[WSBAPT] Petition to admit Copy of Will - incapacitated person

[Heather de Vrieze]

I would also note that 11.12.040<http://app.leg.wa.gov/RCW/default.aspx?cite=11.12.040> Revocation of will—How effected, is pretty clear that intent is require to revoke a will by destroying it, and though that destruction is presumed when the original cannot be found, evidence exists that this particular decedent lacked the capacity to revoke the Will or form that intent.

If there is a neutral party who can sign an affidavit to that effect that would be ideal of course.

I had one  several years ago where there was a neighbor who was able to sign an affidavit declaring that the decedent was fastidious in his tidiness and hated things being out of place, that he repeatedly threw away things he later regretted, but hated to read paperwork over and over again when he forgot what it was, so he would throw things away.

Good luck

Heather

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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Eric Nelsen
Sent: Tuesday, July 28, 2026 5:05 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Petition to admit Copy of Will - incapacitated person

Blurb for proving contents of a lost will by a copy:

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.

Doesn’t address exact “incapacitated person can’t revoke a will” but here’s my blurb for proving lost will was not 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).


Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
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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 Brent Williams-Ruth
Sent: Tuesday, July 28, 2026 1:54 PM
To: WSBA Probate & Trust Listserv <WSBAPT at lists.wsbarppt.com<mailto:WSBAPT at lists.wsbarppt.com>>
Subject: [WSBAPT] Petition to admit Copy of Will - incapacitated person

Does anyone have the argument at their fingertips to petition to admit a copy of a Will for someone who developed severe alzheimers and they lost the original in transition to living with a family member until their death?

I know the base rule than an incapciated person cannot revoke a Will - but I am hoping someone has the blurb handy so I can help keep costs down for a modest estate.

Thank you!
Brent


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