[WSBAPT] age of witnesses
Jane Bitz
Jane at JBitzLaw.com
Tue Sep 2 17:49:53 PDT 2014
Hear, hear for the competency of under 18 year olds. My daughter lived in
Germany as an exchange student for a year when she was 16; competent to
testify, no doubt.
BUT think about this issue from the client’s point of view if the
competency of the witness is challenged by someone who wants to overturn
the Will AND the PR has to pay the estate attorney to go to a hearing
where the now adult witness has to testify about their understanding of
the witness affidavit, etc.
Now let’s assume that I used my daughter as a witness on Wills in my
office in the year after she returned from Germany and was taking all AP
classes to graduate from high school in her senior year (still age 17).
She now lives permanently in Germany. If any of those Wills were
challenged because she had not reached the age of presumed competency, I
have now created a huge problem for my client.
Maybe you can have your Running Start student come back to the office at
age 18 and sign a stack of Affidavits for each of the Wills he/she has
witnessed attesting to the facts of the signatures after he/she is
presumed competent.
Jane.
From: wsbapt-owner at lists.wsbarppt.com
[mailto:wsbapt-owner at lists.wsbarppt.com] On Behalf Of Roger Hawkes
Sent: Tuesday, September 02, 2014 5:24 PM
To: wsbapt at lists.wsbarppt.com
Subject: RE: [WSBAPT] age of witnesses
Thanks, Eric. Well doneJ and, yup! I can tellJ
Me, too, actually. My Nataliya is smarter than many folks I encounter who
are twice her age; and I am sure she understands the gravity of swearing
something is true, like ‘I saw them sign and they were not being force to,
etc.’.
Roger Hawkes, WSBA # 5173
19909 Ballinger Way NE
Shoreline, WA 98155
www.hawkeslawfirm.com
206 367 5000
Fax is 206 367 4005
From: Eric Nelsen [mailto:Eric at sayrelawoffices.com]
Sent: Tuesday, September 02, 2014 4:46 PM
To: wsbapt at lists.wsbarppt.com
Subject: RE: [WSBAPT] age of witnesses
While it may be regular practice for many offices to require a witness to
be 18 as a routine matter, it's not actually required, and I would think
that someone as capable as a Running Start student would easily clear the
basic competency hurdle.
Every person is presumed competent to testify in the absence of a specific
rule to the contrary. ER 601
<http://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=ga&set
=ER&ruleid=gaer0601> . Incompetence is only when of unsound mind, or
"incapable of receiving just impressions of the facts, respecting which
they are examined, or of relating them truly." RCW 5.60.050
<http://app.leg.wa.gov/rcw/default.aspx?cite=5.60&full=true#5.60.050> . It
is not automatic merely because under age 18, though under a prior version
of 5.60.050, it used to be rebuttably presumed below age 10. There is
nothing in RCW 26.28
<http://app.leg.wa.gov/rcw/default.aspx?cite=26.28&full=true> that bars
minors from testifying or presumes them incompetent to testify.
Reutlinger cites In re Mitchell's Estate, 41 Wn.2d 326, 341, 249 P.2d 385
(1952) as to "competence" to witness a will being the same as competence
to testify in court. See more recently In re Estate of Knowles, 135
Wn.App. 351, 143 P.3d 864 (2006).
The test to determine child competency is set out in State v. Allen, 70
Wash.2d 690, 692, 424 P.2d 1021 (1967). The 5-part test states the child
must exhibit (1) an understanding of the obligation to speak the truth on
the witness stand; (2) the mental capacity at the time of the occurrence
concerning which he is to testify to receive an accurate impression of it;
(3) a memory sufficient to retain an independent recollection of the
occurrence; (4) the capacity to express in words his memory of the
occurrence; and (5) the capacity to understand simple questions about it.
This test, read in conjunction with the statute, must be applied by the
trial court to determine whether the child witness is competent to
testify. State v. Ryan, 103 Wash.2d 165, 172, 691 P.2d 197 (1984).
Jenkins v. Snohomish County Pub. Util., 105 Wn.2d 99, 101, 713 P.2d 79
(1986). Jenkins involved a 7-year old, and the test was used to find him
competent to testify, rebutting the presumption under the old 5.60.050.
Seems like a 16 or 17 year old who is mature enough to work at a law
office is going to easily clear this competency hurdle. Just instruct
him/her carefully on what they are testifying to when they sign the
attestation and affidavit.
Can you tell I'm in favor of you going for it? :-)
Sincerely,
Eric
Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1320 University St
Seattle WA 98101-2837
phone 206-625-0092
fax 206-625-9040
From: wsbapt-owner at lists.wsbarppt.com
[mailto:wsbapt-owner at lists.wsbarppt.com] On Behalf Of Roger Hawkes
Sent: Tuesday, September 02, 2014 2:08 PM
To: wsbapt at lists.wsbarppt.com; elder-law-section at list.wsba.org
Subject: RE: [WSBAPT] age of witnesses
I concur; but it still seems scary. One of our staff members is a Running
Start student under 18; that is the reason for my query.
Roger Hawkes, WSBA # 5173
19909 Ballinger Way NE
Shoreline, WA 98155
www.hawkeslawfirm.com
206 367 5000
Fax is 206 367 4005
From: Eric Nelsen [mailto:Eric at sayrelawoffices.com]
Sent: Tuesday, September 02, 2014 12:54 PM
To: wsbapt at lists.wsbarppt.com; elder-law-section at list.wsba.org
Subject: RE: [WSBAPT] age of witnesses
Roger – Yes; the will statute requires only that the witnesses be
"competent," which is determined under the same rules as whether someone
is competent to testify in court. Reutlinger's Law of Wills & Intestate
Succession confirms.
Sincerely,
Eric
Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1320 University St
Seattle WA 98101-2837
phone 206-625-0092
fax 206-625-9040
From: wsbapt-owner at lists.wsbarppt.com
[mailto:wsbapt-owner at lists.wsbarppt.com] On Behalf Of Roger Hawkes
Sent: Tuesday, September 02, 2014 12:29 PM
To: elder-law-section at list.wsba.org; wsbapt at lists.wsbarppt.com
Subject: [WSBAPT] age of witnesses
I am blanking out on this; minors can testify in court; so is it ok for
minors to be witnesses to a will?
Roger Hawkes, WSBA # 5173
19909 Ballinger Way NE
Shoreline, WA 98155
www.hawkeslawfirm.com
206 367 5000
Fax is 206 367 4005
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