[WSBAPT] Probating copy of will

[Eric Nelsen]

I agree with Jeff Davis and Dalynne Singleton-it would really help if you can get any testimony from someone who witnessed the will or notarized the will, who can confirm that they recognize the copy as true and correct of the original, and that they were present when it was executed, and they also recognize the other signatures. The two things to be proved are (1) contents of the lost Will and (2) proper execution and attestation. I have had the drafting attorney support the copy to prove contents, as you did, but so far I've always been able to also have at least one witness or the notary who can testify concerning the process of execution and attestation as well. As a last resort, if you can get someone who was personally acquainted with the witnesses and can recognize their signatures, that would be something. Anything to have some direct testimony relating to proper process of execution and attestation of the Will.

Also, I have typically heavily emphasized the very low evidentiary standard necessary to prove that the lost Will wasn't revoked. This is my standard briefing:

A Will that cannot be found nevertheless may be proved "if...lost or destroyed under circumstances such that the loss or destruction does not have the effect of revoking the will." RCW 11.20.070(1). At common law, a Will that cannot be found is presumed to have been destroyed animo revocandi-with intent to revoke. Estate of Bowers, 132 Wn. App. 334, 341-342, 131 P.3d 916 (2006); Estate of Nelson, 85 Wn.2d 602, 607, 537 P.2d 765 (1975). The presumption may be rebutted and the Will deemed simply lost without intent to revoke, on evidence that "need not be 'clear and distinct' and will often be largely circumstantial." Nelson, 85 Wn.2d at 607. The rebutting evidence may be "evidence as to the testator's attitude of mind, as indicated by [her] declarations made between the time of executing the will and the time of [her] death . . ." Id. "Recognizing that the fundamental concern is the fulfillment of the testator's intent, we have in previous cases found evidence showing that a will was in existence at the time of the death adequate, although it was far from overwhelming." Id., citing Auritt (decedent's oral reaffirmations of her affection for and desire to devise to her brother, shortly before her death), Estate of Harris, 10 Wn. 555, 39 P. 148 (1895) (decedent's statements two weeks prior to death that he had a valid will similar to that offered for probate).

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 Eden Rubenstein Toner
Sent: Thursday, January 28, 2021 10:00 AM
To: WSBA PT list <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Probating copy of will

Colleagues:  I am trying to get a copy of a Will admitted to probate.  I have filed a Petition noting that it's a copy, and Waivers and Consent to Entry of an Order Admitting the Will from all the heirs, and a Declaration from the drafting attorney to the effect that it had not been changed and that it represented the decedent's last wishes.  The court rejected the Petition, noting that "the Will is a copy".  I have had copies admitted a few times over the past 30 years using these procedures.  I don't know if policy has changed, or if we have some unseasoned commissioners, or what.  The Will would distribute the estate differently from an intestate administration, so it is important to get the Will admitted. I'm looking for any suggestions on how to proceed.
Thank you,
Eden

Eden Rubenstein Toner
Attorney at Law
Mail only:  21301 Hwy 410 E, #140
Bonney Lake, WA  98391
Phone 206-953-4485
www.edenrtoner.com<http://www.edenrtoner.com>
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