[WSBAPT] Will contest
Lewis, Amy C.
ALewis at Eisenhowerlaw.com
Thu May 27 15:44:06 PDT 2021
Thanks Eric!
Amy Lewis, Attorney
Pronouns she/her/hers
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909 A Street, Suite 600 | Tacoma, WA 98402
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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Eric Nelsen
Sent: Thursday, May 27, 2021 9:32 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Will contest
For what it’s worth, the confusion about whether or not an action must be filed separate from the probate was partly caused by inadvertent effects from the 2013 amendment of RCW 11.96A.090(2). I’ve mentioned this several times previously, so I’m cutting-and-pasting here:
Re filing TEDRA always as a separate action: I investigated this at one point, and discovered that I think this is an unfortunate effect of the statewide clerk's association unknowingly working at cross-purposes to the original intent of the law. The statute, RCW 11.96A.090(2)<https://app.leg.wa.gov/RCW/default.aspx?cite=11.96A.090>, formerly allowed filing TEDRA petitions within the probate OR as a separate action, and I think that was intentional, so that things like removal of a PR could be handled with TEDRA procedures directly under the relevant cause number.
But the clerk's association lobbied to have it amended to always require a separate action, because it was an administrative headache in some fashion to have an action filed within a probate case, and collect another filing fee, and track it as a litigation matter, etc.. The only person testifying in committee was from the clerk's association in support of the bill; there was no opposition. I doubt that the RPPT section or anyone else was even aware of it, or if they were aware, it seemed innocuous at first glance. So it got amended, and the original intent has been impaired somewhat by always having to file in a separate action. See Laws 2013, c 246 sec. 2<http://lawfilesext.leg.wa.gov/biennium/2013-14/Pdf/Bills/Session%20Laws/Senate/5135-S.SL.pdf?cite=2013%20c%20246%20%C2%A7%202>.
Re the need for a “citation” or not, that was removed by a 2006 amendment, Laws 2006 c 360 secs. 9 and 10<http://lawfilesext.leg.wa.gov/biennium/2005-06/Pdf/Bills/Session%20Laws/Senate/6597-S.SL.pdf?cite=2006%20c%20360%20%C2%A7%209>. It amended RCW 11.24.020<https://app.leg.wa.gov/RCW/default.aspx?cite=11.24.020> to remove the citation language, and also added a clean-up definitional reference in RCW 11.96A.030(1)<https://app.leg.wa.gov/RCW/default.aspx?cite=11.96A.030> to make clear that if a statute in Title 11 says “citation,” that just means notice under the TEDRA procedures. If I remember right, I think there was a case around then where a Will contest was dismissed because the plaintiff used TEDRA procedures instead of obtaining a citation. I suspect it prompted a review of the law to remove the old citation process. See the legislative report<http://lawfilesext.leg.wa.gov/biennium/2005-06/Pdf/Bill%20Reports/House%20Historical/6597-S%20BRH%20APH.pdf?q=20210527092310>, referring to “miscellaneous technical changes” and that WSBA RPPT Section had recommended various changes.
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<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Diane J. Kiepe
Sent: Thursday, May 27, 2021 8:51 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Will contest
Charles,
Thank you so much for sharing this. I look forward to reading it. I was always under the belief that a Will Contest had to come under the probate matter (as I believe some of the previous e-mails shared) but your note makes sense regarding no harm under TEDRA – after all the courts power is “plenary” right? 😉
In the Contest Statute 11.24 I do see that the notice requirements refer to 11.96A.100 – which clearly is a TEDRA procedure.
Please let us know how it goes for you at the appeal level, if it doesn’t settle before then.
Diane J. Kiepe
Diane J. Kiepe
Douglas Eden
717 W. Sprague Ave.
Suite 1500
Spokane, WA 99201
djkiepe at depdslaw.com<mailto:djkiepe at depdslaw.com>
509-455-5300
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 Charles Isely
Sent: Thursday, May 27, 2021 8:12 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Will contest
Greetings, All:
I have attached a recent ruling from Clark County Superior Court (all identifiers redacted). The Court granted my motion to dismiss. The Will contestant has now appealed.
The Court accepted my argument that a Will Contest must be filed as a separate TEDRA proceeding; that a Will Contest is initiated by filing a new action/petition; and that you have to give notice as required by TEDRA (TEDRA Summons, Petition, etc.).
The requirement for a citation is no longer in the statute.
There is back and forth on this email string as to whether you need to initiate a Will Challenge by separate TEDRA proceeding. I am confident you do.
