Wills and Affidavits of Attesting Witnesses
In the state of Washington, a Will must be “attested” by at least two competent witnesses. Those witnesses must sign their names to the Will or to an affidavit that complies with law and must do so while in the presence or the electronic presence of the testator (the person whose Will is involved) and at the testator’s direction or request. The purpose of the witnesses is to establish that the Will was signed by the testator or by someone under the testator’s direction in the testator’s presence or electronic presence and that the testator was not affected by issues affecting their ability to sign the Will. Such issues could include mental capacity issues of the testator (for example, not understanding that they were signing their Will) or issues of improper influence by one or more other people that affected the testator’s ability to act based on their freely made decision. This could include acting under duress or undue influence that could cause them to sign a Will that reflected the true wishes of someone other than the testator.
Sometimes there is an issue with a Will that could cause it to be rendered invalid. For example, the attestation language may be incorrect or an issue may be discovered after the Will has been signed that calls into question whether a witness properly served as a witness. Washington law provides a solution that can be used while the testator is alive or after their death.
One or more of the attesting witnesses to the Will may, at the request of the testator or, after the testator’s death, at the request of the executor of the Will or any person interested under the Will, make an affidavit before any person authorized to administer oaths that states the facts they would be required to testify to in court to prove the Will. The affidavit can be written on the Will or affixed to it or to a photographic copy of the Will. Absent such a solution, the result could be that the testator is treated as having died without a Will. This results in distribution of the testator’s property according to state law, which may not be the distribution the testator had intended by signing their Will. And, the testator may never have known that there was an issue with their Will that could have that result.
If you need assistance with your estate planning matters, contact one of the attorneys in Beresford Booth’s Estate Planning and Probate Group.
To learn more about Wills and Affidavits of Attesting Witnesses, please contact Beresford Booth at info@beresfordlaw.com or by phone at (425) 776-4100.