You just got back from an attorney’s office and executed a last will and testament. You may have even printed off a will from the internet, made a few changes, and slapped your signature on it. You may believe that there is nothing further for you to do regarding the will, but that is not the case. In many cases, especially in Arizona, what a person who has a will executed for (the testator”) does with the original will can be just important as having a will executed.
In Arizona, A.R.S. §14-3415 governs what happens if the original will cannot be located. It states, “If an original will that was last seen in the possession of the testator cannot be found after the testator’s death, the testator is presumed to have destroyed the will with the intention of revoking it.” This creates a problem for the testator who had a will executed, placed the will the will in a secret place, and was never found by the testator’s family. Although the scenario merely creates a presumption that the will was revoked, a person challenging the presumption would have the burden of proving his case by a preponderance of the evidence.
Indeed it is smart for the testator to make copies of the original will and distribute the copies accordingly, but a copy of the original is often not enough. According to A.R.S. §14-3415, the contents of the original will can be proved “only by clear and convincing evidence”, a higher standard compared to preponderance of evidence. In addition to the higher burden, the court will require at least one witness to testify that the copy is a true copy of the original. This person however, does not need to have been present during the execution of the will.
As the statute makes clear, the location a person stores his or her original will is very important. It varies from case to case but often it is best to entrust the original will with a trustee; a trustworthy, reliable, and ideally younger person. If you have any questions about your last will and testament or have yet to execute a will, do not hesitate to contact me at my office.
Communication of information by, in, to or through this Website and your receipt or use of it (1) is not provided in the course of and does not create or constitute an attorney-client relationship, (2) is not intended as a solicitation, (3) is not intended to convey or constitute legal advice, and (4) is not a substitute for obtaining legal advice from a qualified attorney. You should not act upon any such information without first seeking qualified professional counsel on your specific matter. The hiring of an attorney is an important decision that should not be based solely upon Web site communications or advertisements.
You also should not rely upon the transmission of an e-mail message to an attorney through this Web site to create an attorney-client relationship. The transmission or exchange of information will not do so. Without an attorney-client relationship in the matter, we cannot assure you that your communications will be privileged or (unless we otherwise agree in a specific case) that we will treat them as such. Please do not send us any confidential or sensitive information until you speak with one of our attorneys and obtain prior written authorization to send that information to us