[WSBAPT] Proving Copy of Will

[Eric Nelsen]

I think Karl and John both have good points--a missing Will invokes a presumption it was destroyed with intent to revoke it; but republication of the Will via Codicil implies that the Codicil is intended to function by itself as a complete Will, and the previous Will becomes merely a document incorporated by reference. (That depends on the exact language of the Codicil of course.) So tearing up the Will after executing the Codicil is no more than destroying evidence, not revoking the Will itself. The instrument with "Will-ness" would be the Codicil.

Given that the Will is only missing and there is no direct evidence of an intent to revoke (only a legal presumption), I think there is a good argument to prove the original Codicil with no more than a copy of the Will.

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] On Behalf Of Martin Silver
Sent: Tuesday, January 23, 2018 1:16 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Proving Copy of Will

cannot you rely on the court to take judicial notice that all things being equal an underlying will would not be destroyed without also destroying a codicil?  Seems to me John’s point is well taken

From: Karl Flaccus<mailto:Karl at flaccuslaw.com>
Sent: Tuesday, January 23, 2018 12:25 PM
To: WSBA Probate & Trust Listserv<mailto:wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Proving Copy of Will

That raises the question of what happens if the testator destroys an underlying will with the intent to revoke it, but does not destroy the codicil.  In that case, generally, the codicil loses all effect, because it only has effect insofar as it relies upon an underlying will.

Therefore, I would think in your case that the underlying will has no less a stringent requirement for proof.  That is, you cannot merely rely on the codicil to admit a copy of the will.

Karl

FLACCUS LAW
7010 35th Ave. N.E.
Seattle, Washington  98115
206 523-0297

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: Tuesday, January 23, 2018 10:48 AM
To: 'wsbapt at lists.wsbarppt.com' <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Proving Copy of Will

I have on more than one occasion needed to prove a copy of a Will in order to submit through probate.

I have a new to me situation where there is an original Codicil to an older Will. The Codicil was prepared by me, and I saw the original Will when I prepared the codicil several years ago, but now the original Will cannot be located, though the original codicil was being kept with a copy of the Will.

Thoughts on whether the affirmation of the Will, subject to the modifications contained in the codicil, is sufficient to get the two documents admitted to probate.

Heather


Heather S. de Vrieze
Attorney-at-Law
[cid:image001.jpg at 01D013C2.30F35160]
3909 California Avenue SW
Seattle, WA 98116-3705
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heatherd at westseattlelaw.com<mailto:heatherd at westseattlelaw.com>
www.westseattlelaw.com<http://www.westseattlelaw.com/>
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