Last WillStephen was brilliant.  He graduated top of his class—he married the prettiest girl in town—his children were all above average—and his business ventures always succeeded.  While Stephen truly lived well, he died leaving a complicated estate.

When Stephen died, his children gathered for his funeral.  Afterwards, they entered his study, where Stephen kept his important papers, and searched for his will.  His will was not found.  Instead, they found a photocopy of a will that was executed ten years previous.  The will gave everything to a charity.

His children were aghast.  Did he really forget them and refuse to leave them a legacy?  After all, he had spoken to each child about the money he was leaving for education of his grandchildren.

Luckily for the children, they consulted a trusted attorney.  The children were informed that courts are reluctant to probate a copy of a will.  Where only a copy of a will is found, the will is presumed to be revoked unless proven otherwise.  The reason for this rule is simple: people frequently change their mind about how to divide their estates on death.  Therefore, they will often revoke the will by tearing it up.

According to A.R.S. § 14-2507, a person may revoke a will, in whole or in part, by performing “a revocatory act.”  This means, among other things, that the person who creates the will can revoke the will by “burning, tearing, cancelling, obliterating or destroying the will or any part of it.”  In Stephen’s case, the children will rest easy because the original will was never found.  If the charity tries to probate the copy of the will, it will need to prove that Stephen did not revoke the old will, which is a difficult burden.

It is quite possible that Stephen’s Estate will be what’s called “intestate.”  Accordingly, the children will likely inherit under Arizona law.

Robert N. Sewell handles probate and trust administration. He is also a commercial and real estate litigator. If you have questions regarding  probate and trust administration, please contact Mr. Sewell at 480-733-6800.