[WSBAPT] GAL needed?

Thu Mar 1 11:27:32 PST 2018

Eric, thanks. You may be right. I wish the legislature had not grafted the Doctrine of Virtual Representation onto the TEDRA statute, though, especially now, after Anderson v. Dussault. 

They said what they said, so I assume they meant what they said. 

Or not.

Rob

Robert D. Wilson-Hoss 
Hoss & Wilson-Hoss, LLP 
236 West Birch Street 
Shelton, WA 98584 
360 426-2999

www.hossandwilson-hoss.com
rob at hctc.com

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From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Eric Nelsen
Sent: Thursday, March 01, 2018 11:03 AM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] GAL needed?

Rob, thanks for sending us the research! I haven't done any supplemental research but I think the term "virtual representation" gets used in two contexts--one is the collateral estoppel situation described in Garcia (thanks for that cite), and the other is the descent-and-distribution situation for inheritances, where a parent "virtually represents" their own children's interests or a trustee "virtually represents" all the beneficiaries of that trust.

I have understood the second type to mean that individuals whose rights in the immediate probate derive from someone else who directly benefits from the probate, are virtually represented by the person who directly benefits. Assuming that person who directly benefits has no conflict of interest with them.

In Krista's case, she mentions that the money for minors is to go to a trust until they're 21. If there is a Trustee for that trust, then the Trustee is the direct "legatee" of the Will, not the kids. If the Trustee doesn't have a conflict of interest where their pecuniary interest in the estate could be benefitted at the expense of the Trust beneficiaries (kids), then the Trustee can bind the trust for the kids, the kids are virtually represented, and I don't think a GAL is required. RCW 11.96A.120(4)(d) <http://app.leg.wa.gov/RCW/default.aspx?cite=11.96A.120> . See also last sentence of RCW 11.96A.220 <http://app.leg.wa.gov/RCW/default.aspx?cite=11.96A&full=true#11.96A.220> , and the special representative provisions of RCW 11.96A.250 <http://app.leg.wa.gov/RCW/default.aspx?cite=11.96A&full=true#11.96A.250> . Compare to settlement of claims of minors with an SGAL under SPR 98.08W and SPR 98.16W <http://www.courts.wa.gov/court_rules/?fa=court_rules.list&group=sup&set=SPR> . All these additional safeguards--GALs and SGALs and special representatives--appear to be for the circumstance where the minor has a direct claim that is being compromised, settled, or otherwise potentially impaired, and there is no one else who can represent the minor's interest.

I'm assuming that the new arrangement will still actually fund the trust for the kids--that is, that however this probate is wrapped up, the kids will get the same amount of money and it will be held under the trust terms until they each turn 21. If the new arrangement alters that, it's a trickier question about whether the kids are virtually represented, and the potential conflicts of interest between the kids and the trustee need to be carefully analyzed.

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 Rob Wilson-Hoss
Sent: Thursday, March 01, 2018 10:00 AM
To: 'WSBA Probate & Trust Listserv'; 'John J. Sullivan'
Subject: Re: [WSBAPT] GAL needed?

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 
Hoss & Wilson-Hoss, LLP 
236 West Birch Street 
Shelton, WA 98584 
360 426-2999

www.hossandwilson-hoss.com
rob at hctc.com

This message is intended solely for the use of the addressee and may contain information that is privileged, confidential, and exempt from disclosure under applicable law.  If you are not the addressee, you are hereby notified that any use, distribution, or copying of this message is strictly prohibited.  If you received this message in error, please notify us by reply e-mail or by telephone (call us collect at the number listed above) and immediately delete this message and any and all of its attachments.  Thank you.

This office does debt collection and this e-mail may be an attempt to collect a debt, Any information obtained will be used for that purpose.  To the extent the Federal Fair Debt Collection Practices Act (15 U.S.C. § 1692) applies this firm is acting as a debt collector for the condominium/homeowners' association named above to collect a debt owed to it. Any information obtained will be used for collection purposes. You have the right to seek advice of legal counsel.

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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