[WSBAPT] Admitting a copy of the will to probate

[Eric Nelsen]

Briefing from a petition I did about 6-7 years ago:

Proof of Execution and Contents of Lost Will. The execution and contents of a lost Will must be proved by "clear, cogent, and convincing" evidence. RCW 11.20.070(2); Estate of Black, 153 Wn.2d 152, 163, 102 P.3d 796 (2004). Execution of a Will requires that it be (a) signed by the testator, (b) attested by two or more competent witnesses, by subscribing their names to the will, or by signing an affidavit that complies with RCW 11.20.020(2), while in the presence of the testator and at the testator's direction or request. RCW 11.12.020. Here, declarations are available from witness 1 and from the drafting attorney, who also was the Notary on the self-proving affidavit. Both of them confirm that witness 2, the other witness, was a receptionist at the firm who routinely witnessed Will signings, and they recognize her signature on the Will and on the affidavit. A true, correct, and complete photocopy of the signed Will was maintained in the attorney's records and is submitted here in proof of said Will. The "clear, cogent, and convincing" standard has been met as to both execution and contents of the lost Will.

.                 Original Will Lost - Rebuttal of Presumption That Will Was Revoked. A Will that cannot be found nevertheless may be proved "if...lost or destroyed under circumstances such that the loss or destruction does not have the effect of revoking the will." RCW 11.20.070(1). At common law, a Will that cannot be found is presumed to have been destroyed animo revocandi–with intent to revoke. Estate of Bowers, 132 Wn. App. 334, 341-342, 131 P.3d 916 (2006); Estate of Nelson, 85 Wn.2d 602, 607, 537 P.2d 765 (1975). The presumption may be rebutted and the Will deemed simply lost without intent to revoke, on evidence that "need not be 'clear and distinct' and will often be largely circumstantial." Nelson, 85 Wn.2d at 607. The rebutting evidence may be "evidence as to the testator's attitude of mind, as indicated by [her] declarations made between the time of executing the will and the time of [her] death . . ." Id. "Recognizing that the fundamental concern is the fulfillment of the testator's intent, we have in previous cases found evidence showing that a will was in existence at the time of the death adequate, although it was far from overwhelming." Id., citing Auritt (decedent's oral reaffirmations of her affection for and desire to devise to her brother, shortly before her death), Estate of Harris, 10 Wn. 555, 39 P. 148 (1895) (decedent's statements two weeks prior to death that he had a valid will similar to that offered for probate). Here....
....
Notice re Proof of Lost Will. Notice of hearing "to all interested persons" is required before the Court may take proof of the execution and validity of a lost Will. RCW 11.20.070(1). Notice has been given and proof of service is on file with the Court.

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 Setareh Mahmoodi
Sent: Friday, February 11, 2022 3:51 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Admitting a copy of the will to probate

Hello,

I have not had this issue come up in many years where PR can't find the original Will, but we have found a copy of a will. Has anyone had to deal with this issue recently and can give any pointers/ language in the petition/ etc that you utilize to be able to use the copy of the will instead would be much appreciated.

Thank you so much,

--

Best regards,



Setareh Mahmoodi

Attorney at Law

18222 104th Ave NE, Suite 103

Bothell, WA 98011

Phone: 425-806-1500

Fax: 425-489-4142 (Please email documents if at all possible)

Email: SM at LawOfficesofSM.com<mailto:SM at LawOfficesofSM.com>

Website: http://www.lawofficesofsm.com/



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