§3.3 Wills
Jurisdiction | Washington |
§3.3 WILLS
The use of wills and testaments to transfer property on death dates back to ancient Greek and Roman times. Currently, in Washington state and other common-law jurisdictions, there are well-developed statutory procedures determining who may make a will. This right to dispose of property at death is not a natural or constitutional right and is granted by statute. See In re Sherwood's Estate, 122 Wash. 648, 654-55, 211 P. 734 (1922); Strand v. Stewart, 51 Wash. 685, 99 P. 1027 (1909). In connection with the statutory right to make a will, a basic principle underlying the law of wills is that an individual has the right and freedom to dispose of property according to his or her private desire. In re Hastings' Estate, 88 Wn.2d 788, 796, 567 P.2d 200 (1977); see also In re Estate of Barnes (Mueller v. Wells), 185 Wn.2d 1, 9, 367 P.3d 580 (2016) (right to testamentary disposition of property is a fundamental right protected by law). This section addresses types of wills and the steps necessary for the will to be accepted by a court as the decedent's last wishes for disposition of property.
Practice Tip: | Real property owned by individuals in civil law jurisdictions may not be subject to transfer by U.S. wills. In civil law countries, such as France property vests in the decedent's heirs immediately upon the death of the decedent. If real property is located in non-U.S jurisdictions or if the decedent is domiciled in a non-U.S jurisdiction, a practitioner in that jurisdiction should be consulted to determine the effectiveness of a Washington will or the need for additional steps to transfer foreign real estate. |
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(1) Types of wills
The various types of wills available in Washington are discussed below.
(a) Wills created in compliance with statute
A "will" in Washington is denned in RCW 11.02.005(20) as an instrument validly executed as required by RCW 11.12.020. The statutory formalities for such an instrument are discussed in §3.3(2), below.
Practice Tip: | For an identification of and samples of key will provisions, see John R. Price and Samuel A. Donaldson, Price on Contemporary Estate Planning ch. 4 (2018) (hereinafter Price on Contemporary Estate Planning). Also, see §3.4 of this chapter regarding testamentary trusts. |
A "codicil" is denned in RCW 11.12.005(2) as a will that modifies or partially revokes an existing earlier will. Although a former statute required attachment of the will to a codicil, the present statute no longer requires that the codicil refer to or be attached to the earlier will. The effect of the codicil is to republish the will and, unless intended otherwise by the testator, to bring it up to the date of the codicil for any purpose for which the date of the document is important. See Reutlinger, Washington Law of Wills 55-56.
A will is legally executed if executed in the manner prescribed either by Washington law or the law of the place where the will is executed or where the testator is domiciled, either at the time of the will's execution or at the time of the testator's death. RCW 11.12.020.
(b) Nuncupative wills
A nuncupative will is an oral will that is witnessed even though there is no writing. Under RCW 11.12.025, a Washington nuncupative will is statutorily limited to very restricted circumstances involving a member of the armed forces, a person on a vessel of the merchant marine, or a person disposing of property under $ 1,000. This type of will cannot be used to dispose of real property and is limited to transfer of wages or personal property. In addition, the will must be proven within six months of the statement and eventually committed to writing. A spouse or heirs at law may contest the will.
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(c) Holographic wills
A holographic will is a testamentary instrument entirely written, dated, and signed by the testator in the testator's own handwriting. In re Bauer's Estate, 5 Wn.2d 165, 171, 105 P.2d 11 (1940).
Washington statutes make no provision for holographic wills, and such wills executed in the state are not recognized by the courts. In re Brown's Estate, 101 Wash. 314, 172 P. 247 (1918); Estate of Burton v. Didricksen, 189 Wn.App. 630, 635, 358 P.3d 1222 (2015). A foreign holographic will that is valid in the state of execution will be recognized by a Washington court. In re Estate of Tolson, 89 Wn.App. 21, 947 P.2d 1242 (1997) (recognizing California holographic will); In re Wegley's Estate, 65 Wn.2d 689, 690-91, 399 P.2d 326 (1965) (recognizing Oregon holographic will).
(d) Reciprocal and mutual wills
Reciprocal wills contain common or reciprocal provisions, but they are not necessarily executed pursuant to any agreement. Often, spouses have reciprocal wills in which they devise and bequeath their property to each other "trusting to the survivor to make provisions for children or other objects of their bounty with no intention that the wills shall be mutual in the sense that neither will can be revoked without the consent of the other, or after the death of the other spouse ...." Auger v. Shideler, 23 Wn.2d 505, 509, 161 P.2d 200 (1945).
The term "mutual will" is used in a stricter sense, and it is distinguished from the less significant term "reciprocal will." Auger, 23 Wn.2d at 511. The court in In re Weir's Estate, 134 Wash. 560, 236 P. 285 (1925), observed that nearly all of the cases involving mutual wills involved a husband and wife who executed wills leaving to each other certain property, with a portion of the property, or the remainder, to their children. In construing these wills, the courts were able to see from the wills themselves a distinct understanding between the parties that one will was executed upon the faith and the provisions of the other, both evidencing the same intent as to the care of, and provision for, the children. These facts, as observed by the court in Weir's Estate, have led to holdings that the survivor is not permitted, upon the other's death, to change his or her own will.
(e) Conditional wills
A testator may condition a will by stating that it takes effect when a particular event occurs. Restatement (Third) of Property: Wills and Other Donative Transfers §6.2 cmt. zz & illus. 26-29 (2003).
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There appear to be no reported Washington cases in which courts have recognized a conditional will.
(f) Gifts causa mortis
A claim of gift causa mortis usually arises when a decedent does not have an opportunity to sign a will, believes that sickness or peril will result in death, and gives property to a claimant. Such a gift may be revoked by the donor if the donor survives the pending sickness or peril and does not pass irrevocable title until the death of the donor. In determining whether a gift causa mortis is valid, a court looks at evidence of the pending sickness, death resulting therefrom, an intention to give, whether the gift was subject to revocation if death did not ensue from the pending sickness, and a delivery of the gift. The evidence must be clear and convincing, but need not be beyond dispute or doubt. Whether a gift of this character is valid is largely a question of fact. In re White's Estate, 129 Wash. 544, 225 P. 415 (1924). The elements of a gift causa mortis are as follows:
(1) the gift must be made in view of approaching death from some existing sickness or peril; (2) the donor must die from such sickness or peril without having revoked the gift; (3) there must be a delivery, either actual, constructive, or symbolic, of the subject of the gift to the donee or to someone for him, with the intention of passing title thereto, subject to revocation in the event of recovery from the pending sickness.
In re McDonald's Estate, 60 Wn.2d 452, 454-55, 374 P.2d 365 (1962); In re Gallinger's Estate, 31 Wn.2d 823, 833, 199 P.2d 575 (1948).
(2) Statutory...
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