[WSBAPT] Proof of Lost Will

Thu Feb 19 16:16:28 PST 2015

The last paragraph of your post, Eric, bears witness to the fact that there are many ways to die, practicing law being among them. You practice law; you eventually die.

Post hoc, ergo propter hoc.

Glenn D. Price, J.D.
Price & Farrington, PLLC
Attorneys and Counselors at Law   

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Phone: 425.451.3583  Fax: 425.522.4818

Email:  <mailto:glenn at pricefarrington.com> glenn at pricefarrington.com
Home page:   www.pricefarrington.com <http://www.pricefarrington.com/> 

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From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Eric Nelsen
Sent: Thursday, February 19, 2015 3:29 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Proof of Lost Will

Jeremy--I just happen to be working on one of these myself, so I'm fresh on it. There are two requirements: (1) proof to rebut the presumption that the lost Will was destroyed with intent to revoke, and (2) proof of execution and contents of the Will.

>From the draft briefing I am working on:

                1. A Will that cannot be found nevertheless may be proved "if...lost or destroyed under circumstances such that the loss or destruction does not have the effect of revoking the will." RCW 11.20.070(1). At common law, a Will that cannot be found is presumed to have been destroyed animo revocandi–with intent to revoke. Estate of Bowers, 132 Wn. App. 334, 341-342, 131 P.3d 916 (2006); Estate of Nelson, 85 Wn.2d 602, 607, 537 P.2d 765 (1975). The presumption may be rebutted and the Will deemed simply lost without intent to revoke, on much less than "clear and distinct" evidence, "and will often be largely circumstantial." Nelson, 85 Wn.2d at 607. The rebutting evidence may be "evidence as to the testator's attitude of mind, as indicated by [her] declarations made between the time of executing the will and the time of [her] death . . ." Id. "Recognizing that the fundamental concern is the fulfillment of the testator's intent, we have in previous cases found evidence showing that a will was in existence at the time of the death adequate, although it was far from overwhelming." Id., citing Auritt (decedent's oral reaffirmations of her affection for and desire to devise to her brother, shortly before her death), Estate of Harris, 10 Wn. 555, 39 P. 148 (1895) (decedent's statements two weeks prior to death that he had a valid will similar to the offered for probate).

                2. The execution and contents of a lost Will must be proved by "clear, cogent, and convincing" evidence. RCW 11.20.070(2); Estate of Black, 153 Wn.2d 152, 163, 102 P.3d 796 (2004). The elements to prove execution of a lost Will are the same as for any Will. The contents are proved by the photocopy maintained by the lawyer's office where it was drafted and executed.

So, your Will copy only works toward the second requirement, proving contents of the Will. As to circumstances of execution, I think you do want as many confirming declarations from witnesses and the notary as you can get. You do need to find the witnesses if at all possible, or as many of them as you can.

On the first requirement, you may need to get more creative; reading the facts in the opinions is helpful. In my case, the Will has numerous gifts to charities from the residue, and the decedent had an extended history of making regular gifts to charities during her life. So I'm planning to use decedent's check register (among other things) to show that she continued to make regular gifts to the charities named in the Will, even after she executed the Will and up to the month of her death, and therefore she hadn't changed her mind about the gifts in the Will.

The cases I cite above make for rather dramatic reading. In one, decedent was in the midst of a contentious divorce and was murdered by a burglar who broke into the house and stole, among other things, the decedent's lock box that contained the original Will. The court found that sufficient evidence that the Will had not been intentionally revoked by the decedent. In another, the husband and wife died when a case of dynamite they were transporting in their car exploded.

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-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Jeremy Yates
Sent: Thursday, February 19, 2015 1:28 PM
To: WSBA Probate & Trust Listserv
Subject: [WSBAPT] Proof of Lost Will

I've been combing the archives, reading various helpful emails betwen members of this list, and trying to understand how to use 11.20.070 and am stuck on the following point:

I have in my possession a photocopy of a Last Will, complete with signatures and a signed affidavit of witnesses.  Does this photocopy of the signed affidavit of witnesses qualify as the proof that "must be reduced to writing and signed by any witnesses who have testified as to the execution and validity" from 11.20.070 (1)?  Or, must I go out and find the persons who witnessed the Will to have them provide the same Affidavit information in a new and Original form?

It seems like I should be able to use the signed Affidavit photocopy, plus a Declaration that the Will was not revoked, plus a Declaration from almost anyone who has seen even a copy of the Will waived in front of their nose by the Testator (of which I can obtain several), and that should be enough.

Am I missing something?

Gratefully,

Jeremy Yates

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