What Is a Will in Washington?

WILL
A legal declaration that names one or more persons to manage one’s estate and provides for the transfer of one’s property at death, historically, of only one’s real property.  Contrast: TESTAMENT.

TESTAMENT
A legal declaration that names one or more persons to manage one’s estate and provides for the transfer of one’s property at death, historically, of only one’s personal property.  Now obsolete, as a Will now covers both real and personal property.

ESTATE
The aggregate of all property and interests in property owned by an individual.

PROPERTY
Anything which may be the subject of ownership, such that its owner has the exclusive right to possess, to use, to exclude others from it, and to transfer it to another.

REAL PROPERTY (aka REALTY)
Property consisting of:

• Land;
• Property permanently affixed to land (eg, buildings);
• Property contained within (eg, minerals) or growing (eg, crops and trees) on land; and
• Any interest in such property (eg, a life estate or remainder).

PERSONAL PROPERTY (aka PERSONALTY)
All property that is not real property, generally either tangible personal property (having physical presence, such as cars, clothing, furniture, books, jewelry, etc.) or intangible personal property (representing an ownership right, such as notes of indebtedness or securities, and including a contract interest in real property, such as a lease).

TESTATOR
Literally, “one who makes a Will.”

TESTATRIX
A female testator.

1. The Document

   instrument  1. A written document that defines rights, duties, entitlements, or liabilities, such as a contract, will, promissory note, or share certificate.  At page 801.

   document  (as a noun)  1.  Something tangible on which words, symbols, or marks are recorded.  At page 498.

   Black’s Law Dictionary 7th Edition, Bryan A. Garner, editor; West Group: St. Paul, MN, 1999:

   In Washington, a Will is:

   • An instrument (ie, a document) — that is
   • Executed
   • Validly as required by RCW 11.12.020.  RCW 11.02.005(8)

   In Washington, the definition of a Will also includes that of a Codicil: A Will that modifies or partially revokes an existing earlier Will.  RCW 11.02.005(9)

   Query: What would a document be that said “I revoke all prior Wills of mine.”?  If executed validly, it would appear to be a one sentence Will.

2. Its Valid Execution (ie, its signing & witnessing).

   Probated Wills have included those written not only in ink but also in pencil, and not only on paper but also on a tractor’s fender, a petticoat, and an empty egg shell, and not necessarily in English or even a language understood by the Testator so long as he/she understood the Will’s provisions. Will made in a foreign language not understood by the Testator: Estate of Hille, 117 Wash. 205 (1921). See Atkinson, Handbook of the Law of Wills (2nd ed. 1953).

   1. Its Signing by the Testator

      The document must be:

      • In writing, and
      • Signed by the Testator.  RCW 11.12.020

      In Writing: The “in writing” requirement means what it says: Written, whether typewritten, handwritten, or printed.  Unlike some other jurisdictions, Washington does not require a Will to be typewritten or printed; the mere fact that it is handwritten, even by another, will not invalidate it so long as it is “in writing” and “signed by the Testator.”

      Signed by the Testator: A Will can be “signed by the Testator” in any of three ways:

      • By the Testator’s Signature:  The “signed by the Testator” requirement is most easily met by the Testator’s actual signature.
        If the Testator signs by mark, then any signature by another is considered as identification of the Testator’s mark and not as the Testator’s signature by another, thus making a “signature by proxy” statement unnecessary.  Points v. Nier, 91 Wash. 20 (1916).
      • By the Testator’s Mark:  Such as an “X.”  Estate of Young, 23 Wn. App. 761 (1979).
      • By Another at the Testator’s Request and in the Testator’s Presence:  In which case the person (known as the “proxy”) signing on behalf of the Testator must not only sign the Testator’s name but also:
        1. State in writing at the end of the Will that he/she signed the Testator’s name at the Testator’s request, and
        2. Sign the statement in his/her own name.  RCW 11.12.030

        A suitable “signature by proxy” might be in the following form at the end of the Will, where the name of the hypothetical Testator is George Washington and that of the proxy is John Adams:
        I have signed the Testator’s name at his request and in his presence.

      • /  signed  John Adams  /
      • /  signed  George Washington  /

       

      Note that technically: The Testator is not required: To sign the Will in the presence of the witnesses.  Estate of Kessler, 95 Wn. App. 358 (1999); Estate of Lindsay, 91 Wn. App. 944 (1998); Estate of Gardner, 69 Wn. 2d 229 (1966); Estate of Chambers, 187 Wash. 417 (1936). To sign it at the end of the Will (ie, to “subscribe” his/her name), or To inform the witnesses that the document is a Will; and The witnesses are not required: To know that the document is a Will, or To sign it in the presence of each other.  Estate of Kessler & others above.

   2. Its Attestation by Its Witnesses

      The document must not only be signed by its Testator but also be witnessed by two of more persons who:

      1. Are competent adults, understand what they are doing, and are capable of testifying in Court.  Estate of Mitchell, 41 Wn.2d 326 (1952).
      2. Have personal knowledge that the Testator signed the Will.  Estate of Chafey, 167 Wash. 185 (1932).  And
      3. Sign their names:
         1. At the end of the Will,
         2. At the Testator’s request, and
         3. In the Testator’s presence.  RCW 11.12.020

      The last three requirements (ie, a through c) can also be met by the witnesses’ signing an Affidavit, instead of the Will, at the Testator’s request and in the Testator’s presence.

