[WSBAPT] Question about will signed in AZ for WA resident

[Karl Flaccus]

I am not an Arizona practitioner, but we had an case not long ago where a Washington resident, when visiting friends in Arizona, signed a homemade will using one of the main beneficiaries as a witness, and no notary was at the signing.   Under Arizona law, a testamentary beneficiary can serve as a witness to the will with no negative consequences.  The logical jurisdiction for probate was Washington where the deceased lived and owned real property.  We thought about opening probate here and getting a Washington court to recognize that the signing was valid in Arizona and therefore should be valid here, but, another factor was that there were unhappy, excluded family members who received nothing under the will.  So we opted to first open the probate in Arizona using Az counsel, getting validity of the homemade will established there first.  Then, after waiting four months or so, we opened an ancillary probate in Washington.

The excluded beneficiaries considered challenging (we were told) the probate in Arizona, but they did not, nor did they challenge the Washington probate, although on what grounds they could have I do not know.

Worked like a charm.

Karl

FLACCUS LAW
7010 35th Ave. N.E.
Seattle, Washington  98115
206 523-0297

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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Roger Hawkes
Sent: Saturday, April 18, 2020 9:09 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Question about will signed in AZ for WA resident

Please reply to the list.

Roger Hawkes, WSBA # 5173
Hawkes Law Firm, P.S. and Sky Valley Lawyers, PLLC
Office: 19944 Ballinger Way NE
              Shoreline, WA 98155
                         And
               423 Main, Sultan, WA 98294

               Voice: 206 367 5000
                Fax:    206 367 4005
                www.hawkeslawfirm.com<http://www.hawkeslawfirm.com>

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Candace Wilkerson
Sent: Tuesday, April 14, 2020 12:51 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Question about will signed in AZ for WA resident

Hi Listmates:

I don't know if there are any AZ practitioners out there, but I have an interesting situation.  My former client, who resided in Seattle, drafted a "do-it-yourself will" while visiting Arizona, where his father lived.  My client didn't bother to consult with me before doing the will, and had his sister (the sole will beneficiary for the residuary estate) as the only witness.  The will was notarized by an AZ notary.  My client died last year, and I told his sister that I didn't think the will would fly with the courts here.

However, I know that the WA courts will accept the will formalities of the jurisdiction in which the will was signed (AZ).  AZ also requires two witnesses to the will, and I just found out that my client had another witness to the will signing, but that she didn't sign as witness.  This witness would be willing to sign a declaration regarding the will.  However, although she wasn't listed as a beneficiary in the will, she is the one listed as "pet guardian" (with no funds appropriated to her).  She also was my severely physically disabled client's caregiver.

So here are my questions.  Assuming AZ law can apply here:


  1.  Can the notary also be considered a will witness in the State of AZ?  I researched it in WA a while back, and don't think the law was favorable, but it's been a while since I checked.
  2.  If the notary can be considered a witness, is there any prohibition to the caregiver acting as witness (as there would be for healthcare power of attorney in WA)?  And finally,
  3.  Does the same presumption regarding an "interested witness" apply in AZ that applies in WA, and if so, would someone who simply receives care of the decedent's pet without a monetary allowance be considered an "interested witness"?

I could simply try to probate the will under WA will requirements, and try to overcome the sister as "interested witness" presumption, if I thought WA would allow the notary to act as witness.

Any suggestions/opinions would be much appreciated!

Thanks,
Candace Wilkerson

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