[WSBAPT] Will signed and witnesses subscribed names to Will but saw signing by facetime

Tue Dec 8 20:32:21 PST 2020

Hi Dalynne,
See In re Estate of Lindsay, 91 Wn.App. 944, 957 P.2d 818, (Wash.App. Div. 3 1998), holding:

“But RCW 11.12.020<https://casemaker4.casemakerlegal.com/internallinks/codesec/RCW%2011.12.020&datatype=S> does not require that the testator sign the will in the presence of the witnesses, nor does it require that the witnesses sign in the presence of each other. In re Estate of Gardner, 69 Wash.2d 229<https://casemaker4.casemakerlegal.com/internallinks/citation/69%20Wash.2d%20229>, 236, 417 P.2d 948<https://casemaker4.casemakerlegal.com/internallinks/citation/417%20P.2d%20948> (1966); Chambers, 187 Wash. at 425, 60 P.2d 41<https://casemaker4.casemakerlegal.com/internallinks/citation/60%20P.2d%2041>; In re Estate of Ricketts, 54 Wash.App. 221<https://casemaker4.casemakerlegal.com/internallinks/citation/54%20Wash.App.%20221>, 225, 773 P.2d 93<https://casemaker4.casemakerlegal.com/internallinks/citation/773%20P.2d%2093> (1989). The witnesses need only subscribe their names in [91 Wn.App. 949<https://casemaker4.casemakerlegal.com/internallinks/citation/91%20Wn.App.%20949>] the presence of the testator [957 P.2d 821] and at his direction or request. Ricketts, 54 Wash.App. at 225, 773 P.2d 93<https://casemaker4.casemakerlegal.com/internallinks/citation/773%20P.2d%2093>. Formal words of attestation are not required if competent witnesses testify that they subscribed their names to a document, in the presence of the testator, and testify to facts that amount in law to an attestation. Price, 73 Wash.App. at 751-52, 871 P.2d 1079<https://casemaker4.casemakerlegal.com/internallinks/citation/871%20P.2d%201079>.”

In Linday, the two witnesses signed after the Testator had signed and could not recall even watching the Testator sign. The court found the will to be valid even though the witnesses had not literally witnessed the signing. “They reflect that Murray asked both to witness his handwritten will. Both signed the original will as witnesses in the presence and at the direction of Murray. That is all the statute requires. RCW 11.12.020. Murray told them that the document was his last will and testament. They therefore had the required personal knowledge. Cronquist, 45 Wash.2d at 345, 274 P.2d 585.”

The key question is whether the Testator asked each witness to sign as a witness, and whether the witness was physically present with the Testator at the time the witness signed the Will as a witness. How did the witness signatures end up on the Will? Did the Testator stop by later and ask them to sign it?
The Lindsay case cites a lot of the foundational cases for validity of wills, so hopefully there is some useful caselaw in there to help answer your question.

Best,
Nick

Nicholas Pleasants
Owner

[(Logo) Pleasants Law Firm]<http://www.pleasantslaw.com/>

Pleasants Law Firm, P.S.
2300 130th Ave NE, Suite A-101
Bellevue, WA 98005-1755
(425) 615-7070 tel/fax
nick at pleasantslaw.com<mailto:nick at pleasantslaw.com>
www.pleasantslaw.com<http://www.pleasantslaw.com>
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From: <wsbapt-bounces at lists.wsbarppt.com> on behalf of Dalynne Singleton <dalynne at glgmail.com>
Reply-To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Date: Tuesday, December 8, 2020 at 4:55 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Will signed and witnesses subscribed names to Will but saw signing by facetime

Thanks Mark and Joshua.

Dalynne Singleton
Gourley Law Group
Snohomish Escrow
The Exchange Connection
1002 10th Street / PO Box 1091
Snohomish, WA 98291
360.568.5065
360.568.8092  fax
dalynne at glgmail.com<mailto:dalynne at glgmail.com>
Website:  www.glglawgroup.com

As we face the challenges presented by COVID-19, we have limited staffing in the office to maintain critical functions. Attorney/client meetings will be handled by teleconference or virtually whenever possible.  Be assured that we will continue to advise & support our clients throughout this health emergency.  If you would like to set a telephone conference, please email my paralegal theresa at glgmail.com<mailto:theresa at glgmail.com> or dara at glgmail.com<mailto:dara at glgmail.com>.

Please be advised, we are requiring all clients with scheduled appointments coming in, as well as our staff, to be prepared to wear a face mask or adequate covering during all in office interactions.

