[WSBAPT] WSBAPT Digest, Vol 78, Issue 12

Wed Mar 10 14:10:43 PST 2021

Eric: thanks for  all the educating you do; it is very helpful and stimulating😊

Query: if twenty year old bio son learns of dad’s death and probate twenty one years after probate closed and he was never notified or mentioned in the will, does bio son have viable claim against anyone?

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Eric Nelsen
Sent: Wednesday, March 10, 2021 12:00 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] WSBAPT Digest, Vol 78, Issue 12

Per Jenny Rydberg's cite to Little, the SOL on will contests does not run against an heir who has not received the required Notice of Appointment and Pendency of Probate. See also In re Estate of Toth, 138 Wn.2d 650, 654 fn 2, 981 P.2d 439 (1999):

 The parties must receive notice of the will's admission to probate, however. When an interested party is not served with notice of the will's admission to probate, the statute of limitation for will contests is tolled. Hesthagen v. Harby, 78 Wash.2d 934<https://casemaker4.casemakerlegal.com/internallinks/citation/78%20Wash.2d%20934>, 481 P.2d 438<https://casemaker4.casemakerlegal.com/internallinks/citation/481%20P.2d%20438> (1971); In re Estate of Walker, 10 Wash.App. 925<https://casemaker4.casemakerlegal.com/internallinks/citation/10%20Wash.App.%20925>, 521 P.2d 43<https://casemaker4.casemakerlegal.com/internallinks/citation/521%20P.2d%2043> (1974).

The argument is on due process grounds, but I don’t think it’s clear exactly how to figure out what the will contest deadline is for an heir who receives late notice. The cases seem to imply that (A) the 4 months always runs from the date the Order is entered accepting the Will for probate, and (B) so long as the heir receives notice, the SOL runs against them beginning at that date, without being tolled to account for delay between the date the Order is entered and the date the heir receives notice. So, what if an heir receives the notice at 3 months and 29 days after entry of the Order? I dunno.

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>

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.

-----Original Message-----
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 John J. Sullivan
Sent: Wednesday, March 10, 2021 11:14 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] WSBAPT Digest, Vol 78, Issue 12

I don’t believe the SOL on will contests is tolled by failure to provide the Notice of Appointment. I just had a client who was an “illegitimate” heir discovered through commercial DNA system receive Notice a year later when the four months is long expired. The heir wouldn’t have a claim anyway, but I don’t see a statutory condition of the four months running that Notice be sent out.

To be fair, I had long assumed it did, and I think the PR’s attorneys gave the right advice to mail Notice in that case. Also, it appears they were in compliance with the Notice requirement, assuming they only became aware of the heir later. The decedent had been aware, but did not mention the heir in the will.

Am I missing something?

John J. Sullivan

Sent from my iPhone

> On Mar 10, 2021, at 10:28 AM, jcrspicatto at gmail.com<mailto:jcrspicatto at gmail.com> wrote:

>

> Jeff,

>

> All intestate heirs must be listed in the Petition and given notice.

> They have standing to challenge the validity of a Will that

> disinherits them; the

> 4 month statute of limitations to do so only starts when they are given

> notice of the probate proceeding.   Listing them in the Petition as

> disinherited but intestate heirs, is an allegation of such by your client.

> That allegation becomes res judicata, claims preclusion only if they

> are alleged and given notice.  See In re Little, 127 Wn App 915, 113 P

> 3rd 505 (Div 1, 2005).

>

> Jenny Rydberg, JD

> 206-550-5491

>

> -----Original Message-----

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> Subject: WSBAPT Digest, Vol 78, Issue 12

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