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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. 

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