[WSBAPT] slayer statute / preponderance of evidence

[Eric Nelsen]

Krista--I haven't dealt with this exact situation but the issue is similar as in any civil litigation where there is a parallel/related criminal proceeding. I think, if the PR wanted to, you could proceed with a TEDRA action (relief requested: Finding that defendant is a slayer and disinherited under the statute) and do normal civil discovery alleging that the defendant is a slayer under the statute.

In a civil action, the defendant can still take the 5th to avoid testifying, but the finder of fact is permitted to make a negative inference from that. It puts a criminal defendant in a real bind--can end up with civil liability even if acquitted. There is no stay on civil proceedings just because a criminal case is underway.

On the other hand, why go to the expense when the State is probably going to do all the work anyway. If convicted or even if he ultimately enters an Alford plea (denies guilt but concedes the jury has sufficient facts to likely find him guilty), the preponderance standard is met automatically. And if the prosecutor ultimately dismisses, you can still proceed later with the civil action and do the work then.

I think ultimately it's a question of how fast the PR wants to move. If he waives speedy trial (virtually certain in a murder case), it could take a year to get to trial, and the TEDRA action might wrap up faster than that--but it's more expense. Time or money--which one does the PR want to spend?

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 Krista MacLaren
Sent: Wednesday, September 30, 2015 10:17 AM
To: Solo and Small Practice Section; wsba probate & trust
Subject: [WSBAPT] slayer statute / preponderance of evidence

Hi Good People,

I am working on a probate in which the decedent was allegedly killed by the main beneficiary under her will.  I am trying to figure out how to get the probate court to conclude he is a slayer under the statute.  But the murder only took place in July and he has only recently been arraigned and plead not guilty.  I thought maybe if I could learn on what basis he was arrested and charged, that would be sufficient for the probate court to determine by a preponderance of the evidence that he is a slayer.  I submitted a public records request to the king county sheriff, and they have said that records in open and active cases cannot be released.  Will I have to just hold the probate open for eternity until he is either convicted or the case is not open or active, in order to determine who receives decedent's funds?  We actually have not even opened the probate yet, so the passing of several months isn't a big deal.  I had hoped to address the issue of the beneficiary when opening the probate in a noticed hearing.  I would love to hear from anyone who has seen the slayer statute play out in real life before.  Suggestions welcome!

Thank you,


Krista J. MacLaren
Attorney at Law
Northgate Executive Center II
9725 3rd Ave NE, Suite 600
Seattle, WA 98115
(206)523-6116
kjm.inc at mac.com<mailto:kjm.inc at mac.com>

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