[WSBAPT] Client signed estate docs for his dying spouse in front of notary but also was second witness

[Eric Nelsen]

Josh-I read the thing too fast and answered too stupid. You are right. The will needs two disinterested witnesses to attest, and all they had was the notary (who can sometimes function as a substitute witness).

I was focused solely on the act of signing by another's hand at the testator's direction. I do not think that the person who signs at the testator's direction has to be disinterested; it could be even a spouse. The protection for the testator against undue influence is the two attesting witnesses, not the person signing at testator's direction.

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>

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 Joshua McKarcher
Sent: Tuesday, October 11, 2022 4:41 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Client signed estate docs for his dying spouse in front of notary but also was second witness

I'm reluctant to reply to this, as I do not wish to sound critical by my questions or observations, but iron sharpens iron and all that. There are many issues to consider here.

Unless I'm misunderstanding, the will isn't witnessed properly by two witnesses, and I'm unaware of any cure. Even if it is executed, it was not witnessed by two people, unless I've missed for years that spouses can witness one another's wills.

And are the notary blocks of the various documents signed by decedent compliant with https://app.leg.wa.gov/RCW/default.aspx?cite=42.45.070 by indicating the hospitalized spouse instructed the signing by her husband ("signature affixed by (name of other individual) at the direction of (name of individual)" or the like)?

If not, I'm not sure the recorded documents are really going to be considered valid anyhow, once scrutinized by a title examiner, so intestacy may work just fine.

And, it seems intestacy "gets you there" if she had no surviving descendants or parents or descendants of parents (i.e., her siblings and any level of nieces/nephews - and it only takes 1 on either parent's side, see RCW 11.04.015(1)).

If she had "none of the above," then her husband is her sole intestate heir anyhow as to all separate and community property, at least for property in Washington. Presumably same outcome as the will and trust sought to achieve? (If so, maybe "no problem" undoing the spouse's documents, if needed?)

So, I am thinking that if your client is armed with "whatever he has of the trust document" and Letters of Administration in intestacy, then I think he'll "get there" one way or another.

But I also cannot tell if "client had me prepare" means you prepared documents for both spouses at the instruction of only one without speaking or visiting with the hospitalized one. But if you never spoke with the hospitalized spouse and confirmed her wishes and that knew of no remote great-nieces, etc., then my personal view is that the spouse's documents, particularly will, trust, and POAs (but probably including deeds to trust given the invalidity of the trust and nature of the deed as an EP document), are probably invalid. I do not understand it permissible for a lawyer to prepare estate planning documents without the instruction, understanding, discussion, etc. with the testator-client directly. Spouses can unduly influence spouses - indeed, it would not be that hard to understand why one might. What if the condo is separate and she has a surviving grand-niece about whom husband did not tell the lawyer in my example here?

But probably it is more precise to say the documents are "invalid if anyone challenges them." If nobody does, and nobody is losing out by whatever dispositions these documents made - e.g., hopefully there are no descendants of her two parents and the condo wasn't even arguably separate property - then maybe "no harm, no foul."

But my point in running that analysis is that it may be prove prudent to have the client proceed in a manner that disregards the will, trust, and POAs anyhow - at least as to his deceased spouse - and simply proceed under intestacy.

Those are the issues I would highlight if you called me for an analysis on this one.

Good luck! Best, Josh


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 michael westseattleattorney.com
Sent: Tuesday, October 11, 2022 3:52 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Client signed estate docs for his dying spouse in front of notary but also was second witness

Help!
Client had me prepare  DPOAs , Pour over Wills, Revocable Trust and Deeds for himself and spouse. Spouse was dying and in hospital but otherwise competent. Client takes docs to hospital with notary but not a second witness. Spouse has mitts on hands so could not sign but Notary said that client could sign for him and put "with permission" next to signature on all docs. Valid?
Will is signed by client beneficiary as directed by spouse and witnessed by notary.
Client now says a financial account was found without a beneficiary so need to probate. Will court prove Will or since Decedent spouse had no other living relatives and client would take do probate via intestate?  But what about the recorded deeds?
Deeds to Trust are signed by client as directed by spouse and notarized - deeds are recorded .
Client needs to sell spouse's condo due to lack of funds. Will Title Co insure ?





[cid:image001.png at 01D8DD92.5A813310]
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20221011/069ac8d5/attachment-0001.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 57245 bytes
Desc: image001.png
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20221011/069ac8d5/image001-0001.png>