[WSBAPT] Requested disclosure of copy of Will to Court appointed guardian

Tue Nov 30 09:45:09 PST 2021

And, you might look at In re York, 44 Wn App 547 (1986) (a will in possession of attorney for a person subject to guardianship is privileged communication), and

Estate of Alsup, 181 Wn App 856 (2014) (Person subject to guardianship, who lost the right to make a will, may nevertheless have testamentary capacity during term of guardianship).

Guardianship law allows a guardian to possess and perhaps reference the a Will of their client (RCW 11.92.140 and new UGA 11.130.505(9), but it does not give the guardian the ability to compel disclosure of a Will held by the client’s attorney - a subtle and important distinction.  The new UGA 11.130.505(9) does not change this rule, in my view.  

Chris Neil | Attorney | Neil & Neil, P.S.
5302 Pacific Avenue,Tacoma,WA 98408 | Chris.Neil at NeilLaw.com
(253)475-8600 | f:(253)473-5746
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> On Nov 30, 2021, at 8:05 AM, deborah at neillaw.com wrote:
> 
> Take a look at the case Pond v. Faust, 90 Wn. 117, 155 Pac. 776 (1916).  
> 
> Deborah Jameson
> (Pronouns: she/her/hers)
> 
> Neil & Neil, P.S.
> 5302 Pacific Avenue
> Tacoma, WA  98408
> 253-475-8600
> 253-473-5746 FAX
> 
> If your matter is urgent, please call my office.  Also, this message is not encrypted and it may not be secure or protected by attorney-client privilege.
> 
> 
> On Nov 30, 2021, at 7:20 AM, Daniel Roach <dan at danroachlaw.com <mailto:dan at danroachlaw.com>> wrote:
> 
> Listmates:
>  
> Greetings from Walla Walla.
>  
> I have been asked by the Court appointed Guardian of a client of mine (who is alive) to provide the Guardian with a copy of my client’s Last Will and Testament along with related estate planning documents that I prepared and witnessed the signing of about three years ago. The Guardian has been appointed with the concurrence of the agents (testator’s children) named in the DPOA (that I also prepared) to pursue a claim for financial overreaching against a certain family member.
>  
> I refused to provide the requested documents based on the attorney client privilege and what I perceive my duties to be as the custodian of the original estate planning documents. The attorney for the Guardian served me with a subpoena. I told the attorney that I was not going to honor the subpoena unless I was ordered to do so by the Court.  A hearing has been scheduled based upon my refusals.
>  
> The attorney for the Guardian (who is working for the benefit of my client, the testator) contends that the Will is “needed” for use at an upcoming mediation. I disagree, but what I think about that is, in my opinion, immaterial.
>  
> A Will has no legal effect until the testator dies.  The testator potentially could regain her faculties sufficient to sign a new Will at some point in the future.  The testator may die wealthy or may die penniless.
>  
> And the disclosure of the Will to the Guardian will, of course, necessarily be extended to the family member who is the focus of the claim and once that occurs, there won’t be much to prevent its disclosure to everyone in the family.
>  
> Has anyone dealt with this issue before?  If so, I would like to know what the outcome in your matter was.
>  
> Many thanks. 
>  
> And thanks to all of you who are contributors to this listserve. I have appreciated all of the insight that is so willingly shared by so many on this list.
>  
> As ever,
>  
> Dan
>  
> Daniel J. Roach, PLLC
> P.O. Box 1776
> Walla Walla, WA  99362
>  
> (509) 522-6800
> dan at danroachlaw.com <mailto:dan at danroachlaw.com>
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