Bussberg v. Walker (In re Estate of Bradley)

420 P.3d 215

IN RE the Matter of the ESTATE OF: Barbara Joy BRADLEY, Deceased.

Gail Bussberg, Petitioner/Appellant,

v.Billy R. Walker, et al., Respondents/Appellees.

No. 1 CA-CV 17-0088

Court of Appeals of Arizona, Division 1.

FILED April 24, 2018

Sippel Law Firm, PLLC, Kingman, By Mark A. Sippel, Counsel for Petitioner/Appellant

Garcia, Aguirre & Villarreal, PLC, Yuma, By Alicia Z. Aguirre, Jacqueline R. Luger, Counsel for Respondent/Appellee Everson

Presiding Judge Diane M. Johnsen delivered the opinion of the Court, in which Judge Kent E. Cattani and Judge Jennifer M. Perkins joined.

JOHNSEN, Judge:

¶ 1 Gail Bussberg appeals the superior court's judgment invalidating her stepmother's will under the two-witness requirement of Arizona Revised Statutes ("A.R.S.") section 14-2502(A)(3) (2018).¹ We hold that a notary public who acknowledges the testator's signature may qualify as a witness under the statute, and reverse and remand for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 The material facts are undisputed. Barbara Bradley, then 76 years old and suffering from terminal cancer, signed a will that disposed of her property upon her death to her boyfriend, Billy Walker, and her stepdaughters, Bussberg and Sandra Estrada. Walker and Tamara Adamovich, who is a notary public, were present in Bradley's home when Bradley signed the will. Before Bradley signed the will, Adamovich asked Walker to leave the room so that she could speak privately to Bradley. After Adamovich concluded that Bradley was competent and under no duress, Walker returned, and both Adamovich and Walker watched Bradley sign the will. Walker then signed the will, followed by Adamovich, who executed an acknowledgement and stamped it with her notary seal.

¶ 3 The signatures appear on the will as follows:

Barbara J. Bradley agrees to the conditions of the directives or wishes prior to her death.

/s/

Billy R. Walker agrees to the directives or wishes of Barbara J. Bradley.

/s/

Acknowledgment

State of Arizona

County of Mohave

On this day March 23, 2016 before me the undersigned Notary Public, personally appeared Barbara J. Bradley and Billy R. Walker known to me to be the individuals who executed the foregoing instrument and acknowledged the same to be his, her, their free act and deed.

My commission expires August 13, 2018

/s/ 3-23-16

Notary Public Tamara Adamovich

¶ 4 Bradley died two weeks later. When Bussberg petitioned to probate the will, Bradley's estranged son, Timothy Everson, objected, arguing neither Adamovich nor Walker was a valid witness under A.R.S. § 14-2502(A)(3). Everson claimed that he and Bradley's estranged daughter were Bradley's legal heirs.

¶ 5 At an evidentiary hearing, Everson conceded that Bradley had the necessary testamentary intent when she executed the will. Walker and Adamovich both testified they were present and watched Bradley sign the will before they signed it. Nevertheless, the superior court ruled the will invalid under § 14-2502(A)(3), reasoning it was not signed by two valid witnesses. According to the court, Adamovich was not a valid witness because she had signed "as a notary public," not as a witness; Walker did not qualify because he had signed to indicate he agreed to Bradley's directives, not "as a witness."

¶ 6 The superior court entered final judgment pursuant to Arizona Rule of Civil Procedure 54(b) invalidating the will, and Bussberg timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. § 12-2101(A)(1), (9) (2018).

DISCUSSION

¶ 7 "Statutory interpretation is a question of law, which we review de novo." In re Estate of Jung , 210 Ariz. 202, 204, ¶ 11, 109 P.3d 97, 99 (App. 2005). In interpreting a statute, we look first to its language. Id. at 204, ¶ 12, 109 P.3d at 99. We "liberally construe[ ]" will statutes to promote various policies, including to "discover and make effective the intent of a decedent in distribution of his property," "simplify and clarify the law concerning the affairs of decedents," "promote a speedy and efficient system for liquidating the estate of the decedent and making distribution to his successors," and "make uniform the law among the various jurisdictions." A.R.S. § 14-1102(A), (B)(1)-(3), (B)(5) (2018). "If the statutory language is unambiguous," however, "we must give effect to the language and do not use other rules of statutory construction." Jung , 210 Ariz. at 204, ¶ 12, 109 P.3d at 99.

