Estate Of James W. Jordan ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Estate of )
) No. 80155-4-I
JAMES W. JORDAN, )
) DIVISION ONE
Deceased. )
) UNPUBLISHED OPINION
BRETT JORDAN, )
)
Appellant, )
)
v. )
)
JAMIE ROSENBURG and ROXIE )
JORDAN, on behalf of the Estate of )
James W. Jordan, )
)
Respondents. )
)
SMITH, J. — After James Jordan died on March 18, 2019, his youngest
daughters, Jamie Rosenburg and Roxie Page (now Jordan), were appointed joint
personal representatives of his estate pursuant to a will that James executed in
June 2018.1 Brett Jordan, one of James’s grandchildren, subsequently
petitioned to have Roxie and Jamie removed as personal representatives and to
invalidate James’s will, alleging that Roxie and Jamie engaged in fraud and
undue influence to induce James to change his will in 2018. Brett appeals the
1Because some members of James’s family share the last name Jordan,
we refer to James and his family members by their first names for clarity.
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 80155-4-I/2
trial court’s denial of his petition.
We hold that because Brett failed to identify any direct, immediate, and
legally ascertained pecuniary interest that would be impaired by the probate of
James’s 2018 will or benefited by its invalidation, Brett failed to establish his
standing to contest the will. Furthermore, even if Brett did have standing, he
failed to satisfy his initial burden of production to raise a presumption of undue
influence. And Brett’s evidence, though sufficient to raise a presumption of fraud,
was not sufficient to clearly, cogently, and convincingly overcome Roxie and
Jamie’s rebuttal evidence. For these reasons, the trial court did not err by
denying Brett’s petition to invalidate James’s will.
With regard to Brett’s petition to remove Roxie and Jamie as personal
representatives, Brett’s contention that the trial court should have removed Roxie
and Jamie is premised entirely on his assertion that they engaged in undue
influence or fraud to procure James’s 2018 will. But because Brett failed to
establish fraud or undue influence, the trial court did not err by denying Brett’s
petition for removal. We affirm.
FACTS
James Jordan, then a widower, made his last will and testament on June
26, 2018 (2018 Will). The 2018 Will appoints his daughters, Jamie and Roxie, as
joint personal representatives (PRs) of James’s estate. James died on March
18, 2019, at the age of 94.
On April 3, 2019, Roxie and Jamie petitioned to probate the 2018 Will and
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to be appointed joint PRs with nonintervention powers,2 as contemplated by the
2018 Will. The trial court granted the petition on April 4, 2019, declared the
estate solvent, and issued letters testamentary appointing Jamie and Roxie as
coexecutors with authority to execute the 2018 Will.
The 2018 Will bequeaths to James’s three eldest children, Dana Mauer,
Rebecca Curtis, and Mark Jordan, “share and share alike,” a property located at
1817 Central Road in Everson, Washington (Everson Property). It also
bequeaths $25,000 each to Dana, Rebecca, and Mark; $10,000 each to James’s
surviving grandchildren; and $5,000 each to two of James’s great grandchildren.
The 2018 Will bequeaths the remainder of James’s estate, including his home
and farm property in Bellingham, Washington (Bellingham Property), to Roxie
and Jamie. The 2018 Will contains a no-contest clause that disinherits any
beneficiary who brings an action that, if successful, would increase that
beneficiary’s share of James’s estate.
On May 6, 2019, 32 days after the letters testamentary were issued, Brett
Jordan, one of James’s grandchildren, filed a petition requesting that the court
remove Roxie and Jamie as PRs. Brett also requested that the court declare the
2018 Will invalid, alleging that it had been procured by Roxie and Jamie’s fraud
and undue influence. In a supporting declaration filed by Mark, who is Brett’s
2 “When nonintervention authority is provided by the court, the personal
representative receives the maximum statutory authority to manage the estate”
with the objective of “simplify[ing] the probate actions and procedures by
minimizing court involvement.” For nonintervention probates, “[t]he statutes
provide a framework for guidance of the personal representative but allow for
substantial independence.” 26 B CHERYL C. MITCHELL & FERD H. MITCHELL, 26B
WASHINGTON PRACTICE: PROBATE LAW AND PRACTICE § 1:3, at 4 (2d ed. 2015).
