Estate of Valcarce

In Estate of Valcarce, 301 P. 3d 1031 (Utah App. 2013), the Utah court of appeals affirmed the district court order admitting to probate an unsigned copy of the decedent’s 1991 will.

Two of the decedent’s brothers had submitted the will for probate.  Another brother contested the will.

The  attorney who drafted the will testified that he had no specific recollection of the decedent signing the will, but the fact that there was only an unsigned copy of the will in his file (and not the intended original) and the fact that the decedent had paid the bill for the preparation of the will led the attorney to believe that, consistent with his office’s customary procedures, the decedent must have signed the will, two secretaries in the attorney’s office must have witnessed the will, and the attorney himself must have notarized the self-proving affidavit.

One of the proponents of the will who was not a beneficiary under the will also testified that, six months before the decedent’s death in 2010, the decedent had shown him a signed copy of a will that was signed in the early 1990s and that had substantially the same provisions as the unsigned will that was submitted for probate.  The same brother also testified that he found a different signed will in the decedent’s home after her death, that he gave that will to the contestant, and that the contestant threatened to destroy it.

The court of appeals first held that, under Utah law, the proponent of a will must make a prima facie showing of due execution by a preponderance of the evidence.

As noted above, the attorney (who claimed to have notarized the self-proving affidavit) testified at trial, but neither of his secretaries (who allegedly witnessed the will) testified.  The court of appeals held that the attorney’s testimony satisfied the requirement under Utah Code §75-3-406 that the testimony of one attesting witness is required to probate a will.

The court also observed that, in adopting the Uniform Probate Code, the Utah legislature intended to validate wills whenever possible.

The court further sustained the trial court’s factual findings that the decedent’s will had in fact been properly executed and not revoked.

The appeals court concluded, therefore, that the trial court’s admission of the unsigned will to probate was proper.

For a discussion of estate planning in Utah, see Basic Utah Estate Planning on this website.

Rust Tippett is the author of this blog post.

Copyright 2013 UNLEPI, LLC, a Utah limited liability company.  All Rights Reserved.

This blog post in no way creates an attorney-client relationship between the reader and either Robert S. (Rust) Tippett or Bennett Tueller Johnson & Deere, LLC.  The reader should consult with his or her own estate planning attorney regarding his or her particular circumstances.

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