[WSBARP] Lost Codicil

Wed Nov 20 12:26:49 PST 2019

I always get more than I bargained for from you, Eric.  This is in my legal
probate file now.

Thank you.

Jim Doran

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

On Wed, Nov 20, 2019 at 12:12 PM Eric Nelsen <Eric at sayrelawoffices.com>
wrote:

> Jim--see briefing below concerning standard to prove a lost Will -- same
> standard to prove a lost Codicil.
>
>
>
>                 *2. Lost Will*. Filed with this Petition are the
> Declaration of X and Declaration of Y confirming that Decedent executed a
> Last Will and Testament on DATE, drafted by attorney X, and witnessed by Y,
> an attorney, and Z, a former receptionist at Sayre Law Offices.
>
>                 *3.  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 Y and from the drafting attorney X, who also was
> the Notary on the self-proving affidavit. Both of them confirm that Z, 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.
>
>                 *4.  Original Will Lost - Rebuttal of Presumption That
> Will Was Revoked*.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). Here, the Will
> executed on DATE provides that the decedent's residence will be given to
> Charity A, and that the residue of the estate would be divided 20% to
> Charity B; 5% to the Petitioner; 5% to Charity C, 5% to Charity D, and the
> remaining 65% to the decedent's sister S, who is resident in Japan; and if
> S failed to survive, the 65% residue share would go to her daughter, SD. As
> set forth below, this disposition is consistent with the decedent's actions
> even in the days immediately before her death, rebutting the presumption
> that the lost Will was destroyed with intent to revoke.
>
>                                 *a*.  Charitable beneficiaries named in
> Will were also recipients of regular donations by the decedent up to the
> last days of her life. Even after naming charitable beneficiaries in her
> Will, Decedent made regular donations to them during her life. Her husband
> H, whom she married in August 1957, was an American army serviceman. He
> died in the 1960s, but Decedent thereafter made donations to nonprofits
> serving veterans, including Charity A. She continued to make such donations
> in the year before her death, well after the Will was executed; the last
> recorded check to Charity A was on October 20, 2014. Also, she made regular
> donations to Charity B; the last recorded check was on November 11, 2014,
> only two days before her death. Charity C also received regular donations;
> the last recorded check was on June 2, 2014.
>
>                                 *b*.  Other charitable beneficiaries had
> permanent connections with the decedent. Charity D also is a natural
> beneficiary because her husband is buried there, and she will be buried
> next to him.
>
>                                 *c*.  Decedent had a family relationship
> only with the niece who is named in the Will. [extended discussion of
> family relationships.] These 2009 and 2014 letters indicate that both
> before and after execution of the 2010 Will that has been lost, Decedent's
> relationship with her niece and her niece's mother was unchanged.
>
>                                 *d*.  All of above evidence rebuts
> presumption of revocation. In summary, there is ample evidence from the
> decedent's personal correspondence and pattern of charitable giving to
> indicate that her feelings concerning the beneficiaries named in the lost
> Will had not changed. Accordingly, the presumption that the lost Will was
> revoked is rebutted, and the lost Will should be accepted for probate.
>
>
>
> Sincerely,
>
>
>
> Eric
>
>
>
> Eric C. Nelsen
>
> SAYRE LAW OFFICES, PLLC
>
> 1417 31st Ave South
>
> Seattle WA  98144-3909
>
> phone 206-625-0092
>
> fax 206-625-9040
>
>
>
> *From:* wsbarp-bounces at lists.wsbarppt.com [mailto:
> wsbarp-bounces at lists.wsbarppt.com] *On Behalf Of *Jim Doran
> *Sent:* Wednesday, November 20, 2019 11:09 AM
> *To:* WSBA Real Property Listserv
> *Subject:* [WSBARP] Lost Codicil
>
>
>
> Estate Advisers:
>
>
>
> I did a Codicil to a Will and the client lost the original but I have a
> copy of the fully executed Codicil.  Client has passed and the son wants to
> probate the Will with the Codicil.
>
>
>
> Is it enough for me to do a "Declaration Re: Originality of Codicil" or
> something like that?
>
>
>
> Is there key language?
>
>
>
> Thank you.
>
>
>
> Jim Doran
>
>
>
>
>
>
>
> James R. Doran
>
> Attorney at Law
>
> 100 E. Pine Street -  Suite 205
>
> Bellingham, WA 98225
> (360)393-9506
>
> jim at doranlegal.com
>
> www.doranlegal.com
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