WHY THE EXISTENCE OF A DOCUMENT SHOULD BE MADE KNOWN

TO GIVE THE DOCUMENT LEGAL EFFECT.  Even a “perfect” document is useless if its existence is unknown.  Occasionally, a small advertisement in a bar journal, newspaper, or obscure publication seeks for anyone aware of a certain will or testamentary document.  Likely, the ad is an attorney’s attempt to exercise reasonable diligence to become aware of a competing document in formal testacy(1), informal probate(2), or appointment proceedings(3), property related thereto(4), appointment of a guardian for a minor(5) or incapacitated person.(6)  If aware of the ad, an attorney might recall familiarity with the published name or might gratuitously check a list of clients or files.  Attorneys spend time (for which clients pay) creating legal documents to ensure protections are given to a client’s interest.  Due to its importance, relevance, and expense, a document deserves more than a haphazard, probably futile system of location.

TO SERVE THE CLIENT.  An attorney should register his clients’ documents with Attorney’s Will Registry so the existence of a document can be determined.  By registration, an attorney serves his client by taking action to give valid legal effect to the documents his client paid him to create.  “Lawyers know that many wills are never carried out because the very existence of the will itself remains unknown or because the will is never found or is never produced.” (7)  Although the U.S. Supreme Court approves resort to publication of notice as a customary substitute, its justification is “where it is not reasonably possible or practicable to give more.” (8)  In an attempt to give certainty to the probate of a will, some jurisdictions also impose a time limit to  “protect purchasers for value against the subsequent probate of a will.”(9) Registration of a will with Attorney’s Will Registry fulfills the prognosis of the framers of the Uniform Probate Code of a “register or index which would enable one to know after the death of a person whether he had drawn up a will.” (10)

THE EFFECT OF AWARENESS OF A DOCUMENT ON COMPETING ACTIONS.

TO GIVE THE DOCUMENT LEGAL EFFECT.  Knowledge, or reason to have knowledge, of a document’s existence will require its consideration in an appropriate guardianship, property, formal testacy, informal probate, or appointment action. In formal testacy(11), informal probate(12), or appointment proceedings(13), the applicant is required to verify that “after the exercise of reasonable diligence, the applicant is unaware of any instrument revoking the will, and that the applicant believes that the instrument which is the subject of the application is the decedent’s last will.” Regarding property in the estate, the applicant is required to verify that, “after the exercise of reasonable diligence, the applicant is unaware of any unrevoked testamentary instrument relating to property . . .”(14) Any guardian appointed by the will or written instrument of the parent of the minor who died last, (15) or appointed by the will of the parent who died later or spouse of the incapacitated person(16) is “entitled to notice of guardianship proceedings.” Registration of a document with Attorney’s Will Registry imposes knowledge, either direct or indirect, of its existence, triggering duties of the participants in other actions, including competing actions. By registration of a document with Attorney’s Will Registry, an attorney facilitates its awareness, enhancing the probability of its discovery by the required due diligence of others, including a petitioner in probate.

TO REQUIRE ITS INCLUSION..  Registration of a document with Attorney’s Will Registry has a two-pronged result: Either the petitioner was aware, knew or should have known of the existence of the registered document yet failed to include it in the petition (affecting the validity of the petition); or, by becoming aware of the registered document, it is then included in the petition for appropriate determination. For example, the Uniform Probate Code directs “If an application for informal appointment indicates the existence of a possible unrevoked testamentary instrument . . . which is not filed for probate in this court, the registrar shall decline the application.”(17)

TO PREVENT INJUSTICE..  Failure to register may aid an opposite result to that intended. A correct and clearly intended “last will and testament” could not be admitted to probate since at the earlier probate of a different will, no party present was aware.(18) That such appellate court was forced to mandate the probate court to reinstate the then admittedly revoked will contrary to the clear intent of the testator was unfortunate. To be only because the parties did not know, nor had any reason to know is egregious. A simple registration with Attorney’s Will Registry would have fulfilled the absent requirement of awareness, or at least the reason to be aware. The application must show that the party who seeks relief was duly diligent to become aware.(19) But, the lack of such awareness in an earlier probate prevented even a reconsideration or reopening by the probate court itself.(20) Where it is not reasonably possible or practicable to [become aware] . . . even a probably futile means of notice is constitutionally sufficient to support a final decree foreclosing rights.(21) Registration with Attorney’s Will Registry, as suggested by the framers of the Uniform Probate Code(22) squarely imposes a duty to competing participants to fulfill statutory and constitutional requirements by including the registered document.

OTHER BENEFITS TO THE PARTIES OF A DOCUMENT.

