Are Holographic Wills Valid?

Are Holographic Wills Valid?

When we deal with estate planning, I’m often asked if holographic wills are valid.

“Can I just go write on a piece of paper and put it in my drawer and that be recognized as a valid will?”

And the answer is, maybe. It depends on how you do it.

Arizona recognized two types of wills: Formal Wills & Holographic Wills

  1.  Formal wills: Arizona law has specific requirements on the formation of a valid will.
    1. It requires two witnesses. 
    2. It must be signed. When it’s signed it has some formation requirements for it to be valid.
  2. Holographic Wills:  Arizona law, however, recognizes what’s known as a holographic will. But the statute recognizing a holographic will is very specific on what that will has to look like:
    1.  It must be handwritten. Notice I didn’t say type-written and print it out. It has to be handwritten. And it has to be signed by the testator (the person making the will).  
    2. Invalid holographic wills: If you print out or type out a will and sign it without the formal requirements of witnesses, it is not a valid will. It has to be in handwriting and signed by the testator for it to be a valid holographic will. 

Obviously, as a practice pointer, the better approach is to have an entire will drawn up, rather than just drawing it on up a piece of paper. 

But those (holographic wills) will be valid if they follow the formal requirements.

If you have any questions about any aspect of estate planning feel free to give us a call 480.788.9911

My Story: Andrew Fowler

My Story: Andrew Fowler

I am a second-generation native of Arizona.  I was raised in the towns of Cave Creek and Carefree, Arizona.  From an early age, my parents instilled in me the importance of hard work and taking pride in my work. 

During my childhood, my father owned a plant nursery which was also where my family lived.  I worked at the family nursery throughout my childhood.

The Law Decision

In middle school, while studying American history, I decided that I wanted to practice law like many of our nation’s founders.  I wasted no time getting started. 

At the age of eighteen, I was married, attending college full-time and I worked full-time for a non-profit legal organization.

The College Years

As a child of an entrepreneur, it felt natural for me to pursue the study of business.  I attended Arizona Christian University and majored in business administration. 

After college, my wife and I moved across the country to Lynchburg, Virginia, where I attended Liberty University School of Law.

Law School: Recruiter & Student

Prior to beginning my own law studies, I worked as a recruiter for the law school. I traveled all over the country recruiting college graduates to consider attending the law school at Liberty University.

As a recruiter, I met many friends and future classmates. I don’t know how many lawyers enjoyed law school, but I loved it.

I was captivated by the students, faculty, and methodology of Liberty.

It was challenging, humbling and nothing like my undergraduate studies. Nothing made you prepare more for each class than a professor’s use of the Socratic Method.

One professor would call on a student and make them stand and answer his questions. If it was evident that the student had not prepared for the class, the professor would make them leave the classroom for the remainder of the class.

Practicing Law

After law school, my family returned to Arizona.  I began working for a small law firm where I first met my friend Sean St. Clair.  We would work together at one other law firm before we decided to start our own. 

Founding Fowler St Clair

In 2011, I decided it was time to be my own boss.  I hung a shingle, as they say, and began a transition that ultimately culminated in the formation of Fowler St. Clair.

Along with my partner, Sean, I manage Fowler St. Clair.  My law practice primarily focuses on estate planning, real estate, business, and civil litigation.  In addition to representing clients, I am a board member of the Christian Legal Society – Phoenix Chapter.

Andrew Fowler on the hiking trail.

Family and Hobbies

When I am not working, I am with my wife and four sons. 

We enjoy traveling with our pop-up camper to the U.S. National Parks and Monuments. 

So far, as a family we have visited the following parks and monuments:

  • Grand Canyon National Park, Arizona
  • Montezuma Castle National Monument, Arizona
  • Sequoia National Park, California
  • Yosemite National Park, California
  • Zion National Park, Utah
  • Bryce Canyon National Park, Utah
  • Hawaii Volcano National Park, Hawaii
  • Pu’uhonua o Hōnaunau National Historical Park, Hawaii
  • Yorktown Battlefield Colonial National Park, Virginia

I enjoy sports and am an avid hiker.  Every year I look forward to hiking the Grand Canyon from rim-to-rim. 

Most recently, I hiked to the top of Yosemite’s iconic Half Dome. 