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father, Mark asserted that his “understanding” after a conversation with James in
spring 2018 was that James’s estate “was to be distributed equally and fairly.”
Brett later asserted that contrary to Mark’s “understanding” of James’s intent, the
bequests under the 2018 Will left Roxie and Jamie with roughly 80 percent of
James’s estate.
On May 17, 2019, the trial court issued a citation3 to Roxie and Jamie,
directing them to appear and show cause why the 2018 Will should not be
invalidated and why they should not be removed as PRs.
On June 7, 2019, after receiving briefing and declarations in support of
and in opposition to Brett’s petition, the trial court held a hearing. The court
ultimately denied Brett’s petition to remove Roxie and Jamie as PRs. The court
also denied Brett’s petition to invalidate the will. The court acknowledged that
“the petitioners have made some significant serious allegations with regard to the
circumstances leading up to Mr. Jordan’s will that he signed in 2018.” The court
went on, however, to “conclude that there is not enough here for the court . . . to
proceed.” The trial court entered written orders denying Brett’s petition to
remove Roxie and Jamie as PRs and denying Brett’s petition to invalidate the
will. The trial court did not make written findings of fact or conclusions of law.
Brett appeals.
3A “citation” is the probate counterpart of a summons and “is the method
in probate proceedings for bringing all adverse parties before the court.” In re
Estate of Van Dyke, 54 Wn. App. 225, 230, 772 P.2d 1049 (1989).
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ANALYSIS
PETITION TO INVALIDATE WILL
Brett contends that the trial court erred by denying his petition to invalidate
the 2018 Will. Because Brett failed to establish his standing to challenge the
2018 Will, we disagree.
Standing is a question of law reviewed de novo. Trinity Universal Ins. Co.
of Kans. v. Ohio Cas. Ins. Co., 176 Wn. App. 185, 199, 312 P.3d 976 (2013).
Although Roxie and Jamie did not argue the issue of Brett’s standing below, “[w]e
may affirm on any basis supported by the record whether or not the argument
was made below.” Bavand v. OneWest Bank, 196 Wn. App. 813, 825, 385 P.3d
233 (2016).
Under RCW 11.24.010, only a “person interested” in a will may contest it.
“Person interested” is not statutorily defined, but that term has been in the statute
for some time and has been interpreted by our Supreme Court.
In In re Estate of O’Brien, 13 Wn.2d 581, 126 P.2d 47 (1942), our
Supreme Court construed REM. REV. STAT. § 1385, a predecessor to
RCW 11.24.010. Like the current statute, REM. REV. STAT. § 1385 provided that
a will contest could be filed by “any person interested in any will.” In holding that
an executor named under a previous will was not a “person interested” in the will,
our Supreme Court observed that “it has been held, not only under statutes such
as ours, but also in the absence of statute, that, to contest a will, a person must
have an interest therein, and that this interest must be a direct, pecuniary one.”
O’Brien, 13 Wn.2d at 583. “In other words, the contestant must stand to lose
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directly in a financial way if the will which he seeks to attack is permitted to
stand.” O’Brien, 13 Wn.2d at 583 (emphasis added). The O’Brien court went on
to explain that “‘a ‘person interested’ is one who has a direct, immediate, and
legally ascertained pecuniary interest in the devolution of the testator’s estate,
such as would be impaired or defeated by the probate of the will or benefited by
the declaration that it is invalid.’” O’Brien, 13 Wn.2d at 583 (emphasis added)
(quoting Petitt v. Morton, 28 Ohio App. 227, 235, 162 N.E. 627 (1928)).
By 1952, REM. REV. STAT. § 1385 had been recodified as RCW 11.24.010.
