[WSBAPT] 11.96A.120 - Virtual Representation - Conflict

[John Creahan]

Hi Heather,
Personally, I would leave TEDRA out of this and base the disclaimer decision on 11.86 only. Based on 11.86.021(3), it appears that the father has to answer two questions (and I would encourage him to do so in writing):
(i)              Is the disclaimer in the sister's best interest? (although I'm not sure what the difference is between "those interested in the estate of the beneficiary" and "those who take the disclaimed interest because of the disclaimer"); and
(ii)            Would the disclaimer be "detrimental to" his son's "best interests"?
As for the son's remedy, I assume that dad has a fiduciary duty to son, so, at 18, the son could potentially try to prove that the disclaimer breached dad's duty to the son.
My $.02,
John

John Creahan
206-621-5848
www.cairn-law.com<http://www.cairn-law.com/>


From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Heather deVrieze
Sent: Monday, June 27, 2016 11:39 AM
To: 'wsbapt at lists.wsbarppt.com' <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] 11.96A.120 - Virtual Representation - Conflict

I have always believed the answer to this question was no, but  . . .  when in doubt a review of the statute is always a good idea, followed by seeking advice from the learned members of this list.

Does the doctrine of Virtual Representation allow a beneficiary of an estate to disclaim an interest in the estate not only on his own behalf, but also on behalf of his minor child?

11.96A.120 (4)(f) says "To the extent there is no conflict of interest between the representative and the person represented or among those being represented with respect to the particular question or dispute". . . . "A parent may represent and bind the parent's minor or unborn child or children if a guardian for the child or children has not been appointed."


On the other hand, 11.86.021(3) indicates that a disclaimer by a "legal representative" of a minor may disclaim on the minor's behalf if the disclaimer is "in the best interests of those interested in the estate of the beneficiary and of those who take the disclaimed interest because of the disclaimer, and not detrimental to the best interests of the beneficiary"

So if beneficiary executes a disclaimer "on his own behalf, and on behalf of his minor children under RCW 11.96A.120(4)(f)" does that work as an effective disclaimer? I'm not sure I could articulate a conflict between dad and his 2 year old, his goal is to get the inheritance to his sister. Does the 2 year old have a tolling of the statute of limitations until he turns 18, then a cause of action against dad or the estate on the grounds that disclaiming his fortune was not in his best interests?

Thoughts?

Heather

Heather S. de Vrieze
Attorney-at-Law
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3909 California Avenue SW
Seattle, WA 98116-3705
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www.westseattlelaw.com<http://www.westseattlelaw.com/>
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