[WSBAPT] Another Will witness affidavit scenario

[Stephen Brandli]

Can a petitioner ask for him/her (or someone else) to be appointed the administrator of an estate when there is a valid will?

I wonder what would happen if you threatened to subpoena the bank employees for testimony?

                Steve

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Margaret Delp
Sent: Tuesday, March 16, 2021 11:36 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Another Will witness affidavit scenario

Hello everyone: I have an estate in which a “do-it-yourself” Will was signed in 2016 by the Testator and two witnesses. The Will is partially typed and partially handwritten and no page numbering.  The Will does not have a witness affidavit. One month prior to death in 2021, the testator crossed out the name of the first named  Personal Representative and references to property he no longer owned and he initialed and dated the corner of each page (aside – these changes are all inconsequential to distribution). We have located the witnesses who are employees of a bank. The bank’s compliance department has advised them not to sign an affidavit because of the handwritten redactions and initialing added after the original signing. I have asked if they could attest to the Will as written without the redactions and have not yet heard back.

The four beneficiaries of the Will are the same as the heirs at law (decedent’s four children).  The only wrinkle is that the Will includes an equalization provision reducing one beneficiary’s share of the estate. The beneficiary/heirs will agree to proceed in whatever way I recommend.  I believe they would agree to admit the Will as written, or proceed with intestacy without the equalization provision, or proceed with intestacy proceeding but implement equalization provision through a TEDRA agreement.

Should I proceed with an intestacy petition because even though the witnesses signed the Will, they now are refusing to sign an affidavit so I cannot prove the Will is valid? Would a court admit the Will with the agreement of heirs/beneficiaries and the administrator’s explanation of the reason that the witnesses refused to sign an affidavit?  If I proceed with intestacy petition, should I file the purported Will and all the facts?

I appreciate your thoughts.
Thanks,
Margaret

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