[WSBAPT] Effect of adding a notarized codicil to a will that is not self-proving
Sarah Jael Dion
sarah at dionlaw.com
Tue Jun 2 10:47:57 PDT 2015
Thanks, Sam. I think your comment is important. Especially for less experienced attorneys, who may be vulnerable to financial pressure from clients. No worries in this case, though, because the will she has is fully functional for her needs, except that because there is no self-proving affidavit, so it will be a pain for her PR when she passes. Again, I appreciate your thoughtful addition!
Sarah Jael Dion
Dion Law PLLC
206-550-4005
sarah at dionlaw.com
dionlaw.com
This message is private or privileged. If you are not the person for whom this message is intended, please notify me immediately and delete the message. Please do not copy or send this message to anyone else.
On Jun 1, 2015, at 7:31 PM, Sam Furgason <sam at furgasons.com> wrote:
> One more comment: lawyers are not scriveners. Your value is not in whether you prepare all new documents or amend old ones: it is in your expert advice. Irrespective of whether you prepare a new document, or of what you charge, you are providing your expertise, and you will be held to the standard of lawyers in the area of practice in which you are rendering services. That is, you must provide the quality and level of legal advice as would others who practice estate planning. It is not how much typing is involved, but whether your time and advice yield competent services in the context of your client’s needs. 5 or 20 years from now, when your client’s children knock on your door asking why you did not provide a will that met your client’s needs, your saying she did not want to spend the money for a good one does not suffice. If you, in your considered legal judgment, don’t think you can provide a legally sufficient product within her financial limits, and you are not inclined to provide that product without what you consider sufficient compensation, then I suggest either (a) do your best job and only charge what you consider she is capable of paying, or (b) tell her that you are probably not the right attorney for her. See RPC 1.1 (Competence) and RPC 1.5 (Fees. Note that there’s practically nothing about what the client can afford.) My own view is that you have to do the best job you can do for that client, first, then you have to consider whether your client can afford that job; if not, it is your duty to either eat the excess or tell the client you cannot do the right work for less than your (reasonable) fees. In any event, even if you decide to work for less, you should let your client know what you would normally charge, if different from what you actually charge. DO NOT LET THE CLIENT BE THE ADVISOR – THAT IS YOUR JOB.
> S
>
> From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Sarah Jael Dion
> Sent: Monday, June 01, 2015 6:36 PM
> To: WSBA Probate & Trust Listserv
> Subject: Re: [WSBAPT] Effect of adding a notarized codicil to a will that is not self-proving
>
> Thanks so much to all who responded! And thank you to those of you who corrected me on one thing or another- I always appreciate when people take the time to tell me when my perceptions don't match theirs!
>
> In this case, because of a move, it would be expensive to locate the witnesses to the original will. And the reason I am not just drafting a new regular will is that the client is hoping to make a few changes without having to pay to draw up a new will.
>
> I like the idea of doing a codicil will republishing, incorporating, and attaching the original will, and having witnesses and a notary sign an affidavit consistent with RCW 11.20.020(2).
>
> It sounds like you all agree (despite perhaps having different thoughts on whether the above is as graceful as doing a new will...) that such a move would be effective.
>
> Sarah Dion
> Dion Law PLLC
>
>
> On Jun 1, 2015, at 3:44 PM, Sam Furgason <sam at furgasons.com> wrote:
>
> 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(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. SeeReutlinger, 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] 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] 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
> dionlaw.com
>
> This message is private or privileged. If you are not the person for whom this message is intended, please notify me immediately and delete the message. Please do not copy or send this message to anyone else.
>
>
>
>
>
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