Litigation Basics: Rule 26.1 Disclosure Statements

Litigation Basics: Rule 26.1 Disclosure Statements

Continuing the series on Litigation basis, this section delves into Chapter 3 which discusses disclosure statements. Contact Fowler St. Clair for any litigation services you might need if you live in Scottsdale or Mesa, AZ.

Rule 26.1 Disclosure Statements

The purpose of a Rule 26.1 disclosure statement is to fairly, accurately, and candidly apprise the other side of your case. The most critical components of the disclosure statement are witnesses and documents. If a witness or document is not disclosed in a Rule 26.1 disclosure statement, the undisclosed witnesses and documents likely cannot be used at trial. This is why it is important to focus on gathering as many documents as possible and identifying as many witnesses as possible early on in the case so that they can be disclosed with the initial Rule 26.1 disclosure statement. Each side also has a duty to disclose all documents that are relevant or likely to lead to the discovery of admissible evidence. The failure to disclose such documents can result in sanctions.

1. Timeframes

Rule 26.1 disclosure statements are to be exchanged within 40 days of the filing of a responsive pleading to the complaint, counterclaim, cross-claim or third-party complaint. The initial disclosure statement must be supplemented as additional witnesses and documents come to light. Each new document or witness must be disclosed within 30 days after they are revealed or discovered. If a witness or document is disclosed later than 60 days before trial, a motion must be filed asking the court to extend the time for disclosure.

2. Witnesses

All possible witnesses should be disclosed. And, the description of each witness should be as broad as possible and then narrowed to identify specific areas of testimony. For example, the description should read “Mr. Smith will testify as to his personal knowledge of the facts set forth in the complaint and this disclosure statement. Specifically, Mr. Smith will testify that . . . . ”

3. Documents

The best way to review and organize documents is by placing them in chronological order. This will allow for a better understanding of the timeline of events and eliminate any duplicates. When eliminating duplicates, care should be taken to make sure the document that is eliminated is truly a duplicate and does not have a slight variance to the other document (i.e. handwritten notes or edits). Once the documents are placed in chronological order and the duplicates are eliminated, they should be Bates labeled. Bates labeling allows for easy identification of documents at a hearing or trial. It also provides proof that the documents have been disclosed. Most professional PDF programs have the ability to create Bates labels.

4. Verification

The initial disclosure statement must be verified. The most critical components of the disclosure statement are witnesses and documents. If a witness or document is not disclosed in a Rule 26.1 disclosure statement, the undisclosed witnesses and documents likely cannot be used at trial. This is why it is important to focus on gathering as many documents as possible and identifying as many witnesses as possible early on in the case so that they can be disclosed with the initial Rule 26.1 disclosure statement. Each side also has a duty to disclose all documents that are relevant or likely to lead to the discovery of admissible evidence. The failure to disclose such documents can result in sanctions.
10 Common Litigation Mistakes Self-Represented Litigants Make

10 Common Litigation Mistakes Self-Represented Litigants Make

The importance of having a litigation attorney advising you cannot be stressed enough. We understand that there may be financial reasons that cause people to consider representing themselves in court.  However, because of the intricacies of the law and the rules litigants must follow, minor mistakes in self-representation can end up costing more than hiring a qualified and experienced attorney.

The Top 10 Mistakes Made in Self-Representation

With the above aside, if you decide to provide your own representation in court, please consider this list of the 10 most common litigation mistakes made by self-represented individuals.

10. Relying On the Internet

While there is a lot of useful information available on the Internet, there is also a lot of incorrect information. Even websites for the courts, at times, contain out of date; and therefore, inaccurate information.

Additionally, the Internet cannot teach a person how to handle a matter that generally takes years of experience to fully understand. The Internet will provide basic information. However, the advice and coaching of an experienced attorney is truly necessary for an unrepresented party to properly handle a lawsuit.

Have you been involved in a case that was lost because of a simple litigation mistake? If so feel free to comment below.

9. Failing to Respond to Requests for Admissions

Requests for admissions are questions served on the opposing party that asks the opposing party to admit or deny certain facts. Generally, the facts that the opposing side are asked to admit are critical to the case. The failure to respond to the requests for admissions within the required time results in the admissions being deemed admitted. This can be extremely damaging to a party’s case or defense.

