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

Tue Jun 28 10:23:10 PDT 2016

I am late to this, and don’t know all the details, but why not just an assignment from the father, if you want to avoid the consequences of the father’s disclaimer?

This chapter shall not abridge the right of any person, apart from this chapter, under any existing or future statute or rule of law, to disclaim any interest or to assign, convey, release, renounce or otherwise dispose of any interest.

Wash. Rev. Code Ann. § 11.86.080 (West)

Rob

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From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Jill H. Sasser
Sent: Monday, June 27, 2016 3:33 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] 11.96A.120 - Virtual Representation - Conflict

Hi Heather:

My two cents:  I think there is an actual conflict between the father and the son (unless the disclaimer is somehow in the son’s best interests) and he shouldn’t execute a disclaimer on the minor’s behalf.  There are perhaps creative ways around this—what is the value of the inheritance?  Could father guarantee to provide son with an equivalent amount in the future, thereby negating any loss to the son?  

I think you need a court order and a GAL, or a special representative and an NJA, unless there are other facts here that could arguably show this is in the son’s best interests.  I also agree with you analysis regarding the SOL for son—I think there is a potential claim here, but not enough facts to know whether claim is likely to succeed or be presented.

Could father make a gift to his sister instead?  We have had situations come up like this in the past and we have come up with some TEDRA solutions—please feel free to call me if you want to discuss.

Good luck!

Jill

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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'
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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