[WSBAPT] Submission of Will copy to probate
Paul Neumiller
pneumiller at hotmail.com
Thu May 14 11:27:13 PDT 2015
Use this:
STATE OF WASHINGTON )
: ss.
COUNTY OF ________________ )
The undersigned, being first duly sworn on oath, deposes and
states:
1. That the attached document purporting to be a
copy of the Last Will and Testament (the "Will") of ___________________
("Decedent") was executed by Decedent on _______________________, _____, at
_________, Washington, whose Personal Representative requested that I make
this Affidavit pursuant to RCW 11.20.020(2).
2. Immediately prior to execution, Decedent declared
the document to be her Will and requested that I subscribe my name as
witness to the Will.
3. Decedent signed the Will in my presence, and I,
as witness, attested the execution by subscribing my name to the Will in the
presence of Decedent and of the other witness, [name].
4. Decedent appeared to be of sound mind, of legal
age, and acted freely without any duress or undue influence, and the
attesting witnesses were all competent and of legal age.
5. The other witness to the Will, [name], now
deceased, was personally present with me at the execution of the Will, saw
Decedent sign the Will, and signed the Will herself in my presence and in
the presence of Decedent. I am familiar with the signature of [name], state
that [name] is genuine, and further state that the declarations contained in
this Affidavit would be joined in by [name], as subscribing witness, if she
were present.
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal this ____ day of ________________, 2004.
From: wsbapt-bounces at lists.wsbarppt.com
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Kristina DeVore
Sent: Thursday, May 14, 2015 11:00 AM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Submission of Will copy to probate
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
<mailto: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: <mailto:wilharlock at gmail.com> 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
<http://www.hawkeslawfirm.com> 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/>
The information contained in this e-mail message may be privileged,
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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 <mailto:wsbapt at lists.wsbarppt.com> & Trust Listserv
Subject: Re: [WSBAPT] New Jersey probate help
I recommend Joe Console. He practices in both PA and NJ.
Joseph J. Console esq.
<tel:(267)%20603-2493> (267) 603-2493
<x-apple-data-detectors://0/1> 1515 Market Street
<x-apple-data-detectors://0/1> Suite 1200
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
<tel:%28206%29%20434-5644> (206) 434-5644
<mailto:Sara at Longley-law.pro> Sara at Longley-law.pro
<http://www.longley-law.pro/> www.longley-law.pro
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