Articles

Competency

One fine day you are cleaning out your desk drawers and you come across your will. It's eighteen years old, but it still does what you want. When you die your spouse gets it all; if your spouse is not alive, your children split your estate equally. You are about to put it back in the drawer for another eighteen years when, in a fit of tidiness, you decide to take it to your lawyer for review.

You procrastinate a few weeks, then you finally make an appointment with those scions of justice, Bungle & Fates. Luck of the draw, and a week later you find yourself in the office of Mr. Fates, who has a weakness for antiques and old issues of National Geographic. Mr. Fates is the head of the firm's Estate Planning Group.

Mr. Fates reads your will carefully. He ponders and scowls. Suddenly you remember that eighteen years ago, your will was drawn up by Pickins & Gooey, whose firm name and logo appear at the bottom right of your will. Pickins is another prominent firm in town, and a major competitor of B & F. You feel a major legal fee coming on.

To your relief, Mr. Fates says that your will still does what you want it to do. As you smile and get up to leave he says that there is, however, one small problem. Mr. Fates has a way of saying this that reminds you of Colombo. You ask what the problem is. He says that you should have an affidavit from the witnesses to the will. You are puzzled. The will has the standard notary block for the witnesses, who swear that you signed the will in their presence, and at your direction and request.

Fates goes on: "Your will does not have an affidavit of competency," he says.

"Whose competency?" you ask. "Yours," smiles Mr. Fates. You have a tough time with that one. "You mean to say I'm not mentally competent?" Mr. Fates hesitates briefly as he weighs the pros and cons of saying what he really thinks. "Of course you're competent" he says. For the ten millionth time, professionalism wins on the battlefield of Mr. Fates' imagination.

You have a seat again, and Mr. Fates lays it out. "There are two very important statutes that lay out the formalities of the witnessing of a will. The first one (RCW 11.12.020) has been satisfied. You executed the will properly, in front of the notary and two witnesses, and their statement that they saw you sign is proper."

It's the second statute that Fates is concerned about: RCW 11.20.020. "Although your will is in the correct form, this second statute - as interpreted by the courts -- requires that witnesses must testify after your death that you were competent, of sound mind, and not under any duress (pressure) at the time you signed the will."

This seems ridiculous to you. Who in the world would call you insane? Except maybe the driver of that minivan you cut off in traffic last week. And forget about your boss. Hmm.

"But," you say to Mr. Fates, "my will is rational, so isn't that proof enough to the court that I was sane when I signed it?

Fates sighs, and allows how there are actually cases that say exactly that. If a will is reasonable, the courts may presume that the competency of the testator (the one who wrote the will) has been proved. At least that's possible in theory.

"But reality," says Fates, "is different. The Personal Representative (PR) of your estate has to convince the court that you were competent at the time you signed the will. This may be twenty or thirty years after the fact. The judges almost always require more proof than the mere fact that the will seems to be rational. What if your PR can't find anyone to say that you were sane?"

"The easy solution", says Mr. Fates, "is also contained in RCW 11.20.020. The witnesses to the will can do another affidavit that you were sane at the time you signed it. This second affidavit can be filed with the will, and can be used to supply the proof of competency in probate court."

Mr. Fates says that you can either do a new will together with the competency affidavit, or you can keep the current will and get affidavits of competency from anyone (including the actual witnesses to the will) who knew you at the time you signed.

You are relieved as you leave Bungle & Fates. All you have to do is find a couple of witnesses who know you were sane eighteen years ago. "Let's see," you think to yourself. "My spouse? No way. My best friend? No, she thinks I've always been crazy." This may not be so easy after all.