[WSBAPT] Petition for Instructions

[Eric Nelsen]

Practically speaking I would want to treat that as a petition within the probate itself, and give notice to all parties. However, I think the statute may technically appear to require a separate action under TEDRA. The issue of substituting a new charity for one named in the Will is probably "the determination of any class of...devisees, legatees" and/or "the determination of [a] question arising in the administration of the estate [including without limitation]...(i) the construction of wills" which are "matters" under TEDRA. RCW 11.96A.020(2), subsecs. (a) and (c)(i).

I think it makes little sense to file such a thing as a separate action; it's counterproductive and potentially misleading to have to track down multiple case numbers for instructions to a PR, or determine who is to receive property under the will.

Re filing TEDRA always as a separate action: I investigated this at one point, and discovered that I think this is an unfortunate effect of the statewide clerk's association unknowingly working at cross-purposes to the original intent of the law. The statute, RCW 11.96A.090(2)<https://app.leg.wa.gov/RCW/default.aspx?cite=11.96A.090>, formerly allowed filing TEDRA petitions within the probate OR as a separate action, and I think that was intentional, so that things like removal of a PR could be handled with TEDRA procedures directly under the relevant cause number.

But the clerk's association lobbied to have it amended to always require a separate action, because it was an administrative headache in some fashion to have an action filed within a probate case, and collect another filing fee, and track it as a litigation matter, etc.. The only person testifying in committee was from the clerk's association in support of the bill; there was no opposition. I doubt that the RPPT section or anyone else was even aware of it, or if they were aware, it seemed innocuous at first glance. So it got amended, and the original intent has been impaired somewhat by always having to file in a separate action. See Laws 2013, c 246 sec. 2<http://lawfilesext.leg.wa.gov/biennium/2013-14/Pdf/Bills/Session%20Laws/Senate/5135-S.SL.pdf?cite=2013%20c%20246%20%C2%A7%202>.

I think that TEDRA was really supposed to allow a proceeding-within-a-probate, kind of like an adversary proceeding inside a bankruptcy, to standardize the process for bringing a contested matter in front of the judge. But I don't think it is very clear when it should be used or not used even for something arguably within the rather vague definition of "matter," and the 2013 amendment forcing separate actions has really confused things even more. For example, a petition for a family support award is now technically supposed to be a separate action. RCW 11.54.090<https://app.leg.wa.gov/RCW/default.aspx?cite=11.54&full=true#11.54.090>. Clearly that was not the original intent; but the 2013 change to RCW 11.96A.090(2) leads to that result.

Sincerely,

Eric

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

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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Sarah Duncan
Sent: Wednesday, November 4, 2020 8:55 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Petition for Instructions

Hello list mates.   I am filing a Petition for Instructions in Snohomish County under the Cy Pres doctrine (RCW 11.96A.127) to ask the court to redirect the charitable share of a Will where the charity is no longer in existence.

My question is whether we can file our petition under our same probate cause number and set a hearing on the Commissioner's calendar, or whether we need to file it a separate TEDRA petition and set a hearing on the Judge's civil motions calendar?

Does anyone know?

Thanks,
___________________________________________
Sarah E. Duncan
Attorney
Adams & Duncan, Inc., P.S.
3128 Colby Avenue
Everett, WA 98201
(425) 339-8556
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