§12.11 References to Separate Writings

• Jurisdiction: Washington

§12.11 REFERENCES TO SEPARATE WRITINGS

There are two circumstances in which the construction of a will or trust may allow for inclusion of documents outside the will or trust itself.

(1) Disposition of tangible personal property by separate writing

RCW 11.12.260 allows for the disposition of tangible personal property by a writing that is not a will or trust if (1) the testator's will or trust refers to the writing; (2) the writing is signed by the testator or grantor, or it is in the handwriting of the testator or grantor; and (3) the writing describes the items of tangible personal property and its recipients with reasonable certainty.

The separate writing may be written or signed either before or after the execution of the will or trust, and it may be modified at any time by the testator or grantor if the modifications are in the testator's or grantor's handwriting or signed by the testator or grantor. Inconsistencies between writings are resolved in favor of the most recent writing. For that reason it is always advisable to have the writing not only signed by the testator or grantor but dated as well.

The statute provides that such a writing is given effect as if it were actually contained in the will or trust. However, if a recipient of property under the writing predeceases the testator or grantor and the writing does not provide for a contingent disposition, the disposition in the writing lapses and the antilapse statute (RCW 11.12.110) does not apply.

The statute provides that "tangible personal property" refers to articles of "personal or household use or ornament," giving as examples furniture, furnishings, automobiles, boats, airplanes, and jewelry, as well as precious metals. The term includes items held for investment purposes, but the statute expressly excludes property used primarily in a trade or business and mobile homes (which under other provisions of the law may be classified as either real property or personal property). Also excluded is intangible property, including money, bank accounts,

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documents of title, and securities. Even though currency is excluded, silver coins bought with an anticipation of appreciation are included in the definition of "precious metals." In re Estate of Lowe, 191 Wn.App. 216, 234, 361 F.3d 789 (2015). The authority in the statute is expansive and includes the defined property regardless of value.

Wills and trusts in Washington very commonly contain a clause referring to...