[WSBARP] Power of Attorney and Wills

[James W. Spencer]

Jim, et. al:

That’s my thought.

I don’t know how an attorney-in-fact gets past the plain language of RCW 11.12.010 and .020 which requires the person making a will to be of sound mind. Assuming that the testator is incapacitated in such a manner that prevents them from dictating and marking a will, then doesn’t that incapacity automatically prevent the testator from making a will?

There must be some case law. I’ll see if I can hunt any down before Eric Nelsen beats me to it. 😊

Best wishes,
James

James W. Spencer
Attorney at Law
Brothers & Henderson, P.S.
2722 Eastlake Avenue East, Suite 200
Seattle, Washington 98102
Phone: (206) 324-4300 x106
Fax: (206) 324-3106
e-mail:  jamess at brothershenderson.com<mailto:jamess at brothershenderson.com>
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From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Jim Doran
Sent: Wednesday, December 11, 2019 9:47 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Power of Attorney and Wills

I know what you guys are saying.  That is why I am in doubt even though the language says ok.  Maybe it would be OK if the Principal was still competent but unable to do the change because of a logistical problem, or such.  But is the Principal in now incompetent I have always thought that the Will cannot be change; too late.

Jim

James R. Doran
Attorney at Law
100 E. Pine Street -  Suite 205
Bellingham, WA 98225
(360)393-9506
jim at doranlegal.com<mailto:jim at doranlegal.com>
www.doranlegal.com<http://www.doranlegal.com>


On Wed, Dec 11, 2019 at 9:35 AM Kerry Richards <krichards at lawgate.net<mailto:krichards at lawgate.net>> wrote:
Dear Jim:
Just how do you know the intents and interests of the demented principal? The intent of the agent should not be part of the calculation in my estimation. I would be wary. Just sayin”.
Yours truly,

Kerry A. Richards, Attorney
[cid:image001.png at 01D31B65.31A26710]
The Law Offices of Michael W. Bugni & Associates, PLLC
11300 Roosevelt Way NE, Suite 300, Seattle, WA 98125
EMAIL: krichards at lawgate.net<mailto:krichards at lawgate.net>
TEL: 206-365-5500
WEB: www.lawgate.net<http://www.lawgate.net/>



From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> [mailto:wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>] On Behalf Of Jim Doran
Sent: Wednesday, December 11, 2019 9:13 AM
To: WSBA Real Property Listserv
Subject: [WSBARP] Power of Attorney and Wills

Ladies and Gentlemen:

For many years I have used language in the Durable Power of Attorney that allows the attorney in fact to modify the Principal's  Last Will and Testament or make a new Will altogether.  However, I have always had my doubts about that clause.  Now I have a situation where the client wants to make a new Will for the Principal who is incompetent by virtue of dementia.

Is it valid for the Attorney in Fact to make a new Last Will and Testament for an incompetent Principal?

Jim Doran

James R. Doran
Attorney at Law
100 E. Pine Street -  Suite 205
Bellingham, WA 98225
(360)393-9506
jim at doranlegal.com<mailto:jim at doranlegal.com>
www.doranlegal.com<http://www.doranlegal.com>
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