[WSBAPT] Original Will not Found

[Eric Nelsen]

Paul--Copied from one of my posts last February:

There are two requirements: (1) proof to rebut the presumption that the lost Will was destroyed with intent to revoke, and (2) proof of execution and contents of the Will.

From the draft briefing I am working on:

                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.

So, your Will copy only 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.

On the first requirement, you may need to get more creative; reading the facts in the opinions is helpful. In my case, the Will has numerous gifts to charities from the residue, and the decedent had an extended history of making regular gifts to charities during her life. So I'm planning to use decedent's check register (among other things) to show that she continued to make regular gifts to the charities named in the Will, even after she executed the Will and up to the month of her death, and therefore she hadn't changed her mind about the gifts in the Will.

The cases I cite above make for rather dramatic reading. In one, decedent was in the midst of a contentious divorce and was murdered by a burglar who broke into the house and stole, among other things, the decedent's lock box that contained the original Will. The court found that sufficient evidence that the Will had not been intentionally revoked by the decedent. In another, the husband and wife died when a case of dynamite they were transporting in their car exploded.

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 Grant
Sent: Monday, January 25, 2016 12:50 PM
To: Probate & Trust Listserv
Subject: [WSBAPT] Original Will not Found

Second case like this in almost consecutive months.... I have a copy of a will only and the original is not found.  All heirs, including surviving spouse, agree that this is a copy of original.  Is there a specific form, pleading, waiver, etc that needs to accompany the filing of a standard probate petition?  I see the process in RCW 11.20.070 so I can follow the language but was hoping that someone may have something as an example.

Any examples or further RCW guidance is very appreciated.

Paul H. Grant - JD, LL.M

Planning with Purpose, Inc
Lynnwood, WA 98036
425-939-9948
www.planningwithpurposeinc.com<http://www.planningwithpurposeinc.com>

Estate Planning. Business Planning. Wealth Succession.
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