[WSBAPT] interesting question about witnessing.

[Ralph Maimon]

Listmates:

Your thoughts appreciated:

Deceased (when he was alive... duh!) left essentially all his estate to his two friends to the written exclusion of a direct family member. The will was witnessed by two other non-related witnesses.  On his deathbed, he does a codicil and the two (soon to be wealthy) friends are the witnesses to the codicil. The codicil only has a new specific bequest to another friend, says nothing about the deleted family member but does also say "Except as amended herein, I do not to intend to make any changes to my Will".  Query: Is that last phrase a reaffirmation of his will, as if that phrase incorporates it into the codicil? If so, would that invalidate leaving the entire estate to the two friends to the extent that the family member would inherit as if there were an administration?  Is there a basis for clawing back the devise to the friends because they witnessed the codicil? Sounds like a law school exam question , huh?

Here is the statute, which of course is silent on this:


RCW 11.12.160



Interested witness - Effect on will.


(1) An interested witness to a will is one who would receive a gift under the will.

     (2) A will or any of its provisions is not invalid because it is signed by an interested witness. Unless there are at least two other subscribing witnesses to the will who are not interested witnesses, the fact that the will makes a gift to a subscribing witness creates a rebuttable presumption that the witness procured the gift by duress, menace, fraud, or undue influence.

     (3) If the presumption established under subsection (2) of this section applies and the interested witness fails to rebut it, the interested witness shall take so much of the gift as does not exceed the share of the estate that would be distributed to the witness if the will were not established.

     (4) The presumption established under subsection (2) of this section has no effect other than that stated in subsection (3) of this section.

Thanks to all for any thoughts on this.

Ralph Maimon
LAW OFFICE OF RALPH MAIMON, P.S.
2811 E. Madison Street, Suite 202
Seattle, WA 98112
(206) 323-0911 Office
(206) 462 1505  Fax
rmaimon at maimonlaw.com<mailto:rmaimon at maimonlaw.com>
www.maimonlaw.com

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