See In re Estate of Romano, 40 Wn.2d 796, 807, 246 P.2d 501 (1952). And in
Romano, our Supreme Court, citing O’Brien, again confirmed that “a person
named as executor in a prior will is not a ‘person interested’ within the meaning
of [RCW 11.24.010] because the interest therein referred to must be a direct,
pecuniary one.” 40 Wn.2d at 807-08 (emphasis added). The Supreme Court
later applied this principle in In re Estate of Becker, holding that an omitted
spouse had standing to intervene in a will contest because “[i]f the will is declared
invalid, [the] estate will be distributed either intestate or pursuant to a prior
will[; and in] either circumstance, [the omitted spouse] would inherit 50 percent of
[the] estate, either through intestacy laws or through the omitted spouse statute.”
177 Wn.2d 242, 247, 298 P.3d 720 (2013). In other words, the omitted spouse in
Becker had standing to intervene because she “would have a significant interest
in the estate if the will were declared invalid.” 177 Wn.2d at 247 (emphasis
added).
In short, it is well established that to have standing, a will contestant must
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“‘ha[ve] a direct, immediate, and legally ascertained pecuniary interest . . . such
as would be impaired or defeated by the probate of the will or benefited by the
declaration that it is invalid.’” Becker, 177 Wn.2d at 247 (internal quotation marks
omitted) (quoting O’Brien, 13 Wn.2d at 583). Specifically, “the contestant must
stand to lose directly in a financial way if the will which he seeks to attack is
permitted to stand.” O’Brien, 13 Wn.2d at 583; see also EUNICE L. ROSS &
THOMAS J. REED, W ILL CONTESTS § 3:4 at 56 (2d ed. 2020) (observing, with regard
to the “‘pecuniary interest’ theory of standing”: “The courts will not allow people
to contest wills when the amount of their share of the decedent’s estate is
identical no matter which way the court decides the case.”). Yet here, Brett does
not point to any evidence that he would lose directly in a financial way if the 2018
Will were permitted to stand. For these reasons, we affirm the trial court’s denial
of Brett’s petition to invalidate the 2018 Will on the basis that Brett failed to
establish his standing to maintain a will contest under RCW 11.24.010. Cf. In re
Estate of Rathbone, 190 Wn.2d 332, 339, 412 P.3d 1283 (2018) (“Once a court
declares a nonintervention estate solvent, the court has no role in the
administration of the estate except under narrowly, statutorily created exceptions
that give courts limited authority to intervene. The court can regain this limited
authority only if the executor or another person with statutorily conferred authority
properly invokes it.” (emphasis added)).
Brett contends that he has standing because instead of dividing James’s
estate equally, the 2018 Will “bequeathed differing cash amounts to different
beneficiaries and different property ownership rights to different children.” But
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No. 80155-4-I/8
Brett does not explain how any alleged change between a prior will and the 2018
Will affected Brett’s—as opposed to his father Mark’s—pecuniary interests.4
Indeed, even Mark’s declaration is silent as to any alleged understanding about
James’s intent with regard to his grandchildren. And to the extent that Brett is
arguing that he has an interest inasmuch as he will one day inherit from his
father, that interest is too remote to be the kind of “‘direct, immediate, and legally
ascertained pecuniary interest’” necessary to support standing. Becker, 177
Wn.2d at 247 (quoting O’Brien, 13 Wn.2d at 583); cf. Ingersoll v. Gourley, 72
Wash. 462, 471-72, 130 P. 743 (1913) (holding that the successor in interest of a
deceased person originally entitled to contest a will is also entitled to contest it);
Jevne v. Pass, LLC, 3 Wn. App. 2d 561, 567, 416 P.3d 1257 (2018) (holding that
“a possible contingent future interest” was insufficient to establish standing).
Therefore, Brett’s contention fails.
Brett next suggests that Cassell v. Portelance, 172 Wn. App. 156, 294
P.3d 1 (2012), supports the proposition that Brett is a “person interested” in the
2018 Will merely because he is a beneficiary under the 2018 Will. But Brett’s
reliance on Cassell is misplaced.
