[WSBAPT] Effect of adding a notarized codicil to a will that is not self-proving

[Sam Furgason]

Sarah,

My usual practice was to run off a new will with my document assembly
program. That way I knew the will had the provisions I considered necessary
in all wills, without having to spend time checking the boilerplate of the
old will. However, having said that, and contrary to common presumption, I
would also point out that the Washington wills statute does not specifically
require that a testator sign his or her will in the presence of the
witnesses, but only that the witnesses sign at the request of the testator
and in his or her presence. 

 


RCW 11.12.020

Requisites of wills - Foreign wills.

	

(1) Every will shall be in writing signed by the testator or by some other
person under the testator's direction in the testator's presence, and shall
be attested by two or more competent witnesses, by subscribing their names
to the will, or by signing an affidavit that complies with RCW 11.20.020
<http://app.leg.wa.gov/rcw/default.aspx?cite=11.20.020> (2), while in the
presence of the testator and at the testator's direction or request: ..

Challenged wills have been upheld where the testator did not sign in the
presence of the witnesses. See Reutlinger, Washington Law of Wills and
Intestate Succession, 2006 (which you should purchase for your library, and
read). However, see Reutlinger, Sec. A.3.a, pp. 31-35, for a fuller
discussion, which includes citation to one case in which the WA S. Ct.
declared a will invalid because the testator did not sign in the presence of
the witnesses, and to a subsequent holding in which the court said witnesses
did not have to be present when the testator signed, without mentioning the
prior holding. [As someone once declared, the Washington Supreme Court does
not overrule prior decisions so much as simply ignore them.] 

 

Thus, you could utilize an affidavit to confirm both the will and the
codicil by referring to both, IMO. Another option would be to have the
testator re-sign the will when signing the codicil. It isn't neat and looks
a little cheap, but should work. For a nice, professional looking job, I
recommend preparing a new will.

 

S  

 

From: wsbapt-bounces at lists.wsbarppt.com
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Eric Nelsen
Sent: Monday, June 01, 2015 2:29 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Effect of adding a notarized codicil to a will that is
not self-proving

 

That's my thought as well--cure the problem by doing a new Will rather than
merely a Codicil.

 

Question though--Assuming the client just does not want to do a new Will and
is adamant about a Codicil only--might it be possible to attach a copy of
the Will to the Codicil, incorporate the copy by reference, assert that the
Codicil re-publishes and ratifies each and every clause of the copy as set
forth therein, except as expressly modified by the Codicil--and thereby
avoid the necessity of tracking down the witnesses to the original Will? The
Codicil would then more or less stand on its own as a Will, and the
difference in terminology of calling it a "Codicil" as opposed to a "Will"
shouldn't make a difference?

 

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>
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Paul Neumiller
Sent: Monday, June 01, 2015 2:05 PM
To: 'WSBA Probate & Trust Listserv'
Subject: Re: [WSBAPT] Effect of adding a notarized codicil to a will that is
not self-proving

 

With the magic of text processing, why not just replace the 

Will? 

 

 

 

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 1, 2015 1:45 PM
To: WSBA Probate & Trust Listserv
Subject: [WSBAPT] Effect of adding a notarized codicil to a will that is not
self-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                                                             

206-550-4005

sarah at dionlaw.com <mailto:sarah at dionlaw.com> 

dionlaw.com <http://dionlaw.com> 

 

This message is private or privileged. If you are not the person for whom
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