IN RE ESTATE OF JUNG, 1 CA-CV 04-0272.

Citation210 Ariz. 202,109 P.3d 97
Decision Date31 March 2005
Docket NumberNo. 1 CA-CV 04-0272.,1 CA-CV 04-0272.
PartiesIn the Matter of the ESTATE OF Bernard William JUNG, Deceased. Ted Bernard Jung, Petitioner-Appellee, v. Marc W. Jung, Respondent-Appellant.
CourtCourt of Appeals of Arizona

Stevens & Van Cott, PLLC by Laurence B. Stevens, Charles Van Cott, Scottsdale, Attorneys for Respondent-Appellant.

Peter A. Neisser, Attorney at Law, P.C. by Peter A. Neisser, Scottsdale, Attorney for Petitioner-Appellee.

OPINION

KESSLER, Presiding Judge.

¶ 1 Marc Jung ("Marc") appeals the superior court's decision denying probate of a codicil to the will of his father, Bernard Jung ("Bernard"). The court ruled that it could not determine when Marc signed the codicil as a witness and that if he signed the document after the decedent's death the codicil would not be a valid testamentary document. Because we determine that Arizona Revised Statutes ("A.R.S.") section 14-2502 (1995) does not preclude a witness from signing a testamentary document after the testator has died, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

¶ 2 Bernard was the father of Marc and Ted Jung ("Ted"). Bernard executed his will on November 12, 1980. On August 6, 2002, Bernard met with Marc and Ted and discussed the disposition of some of his property. After the meeting, while still at Bernard's house, Marc prepared a typewritten codicil purporting to effectuate his father's wishes. Bernard signed the codicil in the presence of Marc and Alison Scott ("Scott"), Bernard's caregiver. Scott signed the document as a witness at that time. Copies of the document faxed to Marc's lawyer on August 7, 2002, shown to Ted on August 11, 2002, and given to Ted on August 14, 2002, bore only the signatures of Bernard and Scott. Bernard died on August 8, 2002.

¶ 3 On September 16, 2002, Marc filed an application for informal probate of the will and codicil and for his appointment as personal representative of Bernard's estate. Attached to the application were the 1980 will and codicil. The will provided that certain real property be devised to Marc and Ted as joint tenants with right of survivorship, that Bernard's personal property be divided among his surviving children in equal shares as to value, and that the residue of his estate be divided in equal shares among his children. The codicil provided that Marc was to receive the realty, an additional parcel of real estate, Bernard's business and personal papers and books as well as his clothing, and half of his monetary assets. Ted was to receive a parcel of residential real property and half of Bernard's monetary assets. The codicil submitted to probate bore the signatures of Bernard, Scott, and Marc; Marc's signature was dated August 6, 2002. Also submitted with the application and testamentary documents were affidavits of the attesting witnesses. In his affidavit, Marc avowed that he "signed as witness in the presence and hearing of decedent."

¶ 4 The will and codicil were admitted to informal probate, and Marc was appointed personal representative of the estate. On January 13, 2003, Ted filed a petition for formal probate of the will and appointment of a personal representative. Ted asserted that the codicil was not valid and argued that Marc was responsible for misdating the document and perpetrating a fraud on the court. Marc filed an objection to the petition for formal probate. The brothers agreed that the 1980 will was valid and should be admitted to probate.

¶ 5 By stipulation, at trial the parties provided the deposition testimony of Marc's prior attorney and Scott. Marc's former attorney testified that on August 7, 2002, he had told Marc that he did not believe the codicil was a competent testamentary instrument because it lacked a second witness's signature and was not a holographic instrument because the material provisions were not in Bernard's handwriting. Scott testified that Marc had showed her a typed document and that she had been present when Marc gave the document to Bernard. Only she, Marc, and Bernard were in the room. Bernard read the document and other items repeatedly for eight to ten minutes. Marc asked Bernard if he understood the document, and Bernard said he did. She watched Bernard sign the document and signed it herself. She did not see Marc sign the document. Scott identified the codicil as the document she signed.

¶ 6 Marc testified that Scott's account of his father's signing the codicil was essentially accurate. Marc testified that he had signed the codicil on August 7, 2002, at about 4:30 p.m. He explained that the document he faxed to his attorney on the afternoon of August 7, the document he showed to Ted on August 11, and the document he gave to Ted on August 14 did not contain his signature because they were copies made on August 7 before he signed the document. He admitted that at his deposition he had stated that he signed the codicil on August 6. He also testified that on August 6, he had not believed he needed more than one witness to his father's signature, but he had signed it because he thought, "I was there, I might as well sign it." He explained that he had dated his signature August 6 because that was the date he witnessed his father's signature.