      While a person who subscribes his/her name to a Will is uniformly referred to as a “witness,” this description would appear to be misleading, and a more accurate name for such a person, in light of their actual responsibilities and duties, might be an “attestor.”  All that an “attestor” is attesting is that the Testator has:

      • Signed the Will in the attestor’s presence, or
      • Acknowledged to the attestor that the signature is that of the Testator.  Estate of Lindsay, 91 Wn. App. 944 (1998); Estate of Cronquist, 45 Wn.2d 244 (1954); Estate of Jones, 101 Wash. 128 (1918).

      Attestation Issues:

      1. Fiduciary Witness:  The mere fact that one or more of the Testator’s fiduciaries (eg, named Personal Representative, Trustee, Guardian, Agent, or Attorney) acts as a witness will not affect the validity of the Will.  Named Personal Representative as witness: Estate of Wiltzius, 42 Wn.2d 149 (1953).  Personal Attorney as witness: Estate of Miller, 10 Wn.2d 258 (1941).
      2. Interested Witness:  If a Beneficiary under the Will acts as a witness to it, then unless two disinterested persons also witness the Will (making the Witness who is a Beneficiary what is known as a “supernumerary” witness), the gift to that Beneficiary will be presumed to have been made under duress, menace, fraud, or undue influence.  If that Beneficiary cannot successfully rebut that presumption, the Beneficiary will be limited to no more than what he/she would have taken had the Testator died without the Will (ie, intestate).  RCW 11.12.160
      3. Self-Proving Will:  Washington law, like the law of most, but not all, other states (the exceptions are believed to be Maryland, Ohio, and Vermont) provides for what is known as a “self-proving” Will — in other words, a Will that the Probate Court will accept at the Testator’s death without having the witnesses come to Court and testify as to the truth of their attestation.  In order for a Will to be “self-proving,” the witnesses must sign either an Affidavit or a Declaration (also called a Certification) under Penalty of Perjury stating that the statements that they would have otherwise made in an Attestation Clause are true.  RCW 11.20.020(2)  Estate of Starkel v. Wright, 134 Wn. App. 364 (2006) [Will attestation clause satisfied by Declaration under Penalty of Perjury].
      4. Notarization:  Washington law does NOT require a Will to be notarized to be valid — only (it is believed) Louisiana does.  Using a Notary as a Witness or having the Will notarized is acceptable, but no legal benefit obtains from doing so (as long as the witnesses sign a Declaration under Penalty of Perjury, making the Will “self-proving”).  RCW 9A.72.085  Estate of Starkel v. Wright, 134 Wn. App. 364 (2006) [Will attestation clause does not require notarization if signed with Declaration under Penalry of Perjury].
   3. Common Law Requirements (Arcane).

      Besides the various statutory requirements for making a valid Will in Washington, those that are described above, there are a number of arcane, common law requirements that are often overlooked in determining the validity of a writing as a Will.  Some of these are as follows:

      • Lack of Intent to Make a Will.  The Testator must intend to make a Will.  It is hard to see how this requirement might come into play in Washington, with Washington’s virtual requirement for an attested Will (possibly an April Fool’s “joke” Will?). In other jurisdictions (such as California) where holographic Wills are valid, this requirement may have more teeth.  For example, it would invalidate the following two possibilities, both of which would otherwise qualify in California as valid Wills under Calif. Probate Code § 6111:
        
        • A law professor teaching a Wills & Trusts class:
          • Says “I’m going to illustrate a holographic Will,”
          • Writes on the blackboard “I give my entire estate to whomever of you scores highest on the final exam in this class,”
          • Signs his/her name underneath, and
          • Immediately dies.

          This writing, although perhaps otherwise qualifying as a valid holographic Will in California, was intended as an example, not as the professor’s actual Will; therefore, no Will.
          

        • A client:
          • Writes a handwritten letter to his/her personal attorney,
          • Says in the letter, “I want you to prepare a new Will for me saying ‘I give my entire estate to you in trust for my dog.'”,
          • Signs the letter, and
          • Immediately dies.
            

          This writing, although perhaps otherwise qualifying as a valid holographic Will in California, was intended as a letter of instructions to prepare a Will, not as the client’s actual Will; therefore, no Will.
          

      • Failure to Comply with Substantive Law of Wills.  The Will fails to comply with one of the technical rules of construction of future interests or some policy rule.  Examples of the former are:
        • A gift is conditioned on some event not within the Testator’s control and the condition is unfulfilled, eg, “This Will is valid if I die on my trip to India”; the testator survived his/her trip to India; therefore, the Will became invalid.  Will of Pascal, 309 N.Y. 108 (1955).
        • A gift fails to comply with the future interest rules:
          • It fails to transfer a complete estate;
          • A class gift fails to vest; or
          • A gift fails to comply with a technical property rule, such as the Doctrine of Worthier Title or the Rule in Shelley’s Case.

        An example of non-compliance with a policy rule would be a gift that fails to satisfy the Rule Against Perpetuities.