[WSBAPT] Lost and Found Will - What to Do?

Fri Dec 14 08:48:09 PST 2018

Since several of you were curious about the outcome:

We queried the bar ethics line, and were told that 1.6 affords only limited exceptions to confidentiality, that confidentiality applies to every fact that arises as a result of the representation of the decedent, even after their death, and that doing anything beyond filing the will with the court could be a breach of confidentiality. The Bar pointed towards Advisory Opinion 175, http://mcle.mywsba.org/IO/searchresult.aspx?year=&num=175&arch=False&rpc=&keywords=.

I don’t necessarily agree with this interpretation of the RPCs and the doctrine confidentiality/A-C privilege. If confidentiality survives death, what of advocacy? Do I not have as big an obligation to advocate for my client’s express testamentary desires as I do to keep related information (though none that is related to my client himself, only the bad acts of his heirs) confidential?

I’m not trying to be argumentative, but for those of us in the this area of practice, I am very concerned that our hands seem to be bound when a situation like this arises.

Regardless, our plan is now to 1) file the original as a “will only” filing, 2) file a declaration into the existing probate that says “a later-dated will has been filed under cause no. ___________”, and 3) notify the PRs’ attorney. He can elect whether or not he has an ethical obligation to correct his clients’ perjury. I believe he does.

Thanks for listening & have a great weekend.

Best wishes,
James

James W. Spencer
Brothers & Henderson, P.S.
2722 Eastlake Avenue East, Suite 200
Seattle, Washington 98102
Phone: (206) 324-4300 x106
e-mail:  jamess at brothershenderson.com<mailto:jamess at brothershenderson.com>
www.brothershenderson.com<http://www.brothershenderson.com/>

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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Brent Williams-Ruth
Sent: Thursday, December 13, 2018 11:06 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Lost and Found Will - What to Do?

I will piggy-back on what Eric has said, but mine is based upon an actual experience where a client was losing his battle with Cancer and made a will that shook things up such that he knew his family would not be happy with the way the estate was going to be held.

After he died, his family made his entire estate planning notebook disappear and claimed that there was no Will and that everything would be distributed through intestacy.  This was absolutely NOT the wishes of my client.

Short version - I showed up to Court with the family (and the successor PR) and intervened before it ever got to the point where they would have had time/ability to move things around.

I agree with Eric's analysis as to whether or not the substantive changes impact who is being harmed.  At they very least, I would file with the Court and then send (with proof of filing) to the attorney-of-record as then it does fall squarely under their ethical obligations.

This will (most likely) cause a great discourse within the family but I come at this from the stance that my client trusted me to ensure that their estate would be distributed in accordance with their wishes. Personally, if this were to ever cross my path again, I would proceed in that same way and do what I could to make sure that I saw my client's wishes were followed.

Good luck!

Brent

On Thu, Dec 13, 2018 at 10:58 AM Eric Nelsen <Eric at sayrelawoffices.com<mailto:Eric at sayrelawoffices.com>> wrote:
I haven't encountered this before either, so my thoughts come wholly innocent of any actual experience.

I assume it's a self-proving Will...and I also assume that the current PRs have non-intervention powers based on the old Will, which means the court doesn't have jurisdiction over them currently.

I think I'd evaluate what to do based on who, if anyone, is losing their inheritance based on the difference between the actual last Will and the one being probated. If it's only the daughters who inherit anyway, and they are also named as PRs in the proper Will, and nobody is particularly harmed by the differences, not a big deal--I might just file the Will in the same probate along with notice to the PRs and proof of service of the notice, to put them fully on the hook for anything that is done incorrectly based on differences between the Wills.

But if the actual last Will gives inheritance to other parties who are not receiving anything under the probated Will, then I probably would contact the daughters' attorney and suggest that they re-evaluate their situation. If my firm drafted a Will that I was morally certain was the Last Will and was valid, then I think I might view it as my duty, both as officer of the court and toward my former client, to try to get the Will proved, and prevent the daughters from using the court system to perpetrate a fraud.

I don't think there is any actual RPC duty to a deceased client beyond maintaining confidentiality. But it bugs me to think that the proper Will would be ignored.

Daughters' lawyer has some ethical duties here, I think, that might help persuade them to do the right thing. Especially candor toward tribunal, RPC 3.3, and permission to disclose confidential information when a client who is a court-appointed fiduciary has potentially breached their duties, RPC 1.6(b)(8). The general interpretation of the interaction between RPC 3.3 and RPC 1.6(b)(8) is, I think, that disclosure to the tribunal is mandatory (if you can't convince the fiduciary client to remedy the situation).

Got to file the Will no matter what of course. It does no harm to file it under a separate cause number for $20; it can always be consolidated or otherwise brought in.

A lot of variables here, depending on who is named as PR in the Will, who benefits from it, etc.

Sincerely,

Eric

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1417 31st Ave South
Seattle WA  98144-3909
phone 206-625-0092
fax 206-625-9040

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of James W. Spencer
Sent: Thursday, December 13, 2018 9:18 AM
To: WSBA Probate & Trust Listserv
Subject: [WSBAPT] Lost and Found Will - What to Do?

Howdy (RP)PT Hivemind:

I have an interesting situation:

We drafted a will for decedent earlier this year. Decedent’s daughters were both closely involved in the drafting. Decedent died a month or so ago. Our off-site storage company could not find the original will we sent to them for safekeeping, so we drafted a declaration regarding the “lost” original (with a copy attached) and provided it to the daughters so that they could use that in an effort to initiate probate proceedings with their new attorney.

The storage facility finally found the will, so we now have the original. We told daughters (there was some controversy between the two daughters at the time of execution about the provisions of the will) that we would file the original as a will only filing with the Court, unless their attorney had already opened a case number. The attorney responded with a case number, and to our surprise, the docket reflects that they used a prior will (with different provisions) to open the estate, and did not file our declaration re: the lost will. Both daughters verified in the petition that an earlier will was their father’s last will and testament.

The (King County) clerk has told us that we must file the found will under as a will only filing under a new case number.

Questions:

  1.  Wouldn’t it make way more sense for the found original to be filed under the existing case no?
  2.  How would you bring that will to the Court’s attention, regardless of whether its filed under the existing case number or a new one?
  3.  What of the strangeness that the daughters knew of a new will but probated the old one? Do we bring that to the Court’s attention?

In my 13 years of practice, I’ve never dealt with a situation like this, and thought that some of y’all could provide some valuable insight.

Thanks,
James

James W. Spencer
Attorney at Law
Brothers & Henderson, P.S.
2722 Eastlake Avenue East, Suite 200
Seattle, Washington 98102
Phone: (206) 324-4300 x106
Fax: (206) 324-3106
e-mail:  jamess at brothershenderson.com<mailto:jamess at brothershenderson.com>
www.brothershenderson.com<http://www.brothershenderson.com/>
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