Estate of Muder, Matter of, 1

• Decision Date: 31 December 1987
• Docket Number: No. 1,CA-CIV,1
• Citation: 751 P.2d 986,156 Ariz. 326
• Parties: In the Matter of the ESTATE OF Edward Frank MUDER, Deceased. Linda LIND and Janet Hiscoe, Petitioners-Appellants, v. Retha MUDER, Respondent-Appellee. 9256.
• Court: Arizona Court of Appeals

Page 986

751 P.2d 986

156 Ariz. 326

In the Matter of the ESTATE OF Edward Frank MUDER, Deceased.

Linda LIND and Janet Hiscoe, Petitioners-Appellants, v. Retha MUDER, Respondent-Appellee.

No. 1 CA-CIV 9256.

Court of Appeals of Arizona,

Division 1, Department D.

Dec. 31, 1987.

Review Granted April 19, 1988.

Frost & Porter, P.C. by G. Terris Porter, Show Low, for petitioners-appellants.

Hessinger & Bowers by Joseph Julius Hessinger, Pinetop, for respondent-appellee.

OPINION

BROOKS, Presiding Judge.

This is an appeal from an order admitting a document to probate which purports to be the Last Will and Testament of Edward Frank Muder. The instrument in question is a printed form with certain handwritten insertions. We reverse.

Edward Muder died on March 15, 1984. Subsequently, Retha F. Muder, his surviving spouse, submitted an application for the informal probate of decedent's last will dated January 26, 1984. The will was later admitted to informal probate and appellants, daughters from decedent's prior marriage, filed a Petition to Adjudicate Intestacy. Following a hearing, the trial court found the will to be valid and admitted it to formal probate. This appeal followed.

Although inartfully presented, there are two issues on appeal:

1. Is the relevant document a validly executed will pursuant to A.R.S. § 14-2502?

2. Alternatively, is the document a valid holographic will executed pursuant to A.R.S. § 14-2503?

The daughters contend in this appeal that their father died intestate. They argue that the document at issue fails to meet the requirements of due execution in various respects and that the surviving spouse failed to carry her burden of proving due execution.

The surviving spouse contends that the document is at least valid as a holographic will. ¹

I.

Arizona Revised Statute § 14-3407 provides in relevant part:

In contested cases ... [p]roponents of a will have the burden of establishing prima facie proof of due execution in all cases....

Proof of due execution requires a written document, signed by the testator, and also signed by two or more persons, each of whom must witness the testator's signature or the testator's acknowledgement of that signature. A.R.S. § 14-2502.

Although the surviving spouse testified that the disputed document was handwritten and signed by her late husband, she failed to establish the witness requirement of A.R.S. § 14-2502. There is no evidence in the record, and apparently none was offered, that the witnesses who signed the document witnessed either decedent's signature or his acknowledgment thereof.

In addition, the purported will does not meet Arizona's statutory requirements for a "self-proved" will. The self-proving affidavit fails to conform to the statutory formality in that it does not state that the testator signed or acknowledged his signature, or the will, in the presence of the witnesses. See A.R.S. § 14-2504; In re Estate of Mackaben, 126 Ariz. 599, 617 P.2d 765 (App.1980). We thus turn to the issue of whether the document is a valid holographic will.

II.

Arizona Revised Statute § 14-2503 provides:

A will which does not comply with § 14-2502 is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator.

The daughters cite In re Estate of Johnson, 129 Ariz. 307, 630 P.2d 1039 (App.1981), as support for their contention that the document lacks testamentary intent. When both the printed and the handwritten parts are considered, both the document at issue here and the instrument in Johnson reveal prima facie evidence of testamentary intent, i.e., a present intent to create a will. See In re Estate of Blake, 120 Ariz. 552, 587 P.2d 271 (App.1978). However, when the printed portion is excluded, the remaining handwritten portion reveals neither a testamentary nor a donative intent, both of which are necessary to qualify as a valid holographic will.

Excluding the printed language, the relevant handwritten provision states:

My wife Retha F. Muder, our home and property in Shumway, Navajo County, car--pick up, travel trailer, and all other earthly possessions belonging to me, livestock, cattle, sheep, etc. Tools savings accounts, checking accounts, retirement benefits, etc.

The surviving spouse cites Blake as support for admitting the document as a holographic will, based on the phrase "and all other earthly possessions belonging to me." The letter postscript at issue in Blake, however, is clearly distinguishable from the handwritten language here. The Blake postscript was definite in its terms and instructed the recipient to save it for future purposes:

P.S. You can have my entire estate. s/Harry J. Blake (SAVE THIS).

