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When is a Will Valid?

Washington Wills:  Any adult (eighteen years of age) of sound mind may make a Will that expresses her intention to give her property to persons or entities after her death.  Every Will must be in writing and signed by the testator (the person making the Will), or signed by another person on behalf of the testator and in the testator’s presence.  Every Will must be signed by two or more competent witnesses who sign the Will in the presence of the testator and at the testator’s direction.  Provided these conditions are met, a Will executed in Washington is valid.  RCW 11.12.010, 11.12.020.  Any person who has executed a Will under these conditions, or conditions lawful in the location where the Will was executed, is said to be "testate."  Those who have not done so are said to be "intestate."

To avoid complications when a Will is probated, after the death of the testator, the witnesses to a Will should be persons who are not “interested,” that is, persons who do not receive under the Will and would not receive were the Will determined to be invalid. 

A person possesses sufficient “sound mind” to execute a Will if that person understands what he is doing, knows what property he owns, and remembers who are the members of his family.  In re Bottger’s Estate, 14 Wn.2d 676, 129 P.2d 518 (1942).  Such a sound mind is called testamentary capacity.  A testator’s intent to make a Will may be affected by the testator’s mental incapacity, by fraud upon the testator, by the undue influence of others, or by the testator’s mistaken understanding regarding his Will.

Washington Nuncupative Wills:  A member of the United States armed forces or merchant marine may dispose of his or her wages and personal property, provided the value of such is less than $1,000.00, by an oral statement to two witnesses who are charged by the testator that statement represents his Will and this statement is made at the time of the member’s last illness, and further provided that within six months after the testator spoke, his words are written down, and the deceased’s widow and heirs at law are notified by citation of this nuncupative Will.  No real estate may be transferred by nuncupative Will.  RCW 11.12.025.

Wills Executed in Other States:  Wills executed in other states are valid in Washington if those Wills were executed in accord with the laws of that state at the time of execution or at the time of the death of the testator.  RCW 11.12.020.  Holographic Wills are written entirely in the testator’s own handwriting and are not witnessed.  Possibly as many as nineteen of the fifty states recognize the validity of holographic Wills (Washington State is not among them).  In one such state, a man alone in his bedroom recognized he was dying.  He hastily scrawled on the wall in lipstick, “All to wife.”  This writing was recognized, according to this (probably apocryphal) tale, as a valid holographic Will.  Had this Will been valid in the state of scrawling, it might have been probated in a Washington court.

Brad Lancaster works as a Seattle divorce attorney, and Seattle probate attorney, and Seattle elder law attorney, serving King County and Snohomish County, including Seattle, Shoreline, Lake Forest Park, Edmonds, Woodway, Lynnwood, Mountlake Terrace, Alderwood, Brier, Kenmore, Woodinville, Mukilteo, Mill Creek, and Everett.  Brad provides collaborative solutions to human conflict.

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