However, I offer a practical suggestion. Let's assume, merely for the sake of argument, there is a debate about whether you need to initiate a separate TEDRA action. However, what is the harm in filing a will contest as a separate TEDRA action? There is no way such an action would be subject to dismissal. At worst, your client would pay a $240.00 filing fee; and incur the costs of service of process. These costs are trivial compared to your malpractice deductible, not to mention all the time you will spend arguing.
Sincerely,
Charles
Charles A. Isely, Attorney at Law, P.C.
205 East 11th St., Suite 102
PO Box 61983
Vancouver, WA 98666-1983
360-993-1200 (office)
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Licensed in Washington and Oregon
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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 Dalynne Singleton <dalynne at glgmail.com<mailto:dalynne at glgmail.com>>
Sent: Thursday, May 27, 2021 6:31 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Will contest
There is a requirement for a citation as well. Make sure you research the will contest statute and caselaw as it is tricky.
Dalynne Singleton
Gourley Law Group
Snohomish Escrow
The Exchange Connection
1002 10th Street / PO Box 1091
Snohomish, WA 98291
360.568.5065
360.568.8092 fax
dalynne at glgmail.com<mailto:dalynne at glgmail.com>
Website: www.glglawgroup.com<http://www.glglawgroup.com/>
As we face the challenges presented by COVID-19, we have limited staffing in the office to maintain critical functions. Attorney/client meetings will be handled by teleconference or virtually whenever possible. Be assured that we will continue to advise & support our clients throughout this health emergency. If you would like to set a telephone conference, please call or email my paralegal theresa at glgmail.com<mailto:theresa at glgmail.com> or dara at glgmail.com<mailto:dara at glgmail.com>.
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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, May 26, 2021 4:52 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Will contest
I believe a tedra petition has to be filed as a separate lawsuit, not within the probate; if it truly is a simple will contest, e.g. that is not signed by testator, or similar, that contest can be and should be within the probate action and must be brought within four months of notice of probate.
Roger Hawkes, WSBA # 5173
Shoreline Office: 19944 Ballinger Way NE
Shoreline, WA 98155
Sultan Office: 423 Main
Sultan, WA 98294
Phone: 206 367 5000; fax: 206 367 4005
Email: roger at law-hawks.com<mailto:roger at law-hawks.com>
Web site: www.hawkeslawfirm.com<http://www.hawkeslawfirm.com/>
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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 Dalynne Singleton
Sent: Wednesday, May 26, 2021 4:42 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Will contest
A will contest is not a TEDRA petition. There is a case holding this specifically. You must file as a Will contest petition separately.
Dalynne Singleton
Gourley Law Group
Snohomish Escrow
The Exchange Connection
1002 10th Street / PO Box 1091
Snohomish, WA 98291
360.568.5065
360.568.8092 fax
dalynne at glgmail.com<mailto:dalynne at glgmail.com>
Website: www.glglawgroup.com<http://www.glglawgroup.com/>
As we face the challenges presented by COVID-19, we have limited staffing in the office to maintain critical functions. Attorney/client meetings will be handled by teleconference or virtually whenever possible. Be assured that we will continue to advise & support our clients throughout this health emergency. If you would like to set a telephone conference, please call or email my paralegal theresa at glgmail.com<mailto:theresa at glgmail.com> or dara at glgmail.com<mailto:dara at glgmail.com>.
LICENSED IN WASHINGTON AND OREGON
IMPORTANT/CONFIDENTIAL: This e-mail message (and any attachments accompanying it) may contain confidential information, including information protected by attorney-client privilege. The information is intended only for the use of the intended recipient(s). Delivery of this message to anyone other than the intended recipient(s) is not intended to waive any privilege or otherwise detract from the confidentiality of the message. If you are not the intended recipient, or if this message has been addressed to you in error, do not read, disclose, reproduce, distribute, disseminate or otherwise use this transmission, rather, please promptly notify the sender by reply e-mail, and then destroy all copies of the message and its attachments, if any.
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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 Shannon Jones
Sent: Wednesday, May 26, 2021 4:27 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] will contest
Listmates, Does a will contest have to be commenced as a new action under RCW 11.96A.090, or is it sufficient to issue a TEDRA summons and petition under the existing probate cause number? Shannon
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Shannon R. Jones | Attorney
Campbell Barnett PLLC
P: 253.848.3513| F: 253.845.4941
317 South Meridian
Puyallup, WA 98371
shannonj at campbellbarnettlaw.com<mailto:shannonj at campbellbarnettlaw.com>
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