[WSBAPT] [elder-law-section] last will and testament witnesses/newbie question

Thu May 24 15:08:54 PDT 2018

I don’t mean to hijack this discussion, but this seems like a good place to ask my not-so-newbie corollary to this question:

What about attorney-client privilege, if a drafting and/or witnessing attorney is called upon to testify as to the testator’s mental capacity, etc. in a will contest?  How much of the attorney-client confidential discussions can be disclosed, even when the purpose is defense of the client’s will?

My instinct is to say that an attorney may testify that their client had sufficient mental capacity to execute a will, that the client met with the attorney privately (assuming that is true), and that the contents of the will reflect the client’s wishes as expressed to the attorney.  All else would be privileged.  Any thoughts?

Thanks,

Sara

Sara D. Longley, J.D., LL.M.

LONGLEY LAW PLLC 

1734 NW Market Street

Seattle, WA 98107

 <tel:%28206%29%20434-5644> (206) 434-5644

 <mailto:Sara at longley-law.pro> Sara at Longley-law.pro

 <http://www.longley-law.pro/> www.longley-law.pro

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From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Cyrus Field
Sent: Thursday, May 24, 2018 2:50 PM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] [elder-law-section] last will and testament witnesses/newbie question

As I heard one estate litigation attorney say, the drafting attorney is already a witness, and probably there is no better one. So they might as well sign the declaration/affidavit. That said, if I suspect potential trouble down the road, I usually try to have someone other than myself sign so I am an additional witness to the other two regarding execution, capacity, etc. 

On the probate side of Wills I’ve witnessed where I now represent the PR, I always advise the PR I may have to resign if someone contests the validity of the Will. FWIW, a local judge told me no additional disclosure was warranted in the Petition, if attorney representing proposed PR also witnessed the offered Will (and volunteered the fact he had done it numerous times while in private practice himself). Hope that helps, Cy 

Cyrus W. Field, Attorney at Law (admitted in Washington and Oregon)

phone: 360-472-1223 Mail: POB 367, Shaw Island, WA 98286 Office: 640 Mullis St. Friday Harbor, WA

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From: Sara D. Longley [mailto:sara at longley-law.pro] On Behalf Of author.nameemail
Sent: Thursday, May 24, 2018 2:01 PM
To: Elder Law Section
Subject: RE: [elder-law-section] last will and testament witnesses/newbie question

I often witness for my estate planning clients.  The exception to this would be if you are named in the will as a beneficiary or to serve as an alternate Personal Representative.

Best,

Sara

Sara D. Longley, J.D., LL.M.

LONGLEY LAW PLLC 

1734 NW Market Street

Seattle, WA 98107

 <tel:%28206%29%20434-5644> (206) 434-5644

 <mailto:Sara at longley-law.pro> Sara at Longley-law.pro

 <http://www.longley-law.pro/> www.longley-law.pro

This email is intended only for the individual to whom it is addressed and may contain information that is privileged, confidential, and/or exempt from disclosure.  If you have received this message in error, please inform the sender by telephone or reply email and delete this message and all attachments.  Thank you.

From: Mark Vohr [mailto:mcv at ohanafc.comelder-law-section@list.wsba.org] 
Sent: Thursday, May 24, 2018 1:50 PM
To: Elder Law Section <elder-law-section at list.wsba.org <mailto:elder-law-section at list.wsba.org> >
Subject: RE: [elder-law-section] last will and testament witnesses/newbie question

Yes.  It is our experience that attorneys witness wills for their clients all the time.   See RCW 11.12.160 and RCW 11.12.020.  

Mark

Ohana Fiduciary Corp.

A Washington Trust Company

Mark C. Vohr, J.D., CPG, Principal

PO Box 33710  Seattle, WA  98133

T:  (206) 782-1189 F:  (206) 782-1434

 <mailto:mcv at ohanafc.com> mcv at ohanafc.com       <http://www.ohanafc.com/> www.ohanafc.com

From: Harkiran Sekhon [mailto:harkiran at sekhonlawpllc.com] 
Sent: Thursday, May 24, 2018 1:44 PM
To: Elder Law Section <elder-law-section at list.wsba.org <mailto:elder-law-section at list.wsba.org> >
Subject: [elder-law-section] last will and testament witnesses/newbie question

Hi All, 

I had a witness fall through for the signing of a last will and testament.  Would I be able to stand in as a witness if i can't find a replacement? 

Thank you,

Harkiran

-- 

Harkiran Sekhon

Attorney 

Sekhon Law, PLLC

P: (253) 237-6163 | W: www.sekhonlawpllc.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sekhonlawpllc.com&d=DwMFaQ&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=K1mLMC1eFjwfeeMM-AC6zQ&m=zkBWplYROZzHXvOZ5yKuH4lLl98aoNbIH9TKdSQs4LI&s=La0o9gRxdnxRwxNVeEhenA4pktks84QCIYuNYgZN-6c&e=>  | A: 707 S. Grady Way STE 600 Renton, WA 98057

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