In Cassell, the decedent, David Finch, saw Dr. Douglas Portelance
several times in 2004 and again in 2006. 172 Wn. App. at 159. Finch
complained to Dr. Portelance of rectal bleeding, which Dr. Portelance diagnosed
4We note here that “[i]n general, cases should be brought and defended
by the parties whose rights and interests are at stake.” Wash. State Nurses
Ass’n v. Cmty. Health Sys., Inc., No. 97532-9, slip op. at 7 (Wash. Aug. 13,
2020), http://www.courts.wa.gov/opinions/pdf/975329.pdf.
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as hemorrhoids. Cassell, 172 Wn. App. at 159. In the summer of 2006, a
different doctor diagnosed Finch with terminal colorectal cancer. Cassell, 172
Wn. App. at 159.
In August 2007, Finch, who by then was “very weak,” executed a will,
which named Finch’s wife, Rhoda Cassell, as personal representative. Cassell,
172 Wn. App. at 159. Finch died less than a week later. Cassell, 172 Wn. App.
at 159. After the probate court appointed her as personal representative
consistent with her late husband’s will, Cassell sued Dr. Portelance for wrongful
death, alleging that he had committed medical malpractice by failing to diagnose
Finch’s cancer. Cassell, 172 Wn. App. at 159. Dr. Portelance moved to
intervene in the probate and moved to vacate the order appointing Cassell as
personal representative, arguing that “it was based on a will that had not been
signed by a testator with the requisite mental capacity.” Cassell, 172 Wn. App. at
160.
On appeal, we treated Dr. Portelance’s motion as a will contest under
RCW 11.24.010 and concluded that the term “interested” in that statute was not
broad enough to include Dr. Portelance’s interest as a wrongful death defendant.
Cassell, 172 Wn. App. at 163. We explained, citing O’Brien, that “[o]nly an
individual who possesses a ‘direct, pecuniary interest’ in the devolution of the
testator’s estate may contest a will.” Cassell, 172 Wn. App. at 163 (quoting
O’Brien, 13 Wn.2d at 591). We also observed, to that end, that any alleged
deficiencies in Cassell’s appointment as personal representative “were of no
legitimate concern to Dr. Portelance.” Cassell, 172 Wn. App. at 164. In other
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words, Dr. Portelance did not have standing because he had no direct, pecuniary
interest that would be affected by the outcome of a will contest.
Cassell merely confirms, consistent with O’Brien, Romano, and Becker,
that to have standing, a will contestant must “‘ha[ve] a direct, immediate, and
legally ascertained pecuniary interest . . . such as would be impaired or defeated
by the probate of the will or benefited by the declaration that it is invalid.’”
Becker, 177 Wn.2d at 247 (internal quotation marks omitted) (quoting O’Brien, 13
Wn.2d at 583). And the fact that Dr. Portelance, who was not a beneficiary under
Finch’s will, lacked standing does not mean that beneficiary status automatically
confers standing under RCW 11.24.010. Cf. WILL CONTESTS § 3:4 at 56 n.8
(“The fact that someone is an heir does not automatically confer standing to
challenge a will. For example, if the heir was excluded by testator in an earlier
will that would be admitted to probate if the later will was set aside, the heir has
no standing to contest the later will.”). Accordingly, Cassell does not support
Brett’s contention that he has standing merely because he is a beneficiary under
the 2018 Will.
For the foregoing reasons, we affirm the trial court’s denial of Brett’s
petition to invalidate the 2018 Will on the basis of Brett’s failure to establish
standing. Because we affirm on this basis, we need not decide whether the trial
court erred by denying Brett’s petition on the merits. But Brett’s additional
contention that the trial court erred by denying his petition to remove Roxie and
Jamie as PRs is premised entirely on his contention that they engaged in fraud
and undue influence. Therefore, we address the merits of Brett’s fraud and
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undue influence claims and conclude that even if Brett had standing, the trial
court did not err by denying his claims on their merits.
Standard of Review and Legal Standards
As an initial matter, the parties purport to disagree with regard to the
standard of review this court should apply in reviewing the trial court’s
determination that Brett failed to establish either undue influence or fraud.
