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Devising Personal Property by Separate Writing

Posted Sunday, June 26, 2016 by John S. Palmer

Under Washington law a will may provide for the disposition of tangible personal property by separate writing. If a will authorizes such a writing, it may be created before or after the will is signed, and amended at any time. If there is an inconsistent disposition of tangible personal property in multiple writings, the most recent writing will control.

In order to be binding the separate writing must be in the testator’s handwriting or signed by the testator, and it must describe the items and recipients of the property with reasonable certainty. The writing cannot devise property used primarily in a trade or business or property that is otherwise specifically devised in the will.

The statute defines tangible personal property which may be devised by separate writing to mean:

articles of personal or household use or ornament, for example, furniture, furnishings, automobiles, boats, airplanes, and jewelry, as well as precious metals in any tangible form, for example, bullion or coins. The term includes articles even if held for investment purposes and encompasses tangible property that is not real property. The term does not include mobile homes or intangible property, for example, money that is normal currency or normal legal tender, evidences of indebtedness, bank accounts or other monetary deposits, documents of title, or securities.

Disposition of tangible personal property by separate writing has been permitted in Washington for over 30 years. However, it was not until last November that the Washington Court of Appeals issued the first published decision interpreting the statute. [In the Matter of the Estate of Betty L. Lowe, decided Nov. 10, 2015]. The court found that Betty Lowe’s written instruction leaving “any and all silver coins and bars” to her son Lonnie “to distribute as he shall determine or to retain for himself” was a valid disposition of her silver.

After Betty’s death, Lonnie relied upon this writing to sell some of the silver and distribute more than $225,000 of the sale proceeds to himself. Lonnie’s brother Aaron contested this distribution and sought to have the proceeds distributed among all of Betty’s children and grandchildren according to the terms of her will.

Aaron argued that the silver coins were “currency” or “legal tender” and therefore were not the type of property permitted to be devised by separate writing. However, the Court of Appeals found that the coins were precious metals obtained for investment purposes rather than normal currency.

Aaron also asserted that Betty’s writing failed to identify the recipients of the property with reasonable certainty. However, the Court of Appeals said that it “is a valid testamentary disposition to leave property to be disposed of at the discretion of another…Thus, Betty’s instruction describes the recipient with reasonable certainty even where it grants Lonnie the discretion to dispose of the silver bars and coins as he determines.”

The court rejected Aaron’s other arguments, including his request that the court recognize his claim for “tortious interference with an inheritance expectancy” (Washington courts recognize a claim for “tortious interference with a business expectancy” but have not extended it to include inheritances).

Although the purpose of permitting disposition of tangible personal property by separate writing is to make it easier to devise such property without hiring a lawyer, the court’s opinion notes that when Betty attempted to give Lonnie written instructions regarding the silver, he referred her to her estate planning attorney, who drafted the instructions that Betty ultimately signed without Lonnie present. Doing so may very well have precluded Aaron from claiming that the instructions were the product of Lonnie’s undue influence over Betty.

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Law Office of John S. Palmer11911 NE 1st St, Ste. B204,Bellevue, WA 98005-3056