By Jeffrey Messing
February 20, 2015
Most of us take the right to a jury trial for granted. It is available in virtually all criminal cases, at least those in which a penalty of more than six months can be imposed. Taylor v. Hayes, 418 U.S. 488, 495 (1974). Similarly in most civil cases, either party can demand a jury trial. Arizona Const. Art. 2, 23. In Arizona, one area where the issue is less clear is in will contests.
There are a number of reported Arizona cases discussing jury trials in will contests involving issues of undue influence and testamentary capacity. See, e.g., In re Walters Estate, 77 Ariz. 122, 267 P.2d 896 (1954) (reviewing jury verdict invalidating will); LaBonne v. First Nat. Bank of Arizona, 75 Ariz. 184, 254 P.2d 435 (1953) (reversing trial court’s grant of judgment notwithstanding verdict after jury trial on undue influence); In re Morrisons Estate, 55 Ariz. 504, 103 P.2d 669 (1940) (issues of capacity, fraud and undue influence tried to jury). Reading those cases one could reasonably conclude that there was indeed a right to a jury trial in such cases. But to understand what happened in those cases, you have to read them with an eye to history.
The right to a jury trial in probate proceedings is specifically addressed by A.R.S. 14-1306:
A. If duly demanded, a party is entitled to trial by jury in any proceeding in which any controverted question of fact arises as to which any party has a constitutional right to trial by jury.
B. If there is not a right to trial by jury under subsection A or the right is waived, the court in its discretion may call a jury to decide any issue of fact, in which case a verdict is advisory only.
A.R.S. 14-1306 (emphasis added).
Section 14-1306 focuses on the nature of the fact question to be tried, not the nature of the proceedings. It provides a right to jury trial only in cases involving a fact question that the Arizona Constitution gives a party a right to have decided by a jury.
The Arizona Constitution, in turn, provides: “The right of trial by jury shall remain inviolate.” Arizona Constitution, Art. 2, 23 (emphasis added); see also Ariz. R. Civ. P. 38(a) (“The right of trial by jury shall be preserved inviolate to the parties.”). That type of language, preserving rather than creating, a right to a trial by jury, is also found in the Seventh Amendment to the United States Constitution which states: “the right of trial by jury shall be preserved.” Federal cases interpreting that language have held that the word “preserved” means that the Seventh Amendment only guarantees a jury trial as to issues that were tried to a jury under the ancient, non-statutory law of England as applied and developed in the English Courts before the American Revolution. See, e.g., Walker v. Sauvinet, 92 U.S. 90, 23 L.Ed. 678 (1875); Black’s Law Dictionary, 250-51 (5th ed. 1979).
The Seventh Amendment generally does not apply to state court proceedings. See, e.g., Galloway v. United States, 319 U.S. 372, 63 S.Ct. 1077, 87 L.Ed. 1458 (1943); 9 Wright & Miller, Federal Practice and Procedure: Civil 2302 (1971). But given the similar language, Arizona Courts have applied the same reasoning to Arizona’s Constitution, limiting the right to a jury to cases where the right existed at common law in 1910 when Arizona’s Constitution was adopted. Brown v. Greer, 16 Ariz. 215, 141 P. 841 (1914) (“The provision of the Constitution quoted does not give the right to a trial by jury, but its purpose is to guarantee the preservation of the right. In other words, it does not create or extend the right, but by its declaration there is guaranteed the preservation of such right as it existed when the Constitution was adopted.”); Donahue v. Babbitt, 26 Ariz. 542, 227 P. 995 (1924), Rothweiler v. Superior Court, 100 Ariz. 37, 41, 410 P.2d 479, 482 (1966); Hoyle v. Superior Court, 161 Ariz. 224, 227, 778 P.2d 259, 262 (App. 1989).
In 1902, in Estate of Roarke, Ariz. 16, 68 P. 527 (1902), the Arizona territorial court held that in probate proceedings, such as will contests, there was no right to a jury trial at common law. “It has been frequently held that the right of trial by jury is secured by the Constitution only in cases in which it had previously existed in the administration of justice according to the course of common law. Probate matters belong to the ecclesiastical jurisdiction, where a jury was not a right.” 8 Ariz. at 21, 68 P. at 529 (emphasis added).
If there is no right to a jury trial in will contests, why is there a line of reported cases discussing jury trials in will contests? The answer is history, more specifically legislative history. Shortly after Arizona became a State, the Legislature adopted A.C.A. 6-748 (1913), the remote predecessor statute to the current A.R.S. 14-1306. In contrast to the current statute, A.C.A. 6-748 (1913) provided a statutory right to a jury trial in probate proceedings, including will contests involving issues such as undue influence and competence, without regard to how those matters were tried before Arizona became a State:
A: If anyone appears to contest the will, he must file written grounds of opposition to the probate thereof, and serve a copy on the petitioner and other residents of the county interested in the estate, any one or more of whom may demur thereto upon any of the grounds of demurrer provided for in civil cases. If the demurrer is sustained, the court must allow the contestant a reasonable time, not exceeding ten days, within which to amend his written opposition. If the demurrer is overruled, the petitioner and others interested may jointly or separately answer the contestants grounds, traversing or otherwise obviating or avoiding the objections. Any issues of fact thus raised, involving:
(1) The competency of the decedent to make a last will and testament.
