Page 31 - Pierce County Lawyer - September October 2024

3. Not Following Washington State’s Will Provisions - In Washington, the will must be written; either by hand, typed, or printed. Not an oral recording or a video tape. Washington courts can accept handwritten wills, also known as holographic wills, but sometimes there is an issue when it is difficult to make out the handwritten words. A handwritten will can be valid in Washington if it meets the following minimum requirements:
• The document must be in writing,
• The testator must sign the will,
• The will must be signed in the presence of two competent witnesses, and
• The two witnesses must either sign the will or sign an affidavit that swears the facts needed to prove that the will belongs to the testator.
For a court’s discussion on the requirements of a will to be valid see In re Chambers’ Estate, 60 P.2d 41, 187 Wash. 417 (Wash. 1936). As old as this case is, it is still valid case law.
considers when reviewing a will and is challenged due to lack of testamentary capacity is In re Bottger’s Estate, 129 P.2d 518, 14 Wn.2d 676 (Wash. 1942).
Practice tip - if you as an attorney notarize/witness the signing of a will you cannot probate it. RPC 3.7(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness . . .. A lawyer can draft a will and later probate it, as long as the lawyer is not a witness to signing it or physically questioned the testator’s competency where competency later becomes an issue before the court. A perfect example
of an attorney, the late Eugene Hammermaster, being called to the stand to testify about what an attorney observed about the testator’s capacity can be found in the unpublished opinion of In the Matter of the Estate of Mary-Louse Korsten, 54454-7-II (Wash. App. 2021).
Something else to consider is what if the attorney’s paralegal drafted the will and the personal representative asks the same attorney to probate the will? In the Estate of Palmer v. World Gospel Mission, 189 P.3d 230, 146 Wn. App. 132 (Wash. App. 2008), there seems to be an issue if an employee of the beneficiary (paralegal) witnesses the will with a pour over trust,
and then upon death, the beneficiary receives from the estate. Does this make the lawyer an interested witness to the will? Attorney Fivecoat was an employee of one of the beneficiaries of the will, World Gospel Mission. In this case, the validity of the will was challenged two years after it was probated. The statute of limitations provides that a challenger to the validity of a will
must file a petition within four months from when the probate was started. Unfortunately, in the Estate of Palmer, the challenger waited for more than four months.
4. Will Is Not Up to Date With Legal Rights -
Some examples of this are, the current will lists a spouse, but they are now divorced. Or the will states “a single person” yet they are married. Omitting a child. RCW 11.12.091 provides that an omitted child must receive an amount equal in value to that which the child would have received under RCW 11.04.015 if the decedent had died intestate. A will lists assets that no longer exist which include things like a car that was sold, a home that was sold, death of one of the beneficiaries.
5. Not Destroying Previous Executed Wills -
Washington State law is very specific on how to revoke a previous will. RCW 11.12.040 provides a will can be revoked by being burnt, torn, canceled, obliterated, destroyed, or a physical act, with the intent and for the purpose of revoking the same, by the testator or by another person in the presence and by the direction of the testator. Normally, revocation of a will in its entirety revokes its codicils.
6. Questionable Testator Competence -
This seems to be the one I see as the most challenging of a valid will. The protestor claims the will should be invalid because the testator was not in their right mind when it was executed. If the drafting attorney suspects incompetency, then do a basic competency test, in order to be eligible to create a will. The test will ask the testator questions to make sure they have a solid grasp on personal information, such as:
• What property they own,
• Who their relatives are, including name and relationship,
• Relationship with beneficiaries that were named in the will, and
• What the will says and means.
As I said earlier, if the testator does not know, then ask them to go get a physician to sign a letter stating the testator is mentally competent. A sound discussion of factors the court
David Robert Shelvey is a solo practitioner in Sumner, WA. He is a member of the TPCBA, the Pierce County Lawyer Magazine and CLE Committee. He has been an attorney since 2015. He also volunteers as a president and cook for a local nonprofit. david@rockcraft.org.
September/October 2024 | PIERCE COUNTY LAWYER 31