TO IMPOSE BENEFICIAL DUTIES ON OTHERS.  An awareness, or imputed awareness of the existence of a document not only imposes duties as to the document, but also duties to the individuals or persons to whom the document may relate. Participants in competing actions may be made aware of a document’s interested parties. By registration of a document and facilitation of its awareness, a duty to provide notice to its potential beneficiaries and others may be imposed. Knowledge of a document’s existence imputes knowledge of its potential parties.

Statutory requirements impose duties to the individuals or persons to whom a registered document may relate. In Guardianship or Conservator proceedings, awareness of a written instrument will have an effect. As to a minor, any prospective guardian appointed by the will or written instrument(23) of the parent of the minor has priority(24) of appointment, and is entitled to notice of appointment proceedings,(25) but absent an awareness of the document, such prospective guardian might never be considered. As to an incapacitated person, a prospective guardian or custodian may be appointed by the will or other signed writing(26) of the parent or spouse of the incapacitated person, and would be entitled to notice of any judicial appointment of a guardian(27) but if unaware of any such document, such person may be excluded. In informal probate or appointment proceedings applications “shall be . . . verified by the applicant to be accurate and complete . . . and . . . contain . . . the names and addresses of the . . . heirs, and devisees . . .so far as known or ascertainable with reasonable diligence by the applicant.”(28) In formal testacy proceedings, notice must be given to “the devisees and executors named in any will that is being, or has been, probated, or offered for informal or formal probate in the county, or that is known by the petitioner to have been probated, or offered for informal or formal probate elsewhere .”(29) Though such individuals clearly should be given notice, failure to register a document may preclude others from becoming aware of the interests of such individuals.

TO FACILITATE NOTICE.  Registration makes one aware or gives one reason to be aware, facilitating the giving of appropriate notice. Generally, notice by publication is acceptable only as to persons whose address or identity cannot be ascertained with reasonable diligence.(30) But, If notice, even though not required by statute, is not given to known devisees under the decedent’s last prior will, the probate order may not be res judicata as to such devisees.(31) It is only for beneficiaries whose whereabouts could not with due diligence be ascertained, that statutory notice is sufficient, however great the odds that publication will never reach the eyes of such unknown parties.(32) Failure to give legal notice to proper parties in interest, makes all orders and judgments entered in a probate proceeding void, as a failure to give legal notice results in a defect in jurisdiction. (33) voiding the grant of letters of administration.(34)

ENCOURAGEMENT OF DOCUMENT'S APPROPRIATE DEFERENCE.

TO REQUIRE ACTION.  If the proponent of a competing action is unaware of a document, how can he be expected to react? By registering a document with Attorney's Will Registry, such document's valid legal effect is enhanced by preventing, impeding, or negating unnecessary or competing prior or subsequent actions. By registering a document and facilitating its awareness, subsequent or earlier probate actions may be halted in preference and deference to such document. Knowledge of a document's existence may prevent or halt competing actions. The proponent of an action is required to exercise reasonable diligence to become aware of a competing document in formal testacy(35), informal probate(36), or appointment proceedings(37), property relating thereto(38), appointment of a guardian for a minor(39), or incapacitated person.(40) A general allegation or formality is not sufficient, the party must be truly diligent. (41) If the proponent is unaware of a document, how can he be expected to give it appropriate deference?

TO MAINTAIN AN ACTIONS INTEGRITY.  Awareness, to know or reason to know of the existence of a document, can prevent appeal or petition of rehearing, by overcoming claims of fraud(52) or lack of jurisdiction(53), the two common methods of overcoming time limitations. (54) A court may not set aside any of its orders or judgements beyond the time limits established by statute(55), absent a showing of fraud or lack of jurisdiction.(56) Stated another way, registration imposes the element of scienter (knowledge) of a document, frustrating attempts to attack actions regarding such document, but at the same time, providing the opportunity to appeal or otherwise frustrate proceedings in which such document has been excluded. (57)

OTHER BENEFITS OF REGISTRATION

Discussed in other articles involve the role of registration as the tool to prevent or reopen a competing action, even after the apparent expiration of the limitations period; the safeguard of a client's interest; the standard of the industry; the tool for attorney management; and the promotion of client relationships; and the registration of other legal documents.

