[WSBAPT] Admitting a copy of the will to probate

Fri Feb 11 16:47:51 PST 2022

Thank you so much, Eric! Have a great weekend!

Setareh

On Fri, Feb 11, 2022 at 4:18 PM Eric Nelsen <eric at sayrelawoffices.com>
wrote:

> 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 Was Revoked*.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
>
>
>
> *Covid-19 Update - *All attorneys are working remotely during regular
> business hours and are available via email and by phone. Videoconferencing
> also is available. Signing of estate planning documents can be completed
> and will be handled on a case-by-case basis. Please direct mail and
> deliveries to the Seattle office.
>
>
>
> *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 <SM at LawOfficesofSM.com>*
>
> *Website: **http://www.lawofficesofsm.com/
> <http://www.lawofficesofsm.com/>*
>
>
>
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-- 

*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*

*Website: **http://www.lawofficesofsm.com/ <http://www.lawofficesofsm.com/>*

*CONFIDENTIALITY NOTICE:* This email message and any attachments is a
transmission from the law firm and is intended for the recipient only.  It
may contain information that is confidential and legally protected by the
attorney-client, work product and/or other privileges.  If you are not the
designated or intended recipient, please destroy the message without
disclosing any of its contents and notify us immediately by reply email or
by calling (425) 806-1500.

Pursuant to U.S. Treasury Department Regulations, we are now required to
advise you that, unless otherwise expressly indicated, any federal tax
advice contained in this communication, including attachments and
enclosures, is not intended or written to be used, and may not be used, for
the purpose of (i) avoiding tax-related penalties under the Internal
Revenue Code or (ii) promoting, marketing or recommending to another party
any tax-related matters addressed herein.
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