Bussberg v. Walker

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

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
FILED 4-24-2018

Appeal from the Superior Court in Mohave County
No. S8015PB201600080
The Honorable Richard D. Lambert, Judge

REVERSED; REMANDED

COUNSEL

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
 BUSSBERG v. WALKER, et al.
Opinion of the Court

OPINION

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

J O H N S E N, 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/

1 Absent material revision after the relevant date, we cite a statute's
current version.

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Opinion of the Court

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).

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Opinion of the Court

DISCUSSION

¶7 "Statutory interpretation is a question of law, which we
review de novo." In re Estate of Jung, 210 Ariz. 202, 204, ¶ 11 (App. 2005). In
interpreting a statute, we look first to its language. Id. at 204, ¶ 12. 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.

¶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

2 Although Everson argued in the superior court that Walker did not
qualify as one of the two required witnesses under the statute, at oral
argument before this court, he conceded Walker qualified because he
signed the will after watching Bradley sign it.

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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 (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; see also In re Estate of McGurrin, 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. 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

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Opinion of the Court

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 after having "witnessed . . . the
signing of the will" by the testator.

¶15 The additional acts not required by § 14-2502(A)(3) that
Adamovich performed – stamping the document with an official seal and
recording the notarial act in her log book – do not negate the fact that she
satisfied the requirements of a witness under § 14-2502(A)(3). In State v.
Solis, 236 Ariz. 242, 245-46, ¶¶ 8-10 (App. 2014), we refused to invalidate a
document because a notary had done more than the statute at issue
required. The statute there required a notary's acknowledgement, but the
notary had performed a jurat instead. Id. at 245-46, ¶¶ 8-9 (citing A.R.S. §
41–311(1), (5) (defining "acknowledgment" and "jurat")). The court noted
that a jurat is a notarial act that, like an acknowledgment, required the
notary to certify that the signature on the document was genuine, and
concluded that rejecting the jurat simply because it additionally required
the signer to take an oath "would be absurd." Id. at 245-46, ¶¶ 9-10. Here,
it is likewise irrelevant that in stamping the document with her seal,
Adamovich took an additional step not required by § 14-2502(A)(3).

¶16 Everson nevertheless argues that In re Estate of Muder, 159
Ariz. 173 (1988), compels the conclusion that the will is invalid. The
document at issue in Muder had been signed by a notary who signed an
acknowledgment and by a second person who signed below an attestation
clause. See id. at 177-78, ex. A. Without mentioning the notary, the supreme
court stated that "[i]t is apparent" that the document did not satisfy the two-
witness requirement of § 14-2502(A)(3) "because only one witness signed."

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159 Ariz. at 174-75. The court then proceeded to analyze at some length
whether the document qualified as a valid holographic will, eventually
upholding it as such. Id. at 175-76.

¶17 Given that the court upheld the will under another statute,
Muder's observation that the will was not signed by two valid witnesses
under § 14-2502(A)(3) is non-binding dictum. See Town of Chino Valley v.
City of Prescott, 131 Ariz. 78, 81 (1981) ("[A] court's statement on a question
not necessarily involved in the case and, hence, . . . without force of
adjudication . . . is not controlling as precedent.") (citations omitted); cf.
Gonzalez, 178 Ariz. at 99, n.1 (recognizing that Muder did not settle whether
a notary's signature can qualify as a witness signature under § 14-
2502(A)(3)). Moreover, there is no suggestion that the Muder court
considered whether a notary's signature could qualify as a witness
signature. See Creach v. Angulo, 186 Ariz. 548, 552 (App. 1996) ("Dictum is
not binding precedent because, inter alia, it is without the force of
adjudication and the court may not have been fully advised on the
question."), aff'd, 189 Ariz. 212, 214 (1997). The notary's signature, while
apparent on the face of the will in Muder, is mentioned neither in the
supreme court decision nor in the appellate decision it reversed. See In re
Estate of Muder, 156 Ariz. 326, 327 (App. 1987) ("There is no evidence in the
record, and apparently none was offered, that the witnesses who signed the
document witnessed either decedent's signature or his acknowledgment
thereof."), vacated, 159 Ariz. 173. Because the supreme court did not
consider the issue presented here, and because the statement on which
Everson relies was not necessary to the court's resolution of the case, the
supreme court's statement in Muder does not control our resolution of this
matter.

