[WSBAPT] Trust Litigation referrals

Tue Oct 11 14:07:51 PDT 2016

Erin--I recommend Elena Garella for litigation regarding trustee.

Mark

On Tue, Oct 11, 2016 at 1:58 PM, Erin Fairley <efairley at advocateslg.com>
wrote:

> This case is a bit out of my wheelhouse:  PC seeking to remove corporate
> trustee; Will specifically states that client cannot remove the corporate
> fiduciary.
>
> Please send referrals, self-referrals also and I’ll pass the names to the
> PC
>
> Client would prefer central Seattle or maybe Snoqualmie area.
>
> Thank you,
> Erin
>
>
> Erin M. Fairley, Attorney
> 121 Lakeside Avenue, Suite 108
> Seattle, WA 98122
> mailto:efairley at advocateslg.com <efairley at advocateslg.com>
> Phone: (206)-535-7929; Cell:  (206) 353-4625
> http://www.advocateslg.com
>
>
>
>
>
>
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> From: Eric Nelsen <Eric at sayrelawoffices.com>
> Reply-To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
> Date: Thursday, February 19, 2015 at 4:29 PM
> To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
> Subject: Re: [WSBAPT] Proof of Lost Will
>
> Jeremy--I just happen to be working on one of these myself, so I'm fresh
> on it. 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 <wsbapt-bounces at lists.wsbarppt.com>] *On Behalf Of *Jeremy
> Yates
> *Sent:* Thursday, February 19, 2015 1:28 PM
> *To:* WSBA Probate & Trust Listserv
> *Subject:* [WSBAPT] Proof of Lost Will
>
>
>
> I've been combing the archives, reading various helpful emails betwen
> members of this list, and trying to understand how to use 11.20.070 and am
> stuck on the following point:
>
> I have in my possession a photocopy of a Last Will, complete with
> signatures and a signed affidavit of witnesses.  Does this photocopy of the
> signed affidavit of witnesses qualify as the proof that "must be reduced to
> writing and signed by any witnesses who have testified as to the execution
> and validity" from 11.20.070 (1)?  Or, must I go out and find the persons
> who witnessed the Will to have them provide the same Affidavit information
> in a new and Original form?
>
> It seems like I should be able to use the signed Affidavit photocopy, plus
> a Declaration that the Will was not revoked, plus a Declaration from almost
> anyone who has seen even a copy of the Will waived in front of their nose
> by the Testator (of which I can obtain several), and that should be enough.
>
> Am I missing something?
>
> Gratefully,
>
> Jeremy Yates
>
>
>
>
>
>
>
>
>
>
>
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-- 
Mark T. Higgins
Mark T. Higgins, P.C.
P.O. Box 57
Darrington, WA 98241
206-491-2420
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