[WSBAPT] Another Will witness affidavit scenario

[Eric Nelsen]

For what it’s worth—I think, if the heirs are in agreement to proceed with a TEDRA that puts the Will terms into practical effect despite the proof issues, I would just go with that rather than messing with the bank further. It’s not worth the effort since the goal can be reached by easier means.

So short answer, yes, I would petition for appointment of an administrator of an intestate estate. But maybe get everyone to sign the TEDRA first, so there are no surprises midstream. It’s a judgment call on how deep to go into all the facts with the court; if the TEDRA has been signed, strictly speaking the facts relating to the invalid Will and the TEDRA aren’t particularly relevant since the court need not make any decision based on them. Other than, perhaps, confirming to the court that the heirs have signed a TEDRA and pursuant to its terms, they all agree that person X should be appointed Administrator with NPs.

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 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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