The Importance of Non-Intervention and No-Contest Provisions in Your Will

The Washington State Supreme Court recently issued an opinion reaffirming the importance of your Will having the necessary provisions to ensure your express wishes are properly implemented.  On March 15, 2018, the State Supreme Court issued an opinion in the Estate of Rathbone, 412 P.3d 1283 (Wa. 2018).  In that case, Ms. Rathbone named her three sons as residuary beneficiaries in her Last Will and Testament.  One of her sons was named as her Personal Representative.  The Will further indicated the Personal Representative would have non-intervention powers.  Non-intervention powers allow the appointed Personal Representative to administer the estate through probate without further court involvement.  See RCW 11.68.011.  The Will at issue in the Rathbone case also included a broadly worded no-contest provision.  The no-contest provision specified the wish of Ms. Rathbone that the appointed Personal Representative has authority to interpret the Will to resolve all matters pertaining to disputed issues or controverted claims.  The no-contest provision also disinherited any beneficiary who contested the Will or the Personal Representative’s interpretation of the Will.

No-contest provisions, also known as in terrorem clauses, discourage beneficiaries from contesting the Will.  If a contest is brought and the beneficiary loses, the effect of the no-contest clause forfeits the interest the contesting beneficiary had in the estate.

The no-contest provision in Ms. Rathbone’s Will went even further and specifically named one of her sons to not dispute her last wishes and provisions in the Will.  A dispute arose regarding the Personal Representative exercising an option to purchase real property.  The purchase price was paid to the estate, with the net proceeds assumedly equally distributed to the three brothers as the residuary beneficiaries.  Estate of Rathbone, 412 P.3d at 1285.

The son specifically mentioned in the no-contest provision filed two separate petitions seeking court intervention to dispute the real property purchase.  The trial court initially held the statute regarding a petition for accounting, RCW 11.68.110, and Washington’s TEDRA statute allowed the Court to intervene and interpret the disputed provision.  The trial court’s decision was essentially affirmed by the state appellate court.  The State Supreme Court reversed both lower court decisions.

The State Supreme Court re-emphasized that it is the duty of a Court to respect an individual’s Last Will and Testament if there is clear intent the testator does not want court involvement in the administration of his or her estate.  The Court also held the purpose of non-intervention powers afforded to a Personal Representative is to allow that individual to economically administer an estate.  The trial court should have exercised judicial restraint from interfering with the Personal Representative’s non-intervention powers.  Without specific proof of misconduct against the Personal Representative, courts may not interfere with the Personal Representative’s efforts to reasonably administer the estate.  Additionally, Washington’s TEDRA statute, by itself, does not supplant other statutory provisions to invoke the authority of a superior court over non-intervention powers.  Id. at 412 P.3d at 1289.

Has it been a while since you reviewed your Last Will and Testament?  If so, I encourage you to review your documents to ensure the directives set forth in your Will continue to be your current wishes on how your estate is to be administered.  It is also important to confirm important provisions, such as a no-contest provision, are clearly set forth in your estate plan.  If you have had recent life changes, such as the birth of a child, marriage, or divorce, or have recently become empty nesters, it is especially important to review your current estate plan.

The attorneys at Kirkpatrick & Startzel, P.S. provide a wide range of estate planning, probate, and other statutory avenues to administer a loved one’s estate.

PATRICK W. HARWOOD

 

Proposed Changes in Washington’s Wrongful Death Statutes

Recently, Washington State’s legislature considered making changes to Washington’s wrongful death statutes which could have significant impact on the recovery by family members. Currently the statutes limit recovery to certain family members. Recovery is allowed to spouses and children of the deceased for economic and non-economic damages. However, if the deceased did not have a spouse or children, then the parents or siblings could recover but only if they were “financially dependent” on the deceased. The parents or siblings did not have to be completely dependent, but there had to be a showing of at least “substantial” dependency.

Under the proposed legislation, a parent or sibling would have been allowed recovery even without a showing of financial dependency. However, this proposal not make it to the House of Representative for a vote before the deadline for this legislative session.

Washington’s wrongful death statutes can be confusing. If you have any questions regarding the current laws or the proposed changes in the wrongful death statute, please feel free to contact the attorneys at Kirkpatrick and Startzel.

By: Paul Kirkpatrick

Discovery and Social Media

Popular social media sites, such as Facebook and Instagram, serve as a platform for individuals to share their lives with a select group of their online friends or the world.  These social media accounts may provide key sources of information in litigation which should not be overlooked.

Courts have generally held that social media content is neither privileged nor protected by any right of privacy.  See Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D. 566, 570 (C.D. Cal. 2012).    Even if a person has implemented certain privacy settings with respect to their profile, the information is still not protected from disclosure based on a claim of privacy.  E.E.O.C. v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 434 (S.D. Ind. 2010).

