Lind v. Muder

MOELLER, Justice,

dissenting.

As the majority correctly notes, there is no common law right to make a will. To be entitled to probate, a document must meet the applicable statutory criteria. The majority opinion of the court of appeals and Judge Haire’s persuasive special concurrence amply demonstrate that the document in this case does not comply with Arizona’s holographic will statute, A.R.S. § 14-2503. The statute is clear: in a holographic will the “signature and the material provisions” must be in the handwriting of the testator. The majority reads into the statute a provision that printed portions of a form may be “incorporated” into the handwritten provisions so as to meet the statutory requirements. I am unable to *179discern such expansiveness in the statute. Neither was the court of appeals in the recent case of In re Estate of Johnson, 129 Ariz. 307, 630 P.2d 1039 (App.1981), which was decided under the identical statute and in which we denied review. Johnson, if followed, compels the conclusion that the instrument in this case is not a valid holographic will; however, the majority opinion neither discusses, distinguishes, or disapproves of Johnson.

I am sympathetic to the majority’s desire to give effect to a decedent’s perceived testamentary intent. However, the legislature has chosen to require that testamentary intent be expressed in certain deliberate ways before a document is entitled to be probated as a will. Whether the holographic will statute should be amended to take into account the era of do-it-yourself legal forms is a subject within the legislative domain. I suspect the ad hoc amendment engrafted on the statute in this case will prove to be more mischievous than helpful. Because I believe there has been no compliance with the statute on holographic wills, I respectfully dissent.

HOLOHAN, J., joins in the dissent of MOELLER, J.