END NOTES

1. Uniform Probate Code § 3-402(1)(b), All references are to the uniform probate code without attempt to differentiate between versions adopted by various states. 2. Uniform Probate Code § 3-301(3)(c) 3. Uniform Probate Code § 3-301(3)(c) 4. Uniform Probate Code § 3-301(5)(a) 5. Uniform Probate Code § 5-207(1)(d) 6. Uniform Probate Code § 5-309 7. Comment, Uniform Probate Code, §2-1010. 8. Mullane v. Central Hanover Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1949). Cited in In Re Estate of Phillips, 284 N.W.2d 908, 92 Wis. 2d 354 (1979). 9. §763, 80 Am Jur 2d, Wills. 10. Comment, Uniform Probate Code, §2-1010. 11. Uniform Probate Code § 3-402(1)(b) 12. Uniform Probate Code § 3-301(3)(c) 13. Uniform Probate Code § 3-301(3)(c) 14. Uniform Probate Code § 3-301(5)(a) 15. Uniform Probate Code § 5-207(1)(d) 16. Uniform Probate Code § 5-309 17. Uniform Probate Code § 3-311 18. Larkin v. Ruffin, 398 So. 2d 676, (Alabama) 1981. 19. In re Reikofski,144 Neb 735, 14 NW(2d) 379 (general allegation is not sufficient; In re Clayton, 108 CalApp(2d) 583, 244 P2d. 705. 20. Larkin v. Ruffin, 398 So. 2d 676, (Alabama) 1981. 21. Mullane v. Central Hanover Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1949). Cited in In Re Estate of Phillips, 284 N.W.2d 908, 92 Wis. 2d 354 (1979). 22. Comment, Uniform Probate Code, §2-1010. 23. Uniform Probate Code §5-202(a) 24. Uniform Probate Code §5-204(c) 25. Uniform Probate Code §5-205(a)(5) 26. Uniform Probate Code §5-302(a) and (b) 27. Uniform Probate Code §5-309(b) with §5-304(b)(2), (5), and (6). 28. Uniform Probate Code §3-301(a)(1)(ii) 29. Uniform Probate Code §3-403(1) 30. See Tulsa Professional Collection Services v. Pope, 108 S. Ct. 1340 (1988); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950). 31. Commission on National Probate Court Standards and Advisory Committee on Interstate Guardianships, National Probate Court Standards, P. 44 32. Mullane v. Central Hanover Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1949). Cited in In Re Estate of Phillips, 284 N.W.2d 908, 92 Wis. 2d 354 (1979) 33. In Re Estate of Phillips, 284 N.W.2d 908, 92 Wis. 2d 354 (1979). 34. George v. George, 813 S.W.2d 236 (Tex. App.–Tyler 1991). 35. Uniform Probate Code § 3-402(1)(b)

36. Uniform Probate Code § 3-301(3)(c) 37. Uniform Probate Code § 3-301(3)(c) 38. Uniform Probate Code § 3-301(5)(a) 39. Uniform Probate Code § 5-207(1)(d) 40. Uniform Probate Code § 5-309 41. In re Reikofski,144 Neb 735, 14 NW(2d) 379; In re Clayton, 108 CalApp(2d) 583, 244 P2d. 705. 42. In re Estate of Stein, 78 Wash. App. 251, 896 P.2d 740 (Div. 2 1995); Owens v. Doyle, 152 Conn. 199, 205 A. 2d 495, 11 A.L.R.3d 1006 (1964); 80 Am Jur 2d, Wills, §931, Page 163. 43. Uniform Probate Code § 3-311 44. Uniform Probate Code § 3-402(1)(b) 45. Uniform Probate Code § 3-301(3)(c) 46. Uniform Probate Code § 3-301(3)(c) 47. Uniform Probate Code § 3-301(5)(a) 48. Uniform Probate Code § 5-207(1)(d) 49. Uniform Probate Code § 5-309 50. In re Quinlan’s Estate, 158 NYS 319 (1916). 51. Weaver v. Mitchell 265 Mass 567, 164 NE 482; McClure v. Wade, 34 Tenn App 154, 235 SW(2d) 835, 28 ALR (2d) 104. 52. Larkin v. Ruffin, 398 So. 2d 676 (Ala. 1981). 53. In re Phillips’ Estate, 92 Wis. 2d 354, 284 N.W. 2d 908 (1979). Statutory time limits will not prevent a court from vacating an order admitting a will to probate if the petition is made on the ground that order was induced by or constituted fraud upon the court. Matter of Kennedy’s Estate, 74 Wis. 2d 413, 247 N.W. 2d 75 (1976). 54. 80 Am Jr 2d Wills §932, pp163-164. 55. In re Phillips Estate, 92 Wis. 2d 354, 284 N.W. 2d 908 (1979) 56. In re Phillips’ Estate, 92 Wis. 2d 354, 284 N.W. 2d 908 (1979). Statutory time limits will not prevent a court from vacating an order admitting a will to probate if the petition is made on the ground that order was induced by or constituted fraud upon the court. Matter of Kennedy’s Estate, 74 Wis. 2d 413, 247 N.W. 2d 75 (1976). 57. Estate of Sanders. 40 Cal. 3d 607, 221 Cal. Rptr. 432, 710 P. 2d 232 (1985). Even after the statutory time limits have passed, a fraud upon a court can be the basis for a modification or reversal of a prior order of a probate court admitting a will. Matter of Kennedy's Estate, 74 Wis. 2d 413, 247 N.W. 2d 75 (1976).