Estate of Ricketts, In re
| Decision Date | 22 May 1989 |
| Docket Number | No. 21668-6-I,21668-6-I |
| Citation | 773 P.2d 93,54 Wn.App. 221 |
| Parties | In re the ESTATE OF Rodney K. RICKETTS, Deceased. Alice Ricketts ERICKSON, Administrator, Appellant, v. Alverna Ricketts FRITTS, Respondent. |
| Court | Washington Court of Appeals |
Margaret A. Milnes, Skeel, Henke, Evenson & Roberts, Seattle, for Alice Ricketts Erickson.
David L. Day, Mt. Vernon, for Alverna Ricketts Fritts.
Rodney Ricketts died testate on March 8, 1987 in Skagit County. He executed a will on March 28, 1984 and a codicil to the will on September 3, 1985. Only his signature appears on the codicil itself. An "Affidavit of Subscribing Witnesses to the Codicil", also dated September 3, 1985, was stapled atop the codicil. The affidavit was signed by two witnesses and notarized by respondent's counsel. The codicil was produced by Alverna Ricketts Fritts, the respondent, in whose favor it alters the distributive scheme of the will. The Skagit County Commissioner admitted the codicil to probate on December 21, 1987. Appellant's motion to revise the commissioner's order was denied by the trial court. This appeal followed. We reverse and remand.
The formalities for the execution of a will are contained in RCW 11.12.020 which reads, in pertinent part:
Every will shall be in writing signed by the testator or by some other person under his direction in his presence, and shall be attested by two or more competent witnesses, subscribing their names to the will in the presence of the testator by his direction or request....
A codicil is to be executed in the same manner as a will. RCW 11.02.005(9). It is undisputed that the codicil was not executed in conformity with the statute. Indeed, the trial court stated in finding of fact 4 that "no person actually subscribed their name to the codicil as a witness to the codicil."
Respondent contends that meeting the requirements of RCW 11.20.020(2), which permits witnesses to make an affidavit to prove a will, also satisfies the requirements for proper execution of a will. We disagree. RCW 11.20.020(2) reads:
In addition to the foregoing procedure for the proof of wills, any or all of the attesting witnesses to a will may, at the request of the testator or, after his decease, at the request of the executor or any person interested under it, make an affidavit before any person authorized to administer oaths, stating such facts as they would be required to testify to in court to prove such will, which affidavit may be written on the will or may be attached to the will or to a photographic copy of the will. The sworn statement of any witness so taken shall be accepted by the court as if it had been taken before the court.
The statute, by its explicit terms, provides that an affidavit by a witness, "stating such facts as they would be required to testify to in court to prove such will", may be substituted for oral testimony. The statute allows the affidavit to be made separately or jointly by the witnesses, at the time of execution or later; indeed, the affidavit may be executed after the death of the testator. Nothing in the statute even suggests, much less provides, that the requirements for valid execution of a will or codicil are altered.
The respondent contends that since RCW 11.12.020 does not specifically require the witnesses' signatures to appear on the same page as the signature of the testator, their signature on the affidavit is sufficient for proper execution. No Washington case so holds. We are referred to Annot., Wills: Place of Signature of Attesting Witness, 17 A.L.R.3d 705 (1968), in which a number of cases are cited which approve probate of wills despite irregularities in the placement of witnesses' signatures. The cases, however, turn in large measure on particular statutory provisions and the specific factual circumstances in each case. See Dillow v. Campbell, 453 P.2d 710 (Okl.1969); In re Estate of Cutsinger, 445 P.2d 778 (Okl.1968); Brock v. Erickson, 28 Colo.App. 555, 475 P.2d 346 (1970); In re Moro's Estate, 183 Cal. 29, 190 P. 168 (1920). Certainly no line of persuasive authority approving a document such as that before us appears.
The facts of In re Dunlap's Will, 87 Okl. 95, 209 P. 651 (1922), strongly relied on by respondent, are typical of the cases probating a will or codicil which does not precisely adhere to the requirements for execution. The will and attestation clause were in normal form. The testator, however, signed near the bottom of the first page where there was insufficient room to add the attestation clause and signatures of witnesses. They were placed on the following page. A subscribing witness testified that she and the other witness attested the testator's execution of the will. Dunlap's Will, 209 P. at 652. The will was admitted to probate.
In the instant case, the page attached to the codicil was not an attestation clause, but a standard affidavit of subscribing witnesses. It falsely recites "I then and there, in the presence of the said Testator subscribed my name as a witness to the said instrument." That language specifically negates the...
To continue reading
Request your trial
-
Estate of Lindsay, Matter of
...In re Estate of Gardner, 69 Wash.2d 229, 236, 417 P.2d 948 (1966); Chambers, 187 Wash. at 425, 60 P.2d 41; In re Estate of Ricketts, 54 Wash.App. 221, 225, 773 P.2d 93 (1989). The witnesses need only subscribe their names in the presence of the testator and at his direction or request. Rick......
- Estate of Burton v. Didricksen
-
Estate of McKay, Matter of, 2
...McGrew v. Bartlett, 387 S.W.2d 702 (Tex.Civ.App.1965). Washington has recently followed the Texas lead. In re Estate of Ricketts, 54 Wash.App. 221, 773 P.2d 93 (1989). Neither jurisdiction has statutes similar to A.R.S. § 14-2504 and § 14-3406; however, on the other hand, numerous jurisdict......
-
Estate of Kessler, In re
...such will." The affidavit may be made at the time the will is executed or after the death of the testator. In re Estate of Ricketts, 54 Wash.App. 221, 223, 773 P.2d 93 (1989). While RCW explains how to validly execute a will, RCW 11.20.020(2) explains how to prove it for probate. Id. at 224......
-
Table of Cases
...Wn.App. 1065, No. 42933-7-I, 1999 WL 969611 (Oct. 25, 1999), review denied, 140 Wn.2d 1015 (2000): 12.2(4)(c) Ricketts, In re Estate of, 54 Wn.App. 221, 773 P.2d 93 (1989): 13.3(2)(a) Riddell, In re, 138 Wn.App. 485, 157 P.3d 888 (2007): 13.4(11)(b) Riemckes Estate, 80 Wn.2d 722, 497 P.2d 1......
-
Chapter A. Formalities
...of probate procedures. 89 A similar but slightly more elaborate procedure is suggested by Uniform Probate Code §2-504 (2010). 90 54 Wn.App. 221, 773 P.2d 93 91 The legislature thus rejected the principle that a witness's signature on the affidavit could not substitute for the signature on t......
-
§13.3 Will Contests
...be revised to reflect the specific circumstances existing when the will is signed. In 1990, in response to In re Estate of Ricketts, 54 Wn.App. 221, 773 P.2d 93 (1989), in which the court rejected a codicil as not being validly executed because the subscribing witnesses signed a notarized a......
-
Table of Cases
...84 Wn.2d 1013 (1974): 304, 305 Richardson's Estate, In re, 96 Wash. 123, 165 P. 656 (1917): 67, 75, 76 Ricketts, In re Estate of, 54 Wn. App. 221, 773 P.2d 93 (1989): 48 Ridgeway's Estate, In re, 33 Wn.2d 249, 205 P.2d 360 (1949): 136, 145, 146, 147, 148 Riemcke's Estate, In re, 80 Wn.2d 72......