[WSBAPT] Effect of adding a notarized codicil to a will that is notself-proving

Mon Jun 1 14:29:29 PDT 2015

Could you incorporate the will by reference in the codicil and have the codicil self-proving?  Here's the RCW.  On another note, I don't think the self-proving part has to be by affidavit - it can be in Declaration form - could the original will have witnesses sign  Declaration language - and so no notary required?

"RCW 11.12.255
Incorporation by reference.

A will may incorporate by reference any writing in existence when the will is executed if the will itself manifests the testator's intent to incorporate the writing and describes the writing sufficiently to permit its identification. In the case of any inconsistency between the writing and the will, the will controls."

Best regards,

Kerry E. Brink
Kerry E. Brink * Attorney

Estate Planning, Probate, Elder Law

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From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Tom J. Westbrook
Sent: Monday, June 01, 2015 2:17 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Effect of adding a notarized codicil to a will that is notself-proving

HI Sarah,

The Will does not need to be notarized; only witnessed by two of the appropriate people. It is the Affidavit of Subscribing Witnesses that needs to be notarized to self-prove the Will. See if you can find the witnesses and have then sign an Affidavit as to them being witnesses in the appropriate form in front of a Notary and you will be good to go. The Affidavit does not have to be done simultaneously with the Will; it is just prudent practice to do that for this very reason. I do not believe you can correct such an affidavit with a Codicil, unless your Codicil is witnessed by the same two people that Witnessed the Will and you would have them testify as to their witnessing of the original Will.......but if you had them, they could do the Affidavit for the first Will anyway.

Sincerely,

Tom

Thomas J. Westbrook
Attorney at Law

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From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Sarah Jael Dion
Sent: Monday, June 01, 2015 1:45 PM
To: WSBA Probate & Trust Listserv
Subject: [WSBAPT] Effect of adding a notarized codicil to a will that is notself-proving

Hi Listmates!

I am in need of guidance from more experienced estate planning attorneys!

I have a client with a will that was not notarized, and is therefore not self-proving. I have been retained to draft a codicil to make some changes to her will. I was wondering whether, if I draft the codicil such that it republishes the will, I can cure the lack of notarization in the original document? Would this be effective? I looked at the RCW and didn't see any guidance there.

Thanks in advance for any thoughts!

Sarah Jael Dion

Dion Law PLLC
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