neither of which is alleged here.

Appellant asserts that the will itself consist only of pages one through three and that page four is a separate document, the self-proving affidavit, and thus the will itself is defective because the testator’s signature is lacking. She further argues that execution of a valid will is a condition precedent to use of the self-proving affidavit.

The “separate documents” argument has not been an issue in Arizona because of A.R.S. § 14-2504 and § 14-3406. As we stated in Matter of Estate of Mackaben, 126 Ariz. 599, 601, 617 P.2d 765, 767 (App. 1980), “We agree with appellant’s premise that a self-proved will may not be contested in regard to signature requirements.” See also Matter of Estate of Muder, 159 Ariz. 173, 174-75, 765 P.2d 997, 998-99 (1988) (will valid neither under A.R.S.

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Bluebook (online)
802 P.2d 443, 166 Ariz. 292, 75 Ariz. Adv. Rep. 92, 1990 Ariz. App. LEXIS 394, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-estate-of-mckay-arizctapp-1990.