Changes in Washington Practice Report (#18) / Strict compliance versus substantial compliance in probates

July 2, 2014

health-care-lawThe Washington probate statutes are detailed and specific. They determine how an attorney is to proceed with a probate, and how the court is to rule on issues that arise.

Good practice is always to seek strict compliance with these requirements.

However, the courts have established that substantial compliance with statutes may be adequate regarding procedural requirements. (See In the…Estate of Frey…v…Personal Representative of the Estate…, 2012 WL 5835341, Wash.App.Div.1, 2012).

In the referenced case, the Court of Appeals stated that “We have long recognized procedural requirements directed by the legislature. Strict compliance with these procedures may, however, not always be required”.

“We have held that ‘substantial compliance’ or satisfaction of the ‘spirit’ of a procedural requirement may be sufficient”.

“What constitutes substantial compliance with a statute is a matter depending on the facts of each particular case”.

The referenced case involved the conversion of a testate probate to an intestate probate after the Will was found to be invalid.

The contesting heir was given initial notice about the testate probate and appointment of the Personal Representative with nonintervention powers.

At issue was whether an email to the contesting heir from the Personal Representative provided adequate notice regarding the request for reappointment of the Personal Representative with nonintervention powers for the intestate probate.

The Court of Appeals found that the actual notice received by the contesting heir was as satisfactory as notice by service or by mail.

There was nothing in the file to demonstrate that the heir objected to the second petition after receiving notice by email.

These explanations can be of importance to all attorneys.

If a Personal Representative fails to strictly comply with the procedural requirements of the probate statutes, an attorney may be able to successfully argue that substantial compliance was achieved.

On the other hand, if an heir wishes to contest the actions by the Personal Representative or rulings by the court, it may be possible to argue that neither strict nor substantial compliance was achieved.

In this case, the appeals court also identified failures by the heir to preserve issues at the trial-court level for discussion on appeal. Attorneys for all parties may want to emphasize the preserving of all possible issues for appeal in the documents that are prepared for the trial court.

More information on the statutory requirements for probates may be found in Probate Law and Practice, Vol. 26 of Washington Practice, by Mitchell and Mitchell.

In addition, whenever attorneys wish to locate specific resource materials, Methods of Practice (volumes 1 to 1C) of Washington Practice, can provide useful assistance. Excerpts from all of the volumes of Washington Practice are included in an easily-searchable format, so that potential cites may be quickly located. The individual volumes of interest may then be examined for the needed details.