[WSBAPT] 28yo unprobated will vs 28 years adverse possession - please speculate!

[Eric Nelsen]

Hey no fair! “Assume no communication between Y and Z, so no fair evading the question by arguing maybe Z held by Y’s permission or some such.”
:-)

I intended to set this up so that permission is not an issue. No communication, no permission. Z just took possession. The only question is, does it make a difference for purposes of adverse possession, if Z knows there’s a will giving the property to Y, and/or is also the named Executor in the will that’s never probated?

Chaplin v. Sanders long ago ruled that intent is not an element of adverse possession, overruling decades of prior case law on that point. So can Z’s state of mind, or state of knowledge, have any effect on Z’s ability to adversely possess, if Z knows the property is supposed to go to Y, and if X actually nominated Z to be the person who is supposed to ensure the property goes to Y?

Re the Will, a nominated Executor has no actual duty to probate a Will or seek appointment. The only duties as to an original Will are (a) upon learning of death of the testator, the person holding the original Will must file it with the court for permanent record or turn it over to the nominated Executor, and (b) if the person holding the Will is the Executor, s/he must file it with the court. RCW 11.20.010<https://app.leg.wa.gov/RCW/default.aspx?cite=11.20&full=true#11.20.010>.

Something about this set up doesn’t sound totally fair to me, but as I run through the scenarios it seems to me the adverse possessor wins out. Public policy against stale claims, via statutes of limitation and laches, can prevent the beneficiary under an unprobated Will from commencing probate in an attempt to recover possession of real property. RCW 4.16.020(1), RCW 7.28.010, Krutz v. Isaacs, 25 Wash. 566 (1901). Krutz at 573 says that for a person not in possession of real property, RCW 4.16.020(1) bars an attempt to “recover possession” after 10 years, and as a result, the equitable doctrine of laches simultaneously bars an attempt to quiet title, “such relief being without value when the plaintiff cannot [also] recover possession.”

I think the rights of the Will beneficiary lose to public policy encouraging stability of land titles. But if someone has a different take, I’m all ears.

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>

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Brent Williams-Ruth
Sent: Wednesday, December 13, 2023 11:58 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] 28yo unprobated will vs 28 years adverse possession - please speculate!

Would the adverse possession claim be defeated because of the fact that it was done with permission. Therefore failing one of the essential elements of hostility?

Brent Williams-Ruth (pronouns: he/him)
Attorney-At-Law

Law Offices of Brent Williams-Ruth, a division of BWR Consulting, PLLC

Physical Address: 500 S 336th Street, Suite 214; Federal Way, WA 98003

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On Tue, Dec 12, 2023 at 5:21 PM Eric Nelsen <eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>> wrote:
What happens if somebody’s will, in the public record but not probated, is completely ignored for decades?

X has a will leaving house to child Y, leaving nothing to child Z. X owns a house.

X dies, and the will is filed for permanent record but no probate commenced.

Z moves into the house immediately after X dies.

Y does nothing for, let’s say, 28 years.

Who wins ownership of the house? Z under 10-year adverse possession rules? Or Y if the will is, after 28 years, finally presented for probate?

Assume no communication between Y and Z, so no fair evading the question by arguing maybe Z held by Y’s permission or some such.

I’m guessing Z does, because adverse possession tends to override all other interests. But what if Z was the named executor in the will they filed but elected not to probate?

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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