(2) The freedom of the decedent at the time of the execution of the will from duress, menace, fraud or undue influence.
(3) The due execution and attestation of the will by the decedent or subscribing witnesses; or,
(4) Any other substantial grounds affecting the validity of the will; must on request of either party, in writing (filed three days prior to the date set for the hearing), be tried by a jury. If no jury is demanded, the Court must try and determine the issues joined. On the trial, the contestant is plaintiff and the petitioner is defendant.
A.C.A. 86-748 (Emphasis added). That statutory right remained in place, with some modifications in wording, through the subsequent revisions of 1928,
Written statement of contest; demand for jury; trial. If any one appears to contest the will, he must file written grounds of opposition to the probate thereof, and serve a copy thereof on the petitioner and all persons in the county interested in the estate, who may demur thereto as in civil actions. If the demurrer is sustained, the court shall allow the contestant a reasonable time, not exceeding ten days, within which to amend. If the demurrer is overruled, the petitioner and others interested may answer the contestants grounds. An issue of fact thus raised, involving the competency of the decedent to make a last will and testament; the freedom of the decedent at the time of the execution of the will from duress, menace, fraud or undue influence; the due execution and attestation of the will by the decedent or subscribing witnesses; or, any other substantial grounds affecting the validity of the will, must, on written demand of either party, filed three days prior to the date set for the hearing, be tried by a jury. If no jury is demanded, the court shall try the issues. On the trial, the contestant is plaintiff and the petitioner is defendant. The trial shall be conducted as trials in civil actions.
A.C.A. § 3898 (Emphasis added). A similar provision was adopted in 1939.
Written statement of contest Demand for jury Trial. If any one appears to contest the will, he must file written grounds of opposition to the probate thereof, and serve a copy thereof on the petitioner and all persons in the county interested in the estate, who may demur thereto as in civil actions. If the demurrer is sustained, the court shall allow the contestant a reasonable time, not exceeding ten [10] days, within which to amend. If the demurrer is overruled, the petitioner and others interested may answer the contestants grounds. An issue of fact thus raised, involving the competency of the decedent to make a last will and testament; the freedom of the decedent at the time of the execution of the will from duress, menace, fraud or undue influence; the due execution and attestation of the will by the decedent or subscribing witnesses; or, any other substantial grounds affecting the validity of the will, must, on written demand of either party filed three [3] days prior to the date set for the hearing, be tried by a jury. If no jury is demanded, the court shall try the issues. On the trial, the contestant is plaintiff and the petitioner is defendant. The trial shall be conducted as trials in civil actions.
A.R.S. § 38-210 (Emphasis added), and again in 1956.
Trial; request for jury; parties, plaintiff and defendant
A. An issue of fact raised by a petition and answer, as provided by 14-352, involving competency of decedent to make a will, or freedom of decedent from duress, menace, fraud or undue influence at the time the will was executed, or the validity of execution and attestation of the will by decedent or subscribing witnesses, or any other substantial ground affecting the validity of the will, shall, on written demand of either party filed three days prior to the date set for the hearing, be tried by a jury. If no jury is demanded, the court shall try the issues.
B. On the trial, the contestant is plaintiff and the petitioner is defendant. The trial shall be conducted as trials in civil actions.
A.R.S. § 14-353 (Emphasis added).
In 1973, the Arizona Legislature adopted the Uniform Probate Code. Its stated legislative purpose was to provide a substantial revision of the state’s probate laws. 1973 Ariz. Sess. Laws, Ch. 75 4. The current statute, A.R.S. 14-1306, was adopted as part of that 1973 revision and effectively eliminated the statutory right to a jury trial in will contests actions. As noted, the new statute, A.R.S. 14-1306, limited the right to a trial by jury to those issue on “which any party has a constitutional right to trial by jury.” A.R.S. 14-1306. As a result of this legislative history, a review of the cases involving the right to a jury trial in will contests can be misleading. Between 1913 and 1973, a party had a statutory right to a trial by jury in will contests involving issues of undue influence and lack of testamentary capacity.
After 1973 and the enactment of 14-1306, however, use of juries in probate cases is limited to (1) the trial of non-probate claims under subsection (A); and (2) advisory juries pursuant to subsection (B). See Matter of Estate of Thorpe, 152 Ariz. 341, 732 P.2d 571 (App. 1986) (The issue of Thorpes testamentary capacity was tried to an advisory jury). The Rules of Probate Procedure, which were enacted in 2009, provide little assistance. The commentary simply notes that “[t]he state and federal constitutions and state statutes permit jury trials in some cases.” Ariz. R. Prob. P. 2(7) comt.
Anyone reading these cases for guidance on what issues can be tried to a jury as of right must be careful to keep track of what version of the statute was in effect when each case was decided.