Estate of Jean Acord, Deceased, Sterling Ernest Norris, Personal Representative v. Commissioner of Internal Revenue

We are in an unusual position for a federal appeals court. We must decide an issue of first impression under Arizona probate law. We are called upon to interpret Arizona’s statutory provision that a devisee who does not survive a testator by more than 120 hours is deemed to have predeceased the testator unless the will includes “some language dealing explicitly with simultaneous deaths or deaths in a common disaster, or requiring that the devisee survive the testator or survive the testator for a stated period in order to take under the will.” A.R.S. § 14-2601(A).

Claud and Jean Acord, husband and wife, were involved in a car accident in which Claud was killed immediately. Jean died approximately 38 hours later. Claud’s will bequeathed all of his property to Jean, but also contained a clause stating: “In the event my beloved wife, Jean Acord, dies before I do, at the same time that I do, or under such circumstances as to make it doubtful who died first, I hereby give, devise and bequeath all of my property” to alternate devisees. The Internal Revenue Service claimed that this clause was sufficient to override the statutory requirement of survival by at least 120 hours, and that…