[WSBARP] Lost Codicil
Eric Nelsen
Eric at sayrelawoffices.com
Wed Nov 20 12:59:44 PST 2019
Always happy to share if I've got it handy!
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 12:27 PM
To: WSBA Real Property Listserv
Subject: Re: [WSBARP] Lost Codicil
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<mailto:jim at doranlegal.com>
www.doranlegal.com<http://www.doranlegal.com>
On Wed, Nov 20, 2019 at 12:12 PM Eric Nelsen <Eric at sayrelawoffices.com<mailto: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 Original Will Lost - Rebuttal of Presumption That Will Was Revoked.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> [mailto: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<mailto:jim at doranlegal.com>
www.doranlegal.com<http://www.doranlegal.com>
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