8. Pursuing Red Herrings

Most court cases can be broken down into a few critical issues. However, there may have been a number of issues or disputes that occurred between opposing parties to a lawsuit prior to the lawsuit being filed. These prior disputes or issues may have little to nothing to do with the lawsuit. And, the court will have little interest in hearing about them.

A party who has little experience with lawsuits and appearing in court may believe it is necessary to go into the details of these issues or disputes. In reality, addressing these items only hurts their case because it draws attention away from the critical issues. It also hurts the party’s credibility when they finally get around to addressing the critical issues.

7. Making Decisions Based Upon Emotion

Litigation can be an emotional process. People do not think as clearly when emotions are high. This leads to poor decision making. These poor decisions can be seen in deciding whether to take a settlement offer. It can also be seen in the work performed, motions filed, and evidence presented to the court.

The most successful parties in litigation are not always the ones who have the best case. Instead, it is generally the party who uses a cost-benefit analysis to make decisions during the course of the litigation. By making a cost-benefit analysis the party can decide what work should be performed, what motions should be filed when to settle the case, and what needs to be presented to the court.

6. Failing to Make Proper Disclosures

The disclosure rules require each party to disclose the legal basis for their claim or defense, the names of all witnesses and a list of documents that will be presented. The disclosures must be updated as new witnesses and documents are revealed. If documents and witnesses are not timely disclosed, they may not be used at trial.

Proper disclosure also means Bates labeling and organizing the documents so that it is clear to the court and the other side that documents to be presented at trial or a hearing have been disclosed. Bates labeling refers to the placing of a sequential number scheme somewhere on each and every document. Then each time a new document is disclosed it should be accompanied by a disclosure statement that lists the document and the corresponding number.

The other side may object at trial to the introduction of a document on the basis that it has not been disclosed. There should be no difficulty in proving that it has been disclosed if it is Bates labeled and reflected on a disclosure statement. If either of these items is missing, it may be difficult to show that it has been disclosed and the court may preclude the document from being used.

5. Failing to Properly Respond to Dispositive Motions

The two most common dispositive motions are motions to dismiss and motions for summary judgment. Both of these motions seek a partial or full resolution of the issues in the case. A motion to dismiss is generally based solely upon the law. A proper response will give a legal basis for the denial of the motion.

A motion for summary judgment is generally based upon facts and law. A motion for summary judgment must be accompanied by a separate statement of facts. If facts set forth in a separate statement of facts are not properly controverted, they will be deemed admitted. Having the facts deemed admitted can be very damaging to a party’s claims or defense.

4. Not Being Fully Prepared to Present Their Case

Preparing for a trial is no simple task. Exhibits must be identified, marked and organized so that they are easy to locate and present. Opening statements, direct examinations, cross examinations and closing argument must be outlined.

Finally, each side needs to be prepared to present and argue any outstanding legal issues. Not putting in the time to prepare and “winging it” will not work. Even if a person has a strong case, they may very well lose at trial if the presentation is lacking.

3. Failing to Update Their Contact Information with the Court and the Opposing Side

Every party to a lawsuit is responsible for keeping their contact information current with the court and opposing counsel. However, parties sometimes move and fail to update their contact information with the court. Important documents may be filed with the court and mailed to the party at their address of record. However, if the address is not current, the party may not receive the documents.

This may result in that party not timely responding to the documents. The court will generally not accept the fact that the party failed to update their contact information as a defense for failing to timely respond to discovery or motions.

2. Not Fully Knowing the Law that Applies to Their Case

Legal research can be complicated. The key to legal research is knowing where to look and what to look for. The law that applies to a particular case is generally found in statutes, regulations and published cases.

Arizona Revised Statutes and the Arizona Administrative Code can be found on the internet at Arizona Revised Statutes and Public Services, Table of Contents, respectively.

Case law can be found in online databases that generally have a cost associated with them. It can also be found at a law library. Case law research at the law library will generally require the assistance of a librarian as there is a three step process to finding relevant case law.

There is also a wealth of case law and relevant application available on the web, often in blogs like this one from law firms.  However, it is vital to make sure that when you research case law, you keep in mind that the information you find on the internet may 1) not be accurate, 2) not be applicable in your jurisdiction, and 3) not up-to-date.

