[WSBAPT] pleadings to probate lost will

Thu Feb 27 13:51:47 PST 2020

Mike-My argument concerning a photocopy of the self-proving affidavit is that the copy is directly admissible as evidence under ER 1003<https://www.courts.wa.gov/court_rules/pdf/ER/GA_ER_10_03_00.pdf>. The affidavit is evidence and is not an operative part of the Will. The "destroy with intent to revoke" presumption that applies to lost original Wills has no effect on the affidavit itself; the testator can't "revoke" the evidentiary affidavit. It continues to qualify as a self-proving affidavit attached to "a photocopy of the will" in compliance with RCW 11.20.020(2)<https://app.leg.wa.gov/RCW/default.aspx?cite=11.20.020>, and it is in writing and signed by witnesses in compliance with RCW 11.20.070(1)<https://app.leg.wa.gov/RCW/default.aspx?cite=11.20.070>. It is firm evidence of proper execution of the lost Will, and the copy of the Will attached to it readily proves the content of the Will.

You can authenticate the copy of the affidavit and the Will contents sufficient for RCW 11.20.070(2)<https://app.leg.wa.gov/RCW/default.aspx?cite=11.20.070> by having someone testify to the authenticity of the copy of the Will; I recently did that where the decedent had given the PR a copy of the Will 20 years ago and it had been kept in a sealed envelope by the PR until the decedent's death. The PR testified to personal receipt of the sealed envelope from the testator, and unsealing of the envelope and finding the copy of the Will within. Even easier, if the copy of the Will was maintained by an attorney's office and someone at the firm can testify to it being kept in their records.

Once you have contents and execution proved, the last hurdle is to rebut the weak presumption that the Will was destroyed by the testator with intent to revoke it.

My form petition is attached, derived from a petition I did about 10 years ago to probate a lost will in King County. It includes briefing on the low standard of proof necessary to rebut the presumption of revocation.

Re notice, I don't think proving a lost will qualifies as a judicial proceeding regarding a "matter" that would require issuance of a summons and 20 day's notice of hearing under RCW 11.96A.100<https://app.leg.wa.gov/RCW/default.aspx?cite=11.96A.100>. I also think that the 10-day notice under RCW 11.28.131<https://app.leg.wa.gov/RCW/default.aspx?cite=11.28.131> is not applicable because that is only for intestacy or for an administrator "with will annexed" (meaning appointment of someone not named executor in the Will). If there is a Will, the spouse only gets notice if the petition is made within the first 40 days, per RCW 11.28.030<https://app.leg.wa.gov/RCW/default.aspx?cite=11.28.030>.

So if I was in a hurry I might just follow local civil rule to determine the minimum time before the hearing. BUT, all that said, if I have any concerns about a possible problem I like to give at least 3 weeks' notice, to give heirs ample opportunity. And incidentally, if they don't bring up an objection until afterward, I have a ready argument that they are estopped because they were given due process already. My feeling is that a judge is typically more reluctant to hear late objections if the objector got more than minimum notice at the outset.

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Mike Winslow
Sent: Thursday, February 27, 2020 12:18 PM
To: cole-gilday at stanwoodlaw.net; 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] pleadings to probate lost will

My review of the applicable law shows that a hearing with notice to the heirs at law would be mandatory. 11.20.070.
My concern is with validity of the self-proving affidavit. This is part of the copy of the Will. Obviously a copy of the affidavit.

My concern is whether I need to run down a subscribing witness to testify to authenticity of signatures on the self-proving affidavit or if the surviving spouse can authenticate the signature of testator. I could see a could requiring testimony of a witness. See 11.20.070(1) and 11.20.020.

And the timing of a notice of hearing does not appear to be addressed in 11.20.070.  11.28.131, while not specific to this issue, says ten days. Otherwise, it appears we go by 11.96A.100. any thoughts on this notice requirement would be appreciated.
Mike

Michael A. Winslow
1204 Cleveland Ave.
Mount Vernon, WA 98273
Ph. 360-336-3321
Em. Mike at winslegal.com<mailto:Mike at winslegal.com>

This message is from an attorney, so it's confidential. If you are not the intended recipient, it's too late to stop reading this message, but you may not use it for any improper purpose. Huge Disclaimer available upon request.

