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Two Halves Do Not Make a Whole

Posted Tuesday, September 1, 2015 by John S. Palmer

Washington law requires a will to be signed by two witnesses. But what if a testator creates a will, signed by one witness, leaving his entire estate to one person, and later creates a second, similar document, signed by different witness? Can they be combined to meet the two-witness requirement?

In Estate of Burton (decided August 18, 2015), the Court of Appeals ruled that two documents could not be merged to create a valid will. The facts of the case are pretty straightforward: Burton, a successful businessman, hand-wrote and signed a document purporting to leave his entire estate to his friend, Victor White. That document was witnessed by one of his nurses, and subsequently lost so that its exact wording could not be proved. The day before he died, Burton hand-wrote another document, witnessed by a different nurse, stating “I wish all my worldly possessions to go to Victor White” including two gold mines, collectible cars, and real estate.

After Burton died, White asked the court to accept the two documents as proof that Burton had created a will that meets the two-witness requirement set forth in RCW 11.12.020. Not surprisingly, this was opposed by a cousin of Burton, who stood to inherit under Washington’s intestacy statute if Burton died without a will. The trial court ruled in the cousin’s favor, and White appealed.

On appeal, White asserted that the two nurses merely signed Burton’s will in counterparts, meaning corresponding copies of the same legal instrument. But the Court of Appeals said: “Having one witness sign one testamentary document and having another witness sign a different testamentary document does not constitute signing one document in counterparts…Without evidence that two witnesses signed the same document, or at least identical duplicates of that document, White cannot show that Burton complied with RCW 11.12.020(1).”

White also argued that he should prevail under the substantial compliance doctrine, under which a party can be found to have satisfied a statutory requirement by substantially complying “with the requirements crucial to the underlying design intended by the legislature.” However, courts sometimes decline to apply the doctrine to certain statutes, and no appellate court has decided whether it applies to RCW 11.12.020. The Court of Appeals left that issue for another day, and rule that even if it does apply, White failed to prove the requirements of the doctrine had been met:

The deficiency with Burton’ s testamentary documents was more than merely technical or procedural. The fundamental problem is that only Erickson [the first witness] saw and witnessed the first document and only Outson [the second witness] saw and witnessed the second, different document. If Erickson and Outson had seen an identical document but both signatures for some reason were not on that document, White’ s substantial compliance argument might be more compelling.

The court added that in any event, applying the substantial compliance doctrine in this case would be contrary to the statute’s purposes of ensuring “that the testator has a definite and complete intention to dispose of his or her property and to prevent, as far as possible, fraud, perjury, mistake and the chance of one instrument being substituted for another” because the risk of mistake or fraud “would be high if we allowed probate of a testamentary document signed by only one witness when the second ‘witness’ never saw that document.”

The court did side with White on one issue: it denied the cousin’s request for an award of legal fees because “the evidence suggests White is acting to enforce Burton’s testamentary intent. And this is not a frivolous appeal—it raises a novel issue of law” for the court to decide, which “should not be discouraged.”

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