[WSBAPT] Lack of subscribing witness - TEDRAT

[Eric Nelsen]

Josh--From Reutlinger's Law of Wills and Intestate Succession:

A codicil not only alters or amends a will, but it also republishes it. This brings the will up to the date of the codicil, for any purpose for which the date of the document is important, unless to do so would be contrary to the intent of the testator.137

137   Thomas E. Atkinson, Handbook of the Law of Wills 470-73 (2d ed. 1953); 2 Jeffrey A. Schoenblum, Page on the Law of Wills §23.11 (2003 & Supp. 2016); Restatement (Third) of Prop.: Wills & Other Donative Transfers §3.4 (1999).

....

The concept of incorporation by reference stands behind certain other doctrines in the law of wills, although this is not always readily apparent. For example, the theoretical reason that a codicil republishes a will, bringing the date of its execution down to that of the codicil, is that the codicil in effect incorporates the existing will by reference.

See RCW 11.12.255<http://app.leg.wa.gov/RCW/default.aspx?cite=11.12.255>. I don't have a case for you, but I could argue that regardless of whether the Will itself is a valid Will, a later Codicil "republishes it" and also "incorporates it by reference" as a writing, which effectively brings its contents within the self-proving affidavit of the Codicil.

It's not a bulletproof argument but it's all I've got at the moment.

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 Josh Grant
Sent: Wednesday, July 11, 2018 4:20 PM
To: wsbar trust
Subject: [WSBAPT] Lack of subscribing witness - TEDRAT

I have a old 1967 will, they apparently didn’t do affidavits of subscribing witness in those days at the same time they did the will.

there are two newer codicils, both refer to the original will by date etc.  they both have the affidavits of subscribing witness .  No one in the fam knows the witnesses or what law firm did it.

Is there any authority that says “if a codicil refers to a will, and it has the affidavits of subscribing witness ... that’s good enough”?

Plan B is a TEDRA agreement which says “we authorize the court to consider this a valid LW&T” signed by all heirs...  CAn anyone share with me a TEDRA that says that.

Thanks
Josh


Joshua F. Grant
[advocates]
P. O. Box 619
Wilbur, WA 99185
509 647 5578
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