In order for a party to represent themselves without the assistance of an attorney, they will need to know how to perform the necessary legal research to locate the law that applies to their case.

1. Failing to Sign the Answer

This is probably the single most common, yet easiest mistake to avoid.  An answer to a complaint must be signed by each and every defendant or by their attorney. It is not uncommon for a married couple to assume that one spouse can properly sign the answer. This is not true. If only one spouse signs the answer, then a default judgment may be entered against the other spouse’s sole and separate property.

This mistake is also commonly made when a corporation or llc is a defendant in the superior court. A corporation and llc may not represent itself in the superior court. This means it must hire an attorney who must sign the answer. If an owner and employee signs and files the answer on behalf of an entity in superior court, a default judgment may be entered against the entity.

Fowler St. Clair Helping People in Malawi, Africa

Fowler St. Clair Helping People in Malawi, Africa

Fowler St. Clair is excited to announce that three of its attorneys, Andy Fowler, Sean St. Clair and Dustin Schanaker, will be traveling to Malawi, Africa to offer their legal expertise to aid Malawian’s in need.

Serving with Missional Law

They will be serving with Missional Law, a non-profit organization that works with legal professionals in Malawi to protect the human and due process rights of the country’s poor, vulnerable and marginalized. Malawi is a country with a population of approximately 17,500,000 people located in Southeast Africa.

Working To Help Those Unjustly Imprisoned

While in Malawi, their team will work with Malawian legal professionals to identify and assist with cases in which men and women are being unjustly held in prison. This work includes investigating cases that are appropriate for the filing of bail applications or obtaining release orders for those that have been convicted of petty offenses but will serve significant prison time unless a nominal fine is paid.

Protecting Women’s Rights

In addition to the work in the prisons, their team will work to assist in the effort to combat child marriage, violence against women and widow property grabbing. They will partner with another non-profit organization called Live Love to host a village legal clinic. The focus of the clinic will be to educate the chiefs, village headman, and members of the human rights committee within that village and surrounding villages on the issues of child marriage, violence against women and widow property grabbing.

Meeting with Malawi’s Parliament

Finally, their team will participate in meetings with government officials, including a member of Malawi’s Parliament, to strategize how Missional Law can provide assistance with improving the conditions of Malawi’s overcrowded prisons, the inefficiencies of its justice system, and the fight against child marriage and violence against women.

To learn more about Missional Law, you can visit its website at missionallaw.org.

Legal Aid for Your Small Business

Legal Aid for Your Small Business

All businesses need a business lawyer, even small businesses. According to Forbes, there are more than 28 million small businesses in the United States, which leads to intense competition for survival. Our team at Fowler St. Clair can provide you with the legal aid you need to get your business up and running and keep it ahead of the pack.

If you seek the help of a small business attorney from the outset, you receive critical legal counsel and legal aid in the infant stages of your business. Properly structuring your business affects the tax obligations, ongoing expenses and personal liability you have for your business. These issues are far from exhaustive, but the key takeaway is this: An Arizona small business attorney gives you the guidance you need to start your business off on the right foot.

If you already have an established business, there are other reasons why you need a small business lawyer. Receiving ongoing legal aid and counsel for your contracts and document drafting can help you avoid bad deals and spot good ones. As a result, experienced Arizona business attorney can highlight strategies and options for your business that you didn’t even know existed.

Finally, having a preexisting relationship with a small business attorney ensures you have the legal aid and safeguard you need to minimize the risk of litigation. While it is true that some lawsuits are unavoidable, effective legal counsel and planning can help prevent lawsuits from coming your way in the first place.

Here are a few other ways that an Arizona small business lawyer can help your small business:

  • Asset recovery/seizure
  • Breach of contract claims
  • Contract drafting and review
  • Corporate governance issues
  • Debtor, creditor and bankruptcy concerns
  • Purchase and sale agreements

At Fowler St. Clair, we understand the core vision and unique needs of small businesses. As a cohesive team of experienced Arizona business lawyers ourselves, we will work with you to understand your business vision so you can grow your business in big and exciting ways.

Contact Fowler St. Clair for a consultation to discuss your legal questions and concerns pertaining to your Arizona small business.