[WSBAPT] What are the specific requirements for creation of a trust?

Fri Feb 23 20:49:11 PST 2024

Law Office of 
F.ANDREKITA SILVA
_______________________________________________________   

February 23, 2024

Joshua,

Thank you so much!! 
I feel somewhat encouraged that you don't think the word "trust," "trustee", and/ or "Trustor" need to be actually stated. You also don't seem bothered that he was clearly trying to create a Last Will.

I did look up RCW 11.98.014. It only requires that the terms of the trust be established by clear, cogent, and convincing evidence.  There are no cases under that oral trust statute.  There are some really old cases that deal with "oral trusts."   I haven't had a chance to look at those yet.

I haven't seen the video recording yet, I've only reviewed the transcript (which was transcribed by a notary public.)  My current client, the aunt, is very credible.  I have no reason to doubt that the other two witnesses are not reliable. The deceased's intent for his property is really clear.

It is a shame that no one wrote out what he said, as he said it, and as it was being recorded. But, to be honest, I'm amazed they even thought to record his last wishes. 

So, I guess what I'm wondering is, why every written will that has a defect (like maybe one witness instead of two,) couldn't become an "oral trust"?     If it could be proved that the testator read his/her Will out loud before signing it, would that otherwise invalid Will become a trust? 

In my case, deceased clearly wants the house and business to be maintained or manage for his son by his sister.  There is an interest in a home that was deeded by his father to him and his other siblings, and he ways what he wants to have happen with his interest in that home. He addresses some other personal property and is really clear he wants no interference and/ or involvement by the ex-wife.

I am going to read all the old cases I can find (because I'm not seeing current ones on the horizon...)    
But, do you think it is possible to distinguish my client's oral language from the written words of a failed Will?  

andrekita 
Law Office of F. Andrekita Silva
1325 Fourth Avenue, Suite 940
Seattle, Washington 98101-2509
206-224-8288
ak at seattle-silvalaw.com

On 2024-02-22 06:56, Joshua McKarcher wrote: 

> Andrekita, 
> 
> I was immediately hooked by this fact pattern but could not sit down
> to think about it until now.  
> 
> I think the word "text" in our electronic wills statute is going
> to be difficult to overcome, even if this audio-video "record" is
> authenticated by the testator and two witnesses (if, say they say
> their names and that they were there for entire video's making).  
> 
> But at least I finally had time to dig into 11.98 and I think you at
> least must dig into the possibility of having an oral trust under
> Washington law if decedent was at his death domiciled in Washington,
> as I assume.  
> 
> Look at http://app.leg.wa.gov/RCW/default.aspx?cite=11.98.014 and then
> go backward to the provisions regarding creation of a trust.  
> 
> It strikes me that you very well may get a court to find without
> stretching anything too far that he was creating a trust without
> saying the word trust, which I don't see being required. There seems
> a clear identification of property, a named trustee, a named
> beneficiary, etc.  
> 
> But any case law or persuasive judicial gloss on these provisions
> above seems likely to be the key. (I went to law school in the other
> Washington (DC), however, so I don't know Washington law on this
> topic at all, and I don't know the professors and others on this
> list well enough to ask them to suggest cases.) 
> 
> Anyhow, you (from this list) "know me by now." I'd write more if I
> could 🫣😬, as I'm all excited and intrigued. But I'm barely
> keeping up this week as it is. 
> 
> If any of that is a start, great. If I've merely excitedly related the
> most obvious of provisions and starting points to zero benefit, well,
> then, shoot...😉  
> 
> Assuming this video and the people involved are legit, of course, then
> I hope this works. I would love to know what you find out, even if
> you're game simply to share a controlling WA case or something. 
> 
> (Aside: It's so unfortunate they didn't know to have someone
> transcribe his words even in a rudimentary form and do a basic
> (Washington compliant) electronic will, which would've been easily
> provable even though executed and witnessed abroad with a remote
> notary from any of our offices or even an online RON service for $50
> or so. Alas.) 
> 
> Godspeed! 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 [1] [1 [1]] 
> 
> -------------------------
> 
> From: wsbapt-bounces at lists.wsbarppt.com
> <wsbapt-bounces at lists.wsbarppt.com> on behalf of Andrekita Silva
> <ak at seattle-silvalaw.com>
> Sent: Wednesday, February 21, 2024 4:36 AM
> To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
> Subject: [WSBAPT] What are the specific requirements for creation of a
> trust? 
> 
> Law Office of 
> F.ANDREKITA SILVA
> _______________________________________________________   
> 
> February 21, 2024
> 
> Listserve,
> 
> What are the specific requirements for creation of a trust?
> 
> A client of mine (in a guardianship matter), had an appendectomy
> (while in a foreign country.) The surgery went fine but a day or so
> later, he took a turn for the worse. His sister flew to keep him
> company and to care for IP. Client realized he had no Will and that
> maybe he should write one upon returning home. But, he was
> deteriorating at such a pace, that he asked to record his wishes while
> still there at the hospital.  Sister calls notary public who video
> tapes Client's statement in the presence of 2 witnesses (so, sister,
> notary, and ambulance driver present). 
> 
> He indicates his house #72 & his Towing business should be managed by
> his sister for his son (who is IP). He identifies some other property
> and says what should happen to it.  Everything else he leaves to IP.
> He does not mention 2 of his other children. He wants sister to be
> Guardian for IP.  He dies within an hour.  He says "I love you all.
> Goodbye." He knew he would die momentarily.
> 
> I know this is not a valid Will. But, what is required to create a
> valid trust?  He never uses the word "trust" "Trustor" or "trustee."
> No titles changed because he died too soon.  It was clear from the
> statement that Client was trying to create a WILL. But, Can this
> recorded oral statement be considered a trust? Can the recorded
> statement be used to transfer title, at minimum,  to the house and
> business/business assets to IP? Or, is it just too bad and everything
> passes by intestate succession? 
> 
> At this point, it doesn't look like foreign country recognizes oral
> wills. 
> (sorry if this is duplicative. I first sent this out using someone
> elses subject line...)
> 
> andrekita 
> Law Office of F. Andrekita Silva
> 1325 Fourth Avenue, Suite 940
> Seattle, Washington 98101-2509
> 206-224-8288
> ak at seattle-silvalaw.com 
> 
> Links:
> ------
> [1] http://www.mckarcherlaw.com

-- 

Links:
------
[1] http://www.mckarcherlaw.com
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