[WSBAPT] Questionable Affidavit of Will Witnesses

Sun Mar 26 11:47:10 PDT 2017

There are strict deadline requirements when contesting the validity of a Will.  RCW 11.24.010.  I filed a TEDRA proceeding as to fraud and took the matter to arbitration and won.  The arbitrator declared a Will and Trust invalid due to fraud – it became apparent that the Will was prepared well after the death of the decedent father and I hired a handwriting expert to verify the signature was not his.  In my research on TEDRA, if you have a Will contest, you have to file it as a separate action even if you file a TEDRA proceeding so you should do your research on the Will Contest.

11.24.010
Contest of probate or rejection—Limitation of action—Issues.
If any person interested in any will shall appear within four months immediately following the probate or rejection thereof, and by petition to the court having jurisdiction contest the validity of said will, or appear to have the will proven which has been rejected, he or she shall file a petition containing his or her objections and exceptions to said will, or to the rejection thereof. Issues respecting the competency of the deceased to make a last will and testament, or respecting the execution by a deceased of the last will and testament under restraint or undue influence or fraudulent representations, or for any other cause affecting the validity of the will or a part of it, shall be tried and determined by the court.
For the purpose of tolling the four-month limitations period, a contest is deemed commenced when a petition is filed with the court and not when served upon the personal representative. The petitioner shall personally serve the personal representative within ninety days after the date of filing the petition. If, following filing, service is not so made, the action is deemed to not have been commenced for purposes of tolling the statute of limitations.
If no person files and serves a petition within the time under this section, the probate or rejection of such will shall be binding and final.

Dalynne Singleton

Gourley Law Group
Snohomish Escrow
The Exchange Connection
1002 10th Street / PO Box 1091
Snohomish, WA 98291

360.568.5065
360.329.4079
360.568.8092  fax
dalynne at glgmail.com<mailto:dalynne at glgmail.com>

LICENSED IN WASHINGTON AND OREGON
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From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Ms. Roberta Armstrong
Sent: Sunday, March 26, 2017 8:39 AM
To: wsbapt at lists.wsbarppt.com
Subject: [WSBAPT] Questionable Affidavit of Will Witnesses

Good Sunday Morning…

Dad died December 2015 leaving a two-page will signed March 2014. Basically the will disinherits my clients (Son1 and Son2) and leaves Dad’s estate to the children of Daughter and Son3. The Attorney who drafted the will is the nephew of Dad.

The Attorney opened probate with the two-page will signed by Dad. Some days later he then again files the two-page will, but now it has two separately signed notarized Affidavit of Witness. One affidavit is signed by Attorney and the other affidavit is signed by Attorney’s wife. Also the two-page will filed the second time has a handwritten correction to the spelling of Daughter’s name. The first will filed did not have any marks.

This paragraph is included in the will:

2. Heirs. My four living children are Daughter, Son1, Son3, and Son2. I specifically disinherit any other person claiming as an heir. I am giving property to my grandchildren, through this will.

However, he only gives property to three of his grandchildren (children of Daughter and Son3, total of 3 grandchildren). Dad had a total of 18 living grandchildren at the time of making his will.

For valid reasons my clients seek to contest the will. Dad’s estate is worth close to a million dollars.

My investigation reveals Attorney was disciplined by the State Bar in 2010 for changing a contingency fee agreement from X to Y, i.e. changing a legal document without client approval and a host of other violations. Arguably, similar to the change of Dad’s will (handwritten correction of the spelling of Daughter’s name) which Attorney admitted to doing, but claims it was done prior to signing although there is no initials by Dad next to the change.

Also the affidavits signed by the Attorney and his wife are very suspicious in that when the two documents are held on top of each other up to a light the notary stamp is in exact same spot on both documents. It’s highly unlikely that a notary would perfectly stamp two separate documents in an identical spot.

I’m attempt to challenge the will on two theories: (1) improper will execution and (2) lack of testamentary capacity.

For the improper will execution, it is believed that Attorney may have simply forgot to have the required witnesses sign the will during execution. And further potentially attempted to correct the mistake by making the Affidavits afterwards. I have reached out to the notary and in questioning him about his notary practices I found him to be a hostile older gentleman so have backed off. I did find out that he did not keep a notary book back in 2014 and has no recollection of the event.

For the lack of testamentary capacity, it is clear in the will that Dad tried to give away by will what he had already given away prior to signing (he gave away his land interest by gift deed to the three grandchildren stated above – the most valuable property in his estate). Further, we have found that Dad had four other children by two different women prior to the woman for the four living children mentioned above. I’m still investigating the relationship Dad had with his older children; however, it appears that Dad did not care for the children during his life. But it is common knowledge within the family that Dad had these other kids.

My questions are numerous, but I am interested in a “smoke gun” approach. And I think it lies with the notary and Dad’s other children.

  1.  Does anyone have any suggestion on contacting this notary and question him about the Affidavits? This case is in a small town of about 2400 people, so I imagine everyone is connected in some way and being the new girl on the block may make getting information from him difficult, as I have already experienced.
  2.  What’s the legal argument(s) in paragraph 2. Heirs. My four living children are Daughter, Son1, Son3, and Son2. I specifically disinherit any other person claiming as an heir. I am giving property to my grandchildren, through this will. The order of the two sentences are problematic. First he names his four living children, then he disinherits everyone else, but then he give to his grandchildren… aren’t they already disinherited by the second sentence…? And if not, would grandchildren be a class as of the date of the will (i.e. 18 grandchildren), not the three he list in subsequent paragraphs…?
Thank you in advance, I realize this is a long email on a Sunday morning but would love to get others input.

Roberta

--
Creator of the first on-line Indian Will Production System - CHECK OUT www.NativeWill.org<http://www.nativewill.org/>

Ms. Roberta Armstrong

Washington State Bar Association No. 42343

Founder and Executive Director

Stewards of Indigenous Resources Endowment,

a Non-Profit Professional Service Corporation

P O Box 2248

Yelm, WA  98597

425.737.5448 | Direct

866.227.6651 | Fax

Roberta at IndianWillsOnWheels.org<mailto:Roberta at IndianWillsOnWheels.org>
www.IndianWillsOnWheels.org<http://www.IndianWillsOnWheels.org>

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