Wednesday, March 23, 2011


Many people ask whether they need an attorney to draft a will or whether they can do it on their own. In Arizona, the answer to that question is that you do not need an attorney to draft a will—a will does not fail because it is drafted by a non-lawyer.  That said, I have yet to find a non-lawyer that understands the legal requirements of a will or common pitfalls in will drafting.  Moreover, I have seen too many self-made wills that are lawsuits waiting to happen.  

The case of Gloria Waterloo, decided by the Arizona Court of Appeals on March 8, 2011, illustrates that a well drafted will is the “ounce of precaution” that avoids “the pound of cure.” Ms. Waterloo had an estate with a value of at least 3 million dollars. One month before she died, she decided to will some or all of her estate to a certain Rabbi Zack Zimmerman.

No doubt Ms. Waterloo believed that her will was adequate to probate. However, her will made reference to a “list of final instructions” that did not exist. Therefore, the trial court declined to probate the will because it could not ascertain Ms. Waterloo’s “complete intent  . . . without knowing what was to be contained in the list of instructions.” On appeal, the Court of Appeals reversed the trial court sending the will back to probate because a will “should be admitted to probate as a will even though all of its terms are not capable of being enforced.”

So what’s the moral of this case? You do not need an attorney to draft a will. However, a qualified attorney knows how to draft a will that probates without needless litigation. If you have a poorly drafted will, you may end up like Ms. Waterloo, spending tens of thousands in attorneys’ fees just to have her last wishes fulfilled. I doubt it is your desire to have your money expended in this way. Therefore, I highly recommend that a qualified attorney prepare your estate plan. 

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