Legislative Lapses: Some Suggestions for Probate Code Reform in Washington

• Publication year: 1986

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 10, No. 2WINTER 1987

Legislative Lapses: Some Suggestions for Probate Code Reform in Washington(fn1)

Mark Reutlinger(fn2)

I. Introduction

The first legislation on the subject of wills and probate in the State (then Territory) of Washington was enacted in 1854,(fn3) and the first reported appellate case to consider the subject was handed down in I860.(fn4) Since those beginnings there have been numerous further enactments, in the form of amendments and wholly new codifications, and hundreds of cases interpreting and reinterpreting those enactments and the common law. It is, then, not surprising that in the course of more than a century there have been a few lapses in the continuity and consistency of both the legislative and the decisional law of wills. Many of these lapses have escaped notice over the years merely because the situations with which they deal have not arisen. Others have actually caused difficulties for practitioners and courts, but they have yet to be satisfactorily clarified or reconciled. While courts can, of course, use their ingenuity to avoid irrational results or to fill statutory gaps, it is far better that these problems be addressed by the legislature and resolved in a manner that takes into account more than the individual circumstances of the parties to a particular lawsuit.

The purpose of this Article is to point out a number of lapses in the law of wills which were encountered in the course of research for a treatise on that subject, and to suggest possible ways to reconcile or eliminate them. Because that research was probably the first attempt in some time to look at the entire law of wills in Washington as a unified whole, it afforded the first opportunity in many years to discover and consider some of the more obscure (as well as the more obvious) lapses in the law. In addition, the Article will discuss areas of the law that are nominally consistent, but in my opinion are in need of rethinking in light of current social or legal developments.

II. Ambiguous Language

In several instances the legislature has used statutory language that is ambiguous or incomplete, or that seems to permit a reading which leads to a result that the legislature probably did not intend. Usually this has occurred when the statute was amended in some respect and the new language failed to express clearly the legislature's intention. The following are instances in which I believe the legislature did not say, or say clearly, what it meant to say; however, in the event the legislature meant just what it said, I am expressing disagreement with the legislature's position and suggesting an alternative approach.

A. Interested Witnesses

At common law, attesting witnesses to a will who were also named as beneficiaries, or had some beneficial interest, were considered incompetent to act as witnesses; therefore, if their signatures were necessary to make up the number of witnesses required by the statute, the will would fail.(fn5) This rule has evolved to the point that under the Uniform Probate Code there is no such thing as an "interested witness": all otherwise-competent persons are eligible to sign a will.(fn6) Under present Washington law, an interested witness is competent to witness a will, but his legacy is void unless one of two conditions is met: (1) there are "two other competent witnesses" to the will (in which case the interested witness is a supernumerary, and his entire legacy is valid); or (2) he would have been entitled to some amount if the will were not established (in which case he receives that amount or the amount of the legacy, whichever is less).(fn7) The first condition presents certain language problems.

1. "Witnesses" Required for Supernumerary Status

The statute requires signing by two other competent witnesses, but does not specify two other competent subscribing witnesses. This could be read, as it has been in other jurisdictions,(fn8) to mean that if any two persons who are competent to testify observed the signing of the will, this suffices to render the interested witness a supernumerary. Such a reading is literally possible, but it would be incorrect for several reasons. First, there is a well-settled meaning of the word "witness" in the context of a will, and that meaning is subscribing witness, one who has signed the will.(fn9) Second, the very next phrase in the statute uses the same term "competent witness," but in a context that clearly requires the interpretation "subscribing witness": "a mere charge on the estate of the testator for the payment of debts shall not prevent his creditors from being competent witnesses to his will."(fn10) Because being a creditor would not ordinarily render one "incompetent" except arguably (if not for this proviso) in the sense of "incompetent to subscribe as an interested witness," the reference in this latter phrase must be to subscribing witnesses.(fn11) The ambiguity is cleared up easily by adding the word "subscribing" before "witnesses" in reference to those who render an interested witness a supernumerary.

2. Competency of Interested Witnesses

The statute does not specifically state that interested witnesses are competent to attest a will. As indicated above, at common law they were not, so this cannot be taken for granted. In fact, the aforementioned proviso regarding creditors lends credence to the interpretation that interested witnesses are not competent: by stating that the indirect interest of creditors will not render them incompetent, the statute seems to imply that other forms of interest may indeed have such an effect. Nevertheless, the statute would be meaningless if it did not contemplate the possibility of a valid will with competent but interested witnesses. If interested witnesses were incompetent, there would be no need to declare void the legacy of an interested, nonsupernumerary witness. Thus the statute has been interpreted to render interested witnesses competent.(fn12)

Unfortunately, including interested witnesses in the statute's definition of "competent" witnesses raises another difficulty caused by imprecise wording. The statute by its terms requires two other "competent," not "competent disinterested" witnesses to attest in order to render an additional interested witness a supernumerary. If interested witnesses are themselves competent, the following situation could well arise: a will attested by three witnesses, all of whom are interested. Each might point to the other two "competent" witnesses and declare himself a supernumerary under the literal language of the statute. Clearly the legislature did not contemplate such a result, which would award full legacies to each of three interested witnesses, but deny any legacy to both if there were only two. The obvious intent of the statute is to prevent an interested witness whose attestation is necessary to validate a will from taking under it any more than he would take without it. It is necessary, therefore, to view the witnesses as a group: if all three had not attested, the will would fail; and all three, viewed together, cannot (by definition) all be supernumeraries.(fn13) It follows that what the statute means to require is two other competent disinterested witnesses.

This interpretation of the statute is consistent with the clause discussed earlier which provides that the interest of creditors does not render them incompetent. Because no interest of a witness renders the witness incompetent in the sense of being unable to attest, the purpose of the creditor clause must be to make it clear that a witness/creditor is not prevented from taking under the will (i.e, is not prevented from being treated as disinterested). It follows that when section 11.12.160 uses the term "competent," it does not mean "qualified to attest," but "disinterested."

Washington's legislature is not the first to create the sort of confusion illustrated above;(fn14) but the fact that it has company does not mean that the confusion should be allowed to continue. The problem of the meaning of "competency" can be easily resolved by the simple addition of the words "and disinterested" following the word "competent" in the first phrase of section 11.12.160, and the words "considered both competent and disinterested" in place of the word "competent" in the second phrase.(fn15) The better wording, then, would beAll beneficial devises, legacies, and gifts whatever, made or given in any will to a subscribing witness thereto, shall be void unless there are two other competent and disinterested witnesses to the same; but a mere charge on the estate of the testator for the payment of debts shall not prevent his creditors from being considered both competent and disinterested witnesses to his will.(fn16)

B. Revocation, Revival, and Republication

1. Revocation

Section 11.12.040 of the Revised Code of Washington refers to the manner in which a will can be revoked.(fn17) The first such manner is "[b]y a written will." While this appears to be a simple enough method, it is an unnecessary source of potential confusion. True, a "written will" can, and usually does, revoke (in whole or in part) an earlier will, either expressly through a revocation clause or by implication through inconsistency. However, a "written will" need not do so: it may merely add provisions that neither state...