374 P.3d 215
Wash. Ct. App.2016Background
- Bert Hook (Washington domiciliary) executed a 1988 Washington will and a 1999 codicil devising his estate to his brother Jerry; Jerry was appointed personal representative.
- In February 2012 in Arizona, Hook signed a new written will (the "Atkinson will") witnessed then by notary Linda Darland; Darland signed and notarized on Feb 13, 2012.
- Levitte witnessed Hook sign on Feb 13 but did not sign the will until March 29, 2012 in Spokane, Washington; Atkinson (named PR in the Atkinson will) filed to probate it in Arizona and then Washington.
- San Juan County found Hook was domiciled in Washington at death; Arizona probate was stayed and dismissed. Jerry sought to probate the 1988 will and received letters testamentary.
- Trial court ruled the Atkinson will was "executed" in Washington because the final formal act (second witness signing) occurred in Washington; as a Washington will it failed formalities (second witness did not sign in testator's presence) and was invalid. Court dismissed Atkinson's will contest; Atkinson appealed.
Issues
| Issue | Atkinson's Argument | Jerry's Argument | Held |
|---|---|---|---|
| Meaning of "executed" in RCW 11.12.020 — where was the will "executed"? | A will is executed when the testator signs it; thus execution occurred in Arizona on Feb 13. | Execution includes completing all formal acts (including witness signatures); final act (second witness) occurred in Washington, so it was executed in WA. | Court held "executed" includes the last formal act necessary to make the will valid; execution occurred in Washington. |
| Applicability of RCW 11.12.020 proviso (foreign wills valid if executed where executed) | Atkinson: If executed in Arizona, the Arizona witnessing rule (sign within a reasonable time) applies and the will could be valid. | Jerry: Because execution occurred in Washington, the proviso for foreign wills does not apply; Washington formalities control. | Proviso inapplicable; Washington law governs and the will is invalid under Washington formalities. |
| Validity under Washington formalities (attestation requirement) | Atkinson: N/A (relied on Arizona law if foreign will) | Jerry: No two witnesses attested in testator's presence as required by RCW 11.12.020. | Held invalid as a Washington will: second witness did not sign in testator's presence. |
| Whether courts should prefer testator's last wishes over formality (invoking Estate of Elliott) | Atkinson: Courts should favor carrying out decedent's final intent; technical construction should not defeat it. | Jerry: Formalities must be satisfied before courts give effect to testamentary intent. | Court: Intent is important but an instrument must first be properly executed; formalities control here. |
Key Cases Cited
- In re Estate of Black, 153 Wn.2d 152 (discusses proof required to establish formal execution of a will)
- In re Wegley's Estate, 65 Wn.2d 689 (foreign execution proviso can validate holographic wills executed under another jurisdiction)
- Estate of Elliott, 22 Wn.2d 334 (courts will effectuate testator's intent but only after a will is properly admitted to probate)
- In re Estate of Jung, 210 Ariz. 202 (Arizona construing witness-signing requirement: witness may sign after testator's death if within a reasonable time)