[WSBARP] Lost Will - Witnesses Dead/Dementia - Drafting Attorney Disbarred

Wed Jul 22 10:08:23 PDT 2020

Was this a self-proving will? If so I think the photocopy of the affidavit is itself admissible as evidence to prove the contents of the lost Will, if you have someone-perhaps the son?-testify to its authenticity in a Declaration describing the circumstances under which it was found. A backup Declaration from the drafting attorney might help, to confirm that he did in fact prepare such a Will for the decedent. I posted a while back on this topic, cut-and-pasted here:

My argument concerning a photocopy of the self-proving affidavit is that the copy is directly admissible as evidence under ER 1003<https://www.courts.wa.gov/court_rules/pdf/ER/GA_ER_10_03_00.pdf>. The affidavit is evidence and is not an operative part of the Will. The "destroy with intent to revoke" presumption that applies to lost original Wills has no effect on the affidavit itself; the testator can't "revoke" the evidentiary affidavit. It continues to qualify as a self-proving affidavit attached to "a photocopy of the will" in compliance with RCW 11.20.020(2)<https://app.leg.wa.gov/RCW/default.aspx?cite=11.20.020>, and it is in writing and signed by witnesses in compliance with RCW 11.20.070(1)<https://app.leg.wa.gov/RCW/default.aspx?cite=11.20.070>. It is firm evidence of proper execution of the lost Will, and the copy of the Will attached to it readily proves the content of the Will.

You can authenticate the copy of the affidavit and the Will contents sufficient for RCW 11.20.070(2)<https://app.leg.wa.gov/RCW/default.aspx?cite=11.20.070> by having someone testify to the authenticity of the copy of the Will; I recently did that where the decedent had given the PR a copy of the Will 20 years ago and it had been kept in a sealed envelope by the PR until the decedent's death. The PR testified to personal receipt of the sealed envelope from the testator, and unsealing of the envelope and finding the copy of the Will within. Even easier, if the copy of the Will was maintained by an attorney's office and someone at the firm can testify to it being kept in their records.

Once you have contents and execution proved, the last hurdle is to rebut the weak presumption that the Will was destroyed by the testator with intent to revoke it.

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
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eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

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From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Rob Rowley
Sent: Tuesday, July 21, 2020 10:41 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: [WSBARP] Lost Will - Witnesses Dead/Dementia - Drafting Attorney Disbarred

Recommendations or suggestions where the sole heir of his mother's estate (son) only has a copy of the will.  However, both witnesses are either dead or have dementia and the drafting attorney subsequently was disbarred.  He was lawfully practicing at the time he drafted the will.

Disbarred drafting attorney will apparently come to court and give testimony if necessary.

Declaration from disbarred attorney in lieu of testimony?

I have dealt with the situation several times where we have a lost original but are able to use it with new declarations from the original witnesses.  Not available now.

For various reasons we are forced to probate the real estate.

Recommendations or suggestions?

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Robert R Rowley
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