Page 30 - Pierce County Lawyer - September October 2024

Where There’s a Will, There’s a Way...
But There are Rules to Making One
By David Shelvey
Revisiting my last article -
Recently, an experienced attorney approached me and asked if he could interject some input about the last article I wrote on Power of Attorney. Of course, I said yes.
He said that first off, when dealing with a client that may have memory problems, (like dementia, Alzheimer’s, etc.), he asks them some general questions such as what year they were born, who are your children, why do you want [insert name] to be your attorney in fact? If the client cannot remember, he asks them to go to a physician and get a letter stating the client is competent enough to execute a durable power of attorney. He also said you can also check the client’s address to make sure it is not a memory care facility. There also is sundowner’s syndrome which is a type of dementia that comes about in the late afternoon when the sun is going down.
He told me he does two types of durable power of attorney (DPOA). One for if the client is not in a care facility/hospital (general DPOA) and another if they are (DPOA for health care directive). The main difference is the need to make medical decisions when the principal is unable. Lastly, who gets the DPOA? The general one goes to whoever is to be acting
as their attorney in fact. If there is a DPOA for health care directive, their primary care provider should have a copy. I also forgot to mention that canceling a DPOA requires handing a “Revocation of Power of Attorney” to the agent.
What makes a will valid or invalid?
I thought it would be interesting to discuss what makes a will valid or invalid. Statute guidance to drafting and proper execution of a will is found in Chapter 11.12 RCW. Some of these come from an Internet collection of reasons why the court found a presented but not admitted will invalid.
As we learned in law school, The “testator” is a term describing the individual creating and signing the will. The witnesses must watch the testator sign the will. The beneficiates are the receivers of the testator’s estate.
1. Creating A Will Without Any Witnesses Present - This is called a self-proving will and RCW
11.12.020 provides that two or more witnesses must see the testator sign the will. Self-proving wills are allowed if an affidavit of the attesting witnesses is affixed to or logically associated with the will. If a notary is not available at the signing of the will, the witnesses can take the affidavit page
to a notary and sign it in front of the notary. Then hand it
to the testator. Because of Covid, we now have the Uniform Electronic Wills Act. The testator can electronically sign
the will. The witnesses can also have “electronic presence” (e.g., a Zoom or team meeting) providing the witnesses
can acknowledge the will was signed by the testator and an affidavit of the attesting witnesses is attached. This of course means a notary is present to place their seal on it. There is a caveat to this new law: the testator must be in Washington for Washington law to apply at the time of signing. If the testator is on Zoom in a different state, the will being executed must be in compliance with the laws regarding wills of the jurisdiction where the testator is in order to be valid.
2. Creating Your Will Without Proper Witnesses Present - The witnesses should be legal
adults (18 in most states) and of a sound mind. They should also be “disinterested,” meaning they aren’t related to the testator by blood or marriage, and that they don’t stand to inherit anything from the estate. A few years back, I had a potential client come to me for a second opinion because they were trying to get an attorney to admit a will into probate. The will was signed by the testator and there were two witnesses, a neighbor lady and the nephew. The will provided that a percentage went to the testator’s siblings, per stirpes. The problem was the nephew’s dad, the brother, had died. I explained to the PC that RCW 11.12.160 provides if there are just two witnesses and one could receive a gift under the will, a beneficiary, the will is invalid, and the probate must be done intestate.
30 PIERCE COUNTY LAWYER | September/October 2024