Quoting Mueller v. Wells, 185 Wn.2d 1, 9, 367 P.3d 580 (2016), Brett contends
that “‘[w]hen reviewing a will contest, the appellate court’s function is to
determine whether the trial court’s findings are supported by substantial
evidence.’” And, he argues, the trial court erred by dismissing his petition
because “[t]here is substantial and undisputed evidence that Roxie and Jamie
used undue influence and fraudulent inducement to cause [James] to change his
will in the last year of his life.”
Meanwhile, Roxie and Jamie contend that because the standard of proof
in a will contest is clear, cogent, and convincing evidence, an appealing will
contestant “must show that it is ‘highly probable’ that the will was the product of
undue influence or fraudulent inducement.” They argue that “[b]ased upon the
record before the trial court, this court cannot conclude that it is ‘highly probable’
that [t]he [2018] Will was the product of any [undue] influence.” They also argue,
“Nor can this court conclude that it is highly probable that [James] relied on [any
false] statements in executing [t]he [2018] Will.”
In other words, although the parties disagree as to the applicable standard
of proof, they both argue that this court should conduct an independent review of
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the evidence before the trial court, i.e., that review is de novo. Brett contends
that we must reverse if there is substantial evidence of undue influence and
fraudulent inducement, while Roxie and Jamie contend that reversal is required
only if this court concludes that it is “highly probable” that the will was the product
of undue influence or fraud.
Because the trial court did not make any findings and made its
determination based solely on documentary evidence, we are in as good a
position as the trial court to determine whether Brett satisfied his burden to
establish undue influence and fraud. See Progressive Animal Welfare Soc’y v.
Univ. of Wash., 125 Wn.2d 243, 252, 884 P.2d 592 (1994) (“‘[W]here . . . the trial
court has not seen nor heard testimony requiring it to assess the credibility or
competency of witnesses, and to weigh the evidence, nor reconcile conflicting
evidence, then on appeal a court of review stands in the same position as the
trial court in looking at the facts of the case and should review the record de
novo.’” (quoting Smith v. Skagit County, 75 Wn.2d 715, 718, 453 P.2d 832(1969))). Accordingly, we agree with the parties that a de novo review of the
evidence is appropriate in this appeal. See In re Firestorm 1991, 129 Wn.2d
130, 135, 916 P.2d 411 (1996) (“When a trial court fails to make any factual
findings to support its conclusion, and the only evidence considered consists of
written documents, an appellate court may, if necessary, independently review
the same evidence and make the required findings.”); Foster v. Gilliam, 165 Wn.
App. 33, 54, 268 P.3d 945 (2011) (observing that “in general, the standard of
review is de novo in probate proceedings for decisions based on declarations,
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affidavits, and written documents” but applying substantial evidence review
because of the “extensive documentary record in [that] case”).
We decline, however, to apply “substantial evidence” or “highly probable”
review as the parties describe those standards. Specifically, had the trial court
made findings, our review of those findings would be for substantial evidence in
light of the “highly probable” test that applies when the standard of proof is clear,
cogent, and convincing evidence. See In re Trust & Estate of Melter, 167 Wn.
App. 285, 301, 273 P.3d 991 (2012) (“When a challenged factual finding is
required to be proved at trial by clear, cogent, and convincing evidence, we
incorporate that standard of proof in conducting substantial evidence review. . . .
When such a finding is appealed, the question to be resolved is not merely
whether there is substantial evidence to support it but whether there is
substantial evidence in light of the ‘highly probable’ test.”). But here, the trial
court did not make findings, and therefore those standards do not apply.
Similarly, because the trial court did not make credibility determinations, we do
not view the evidence in the light most favorable to the party that prevailed
below, as Roxie and Jamie urge us to do. See Ottis v. Stevenson-Carson Sch.
Dist. No. 303, 61 Wn. App. 747, 756, 812 P.2d 133 (1991) (explaining that taking
the evidence in the light most favorable to the prevailing party below is a means
by which the appellate court accepts the trial court’s credibility determinations
and choice of reasonable inferences). Instead, because review is de novo, we
simply apply the standards of proof that ordinarily apply to claims of undue
influence and fraudulent inducement. These standards are set forth in the
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discussion below.
