Arizona Laws 14-2712. Burdens relating to validity of governing instruments
A. A proponent of a governing instrument has the burden of establishing prima facie proof of due execution in all cases.
Terms Used In Arizona Laws 14-2712
- Beneficiary: means an individual for whom property has been transferred to, or held under a declaration of trust by, a custodial trustee for the individual's use and benefit under this chapter. See Arizona Laws 14-9101
- Beneficiary: A person who is entitled to receive the benefits or proceeds of a will, trust, insurance policy, retirement plan, annuity, or other contract. Source: OCC
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Governing instrument: means a deed, will, trust, insurance or annuity policy, account with pay on death designation, security registered in beneficiary form, pension, profit sharing, retirement or similar benefit plan, instrument creating or exercising a power of appointment or power of attorney or supported decision-making agreement or a dispositive, appointive or nominative instrument of any similar type. See Arizona Laws 14-1201
- Person: means an individual or an organization. See Arizona Laws 14-1201
- Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
B. It is a rebuttable presumption that a person who executes a governing instrument is presumed to have capacity to execute the governing instrument and to have done so free from undue influence and duress.
C. If the validity of a governing instrument is challenged on the grounds of revocation by a later governing instrument, the validity of the later governing instrument must be determined first.
D. Except as prescribed pursuant to subsections E and F of this section, a party that challenges the validity of a governing instrument has the burden of establishing the invalidity of that governing instrument by a preponderance of the evidence.
E. A governing instrument is presumed to be the product of undue influence if either:
1. A person who had a confidential relationship to the creator of the governing instrument was active in procuring its creation and execution and is a principal beneficiary of the governing instrument.
2. The preparer of the governing instrument or the preparer’s spouse or parents or the issue of the preparer’s spouse or parents is a principal beneficiary of the governing instrument. This paragraph does not apply if the governing instrument was prepared for a person who is a grandparent of the preparer, the issue of a grandparent of the preparer or the respective spouses or former spouses of persons related to the preparer.
F. The beneficiary of the governing instrument may overcome a presumption of undue influence by a preponderance of the evidence.
G. For the purposes of this section, determining if a person is a principal beneficiary of a governing instrument or the preparer of a governing instrument is a question of fact to be determined by the totality of the circumstances.
H. This section does not apply to the following:
1. Proceedings to determine the validity of a durable power of attorney pursuant to section 14-5506, subsection B.
2. Proceedings to determine ownership of multiple party accounts pursuant to section 14-6211.