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When is a will “executed”?

Posted Saturday, August 6, 2016 by John S. Palmer

The case law regarding defectively-executed wills reminds me of the old George Carlin routine, in which he talked about presenting the parish priest with increasingly outlandish hypothetical questions. What if you fail to attend Mass on Sunday, for example, but then cross the international date line, and it is Sunday again?

In a similar vein, what if a testator signs a will with one witness present, then signs a similar will a short while later with a different witness present. Can the two documents be combined to satisfy the two-witness requirement? The answer is no, according to a case decided last year.

What if a testator signs a will in Arizona with two witnesses present, but only one of them signs it that time and the second witness signs it in Washington State after the testator’s death? That will is also invalid, according to a recent decision by the Washington Court of Appeals.

The facts of the case (In the Matter of the Estate of Bert W. Hook, decided May 9, 2016), are somewhat sad: after undergoing heart surgery in 2011, 77-year old Bert Hook, who lived in eastern Washington, went to stay with his only brother Jerry in western Washington. Within a few days Bert called James Atkinson, a long-time friend in Arizona, to come and get him. In January 2012, Bert prepared a will in which he left his estate to several people, including Jerry Hook, James Atkinson, and Anna Levitte. In February 2012 both Bert and a notary signed the will; Levitte was present but did not sign the will at that time. Five days later, Bert committed suicide.

Jerry Hook obtained an order in Washington admitting Bert’s 1988 will to probate; that will left Bert’s entire estate to Jerry. Meanwhile, Atkinson and Levitte gave the 2012 will to Bert’s attorney in Spokane, who discovered that while both Washington and Arizona law require a will to be signed by two witnesses, Arizona permits the witnesses to sign it “within a reasonable time.” Levitte came to Spokane and signed the will in late March 2012, about five weeks after Bert’s death. Atkinson then tried to get courts in both Washington and Arizona to accept it.

The Arizona case was eventually dismissed. The Washington superior court ruled that the 2012 will was “executed” in Washington, not Arizona, and therefore had to comply with Washington law, which requires the witnesses to sign in the presence of the testator. Atkinson appealed.

The Court of Appeals noted that Arizona law permits a witness to sign a will after the testator’s death, and therefore the 2012 will could potentially be valid under a provision of RCW 11.12.020 stating Washington courts recognize wills that are “executed in the mode prescribed by the law of the place where executed.” However, with respect to Bert’s will the court ruled that “executed” means more than just “signed by the testator”:

The trial court concluded that the execution of a document means completing all of the steps necessary to make the document a legal instrument. By this reasoning, a will is not “executed” until the occurrence of the last formal act necessary to make the will valid. We agree and hold that the meaning of the word “executed” in RCW 11.12.020 comprises the acts of the witnesses as well as the act of the testator.

The court then concluded that Bert’s will had to comply with Washington law because it was executed here:

The trial court reasoned that while “significant acts toward the execution” of the Atkinson will occurred in Arizona, it “only became an executed document when Ms. Levitte signed it and she signed it in Washington.” We affirm the trial court’s reasoning. Because Arizona was not the “place where executed,” RCW 11.12.020(1), the proviso in the statute for foreign wills does not apply. The Atkinson will is a Washington will, not a foreign will. As a Washington will, it is invalid. There is no second witness who attested to the Atkinson will while in the presence of Bert Hook and at his direction or request. The Atkinson will cannot be admitted to probate in Washington either as a foreign will or as a Washington will.

The Court of Appeals also rejected Atkinson’s argument that Estate of Elliot, a 1945 case decided by the Washington Supreme Court, required upholding the 2012 will. Although the Elliot decision does state that statutes “should not be construed so as to defeat the will of the testator, unless such construction be absolutely required.” The Court of Appeals said the Eliot court qualified this by adding that the “instrument must, of course, first be admitted to probate”, which requires that the instrument be validly executed.

James Atkinson has filed a petition for review with the Washington Supreme Court, which has not yet decided whether to accept the case.

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