Undue Influence
“The right to testamentary disposition of one’s property is a fundamental
right protected by law,” and “[a] will that is executed according to all the legal
formalities is presumed valid.” Mueller, 185 Wn.2d at 9. “Nevertheless, a will
executed by a person with testamentary capacity may be invalidated if ‘undue
influence’ existed at the time of the testamentary act.” Mueller, 185 Wn.2d at 9.
“‘Undue influence’ that is sufficient to void a will must be ‘something more than
mere influence but, rather, influence which, at the time of the testamentary act,
controlled the volition of the testator, interfered with his free will, and prevented
an exercise of his judgment and choice.’” Mueller, 185 Wn.2d at 10 (internal
quotation marks omitted) (quoting In re Estate of Lint, 135 Wn.2d 518, 535, 957
P.2d 755 (1998)).
“Circumstantial evidence may be used to establish suspicious facts that
raise a presumption of undue influence.” Mueller, 185 Wn.2d at 10. In Dean v.
Jordan, 194 Wash. 661, 79 P.2d 331 (1938), our Supreme Court “identified
certain suspicious facts and circumstances that could raise a presumption of
undue influence.” Mueller, 185 Wn.2d at 10. “‘The most important of such facts
are (1) That the beneficiary occupied a fiduciary or confidential relation to the
testator; (2) that the beneficiary actively participated in the preparation or
procurement of the will; and (3) that the beneficiary received an unusually or
unnaturally large part of the estate.’” Mueller, 185 Wn.2d at 10-11 (quoting
Dean, 194 Wash. at 672). “‘Added to these may be other considerations, such
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as the age or condition of health and mental vigor of the testator, the nature or
degree of relationship between the testator and the beneficiary, the opportunity
for exerting an undue influence, and the naturalness or unnaturalness of the
will.’” Mueller, 185 Wn.2d at 11 (quoting Dean, 194 Wash. at 672). “If the facts
raise a presumption of undue influence, the burden of production shifts to the will
proponent, who must then rebut the presumption with evidence sufficient to
‘balance the scales and restore the equilibrium of evidence touching the validity
of the will.’” Mueller, 185 Wn.2d at 15 (quoting Dean, 194 Wash. at 672).
We conclude, applying the Dean factors, that Brett failed to sustain his
initial burden to raise a presumption of undue influence sufficient to require Roxie
and Jamie to produce rebuttal evidence.
Dean Factor 1: Confidential Relationship
The crux of a confidential relationship “is a level of trust that leads the
testator to believe that the beneficiary is acting in his or her best interests,
creating an opportunity for the beneficiary to exert undue influence.” Mueller,
185 Wn.2d at 11. “While a confidential relationship is more likely to exist
between parent and child, parentage alone does not create the relationship.”
Lewis v. Estate of Lewis, 45 Wn. App. 387, 390, 725 P.2d 644 (1986). Rather,
“[t]he essential elements of a confidential relationship are (1) that the parent
reposes some special confidence in the child’s advice and (2) that the child
purports to advise with his parent’s interests in mind.” Lewis, 45 Wn. App. at
391.
Here, Brett asserts that a confidential relationship existed because Roxie
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and Jamie were James’s main caretakers, Roxie and Jamie “had control over
everything from [James’s] food to when his soiled sheets were cleaned,” and
“Roxie even admitted to sleeping in [James]’s bed.” In support of his assertions,
Brett points to a declaration from Roxie in which she attested that after James
returned home from cancer treatment in 2006, “Jamie and I provided him with full
time care, splitting shifts between the two of us.” Brett also points to a
declaration from Dana, in which she attested that although the family was “very
close knit” for years and “[a]ll the children and grandchildren helped with
household duties, cooking, grocery shopping, taking our parents to doctor
appointments, chopping wood, and helping with livestock[, i]n the last year of
[James]’s life, only . . . Roxie, Jamie, and her children, were permitted to help
with chores.” Finally, Brett points again to Roxie’s declaration, in which she
stated that during the last week of James’s life, “[Jamie] and I cut an inexpensive,
urine soaked shirt off my father’s body because we felt that the movement of his
joints necessary to remove it in the usual manner would cause him undue pain,”
and, “In the week before [James]’s death, he experienced frequent periods of
extreme cold” and “[d]uring this time, I did lie next to him on his hospice bed . . .
to try to keep him warm and provide him with comfort as he was dying.”