In Patterson v. Turner Constr. Co., 931 N.Y.S.2d 311 (N.Y. App. Div. 2011), the court drew a comparison between private social media pages and a person’s diary, reasoning that in the same way that “relevant matter” from and individual’s diary is discoverable, any relevant material from an individual’s Facebook account is discoverable regardless of the privacy settings utilized by the page’s creator.  As one judge has observed, “Facebook is not used as a means by which account holders carry on monologues with themselves.”  Simply Storage Mgmt., 270 F.R.D. at 434.

The general rule in light of the foregoing is that an individual’s social media content is discoverable if it falls within the scope of discovery as set forth in Civil Rule 26(b)(1):

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action….  It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

This rule is designed to permit a broad scope of discovery.  Barfield v. City of Seattle, 100 Wn. 2d 878, 883, 676 P.2d 438, 441 (1984); see also Simply Storage Mgmt., 270 F.R.D. at 434 (where relevance is in doubt, FRCP Rule 26(b)(1) indicates that the court should permit discovery).

By:  Alicia Dragoo

 

Winter Weather Hazards – What you need to know

Winter is here! Located in the Northwest, Kirkpatrick & Startzel often litigates slip-and-fall cases where a person was injured from slipping on ice or snow accumulation. A landlord or business could face a major lawsuit if the winter weather is not dealt with responsibly.  Likewise, a tenant or patron may suffer serious injury but not know their legal rights or obligations.  Here are some tips everyone may use, heading into the cold-weather months.

LANDOWNERS

Washington law recognizes a landowner’s responsibility to exercise sensible care in alleviating an ice or snow accumulation hazard when the landowner knows, or should know, about the danger.  Likewise, commercial tenants should not assume that they have no responsibility in maintaining their business premises.  Even if the danger is open and obvious, the law expects that guests and tenants will endanger themselves, and holds irresponsible property owners liable.  Thus, a landowner who wants to avoid a lawsuit should take affirmative steps to ensure that all winter hazards are addressed in a timely manner.

In addition to clearing snow from parking lots and driveways, landlords should ensure sidewalks are shoveled.  An application of deicer or sand can help combat slippery ice.  Businesses should ensure their workers are equipped with the shovels, snow blowers, deicer, sand or other tools needed to address dangerous sidewalks and parking lots.  Everyone should document their efforts. Record all snow removal policies and log complaints about snow as well as each time snow is shoveled or other actions are taken to improve the safety of the premises.

TENANTS & PATRONS

Tenants and patrons must also exercise reasonable care.  If there is a way to avoid the hazard, then avoid it.   We deal with many personal injury cases where the injured person could have exercised some discretion and completely avoided the accident, and subsequent litigation.  If you see a dangerous hazard, notify your landlord or the business you are visiting.  If snow is not removed in a timely manner and creates a hazard, submit a complaint in writing.  Evidence is important in establishing a personal injury case, and so developing good habits in recording evidence and documenting your actions can be very helpful.

If you suffered substantial injuries in a slip and fall on snow or ice, you may want to speak to an experienced litigation attorney.

By: Luke O’Bannan

Kirkpatrick & Startzel Attorneys Present at Evidence CLE

Kirkpatrick & Startzel attorneys Alicia Dragoo and Timothy Nault recently presented at a live seminar on the rules of evidence hosted by the National Business Institute. Such seminars are put on to fulfill attorneys’ obligations in obtaining continuing legal education (CLE) credits. Attending the seminar were members of the bar from Washington and Idaho. Several other attorneys from the Spokane area also presented at the seminar.

Ms. Dragoo’s presentation focused on the presentation of lay and expert witness testimony in court proceedings, as well as the use of expert reports. The effective presentation of testimony from a qualified expert witness is often critical to success in court proceedings. Some claims, such as medical malpractice or product liability, may require expert testimony as a matter of course. Proving damages often involves expert witness testimony as well. Ms. Dragoo discussed critical aspects of qualifying or disqualifying expert witness testimony in state and federal court.

Mr. Nault discussed ethical considerations in the presentation and handling of evidence. Mr. Nault’s presentation included a discussion on the law of spoliation, which can occur when a party destroys or fails to preserve evidence relevant to a lawsuit. Mr. Nault discussed spoliation principles as applied to a wide variety of facts and circumstances, including personal injury actions, construction defect cases, and malpractice claims.

CLE courses are important to providing legal services to clients that are consistent with current trends in the law. Kirkpatrick & Startzel is proud to take part in these courses, and its attorneys strive to develop and maintain the highest degree of professional competence for the benefit of their clients.

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