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In re Westfall's Estate

Supreme Court of Arizona

June 24, 1952

In re WESTFALL'S ESTATE.
v.
PROCTOR FIRST NAT. BANK OF ARIZONA et al.

Reversed and remanded.

Scott & Green, of Phoenix, for appellants.

Moore & Romley, and Wm. P. Mahoney, Jr., of Phoenix, for appellee.

De Concini, Justice. Udall, C. J., and Stanford, Phelps and La Prade, JJ., concur.

OPINION

De Concini, Justice.

Page 952

[74 Ariz. 182] This is an appeal from two orders of the Superior Court of Maricopa County admitting to probate, as the last will and testament of Elise Westfall, a certain instrument executed by the decedent on April 13, 1950; and the refusal by that same court to admit to probate as the last will and testament of Elise Westfall a certain instrument executed by the decedent on April 29, 1949.

The appellants, First National Bank of Arizona, and Naoma Anderson, hereinafter referred to as contestants, were respectively named as executor and residuary legatee under the will of April 29, 1949, hereinafter referred to as the former will. The appellee, Marie Proctor, was the sole executrix, devisee and legatee under the will dated April 13, 1950, which will hereinafter be referred to as the Proctor will.

The lower court admitted the Proctor will to probate. The contestants below brought this appeal on two assignments of error, substantially as follows: (1) that the Proctor will was invalid because

(a) it was procured by fraud and undue influence,
[74 Ariz. 183] (b) that the testatrix did not have the necessary testamentary capacity;

and (2) that the former will of the testatrix should have been admitted to probate.

Elise Westfall, the testatrix of both the Proctor and the former will, was somewhere between eighty and eighty-five years old when she executed the Proctor will. She was a sickly woman, needing attention, and was very frail. She was afflicted with arthritis, bad eyesight, and was unable to read, write, or use the telephone. Also, according to ...


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