[WSBAPT] Probating copy of will

[Eden Rubenstein Toner]

Thank you, Eric.  And Jeff and Dalynne and Colby and Laurel.  Your comments
have provided excellent guidance and will save me a lot of time and grief.
I appreciate you, and this list, so much!

Eden

 

From: wsbapt-bounces at lists.wsbarppt.com
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Eric Nelsen
Sent: Thursday, January 28, 2021 10:56 AM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Probating copy of will

 

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

 <mailto:eric at sayrelawoffices.com> eric at sayrelawoffices.com

 

Covid-19 Update - All attorneys are working remotely during regular business
hours and are available via email and by phone. Videoconferencing also is
available. Signing of estate planning documents can be completed and will be
handled on a case-by-case basis. Please direct mail and deliveries to the
Seattle office.

 

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

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