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

Tue Jun 28 12:40:09 PDT 2016

Although we can’t be certain without all the facts, it seems unlikely to me that the father and son have an actual conflict.
I am assuming that the decedent left an outright gift to the still-living father, so the 2-year-old son’s interest arises only if his dad has predeceased. Of course, the disclaimer treats the father as predeceasing, but dad’s disclaimer will only occur if son (or his rep) disclaims as well. If dad simply accepted the gift, he could do anything he wanted with it, and son would have no complaints.
Hope this makes sense,
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 Jill H. Sasser
Sent: Monday, June 27, 2016 3:33 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
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

Jill H. Sasser | Attorney at Law
[cid:image003.jpg at 01D1D13A.2D991310]<http://www.landerholm.com>
805 Broadway Street, Suite 1000
P.O. Box 1086
Vancouver, WA  98666-1086
T:  360-816-2534 | T:  503-283-3393 | F:  360-816-2535
www.landerholm.com<https://protect-us.mimecast.com/s/lNV1B6tpl8sm>

From: wsbapt-bounces at lists.wsbarppt.com<mailto: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
[cid:image001.jpg at 01D013C2.30F35160]
3909 California Avenue SW
Seattle, WA 98116-3705
(206)938-5500
heatherd at westseattlelaw.com<mailto:heatherd at westseattlelaw.com>
www.westseattlelaw.com<http://www.westseattlelaw.com/>
****For your advance planning---Heather will be out of the office July 11-22. Any matters arising during that time can can likely be addressed by one of the other attorneys in the office, or Heather will attend to them on her return. Thank You.****
Click here to connect with de Vrieze | Carney on Facebook:   [FB Logo] <https://www.facebook.com/DeVriezeCarney>

CONFIDENTIAL & PRIVILEGED. This e-mail message may contain legally privileged and/or confidential information.  If you have received this e-mail in error, please notify the sender immediately and delete all copies of this e-mail message and any attachment.

----------------------------
This e-mail message (including attachments) is for the sole use of the intended recipient(s).  It contains confidential, proprietary or legally protected information which is the property of  Landerholm, P.S. or its clients.  Any unauthorized disclosure or use of the contents of this e-mail is strictly prohibited.  If you have received this e-mail in error, notify the sender immediately and destroy all copies of the original message.

----------------------------
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20160628/9d73f4d6/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image003.jpg
Type: image/jpeg
Size: 3583 bytes
Desc: image003.jpg
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20160628/9d73f4d6/image003.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image004.jpg
Type: image/jpeg
Size: 9140 bytes
Desc: image004.jpg
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20160628/9d73f4d6/image004.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image005.png
Type: image/png
Size: 7945 bytes
Desc: image005.png
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20160628/9d73f4d6/image005.png>