¶ 7 Ted argued that Marc likely signed the codicil sometime after August 14, and that if Marc signed the codicil after Bernard's death on August 8, the codicil would be invalid under Arizona law. Marc argued that even if he had not signed the document until after Bernard's death, the law on which Ted relied had changed and that witnesses to a testamentary instrument were now required to sign the document "within a reasonable time" after the testator executed the document. Marc asserted that even if he did not sign the codicil on August 7, he signed it within a reasonable time and the court should admit the codicil to probate to carry out Bernard's wishes.

¶ 8 The superior court found that Marc and Scott were in the room when Bernard signed the codicil. The court ruled, however, that the codicil would not be a valid testamentary document if Marc signed it after Bernard's death and further stated that Marc, as the personal representative, had the burden of establishing that the witnesses signed the codicil within a reasonable time but prior to Bernard's death. The court ordered the codicil stricken and the 1980 will admitted to probate as the dispositive instrument.

¶ 9 Marc timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2101(J) (2003).

DISCUSSION

¶ 10 Marc argues the superior court erred as a matter of law: (1) in interpreting A.R.S. § 14-2502 to require witnesses to a testamentary document to sign the document prior to the testator's death; and (2) by not interpreting A.R.S. § 14-2502 in a manner to give effect to Bernard's wishes as required by A.R.S. § 14-1102 (1995). Because we reverse on the first issue, we need not address the second.

¶ 11 We are bound by a trial court's findings of fact unless they are clearly erroneous. Sabino Town & Country Estates Ass'n v. Carr, 186 Ariz. 146, 149, 920 P.2d 26, 29 (App.1996). However, we are not bound by the court's conclusions of law. Id. Statutory interpretation is a question of law, which we review de novo. State Comp. Fund v. Super. Ct., 190 Ariz. 371, 374-75, 948 P.2d 499, 502-03 (App.1997).

¶ 12 The goal in interpreting a statute is to find and give effect to the intent of the Legislature. Mail Boxes, Etc. U.S.A. v. Indus. Comm'n, 181 Ariz. 119, 121, 888 P.2d 777, 779 (1995). We look first to the language of the statute. Canon Sch. Dist. No. 50 v. W.E.S. Constr. Co., 177 Ariz. 526, 529, 869 P.2d 500, 503 (1994). If the statutory language is unambiguous, we must give effect to the language and do not use other rules of statutory construction. Janson v. Christensen, 167 Ariz. 470, 471, 808 P.2d 1222, 1223 (1991). If the legislative intent is not clear from the statute, we consider other factors, such as the context of the statute, the language used, the subject matter, its historical background, its effects and consequences, and its spirit and purpose. Wyatt v. Wehmueller, 167 Ariz. 281, 284, 806 P.2d 870, 873 (1991).

¶ 13 The right to create a will is statutory and the Legislature determines the requirements necessary to make a valid testamentary document. Gonzalez v. Satrustegui, 178 Ariz. 92, 97, 870 P.2d 1188, 1193 (App.1993). A will that does not comply with statutory requirements is not valid, even if it accurately reflects the wishes of the testator. Id.

¶ 14 Marc argues that, whether he signed the codicil on August 7 as he testified, around August 15 as suggested by Ted's counsel in closing argument, or at some later time before filing his application for informal probate on September 16, he signed the codicil as a witness within a reasonable time of Bernard's execution of the codicil, as required by A.R.S. § 14-2502(A)(3) (1995). He contends that the superior court erred in deciding that the codicil would not be valid if Marc signed it after Bernard's death.

¶ 15 Arizona Revised Statutes § 14-2502(A)(3) states that a will shall be "[s]igned by at least two people, each of whom signed within a reasonable time after that person witnessed either the signing of the will ... or the testator's acknowledgment of that signature or acknowledgment of the will." The superior court acknowledged the "reasonable time" requirement, but also determined that witnesses must sign the will prior to the testator's death.

¶ 16 In deciding the statute required that Marc sign the codicil before his father's death, the superior court appears to have relied on Gonzalez. In Gonzalez, a couple agreed to make joint and reciprocal wills. Id. at 95, 870 P.2d at 1191. After completing will forms received by mail, they took the forms to a bank and signed them in the presence of each other and a notary, who notarized their signatures. Id. No witnesses signed the...

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