Id. at 553, 587 P.2d at 272. See also, In re Johnson, (handwritten portion of holographic will must clearly express testamentary intent.)

On this issue, we note Judge Contreras' special concurrence in Johnson. The basic intent of the Uniform Probate Code is to validate a will whenever possible. As in Johnson, the result here is contrary to that expressed purpose. The document in question, when considered as a whole, clearly and unequivocally evidences testamentary intent. However, as in Johnson, when the printed portion of the first paragraph is excised, neither testamentary nor donative intent is established and the document fails as a valid holographic will.

The order of the trial court is reversed and this matter is remanded for proceedings consistent with this opinion.

HAIRE, Chief Judge, specially concurring:

Judge Brooks correctly resolves the issues presented, and I fully concur in his discussion of the issues and disposition of this appeal. The purpose of my written concurrence is to address the concerns raised in Judge Fidel's dissent.

First, the core philosophy of the dissent appears to be that this court should, at the expense of ignoring the express provisions of Arizona's statutes governing testamentary dispositions, give effect to a document which clearly does not comply with the requirements of those statutes.

Judge Fidel justifies the result he reaches by overemphasizing A.R.S. § 14-1102(B)(2), which states that an underlying purpose of the provisions of Title 14 of our code is to discover and make effective the intent of a decedent in the distribution of his property. He would apparently allow this general principle of statutory construction to totally defeat and overrule the fundamental premise of our statutory scheme governing testamentary dispositions. That fundamental premise is that testamentary dispositions can be made only by complying with the wills provisions of Art. 5, Ch. 2, Title 14, and that upon a failure of compliance, the decedent's estate passes to his heirs under the laws of intestacy. See generally, A.R.S. §§ 14-2501 to -2513; 14-2101 to -2112.

The dissent admits that if the handwritten provisions of the will involved in this appeal were written on a blank sheet of paper, the will would not be valid. This admission recognizes that all of its material provisions are not in the handwriting of the testator. Therefore, I do not read Judge Fidel's dissent as urging that the facts of this case represent compliance with the requirements of Arizona's holographic wills statute as written by the legislature. He does not urge that "the material provisions [of the purported will] are in the handwriting of the testator." Rather, contrary to the requirements of the statute, he would look beyond the handwritten portions of the will and allow the printed portions to establish what are clearly material provisions--the donative and testamentary intent of the decedent. He would justify this result as an application of the "self-correcting capacity" of the judicial process. He would "correct" Arizona's judicial process by ignoring the statute and considering material provisions not in the handwriting of the testator. In this connection, the dissent assumes that the "surplusage theory" expressed in some earlier Arizona decisions predating the adoption of our present holographic wills statute contributes to the majority's disposition of this appeal. This conception is clearly erroneous.

Examples of earlier Arizona decisions applying the surplusage theory are Estate of Morrison, 55 Ariz. 504, 103 P.2d 669 (1940) (construing § 3637, Revised Code 1928, which required that a will be "wholly" written by testator), and In re Estate of Schuh, 17 Ariz.App. 172, 496 P.2d 598 (1972) (construing former A.R.S. § 14-123, which required that the will be "entirely written and signed by the hand of the testator.") These and other early Arizona decisions voiced the concept that the statutory words "wholly" or "entirely" were satisfied when the material provisions of the will were "wholly" or "entirely" in the handwriting of the testator, and that other written or printed material could accordingly be disregarded as surplusage. This concept became known as the "surplusage theory"--that in order to preserve the validity of a holographic will which in the testator's handwriting sets forth all the provisions material to a valid will, the court would ignore other provisions not in the handwriting of the testator.

In Arizona, the surplusage theory is dead, since it is no longer pertinent to our present holographic wills statute, which does not contain words such as "wholly" or "entirely". In its present form A.R.S. § 14-2503 merely requires that the signature and the "material provisions" of the will be in the handwriting of the testator. Consequently, a "surplusage" theory is no longer necessary. This is made clear by the official comment to the Uniform Probate Code, § 2-503 (identical to A.R.S. § 14-2503):

"By requiring only the 'material provisions' to be in the testator's handwriting (rather than requiring, as some existing statutes do, that the will be 'entirely' in the testator's handwriting) a holograph may be valid even though immaterial...