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

Tue Nov 30 10:11:39 PST 2021

Wow, this is fascinating!  I assume this also means that a GAL appointed in a guardianship does not have the right to recommend that the court invalidate the AIP’s previously created will(s), even if created during incapacity.

Best,
Candace Wilkerson

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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of deborah at neillaw.com
Sent: Tuesday, November 30, 2021 11:05 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Requested disclosure of copy of Will to Court appointed guardian

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.
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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

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