[WSBAPT] First e-will signing - e-presence of 2 witnesses under 5.50

Tue Jan 18 19:52:08 PST 2022

Nothing more is required than the two “electronic presence witnesses’” unsworn statement under RCW 5.50. See this part of my email at bottom from 1/13 at 11:29 AM: “[W]e read RCW 11.12.450 (particularly (3)(b) incorporating RCW 5.50) to permit two people on the videoconference with the testator, with no actual remote online notary required (for the will at least), which two people can witness the e-will. “

If you submit a printed certified copy, it’s going to contain the two witnesses’ e-signatures along with the testator’s e-signature.

If you are asking a different question, please forgive me and give me another shot. ;)

Best, Josh

Joshua D. McKarcher
McKarcher Law PLLC
537 6th Street
Clarkston, WA 99403
(509) 758-3345
(509) 758-3314 (fax)
josh at mckarcherlaw.com
www.mckarcherlaw.com<http://www.mckarcherlaw.com>
________________________________
From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> on behalf of Diane J. Kiepe <DJKiepe at depdslaw.com>
Sent: Tuesday, January 18, 2022 12:56 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] First e-will signing - e-presence of 2 witnesses under 5.50

First let me confess, I have not even thought about remote e-signing so forgive me if my question would blatantly be answered in the statute –

Upon opening a probate, what is required to prove the Will if the 2 witnesses are not notarized?  Is it the same rule of proof we are use two for non-self-proving Wills?

Thanks in advance – I’m one of those oldies 😉

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 <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Joshua McKarcher
Sent: Thursday, January 13, 2022 12:19 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] First e-will signing - e-presence of 2 witnesses under 5.50

McKarcher Law is custodian under pursuant to 11.12.460(1)(d). This just isn’t as burdensome as keeping a safe full of original paper wills, which I decline to do for all but the nearest-to-death clients with NO family issues.

I do not read the statute to disallow one qualified custodian to transfer custodianship to another qualified custodian. Specifically, I read .470(1)(b) to permit the “last in line” qualified custodian to provide the affidavit required; and I expect that, if it was transferred, the affidavit would ADD to the listed requirements, the affiant’s understanding (or even maybe “proof”) of which qualified custodian(s) held the will previous to the “last in line” qualified custodian/affiant.

And, in any event, if the custodians screw up, the will can be proved like a “lost will” under the revised RCW 11.20.070. And, if there is good evidence that the document has not been modified since signing, admission to probate will be less difficult that admission of a truly lost paper will. I expect these will usually be “secure PDFs” with a “modified” file time/date stamp in, say, Windows or Mac “file explorer” that can easily be rendered on a computer screen; and, indeed, a screenshot of that unmodified date/time stamp for the subject PDF could even easily be added to the custodian’s affidavit. Not so difficult to connect the dots WHEN NEEDED, and it usually won’t be.

I do think the legislature could do us all a favor and add a sentence to .460 or .470 to expressly state something like “A qualified custodian may transfer custodianship to another qualified custodian.” If the first is “still alive” s/he/it could simply provide an affidavit of their own to the successor custodian, which could be an exhibit to the “last in line” custodian’s post-death affidavit.

And, in the age of end-to-end encrypted cloud storage and secure links/downloads, this all just doesn’t have to be that difficult and elusive. It can be done smartly and securely and solve a lot of peoples’ difficult situations in ways that courts won’t have to rend their garments to adjudicate.

All the best, Josh

Joshua D. McKarcher
McKarcher Law PLLC
537 6th Street
Clarkston, WA 99403
(509) 758-3345
(509) 758-3314 (fax)
josh at mckarcherlaw.com<mailto:josh at mckarcherlaw.com>
www.mckarcherlaw.com<http://www.mckarcherlaw.com>

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 Laura Latta
Sent: Thursday, January 13, 2022 11:49 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] First e-will signing - e-presence of 2 witnesses under 5.50

Joshua,
Thank you for sharing your practice with us as you blaze this trail. I often joke with my clients that the legal industry is stuck in the 1800s. It's good to see us inching forward. Would you be willing to share how you are handling the qualified custodian requirements? Are you serving as the qualified custodian or is that Simplifile's role?

Warmly,
Laura

On Thu, Jan 13, 2022 at 11:29 AM Joshua McKarcher <josh at mckarcherlaw.com<mailto:josh at mckarcherlaw.com>> wrote:
Fearless Fellow Estate Planners of Washington:

Today we will assist a client in signing the first Washington electronic will in our practice. We have found Simplifile’s RON platform as useful as its e-recording platform, and I recommend it if you wish to find a solution for your practice. (They are incredibly open to feedback from the non-real-estate-closing-agent RON users among us.)

If you wish to play along, we read RCW 11.12.450 (particularly (3)(b) incorporating RCW 5.50) to permit two people on the videoconference with the testator, with no actual remote online notary required (for the will at least), which two people can witness the e-will. If you read it otherwise, I would be grateful for the perspective.

Indeed, for whatever it’s worth, I share below the asterisks our “e-will signature block when e-signed under 5.50” (which is nothing spectacular, mostly just a reformatting of the statute sub 3(b), with reader-friendly citations following “Pursuant to”). We will use Simplifile to e-sign in a videoconference. We intend to have our testator e-initial each page of the will for whatever that is worth to those still reading.

This has all turned out to be pretty straightforward, especially if you have done a non-will RON session or two first. All my best, Josh

Joshua D. McKarcher
McKarcher Law PLLC
537 6th Street
Clarkston, WA 99403
(509) 758-3345
(509) 758-3314 (fax)
josh at mckarcherlaw.com<mailto:josh at mckarcherlaw.com>
www.mckarcherlaw.com<http://www.mckarcherlaw.com>

****************************************

Pursuant to RCW 11.12.450, I, First M. Last, the Testator, declare under penalty of perjury under the law of Washington that the following is true and correct: That I sign this instrument as my electronic will, I willingly sign it, I execute it as my voluntary act for the purposes expressed in this instrument, and I am 18 years of age or older, of sound mind, and under no constraint or undue influence.

First M. Last, Testator
Pursuant to RCW 11.12.450 and chapter 5.50 RCW, we, Kaitlyn M. Landreth and Mary E. Briggs, witnesses, declare under penalty of perjury under the law of Washington that the following is true and correct: That the Testator signed this instrument as the Testator’s electronic will, that the Testator willingly signed it, and that each of us, in the electronic presence of the Testator, signs this instrument as witness to the Testator’s signing, and to the best of our knowledge the Testator is 18 years of age or older, of sound mind, and under no constraint or undue influence.

Kaitlyn M. Landreth, Witness

537 6th Street

Clarkston, Washington 99403

Mary E. Briggs, Witness

537 6th Street

Clarkston, Washington 99403

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--
Laura Latta
Law Office of Laura Latta PLLC
she/her

Phone (206) 841-2344
www.LauraLatta.com<http://www.LauraLatta.com>

PO Box 82356

Kenmore, WA 98028

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