[WSBAPT] Submission of Will copy to probate

Thu May 14 11:00:17 PDT 2015

I have an original will with an attestation clause that is signed by the witnesses but not notarized.  I can only locate one witness.  Is there anything else I can do?

Any advice is appreciated.
Kristina

Kristina S. DeVore | Attorney & Counselor at Law
KRISTINA DEVORE LAW FIRM, pllc | 300 W. 15th Street, Suite 305 | Vancouver, WA  98660
Phone: (360) 695-0535 | Fax: (360) 737-4154 | kristina at devore-law.com

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From: Eric Nelsen <Eric at sayrelawoffices.com<mailto:Eric at sayrelawoffices.com>>
Reply-To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Date: Thursday, May 14, 2015 at 9:53 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Submission of Will copy to probate

What a nice set of emails to start this morning with. I'm blushing! But I think these listserves are the best thing for the practice in the internet age--a chance to interact and discuss issues among so many colleagues. I'm always learning something new.

Regards,

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 Wil Harlock
Sent: Wednesday, May 13, 2015 4:52 PM
To: 'WSBA Probate & Trust Listserv'
Subject: Re: [WSBAPT] Submission of Will copy to probate

I second that!  (my thoughts exactly while reading Eric’s response – I always read all Eric’s posts and learn something every time).
Wil

Wilhelmina C. Harlock, Attorney
GAL 26 & 11 / Certified Mediator
PO Box 279
720 Main St, Suite 227
Mount Vernon, WA 98273
Tel: 360-593-5594   Fax: 360-404-7110
Email: wilharlock at gmail.com<mailto:wilharlock at gmail.com>

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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 Roger Hawkes
Sent: Wednesday, May 13, 2015 4:45 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Submission of Will copy to probate

Eric: you are an outstanding contributor:)

Roger Hawkes, WSBA # 5173
19909 Ballinger Way NE
Shoreline, WA 98155
www.hawkeslawfirm.com<http://www.hawkeslawfirm.com>
206 367 5000
Fax is 206 367 4005

From: Eric Nelsen [mailto:Eric at sayrelawoffices.com]
Sent: Wednesday, May 13, 2015 4:18 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Submission of Will copy to probate

Do not unstaple the original! I hope it was only stapled once, so it's clear it was a single unified document.

It's a lost Will circumstance I think, proved by a copy, which means two hurdles:

                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.

On the first requirement, I think your Will helps, if client can testify that this was the "original" that the decedent had maintained, and it was attorney error that caused client to receive only photocopy of the signature page. Maybe they still have the lawyer's cover letter? Also note that the papers are only stapled together once, with no other holes, demonstrating that this was the complete version maintained by the decedent. I think that all effectively rebuts the presumption of destruction with intent to revoke, because client never destroyed anything--just had only part of the original due to a lawyer snafu.

And of course your Will copy also 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.

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 Erin Fairley
Sent: Wednesday, May 13, 2015 3:19 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Submission of Will copy to probate

Client/PR  has Original Codicil (2006) and Four pages of Original will(1995) in blue ink; the last two pages of the will – signature and affidavit – are copies. Codicil approves, ratifies and affirms 1995 Will.   Client reports that original attorney  made this error when the original will was mailed to decedent in 1995.  Original attorney can’t be located.

Any suggestions/advice as to procedure are appreciated.

Best regards,
Erin

Erin M. Fairley, Attorney
121 Lakeside Avenue, Suite 108
Seattle, WA 98122
mailto:efairley at advocateslg.com
Phone: (206)-535-7929; Cell:  (206) 353-4625
http://www.advocateslg.com<http://www.advocateslg.com/>

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From: Sara Longley <sara at longley-law.pro<mailto:sara at longley-law.pro>>
Reply-To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Date: Wednesday, May 13, 2015 at 1:47 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] New Jersey probate help

Thanks for the quick referrals! I will pass these on to my friend.

Sara

Sara D. Longley, JD, LL.M.
1718 NW 56th Street #304
Seattle, WA 98107
(206)434-5644
Sara at Longley-law.pro<mailto:Sara at Longley-law.pro>
________________________________
From: Tiffany Gorton<mailto:tgorton at khbblaw.com>
Sent: 5/13/2015 7:46 AM
To: WSBA Probate & Trust Listserv<mailto:wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] New Jersey probate help
I recommend Joe Console.  He practices in both PA and NJ.

Joseph J. Console esq.
(267) 603-2493<tel:(267)%20603-2493>
1515 Market Street<x-apple-data-detectors://0/1>
Suite 1200<x-apple-data-detectors://0/1>
Philadelphia PA 19102<x-apple-data-detectors://0/1>

On May 12, 2015, at 11:56 PM, Sara D. Longley <sara at longley-law.pro<mailto:sara at longley-law.pro>> wrote:
Hello listmates,

A friend of mine in New Jersey is in a complicated situation after the death of both her parents within three weeks of each other early this year.  She has 6 siblings and there are deep disagreements about how to handle the estate.  Add to that the fact that my friend and one of her siblings lived with and cared for their parents in the last part of their lives, and may or may not be compensated for their time or for giving up other work.

Can anyone recommend a smart and compassionate attorney in NJ that she could talk to?

Thanks in advance,
Sara

<image003.jpg>
Sara D. Longley, J.D., LL.M.
Attorney at Law
1718 NW 56th Street #304
Seattle, WA 98107
(206) 434-5644<tel:%28206%29%20434-5644>
Sara at Longley-law.pro<mailto:Sara at Longley-law.pro>
www.longley-law.pro<http://www.longley-law.pro/>

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