LICENSED IN WASHINGTON AND OREGON
IMPORTANT/CONFIDENTIAL: This e-mail message (and any attachments accompanying it) may contain confidential information, including information protected by attorney-client privilege. The information is intended only for the use of the intended recipient(s).  Delivery of this message to anyone other than the intended recipient(s) is not intended to waive any privilege or otherwise detract from the confidentiality of the message.  If you are not the intended recipient, or if this message has been addressed to you in error, do not read, disclose, reproduce, distribute, disseminate or otherwise use this transmission, rather, please promptly notify the sender by reply e-mail, and then destroy all copies of the message and its attachments, if any.
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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Mark Vohr
Sent: Tuesday, December 8, 2020 2:20 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Will signed and witnesses subscribed names to Will but saw signing by facetime

Agree with Joshua. I and several others were tasked with looking at the Uniform Electronic Wills Act for adoption in Washington, and the physical presence of witnesses is a significant issue in that legislation.  We made recommendations and have forwarded those back to Senator Peterson who wishes to sponsor the bill, but can’t say where it stands right now.  The statute as written is pretty clear, and the potential for fraud, undue influence, others in the room, etc. are high and will all need to be looked at carefully.  Washington also does not have provisions for “substantial compliance” in connection with the execution of wills.  I had a will once were the witnesses affirmed with a declaration, but the drafter put a jurat over the declaration.  Even though the integrity of the document seemed unquestioned, the commission rejected with will, sent me off to get new declarations, based on the argument that what the will contained was neither a declaration or an affidavit.

Regards,

Mark

Mark C. Vohr, Esq.
Ohana Fiduciary Corp.
Ohana Financial Services
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
mcv at ohanafc.com<mailto:mcv at ohanafc.com>      www.ohanafc.com<http://www.ohanafc.com>

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Josh Grant
Sent: Tuesday, December 8, 2020 2:00 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Will signed and witnesses subscribed names to Will but saw signing by facetime

I believe that the statute will need to be amended in order to make that work...  “in the presence of the testator” seems pretty clear that they have to be physically present??  present but looking through a window ...  is probably just as effective in meeting the goal of the statute as ZOOM but who knows?

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

From: Dalynne Singleton
Sent: Tuesday, December 08, 2020 1:32 PM
To: WSBA Probate & Trust Listserv
Subject: [WSBAPT] Will signed and witnesses subscribed names to Will but saw signing by facetime

I have an unusual situation and want to see if anyone else has presented a Petition for Testate probate with 2 witnesses who were asked to witness Will signing by using facetime or similar Zoom while not “in physical presence” of testatrix.
Has the court accepted this as valid pursuant to RCW 11.12.020?  I have asked the witnesses to sign an attestation document since their signatures were not notarized pursuant to RCW 5.50.
RCW 11.12.020<https://urldefense.proofpoint.com/v2/url?u=http-3A__app.leg.wa.gov_RCW_default.aspx-3Fcite-3D11.12.020&d=DwMFaQ&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=K1mLMC1eFjwfeeMM-AC6zQ&m=V3zrUwePLpHlV6C8Px9vfeHwX4JSrn2aXO7e-QHnmBQ&s=Cc_Jk2EU13YIzYsbkwVm3sSjthnSHxSC4-XN2v1mJtc&e=>
Requisites of wills.
(1) Every will shall be in writing signed by the testator or by some other person under the testator's direction in the testator's presence, and shall be attested by two or more competent witnesses, by subscribing their names to the will, or by signing an affidavit that complies with RCW 11.20.020<https://urldefense.proofpoint.com/v2/url?u=http-3A__app.leg.wa.gov_RCW_default.aspx-3Fcite-3D11.20.020&d=DwMFaQ&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=K1mLMC1eFjwfeeMM-AC6zQ&m=V3zrUwePLpHlV6C8Px9vfeHwX4JSrn2aXO7e-QHnmBQ&s=cOKsQGP85mZ38D5QxZV8nNQprI8sNyx4cDxR-qTTPNw&e=>(2), while in the presence of the testator and at the testator's direction or request: PROVIDED, That a last will and testament, executed in the mode prescribed by the law of the place where executed or of the testator's domicile, either at the time of the will's execution or at the time of the testator's death, shall be deemed to be legally executed, and shall be of the same force and effect as if executed in the mode prescribed by the laws of this state.
(2) This section shall be applied to all wills, whenever executed, including those subject to pending probate proceedings.

Dalynne Singleton
Gourley Law Group
Snohomish Escrow
The Exchange Connection
1002 10th Street / PO Box 1091
Snohomish, WA 98291
360.568.5065
360.568.8092  fax
dalynne at glgmail.com<mailto:dalynne at glgmail.com>
Website:  www.glglawgroup.com<http://www.glglawgroup.com>

As we face the challenges presented by COVID-19, we have limited staffing in the office to maintain critical functions. Attorney/client meetings will be handled by teleconference or virtually whenever possible.  Be assured that we will continue to advise & support our clients throughout this health emergency.  If you would like to set a telephone conference, please email my paralegal theresa at glgmail.com<mailto:theresa at glgmail.com> or dara at glgmail.com<mailto:dara at glgmail.com>.

Please be advised, we are requiring all clients with scheduled appointments coming in, as well as our staff, to be prepared to wear a face mask or adequate covering during all in office interactions.

LICENSED IN WASHINGTON AND OREGON
IMPORTANT/CONFIDENTIAL: This e-mail message (and any attachments accompanying it) may contain confidential information, including information protected by attorney-client privilege. The information is intended only for the use of the intended recipient(s).  Delivery of this message to anyone other than the intended recipient(s) is not intended to waive any privilege or otherwise detract from the confidentiality of the message.  If you are not the intended recipient, or if this message has been addressed to you in error, do not read, disclose, reproduce, distribute, disseminate or otherwise use this transmission, rather, please promptly notify the sender by reply e-mail, and then destroy all copies of the message and its attachments, if any.
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