If you as power of attorney was instructed by your parent to go ahead and sign his name ...
Full Question:
Answer:
In Arizona, there are only three arguments available to any will contestant:
1. Lack of due execution. If, for example, the decedent did not sign the will himself, or did not have the required two witnesses, it will be invalid.
2. Lack of capacity. This requires that the person signing the will did not, at the time, know who his family members were, what his estate consisted of or where he intended his assets to go upon death.
3. Undue influence. Although the decedent may have been competent, he may have acted against his own will and been subjected to excessive pressure by someone who benefits from the questioned will.
If the insurance company made a paperwork error, it may be possible to claim that equitable legal principles of fairness require the funds to be paid to you. In some cases, the courts will apply a constructive trust theory when a party has been wrongfully deprived of its rights due to either a person obtaining or holding legal right to property which they should not possess due to unjust enrichment or interference. In order to find a constructive trust, the courts often require proof that the intended beneficiary in some way contributed to the asset, or acted in reliance upon receipt of the asset, so that it would be unfair to allow the beneficiary to be changed. For example, a person may be promised assets under a will in return for care provided to the deceased. However, in proving that a person is due to receive assets based upon the promise of a decedent, the courts may apply the dead man's statute, which prevents testimony of a deceased from being introduced unless it is called for by the court of the opposing party. I suggest you consult a local attorney who can review all the facts and paperwork involved. Will contests may be costly, so it is best to get a clear understanding of estimated expenses involved from a local attorney.
The following are AZ statutes:
Arizona Revised Statutes §12-2251 Limitations on testimony in actions by or against personal representatives, administrators, guardians or conservators
In an action by or against personal representatives, administrators, guardians or conservators in which judgment may be given for or against them as such, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate or ward unless called to testify thereto by the opposite party, or required to testify thereto by the court. The provisions of this section shall extend to and include all actions by or against the heirs, devisees, legatees or legal representatives of a decedent arising out of any transaction with the decedent.
14-3406. Formal testacy proceedings; contested cases; testimony of
attesting witnesses
A. If evidence concerning execution of an attested will which is not
self-proved is necessary in contested cases, the testimony of at least one
of the attesting witnesses, if within the state, competent and able to
testify, is required. Due execution of an attested or unattested will may
be proved by other evidence.
B. If the will is self-proved, compliance with signature requirements for
execution is conclusively presumed and other requirements of execution are
presumed subject to rebuttal without the testimony of any witness upon
filing the will and the acknowledgment and affidavits annexed or attached
thereto, unless there is proof of fraud or forgery affecting the
acknowledgment or affidavit.
14-3407. Formal testacy proceedings; burdens in contested cases
In contested cases, petitioners who seek to establish intestacy have the
burden of establishing prima facie proof of death, venue and heirship.
Proponents of a will have the burden of establishing prima facie proof of
due execution in all cases, and if they are also petitioners, prima facie
proof of death and venue. Contestants of a will have the burden of
establishing lack of testamentary intent or capacity, undue influence,
fraud, duress, mistake or revocation. Parties have the ultimate burden of
persuasion as to matters with respect to which they have the initial burden
of proof. If a will is opposed by the petition for probate of a later will
revoking the former, it shall be determined first whether the later will is
entitled to probate, and if a will is opposed by a petition for a
declaration of intestacy, it shall be determined first whether the will is
entitled to probate.
14-3952. Procedure for securing court approval of compromise
The procedure for securing court approval of a compromise is as follows:
1. The terms of the compromise shall be set forth in an agreement in
writing which shall be executed by all competent persons and parents acting
for any minor child having beneficial interests or having claims which will
or may be affected by the compromise. Execution is not required by any
person whose identity cannot be ascertained or whose whereabouts is unknown
and cannot reasonably be ascertained.
2. Any interested person, including the personal representative or a
trustee, then may submit the agreement to the court for its approval and
for execution by the personal representative, the trustee of every affected
testamentary trust and other fiduciaries and representatives.
3. After notice to all interested persons or their representatives,
including the personal representative of the estate and all affected
trustees of trusts, the court, if it finds that the contest or controversy
is in good faith and that the effect of the agreement upon the interests of
persons represented by fiduciaries or other representatives is just and
reasonable, shall make an order approving the agreement and directing all
fiduciaries under its supervision to execute the agreement. Minor children
represented only by their parents may be bound only if their parents join
with other competent persons in execution of the compromise. Upon the
making of the order and the execution of the agreement, all further
disposition of the estate is in accordance with the terms of the agreement.
Please see the information at the following links:
http://www.elder-law.com/2003/Issue1043.html
http://definitions.uslegal.com/w/wills/
http://lawdigest.uslegal.com/estate-planning/wills-overview/
http://lawdigest.uslegal.com/estate-planning/probate-and-executors/
http://definitions.uslegal.com/m/mistake-of-fact/
http://definitions.uslegal.com/m/mistake/
http://definitions.uslegal.com/d/dead-mans-statute/
