[WSBAPT] How to handle lack of attestation of witnesses

Tue Sep 24 16:04:52 PDT 2019

I agree with the various suggestions which discuss if no one can be found to identify the deceased witnesses’ signatures (reject and attach copy with explanation....)
As an older practitioner, however, at least it used to be common to prove an attestation even when both witnesses are deceased. So I haven’t found it “harder” where both witnesses were deceased as long as I found someone to sign an affidavit that they were familiar with the witnesses affidavit etc.  When I started work in 1975 and for many years thereafter, it was very common that we needed to do affidavit of subscribing witnesses at the time the will was filed because the custom of attaching the affidavits to the will at the time of execution didn’t come around until years later.   I have on many occasions been able to get witnesses (often law office employees) who were familiar with both witness’ signatures to sign affidavits.  In fact it was pretty easy to find people who were familiar with signatures in small towns.  Maybe younger court commissioners  or judges who didn’t practice when the old customs were followed are requiring more proof than they used to?

Joshua F. Grant

P. O. Box 619
Wilbur, WA 99185
509 647 5578

From: Eric Nelsen 
Sent: Tuesday, September 24, 2019 3:47 PM
To: WSBA Probate & Trust Listserv 
Subject: Re: [WSBAPT] How to handle lack of attestation of witnesses

Be sure to review RCW 11.20.040 and decide whether or not there are any other sources of testimony that could be used in lieu of the actual witnesses, to support the attestation.

But if it's just not provable, then in that situation, I would suggest filing the purported Will with a Petition for Letters of Administration and for Order Rejecting Will. In the petition note that the purported Will distribution is the same as intestacy, that the purported Will witnesses are deceased and there is no self-proving affidavit, and the document appears to not be provable as a Will. Then ask in the relief for an order rejecting the Will at the same time the Administrator is appointed.

That order rejecting the Will triggers the 4-month period to contest the rejection, per RCW 11.24.010. Once that 4 months passes, the Will is definitively rejected and there is no further concern about proceeding as an administration.

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 JOYCE SCHWENSEN
Sent: Tuesday, September 24, 2019 3:20 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] How to handle lack of attestation of witnesses

Thanks Jeanette. The Will is simple and leaves everything to the same people who would inherit if the estate were intestate. Do you think I can ethically ignore the Will and just file a Petition for determination of intestacy? Or is there an obligation to present the un-proven Will and try to prove it?

Joyce

Law Office of Joyce S. Schwensen

Joyce S. Schwensen, PS

12055 15th Ave NE
Seattle, WA  98125 
Tel: (206) 367-1065

Fax: (206) 899-1674
Joyce at SchwensenLaw.com

www.SchwensenLaw.com

PLEASE NOTE NEW ADDRESS: 12055 15TH AVE. NE, SEATTLE, WA 98125.

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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of J A Cyphers
Sent: Tuesday, September 24, 2019 3:00 PM
To: Probate List Serve <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] How to handle lack of attestation of witnesses

      If the witnesses signed the will and you are just lacking the attestation, see 11.20.040.

      Where one witness is dead but someone can attest to their handwriting and other facts, then Court may accept that.

      For instance, attorney was a witness and he is deceased but his spouse or secretary is alive and can attest to his signature and practice of witnessing wills.

      I have never had to do this where both witnesses were deceased.  I would think that is a lot trickier.

      If everyone agrees, you might try a TEDRA agreement to admit the will.

      Jackie Cyphers

      Jeannette A. Cyphers, Attorney at Law

      P. O. Box 908   

      Edmonds, WA 98020-0908

      425-776-5887

      fax 425-640-0814

      jacyphers at gmail.com

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      -------Original Message-------

      From: JOYCE SCHWENSEN

      Date: 9/24/2019 2:34:10 PM

      To: wsbapt at lists.wsbarppt.com

      Subject: [WSBAPT] How to handle lack of attestation of witnesses

      I’d like some suggestions on the best way to approach the court with a Will that has no attestation of witnesses, and both witnesses are known to be deceased. 

      Thank you, Joyce Schwensen

      Law Office of Joyce S. Schwensen

      Joyce S. Schwensen, PS

      12055 15th Ave NE
      Seattle, WA  98125 
      Tel: (206) 367-1065

      Fax: (206) 899-1674
      Joyce at SchwensenLaw.com

      www.SchwensenLaw.com

      PLEASE NOTE NEW ADDRESS: 12055 15TH AVE. NE, SEATTLE, WA 98125.

      CONFIDENTIALITY NOTICE: 
      This communication (including any attachments) is confidential and may contain legally privileged information. If you are not the intended recipient or believe that you may have received this communication in error, please delete this communication from your computer and do not retransmit, copy, print or otherwise disseminate this communication.

      ATTORNEY-CLIENT RELATIONSHIP:
      This e-mail does not in any way intend to provide legal advice to be relied upon by any recipient and does not create any duty or obligation for legal representation on behalf of the sender Joyce S. Schwensen, PS on behalf of the recipient of this e-mail without a written engagement agreement.

      REFERRALS:

      Please note that no referral by this law firm to other legal professionals is intended as a guaranty or assurance as to the experience, ability, professionalism or other characteristics of such legal professionals.

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