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Robert R. Cole
Sent: Thursday, February 27, 2020 11:50 AM
To: wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] pleadings to probate lost will

A Snohomish County Commissioner also rejected my application (which had all the statutory requirements) and required a memorandum of law and a noted hearing.  Not necessarily a  user friendly court....
Very Truly Yours,
Robert R. Cole
Law Office of Cole & Gilday, P.C.

10101 - 270th St. NW
Stanwood, WA 98292
(360) 629-2900 (Telephone)
(360) 629-0220 (Fax)

This message contains confidential and privileged information that is intended only for the named recipient(s).  Unless you are the named recipient or authorized agent thereof, you are prohibited from reading, copying, distributing or otherwise disseminating such information.  If you receive this communication in error, please notify the sender immediately.

On 2/27/2020 11:31 AM, Dalynne Singleton wrote:
I have shared my pleadings with Mike in a separate email.  I had a Snohomish Commissioner reject my copy of will petition so was able to develop pleadings which conformed with the statute requirements and it was later accepted.

Dalynne Singleton
Gourley Law Group
Snohomish Escrow
The Exchange Connection
1002 10th Street / PO Box 1091
Snohomish, WA 98291
360.568.5065
360.329.4079
360.568.8092  fax
dalynne at glgmail.com<mailto:dalynne at glgmail.com>

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.
[cid:image001.png at 01D5ED71.1F711650]  [Rated by Super Lawyers] <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.superlawyers.com_redir-3Fr-3Dhttp-3A__www.superlawyers.com_washington_lawyer_Gary-2DManca_ca059d21-2D1b6e-2D4fca-2Db396-2D80c253f82402.html-26c-3Demail-5FSmall-5Fbadge-26i-3Dca059d21-2D1b6e-2D4fca-2Db396-2D80c253f82402&d=DwMGaQ&c=4VfW4Y7UDKzr0jHM1Tk29w&r=wJy-5dBh2e8cdp8KTDyWsjq7WPfG_HRNpImWO5yfs2A&m=FCmO2jSMMhwxfYb-8WN5A3L-M6GKeJ_8gc6cS3vECHM&s=z2j9M4GPJAL7pempIOe0TGAPkMWrzXJSlY1lyMRDlRg&e=>     [cid:image003.gif at 01D5ED71.1F711650]

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 Mike Winslow
Sent: Thursday, February 27, 2020 11:21 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com><mailto:wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] pleadings to probate lost will

After 38 years of law practice, I have a probate involving a lost original will. We have a photo copy, with signatures, including witnesses. Preparing attorney is retired. Surviving spouse says she thinks attorney sent them the originals, but she cannot find them, nor a transmittal letter from attorney. Spouse had the photo copy in her possession. Says she and H had not been to an attorney to make changes or new wills since the time of creating the Will for which there is a copy. Seems straight forward enough.

If someone could share a copy of their petition and order, together with supporting pleadings that would be most appreciated.
M.

Michael A. Winslow
1204 Cleveland Ave.
Mount Vernon, WA 98273
Ph. 360-336-3321
Em. Mike at winslegal.com<mailto:Mike at winslegal.com>

This message is from an attorney, so it's confidential. If you are not the intended recipient, it's too late to stop reading this message, but you may not use it for any improper purpose. Huge Disclaimer available upon request.

***Disclaimer: Please note that RPPT listserv participation is not restricted to practicing attorneys and may include non-practicing attorneys, law students, professionals working in related fields, and others.***

_______________________________________________

WSBAPT mailing list

WSBAPT at lists.wsbarppt.com<mailto:WSBAPT at lists.wsbarppt.com>

http://mailman.fsr.com/mailman/listinfo/wsbapt
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20200227/bda31db4/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 5410 bytes
Desc: image001.png
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20200227/bda31db4/image001.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image002.png
Type: image/png
Size: 1524 bytes
Desc: image002.png
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20200227/bda31db4/image002.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image003.gif
Type: image/gif
Size: 4868 bytes
Desc: image003.gif
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20200227/bda31db4/image003.gif>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: lost will.pet.doc
Type: application/msword
Size: 55918 bytes
Desc: lost will.pet.doc
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20200227/bda31db4/lostwill.pet.doc>