SEPTEMBER 9, 2002 VOLUME 10, NUMBER 10
Christel McPeak thought she had done her estate planning properly. She had hired an attorney, reviewed drafts of a will, durable power of attorney for financial purposes and health care directive, and she had approved the drafts. Then she went to her lawyer’s office and signed the final documents, just like she was supposed to do. Trouble was, the lawyer forgot to have her sign the will.
Part of the problem may have been that Ms. McPeak’s lawyer was in the habit of having his clients sign multiple original documents. In fact, Ms. McPeak signed four original living wills and designations of her health care agent, and three original financial powers of attorney. Each of those documents was witnessed and notarized, and even the will itself (though unsigned) had witness and notary signatures. All of that signing, and the shuffling of paper to Ms. McPeak, the witnesses and the notary, appeared to have been the only reason that she did not sign her will.
Ms. McPeak’s unsigned will would have left her estate to her niece, Bonnie Allen, and others. If she died without a will, her estate would pass according the Florida’s law of “intestate succession,” and her half-sister Margarete Dalke would receive a share. That set up a will contest between Ms. Allen and Ms. Dalk, and required the probate court to determine whether Ms. McPeak had a properly executed will.
English and American law has for centuries required that wills be properly signed and witnessed by the appropriate number (usually two) of witnesses. Ms. McPeak’s will, even though witnessed, did not meet that basic requirement. Ms. Allen argued, however, that by attesting to her “signature” Ms. McPeak approved the will, and it was clear that her oversight was just that. Even if the her name typed on the will form was not an adequate signature, Ms. Allen argued, it was clear that the will reflected Ms. McPeak’s wishes, and the court could order that its terms be carried out by imposing a “constructive trust” on the assets and ordering that they be distributed in accordance with the will.
The probate court agreed with Ms. Allen’s arguments and ordered that the estate be distributed in accordance with Ms. McPeak’s “will.” Her half-sister appealed, and the Florida Supreme Court reversed the probate court’s determination and ordered that Ms. McPeak had died without leaving any will. Even though her intentions may have been clear, Ms. McPeak did not properly sign her will. Allen v. Dalk, August 29, 2002.
Arizona also requires strict compliance with the requirements for execution of a will. Except for “holographic” wills (those in the testator’s handwriting and signed by the testator), all wills must be witnessed by two individuals. Failure to comply, even accidentally, makes a will invalid.