[WSBAPT] GAL needed?

Thu Mar 1 09:59:57 PST 2018

Actually, that's a great question - what exactly does virtual representation mean? TEDRA uses it as if it were a well-understood concept, and it does give specific examples, but then it ends with, 

(12) This section is intended to adopt the common law concept of virtual representation. This section supplements the common law relating to the doctrine of virtual representation and may not be construed as limiting the application of that common law doctrine.

Wash. Rev. Code Ann. § 11.96A.120 (West)

OK, so enter virtual /1 representation into your legal research search engine and see what you come up with in Washington. A good answer to the question is, 

5 Hackler and Bacon illustrate that Washington recognizes what has been termed the virtual representation doctrine.12 This doctrine allows collateral estoppel to be used against a nonparty when the former adjudication involved a party with substantial identity of interests with the nonparty. Of course, such preclusion must be applied cautiously in order to insure **967 that the nonparty is not unjustly deprived of her day in court. Therefore, cases which have utilized the doctrine *521 have developed a number of factors which, in essence, insure that the nonparty has had a vicarious day in court.13

6 The primary factor to be considered is whether the nonparty in some way participated in the former adjudication, for instance as a witness.14 The issue must have been fully and fairly litigated at the former adjudication.15 That the evidence and testimony will be identical to that presented in the former adjudication is another important factor.16 Finally, there must be some sense that the separation of the suits was the product of some manipulation or tactical maneuvering, such as when the nonparty knowingly declined the opportunity to intervene but presents no valid reason for doing so.17

Garcia v. Wilson, 63 Wash. App. 516, 520–21, 820 P.2d 964, 966–67 (1991)

Then read .120 again. If you graft the doctrine's factors onto the text of .120, well, let's just say that "clarity" is not a word I would use.  

Rob

Robert D. Wilson-Hoss 
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From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Krista MacLaren
Sent: Thursday, March 01, 2018 9:22 AM
To: John J. Sullivan; wsba probate & trust
Subject: Re: [WSBAPT] GAL needed?

John,

Thank you for your response on this.  What do you mean by virtually represented?  The kids who are receiving something also have a parent receiving something.  The kids’ shares are supposed to go into a trust until they are 21.  They are not receiving a specific gift, it is part of the residue, which is divided into numerous shares.  We are not changing the distribution percentages at all, but doing as the trust says.  The only reason I was going to prepare a TEDRA was because of the mandatory sub trusts that were never funded.  I wonder if I am making it too complicated, and the trustees could just distribute all the assets as specified for termination/distribution and be done?  

I appreciate any further comments because I do not have much experience with trusts.

Thank you so much!

Krista 

On Feb 26, 2018, at 6:32 PM, John J. Sullivan <sullaw at comcast.net> wrote:

Krista:

Are the kids virtually represented?

Or ... are these specific bequests that they will receive? I have often taken the position that someone whose beneficial interest cannot be affected need not be a party to the TEDRA. 

Maybe make the small specific bequests and then do the TEDRA? How will the minors receive their bequests?

John J. Sullivan

Sent from my iPhone

On Feb 26, 2018, at 5:36 PM, Krista MacLaren <kjm.inc at mac.com> wrote:

Hi Listmates, 

I am representing some step siblings/successor Trustees in wrapping up their respective parents’ trust.  The trust provided for a mandatory credit shelter trust.  The couple did not have enough money to need to utilize a credit shelter trust, and the second spouse died soon after the first.  Now, the successor trustees are marshaling the assets and plan to make distributions that will wrap up the trust.  

I was thinking that because they are not technically following the trust instructions, in that the credit shelter trust was never funded, and distributions are being made out of different pots than what the testators envisioned, that I would draft a TEDRA just to recite what they are doing and why they are doing it, and have all beneficiaries sign that agreement.  However, a few thousand dollars is supposed to go to two or three kids who are 14-17 y.o.  Does that mean that a GAL would need to be brought in, because they cannot sign a TEDRA on their own behalf?  Could all of the other beneficiaries sign a TEDRA without the kids participating, and the trustees just hold the share of the kids until they are of age?  If a GAL was needed, how does that happen in the context of a trust (as opposed to a probate)?

Thanks you!

Krista

Krista J. MacLaren
Attorney at Law
Northgate Executive Center II
9725 3rd Ave NE, Suite 600
Seattle WA 98115
(206) 523-6116
kjm.inc at icloud.com

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