Washington Law Review


Sarah Shirey


Prior to the 1994 revisions to Washington's lost will statute, courts required that execution of a lost will be proved by a preponderance of the evidence. In In re Estate of Black, the Washington State Supreme Court announced that under the revised lost will statute, execution of a lost will must be shown by clear, cogent, and convincing evidence. However, the Black court did not clearly define the quantum of proof necessary to meet this new burden. The dissent in Black read the majority opinion as creating a "two witness requirement," necessitating testimony from both attesting witnesses to meet the new burden. This Comment argues that the Black majority created a "one witness standard," by which one witness with sufficient personal knowledge of all statutory elements of the lost will's execution may satisfy the clear, cogent, and convincing burden. A careful examination of the Black court's evidentiary analysis reveals that rather than searching for two witnesses, the court looked for, but failed to find, a single witness with sufficient personal knowledge to meet the "one witness standard." In addition, those who perceive a two witness requirement confuse the statutory elements for executing a will with the requirements for proving execution of a lost will. Finally, evidentiary standards used in fraud cases under Washington's probate code as well as case law from other jurisdictions support application of the "one witness standard" to prove execution by clear, cogent, and convincing evidence.

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