[WSBAPT] age of witnesses

Tue Sep 2 16:45:47 PDT 2014

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.
<http://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=ga&set
=ER&ruleid=gaer0601> ER 601. 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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All opinions and comments in this message represent the views of the
author and do not necessarily have the endorsement of the Washington State
Bar Association nor its officers or agents. 

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Information provided on this list should not be considered legal advice.
As with all lists - let the reader beware! No warranties or
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All opinions and comments in this message represent the views of the
author and do not necessarily have the endorsement of the Washington State
Bar Association nor its officers or agents. 

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