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Washington Wills > What Is a Will in Washington?

 

What Is a Will in Washington?

 

 

WILL
A legal declaration that names one or more persons to manage one's estate and provides for the transfer of one's property at death, historically, of only one's real property.  Contrast: TESTAMENT.

 

TESTAMENT
A legal declaration that names one or more persons to manage one's estate and provides for the transfer of one's property at death, historically, of only one's personal property.  Now obsolete, as a Will now covers both real and personal property.

 

ESTATE
The aggregate of all property and interests in property owned by an individual.

 

PROPERTY
Anything which may be the subject of ownership, such that its owner has the exclusive right to possess, to use, to exclude others from it, and to transfer it to another.

 

REAL PROPERTY (aka REALTY)
Property consisting of:

Land;

Property permanently affixed to land (eg, buildings);

Property contained within (eg, minerals) or growing (eg, crops and trees) on land; and

Any interest in such property (eg, a life estate or remainder).

 

PERSONAL PROPERTY (aka PERSONALTY)
 All property that is not real property, generally either tangible personal property (having physical presence, such as cars, clothing, furniture, books, jewelry, etc.) or intangible personal property (representing an ownership right, such as notes of indebtedness or securities, and including a contract interest in real property, such as a lease).

 

TESTATOR
Literally, "one who makes a Will."

 

TESTATRIX
A female testator.

 

 

A.  The Document

 

instrument  1. A written document that defines rights, duties, entitlements, or liabilities, such as a contract, will, promissory note, or share certificate.  At page 801.

 

document  (as a noun)  1.  Something tangible on which words, symbols, or marks are recorded.  At page 498.

 

Black's Law Dictionary 7th Edition, Bryan A. Garner, editor; West Group: St. Paul, MN, 1999:

In Washington, a Will is:

In Washington, the definition of a Will also includes that of a Codicil: A Will that modifies or partially revokes an existing earlier Will.  RCW 11.02.005(9)

 

Query: What would a document be that said "I revoke all prior Wills of mine."?  If executed validly, it would appear to be a one sentence Will.

 

 

B.  Its Valid Execution (ie, its signing & witnessing).    ñ

 

 Probated Wills have included those written not only in ink but also in pencil, and not only on paper but also on a tractor's fender, a petticoat, and an empty egg shell, and not necessarily in English or even a language understood by the Testator so long as he/she understood the Will's provisions. Will made in a foreign language not understood by the Testator: Estate of Hille, 117 Wash. 205 (1921). See Atkinson, Handbook of the Law of Wills (2nd ed. 1953).

1.  Its Signing by the Testator

 

The document must be:

In Writing: The "in writing" requirement means what it says: Written, whether typewritten, handwritten, or printed.  Unlike some other jurisdictions, Washington does not require a Will to be typewritten or printed; the mere fact that it is handwritten, even by another, will not invalidate it so long as it is "in writing" and "signed by the Testator."

 

Signed by the Testator: A Will can be "signed by the Testator" in any of three ways:

 

Note that technically:

  • The Testator is not required:

    • To sign the Will in the presence of the witnesses.  Estate of Kessler, 95 Wn. App. 358 (1999); Estate of Lindsay, 91 Wn. App. 944 (1998); Estate of Gardner, 69 Wn. 2d 229 (1966); Estate of Chambers, 187 Wash. 417 (1936).

    • To sign it at the end of the Will (ie, to "subscribe" his/her name), or

    • To inform the witnesses that the document is a Will; and
       

  • The witnesses are not required:

    • To know that the document is a Will, or

    • To sign it in the presence of each other.  Estate of Kessler & others above.

2.  Its Attestation by Its Witnesses

 

The document must not only be signed by its Testator but also be witnessed by two of more persons who:

  1. Are competent adults, understand what they are doing, and are capable of testifying in Court.  Estate of Mitchell, 41 Wn.2d 326 (1952).
     

  2. Have personal knowledge that the Testator signed the Will.  Estate of Chafey, 167 Wash. 185 (1932).  And
     

  3. Sign their names:
     

    1. At the end of the Will,
       

    2. At the Testator's request, and
       

    3. In the Testator's presence.  RCW 11.12.020

The last three requirements (ie, a through c) can also be met by the witnesses' signing an Affidavit, instead of the Will, at the Testator's request and in the Testator's presence.

 

While a person who subscribes his/her name to a Will is uniformly referred to as a "witness," this description would appear to be misleading, and a more accurate name for such a person, in light of their actual responsibilities and duties, might be an "attestor."  All that an "attestor" is attesting is that the Testator has:

Attestation Issues:

  1. Fiduciary Witness:  The mere fact that one or more of the Testator's fiduciaries (eg, named Personal Representative, Trustee, Guardian, Agent, or Attorney) acts as a witness will not affect the validity of the Will.  Named Personal Representative as witness: Estate of Wiltzius, 42 Wn.2d 149 (1953).  Personal Attorney as witness: Estate of Miller, 10 Wn.2d 258 (1941).
     

  2. Interested Witness:  If a Beneficiary under the Will acts as a witness to it, then unless two disinterested persons also witness the Will (making the Witness who is a Beneficiary what is known as a "supernumerary" witness), the gift to that Beneficiary will be presumed to have been made under duress, menace, fraud, or undue influence.  If that Beneficiary cannot successfully rebut that presumption, the Beneficiary will be limited to no more than what he/she would have taken had the Testator died without the Will (ie, intestate).  RCW 11.12.160
     

  3. Self-Proving Will:  Washington law, like the law of most, but not all, other states (the exceptions are believed to be Maryland, Ohio, and Vermont) provides for what is known as a "self-proving" Will --- in other words, a Will that the Probate Court will accept at the Testator's death without having the witnesses come to Court and testify as to the truth of their attestation.  In order for a Will to be "self-proving," the witnesses must sign either an Affidavit or a Declaration (also called a Certification) under Penalty of Perjury stating that the statements that they would have otherwise made in an Attestation Clause are true.  RCW 11.20.020(2)  Estate of Starkel v. Wright, 134 Wn. App. 364 (2006) [Will attestation clause satisfied by Declaration under Penalty of Perjury].
     

  4. Notarization:  Washington law does NOT require a Will to be notarized to be valid --- only (it is believed) Louisiana does.  Using a Notary as a Witness or having the Will notarized is acceptable, but no legal benefit obtains from doing so (as long as the witnesses sign a Declaration under Penalty of Perjury, making the Will "self-proving").  RCW 9A.72.085  Estate of Starkel v. Wright, 134 Wn. App. 364 (2006) [Will attestation clause does not require notarization if signed with Declaration under Penalry of Perjury].

 

C.  Common Law Requirements (Arcane).    ñ

 

Besides the various statutory requirements for making a valid Will in Washington, those that are described above, there are a number of arcane, common law requirements that are often overlooked in determining the validity of a writing as a Will.  Some of these are as follows:

 

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