In re Waterloo – 3/8/2011
Arizona Court of Appeals Division One Holds That a Testator’s Failure to Create a List of Final Instructions That was to be Attached to Her Will Did Not Invalidate the Testamentary Intent With Which She Created the Will.
Gloria Waterloo belonged to a congregation of which Jack Zimmerman is the “Senior Rabbi.” On April 11, 2008, while Mr. Zimmerman and his wife Sandie were visiting Ms. Waterloo in a hospice facility, Ms. Waterloo dictated a document stating, in part, that she wished to leave Mr. Zimmerman $3,000,000 after she was deceased. The document also referenced a list of final instructions, which she never attached to the document and apparently did not complete. In the presence of the Zimmermans, Ms. Waterloo reviewed the document, initialed each of the paragraphs and dated and signed the document. Shortly thereafter, another couple from the congregation read the document aloud to Ms. Waterloo and confirmed with her that it represented her wishes. Less than one month later, Ms. Waterloo died. Mr. Zimmerman immediately petitioned the court to probate the document as a will. Ms. Waterloo’s heirs moved for partial summary judgment, arguing that the document could not be admitted to probate because it was incomplete. The court granted the heirs’ motion, ruling that it could not ascertain Ms. Waterloo’s complete intent without knowing what was to be contained in the list of instructions. Mr. Zimmerman timely appealed.
On appeal, the Court of Appeals reversed, holding that the failure to create a list of final instructions did not invalidate the testamentary intent with which Ms. Waterloo had created the will. To be treated as a will in Arizona, an instrument must satisfy the requirement of testamentary intent and must be properly executed. An instrument will be admitted to probate, even if it is vague or incomplete in some respects, as long as there is a single portion of the instrument which is certain in its character. In this case, the document at issue clearly contained testamentary language indicating it was intended to constitute a will by making provisions for what was to happen after Ms. Waterloo deceased. According to the Court, the mere fact that the list of instructions referenced therein could not be found did not disprove the presumption the clear language of the document created in favor of testacy. Moreover, the fact that Ms. Waterloo placed the date and her signature at the bottom of the single page strongly suggests that she was satisfied with what she had dictated and that she believed that the instrument she executed adequately expressed her testamentary intent even though it lacked the “list” that she apparently had once intended to create.
Judge Johnsen authored the opinion; Judges Timmer and Hall concurred.