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
So we’ve received questions on this, so how about some answers.
First, in Washington, a policy purchased wholly with community property funds is community property. Occidental Life Ins. Co. v. Powers, 192 Wash. 475, 74 P.2d 27 (1937).
Second, the time of acquisition of the policies matters in determining whether it is community property. In Washington State, courts apply an apportionment theory in determining the time of acquisition. Other community property law jurisdictions hold that the ownership of a life insurance policy is determined by reference to the time when the policy was purchased. So the Powells and Coxes will be looking to when the policies were purchased, and where the Powells lived at that time.
Without knowing the facts (which is what a trial is for), we think it likely these policies were purchased during the Powells’ marriage, and are thus community property under both Utah and Washington law.
One interesting question will be how Josh’s continued payment of premiums after Susan went missing will be treated. If she is presumed deceased at the time she went missing, then it is arguable that a portion of the proceeds are Josh’s separate property. See e.g., W. DeFuniak & M. Vaughn, PRINCIPLES OF COMMUNITY PROPERTY 64, 79 (2d ed. 1971).
Most people think of prenuptial agreements as something rich men use to keep their assets from falling prey to their new, less wealthy (and usually younger) wives — the gold-diggers.
Others see it as a sign of mistrust. If you need a
prenuptial agreement, you must not trust your future spouse.
I see it differently.
When I married my wife, neither of us had assets to protect, so our agreement was not about protecting assets. Rather, it was about what in our relationship we would value and how we would value it. We committed it to writing because memories fade over time and because we are both lawyers.
Click here to read more.
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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