¶18 Everson also argues that other Arizona cases suggest that a
notary serving as a notary cannot be a witness. But, like Muder, none of the
cases he cites addresses the issue. See Jung, 210 Ariz. at 203, ¶ 1
(determining whether witness may sign after testator's death); Gonzalez, 178
Ariz. at 98 (witness ruled invalid because she "printed her name on the will
substantially before she observed [testator] execute the will").

¶19 Given Everson's concession that Bradley's will expresses her
testamentary intent, our conclusion that § 14-2502(A)(3) allows a notary to
serve as a witness promotes that intent. See A.R.S. § 14-1102(B)(2) (a
purpose of will statutes is "[t]o discover and make effective the intent of a
decedent in distribution of his property"). Moreover, our decision also
furthers the statutory goal of "mak[ing] uniform the law among the various
jurisdictions." See A.R.S. § 14-1102(B)(5). Other jurisdictions are nearly

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Opinion of the Court

unanimous that a notary who acknowledges a will may serve as one of the
witnesses required to validate a will. See, e.g., In re Estate of Alfaro, 703
N.E.2d 620, 626 (Ill. App. 1998) ("[W]e see no reason why a notary cannot
act [as a witness to a will] under the appropriate circumstances."); Smith v.
Neikirk, 548 S.W.2d 156, 157, 158 (Ky. App. 1977) ("The fact that she signed
as a notary is merely surplusage."); Osborn v. Sinnett, 503 S.W.2d 30, 31 (Mo.
App. 1973) ("The case law and the secondary authorities are unanimous that
a will 'witnessed' in the official character of his office does not of itself
invalidate an officer's signature as a 'witness' to the will.") (citations
omitted); In re Friedman, 6 P.3d 473, 474 (Nev. 2000); In re Estate of Martinez,
664 P.2d 1007, 1013, ¶¶ 21-23 (N.M. App. 1983); In re Will of Priddy, 614
S.E.2d 454, 459 (N.C. App. 2005); In re Estate of Teal, 135 S.W.3d 87, 91 (Tex.
App. 2002); In re Estate of Valcarce, 301 P.3d 1031, 1038, ¶ 23 (Utah App.
2013); In re Estate of Price, 871 P.2d 1079, 1083 (Wash. App. 1994); In re Estate
of Zelikovitz, 923 P.2d 740, 744 (Wyo. 1996). But see In re Estate of Overt, 768
P.2d 378, 380 (Okla. Civ. App. 1989) (statute required "two attesting
witnesses, each of whom must sign his name as a witness at the end of the
will at the testator's request and in his presence"; notary was not asked to
sign as "an attesting witness" (emphasis omitted)).

¶20 In sum, the text of § 14-2502(A)(3) is unambiguous and
controls here. Nothing in the statute prohibits a notary who otherwise
qualifies from serving as one of the two required witnesses to a will.
Adamovich testified she was present when Bradley signed the will and saw
her sign it. As stated in the acknowledgment Adamovich performed, she
also witnessed Bradley's acknowledgment of Bradley's own signature on
the will. Under the statute, Adamovich therefore witnessed both "the
signing of the will" and "the testator's acknowledgment of that signature."
See A.R.S. § 14-2502(A)(3).

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 BUSSBERG v. WALKER, et al.
Opinion of the Court

CONCLUSION

¶21 Adamovich qualified as one of the two required witnesses to
a will under A.R.S. § 14-2502(A)(3), and Everson no longer disputes that the
other witness who signed the will also satisfied the statute. Accordingly,
we reverse the superior court's judgment invalidating the will and remand
for further proceedings consistent with this opinion.

AMY M. WOOD • Clerk of the Court
FILED: AA

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