[WSBAPT] WSBAPT Digest, Vol 78, Issue 12

Fri Mar 12 12:40:19 PST 2021

Yes; interesting queries.  Law school type questions😊

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

Roger—I don’t know if that is true, actually; I don’t think I have seen a case addressing the tolling rules to the 4-month will contest statute. There is at least one case that calls the 4-month deadline a “statute of repose” which I believe means that tolling rules don’t apply. So I think that, in Washington for this issue, 4 months is 4 months in all circumstances, without tolling, except that the cases carve out a due-process exception for an injured heir who never received notice of the 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>

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<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Roger Hawkes
Sent: Thursday, March 11, 2021 8:14 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

Thanks, Eric.  The sol would apply in many cases, but it doesn’t run against minors until majority and incapacitated persons until recapacitated; right?

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 Eric Nelsen
Sent: Wednesday, March 10, 2021 3:19 PM
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

Thank you Roger! I am glad my procrastination insures to the benefit of others. ;-)

I would approach that first by determining whether the son has a viable basis for breaking the Will or receiving an intestate share as an omitted child. If there is no hope of breaking the Will and no hope of getting a share as omitted, and there is some evidence that the Executor did not exercise due diligence in finding heirs at law to give notice to, then I think there’s no claim. But if there is truly a viable claim then yes, I think under Little, Toth, Hesthagen, and Walker, the bio son might have a right to demand re-opening of the probate and an opportunity to challenge validity of the Will, and/or a direct claim for breach of fiduciary duty against the Executor for failure to give notice, and/or impose a constructive trust on traceable assets distributed to other beneficiaries. I don’t think that the passage of 20+ years, by itself, is a barrier to the claim.

By the way, one caveat—I’m fuzzy on whether it’s even possible for a child born before the date of execution of a Will to claim a share based on being completely omitted from the Will. The statute for “omitted child” under RCW 11.12.091, and its now-repealed predecessor 11.12.090, only have to do with children born or adopted after the Will is executed. So don’t take my answer above as a sign of actual knowledge that there is a cause of action for the son if the Will was executed after his birth and nevertheless doesn’t mention him and doesn’t give him anything.

I’m reminded of a friend who found out, at age 28, that he had a 10-year-old daughter by a high school girlfriend who moved away shortly before graduation. If my friend had died without ever learning of his daughter, and had left a Will naming other beneficiaries, could the daughter bring a claim for an intestate share—which in this case would be the entire estate? If the beneficiaries under the Will have received their money and spent it all in ways that didn’t leave traceable assets, is there still potential liability to the heir in the form of a money judgment? If there are still traceable proceeds, is a constructive trust imposed? All difficult questions I think. But for what it’s worth, I don’t think passage of time is going to automatically stop the potential claim.

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.

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 Roger Hawkes
Sent: Wednesday, March 10, 2021 2:11 PM
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

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<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto: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<mailto: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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> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>>

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> Subject: WSBAPT Digest, Vol 78, Issue 12

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