Estate of Melter, 167 Wn. App. 285, 273 P.3d 991 (2012) is an interesting case, well authored by both the majority, and the separate concurrence. It’s a must read for Washington trust and estate lawyers. We think it is important because it addresses one beneficiary’s confidential relationship with the decedent and how that can affect his (or his opponent’s) burden of production and proof in a will contest where undue influence is alleged.
The case is also important in that it emphasizes testamentary capacity as an important factor in distinguishing mere influence, which is nugatory, from undue influence, which is consequential. Here are the basic facts: Continue reading
When a court opinion begins, “…. what should have been a simple estate and trust matter became protracted and contentious,” you know you’re in touble.
The Court of Appeals recently published Estates of Foster, 165 Wn. App. 33 (2011). In this case the Executor and his brother teamed up to distribute from their parents’ estates disproportionately to themselves rather than to the parents’ grandchildren trust beneficiaries as set forth in the parents’ trust documents.
The case is significant for a couple reasons. First, the court confirms that the Executor was not entitled to a jury trial because, while his fiduciary breach was the gravamen of the case, it was still a probate/trust matter, and restoration of the stolen funds, as opposed to general damages were sought. The former types of cases don’t get juries; the latter do.
The case is also significant becuase of how the court treats the statute of limitations. The grandchildren brought their claim more than three-years after the alleged breach. The statute of limitations for fiduciary breach claims is three-years. The court allowed the claim, applying the “discovery rule” without much analysis other than finding that the breach could not have been discovered earlier because of the Executor’s failure to cooperate when the grandchildrens’ early information requests.
The question posed this morning on the Oregon Bar Association’s estate and probate listserv was this:
(1) Does anyone who’s had to withdraw on a Washington probate have pleadings for that purpose they can share? Anything unusual I should be aware of?
(2) Is there some way I can attempt to protect my fees and costs, such as liening the case? …
First, here are examples in a case, filed in Pierce County Washington. TEP just obtained these from the court’s website. TEP is not affiliated with the case, so it takes no ownership/responsibility for their correctness. Withdrawal with Substitution here; Withdrawal without Substition here; Lien Claim here; another Lien claim here.
Second, the applicable rule is CR 71. Pay particular attention to the service requirements and timelines in CR 71, and also in CR 5 and 6 (when mail service is made/had).
Third. As for a lien for attorneys’ fees, see the links above.
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