¶ 8 As applicable here, § 14-2502(A)(3) requires that a will be "[s]igned by at least two people, each of whom signed within a reasonable time after that person witnessed either the signing of the will ... or the testator's acknowledgment of that signature or acknowledgment of the will." The plain language of this provision requires that (1) the will be signed by two people, other than the testator; (2) before signing, each of the two "witnessed" the testator signing the will or the testator's acknowledgment of his or her signature or the will; and (3) each of the two signed the will within a reasonable time after the testator signed or acknowledged his or her signature or the will.

¶ 9 Everson contends the statute also imposes a fourth requirement—that each of the witnesses must sign specifically "as a witness," rather than in some other role. Everson argues, and the superior court agreed, that although Adamovich signed the will, she cannot serve as a witness under § 14-2502(A)(3) because she signed as a notary public, not as a witness.²

¶ 10 The text of § 14-2502(A)(3) requires only that one who signs the will first have "witnessed" the testator signing or acknowledging the signature or the will. Everson cites no authority that the verb "witnessed" in the statute means anything other than to have observed or perceived the testator's signing or acknowledgment. See The American Heritage Dictionary of the English Language, 1990 (5th ed. 2011) (defining verb "witness" as "[t]o see or know by personal experience"); Gonzalez v. Satrustegui , 178 Ariz. 92, 98, 870 P.2d 1188, 1194 (App. 1993) ("witnessed" in § 14-2502(A)(3) requires having "seen the testator sign or acknowledge the will" before signing), superseded by statute on other grounds as recognized in Jung , 210 Ariz. at 206, ¶ 22, 109 P.3d at 101 ; see also In re Estate of McGurrin , 113 Idaho 341, 743 P.2d 994, 997 (Idaho App. 1987) (interpreting "witnessed" in similar statute to require only that person "observe[d] the testator sign").

¶ 11 In support of his contention that a notary cannot qualify under § 14-2502(A)(3), Everson points to A.R.S. § 14-2505(A) (2018), which states that "[a] person who is generally competent to be a witness may act as a witness to a will." He argues the legislature's use of the term "act as a witness" in that provision means that, to qualify under § 14-2502(A)(3), a witness to a will must sign or be designated to sign as a witness (and by implication, not as a notary). We disagree and instead construe § 14-2505(A) only as a broad allowance that one need not have any particular qualifications (unrelated to powers of observation or perception) to "witness" a will. Cf. Ariz. R. Evid. 601 ("Every person is competent to be a witness unless these rules or an applicable statute provides otherwise.").

¶ 12 Everson also cites the official comment to § 2-502 of the Uniform Probate Code, upon which § 14-2502(A)(3) is based. See Jung , 210 Ariz. at 206, ¶ 20, 109 P.3d at 99. He argues that the comment, which states that "witnesses must sign as witnesses," shows that the drafters of the uniform act intended that witnesses must sign in the capacity of witnesses. See Unif. Probate Code § 2-502, cmt. a. We do not agree that the comment means that one who signs a will must be designated as a witness or the signature will be of no avail. The case the comment cites concerns a relative who printed her name in a line of the will identifying the executor—she did not sign the will in any capacity. See Mossler v. Johnson , 565 S.W.2d 952, 957 (Tex. Civ. App. 1978). Moreover, because the relative printed her name before the testator signed, her mark did not in any way signify that she had witnessed the testator's signing. Id. at 956 ; see McGurrin , 743 P.2d at 999 ("The official comment to section 2-502... conveys, albeit rather awkwardly, the idea that witnessing is an active function, directed toward certain observable conduct of the testator").

¶ 13 Contrary to Everson's argument, a notary who properly acknowledges a will necessarily qualifies as a witness under the terms of § 14-2502(A)(3). An "acknowledgment" is "a notarial act in which a notary certifies that a signer, whose identity is proven by satisfactory evidence, appeared before the notary and acknowledged that the signer signed the document." A.R.S. § 41-311(1) (2018); see A.R.S. § 33-503 (2018) (person "taking an acknowledgment" must ascertain identity of the person and "certify that ... [t]he person acknowledging appeared before him and acknowledged he executed the instrument"). Thus, as recited in the acknowledgment, when Adamovich signed the acknowledgment, she certified that Bradley (1) appeared before her and (2) acknowledged that she (Bradley) had signed the will. By acknowledging the document as a notary, Adamovich thereby satisfied the second of the alternative ways in which a witness may qualify under § 14-2502(A)(3) (will must be signed by two persons who "witnessed either the signing of the will ... or the testator's acknowledgement of that signature or acknowledgment of the will").

¶ 14 Adamovich's executed acknowledgment of the will, by itself, was sufficient to qualify her as a witness under the statute. But at the hearing in the superior court, Adamovich also testified without contradiction that she saw Bradley sign the will before she herself signed the notarial acknowledgment. Adamovich thereby also qualified as a witness under § 14-2502(A)(3) by signing...