But even if the cutting off of James’s urine-soaked shirt and Roxie’s lying
next to James in bed are probative of a confidential relationship, it is undisputed
that these incidents occurred during the final weeks of James’s life, well after he
executed the 2018 Will. And apart from these two incidents, Brett points to no
evidence of a confidential relationship other than the undisputed fact that Roxie
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and Jamie became James’s primary caretakers in 2006.5
To that end, Brett cites no authority to support the proposition that Roxie
and Jamie’s status as James’s primary caretakers alone is enough to establish a
confidential relationship. Instead, in McCutcheon v. Brownfield, the case on
which Brett relies, we explained that a confidential relationship between parent
and child may exist when the parent becomes “dependent upon the child, either
for support and maintenance, or for care or protection in business matters as well
or for both, and the child, by virtue of factors of personality and superior
knowledge . . . [assumes] . . . the role of adviser accepted by the parent.” 2 Wn.
App. 348, 357, 467 P.2d 868 (1970) (emphasis added). Here, Brett does not
point to any evidence that before the execution of the 2018 Will in June 2018,
Roxie and Jamie purported to advise James as to his affairs or that James
accepted them as advisors. Accordingly, we conclude that the first Dean factor
does not weigh in Brett’s favor. Cf. Lewis, 45 Wn. App. at 391 (concluding that
mother and son did not share a confidential relationship where the mother lived
with the son and valued his opinions but “was not dependent on his advice to
form the basis of her decisions”); Mueller, 185 Wn.2d at 11 (confidential
5 Brett’s statement of facts asserts a number of facts that he does not refer
to later in the argument section of his brief. In analyzing Brett’s arguments, our
focus is on the portions of the record to which Brett refers in support of each
argument. See RAP 10.3(a)(6) (providing that the argument section of a brief
must contain “references to relevant parts of the record”); cf. Lint, 135 Wn.2d at
532 (court will not assume obligation to comb the record for evidence to support
counsel’s arguments). That said, the additional facts in Brett’s statement of facts
either (1) are based on declarations that fail to establish personal knowledge of
the relevant fact, (2) describe events that occurred after James executed the
2018 Will, or (3) would not in any event change our analysis.
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relationship existed where the will proponent was the decedent’s attorney-in-fact
at the time the will in contest was signed); In re Estate of Eubank, 50 Wn. App.
611, 620, 749 P.2d 691 (1988) (confidential relationship existed between the
testator and her brother not merely because they were siblings, but because the
brother had obtained a general power of attorney from the testator).
Dean Factor 2: Active Participation
“The second Dean factor requires that the beneficiary’s actions bring
about or affect the testamentary instrument.” Mueller, 185 Wn.2d at 12. Here,
Brett’s assertion that Roxie and Jamie actively participated in the preparation or
procurement of the 2018 Will is premised entirely on (1) his speculation that
Jamie (or Roxie) was the one who telephoned James’s attorney, Lesa
Starkenburg-Kroontje, about changing James’s will in 2018 and (2) the fact that
Jamie drove James to Starkenburg-Kroontje’s office on the day that James
executed the 2018 Will.
But “[p]articipation in the transaction sufficient to support a presumption of
undue influence requires that the beneficiary actively dictated the terms of [the]
transaction, purportedly on behalf of the decedent.” Kitsap Bank v. Denley, 177
Wn. App. 559, 577, 312 P.3d 711 (2013). Thus, for example, in In re Estate of
Malloy, our Supreme Court concluded that the will proponent was not an active
participant where there was “no evidence that [the will proponent] participated in
the preparation or procurement of the will,” even though “the attorney [the
decedent] selected was one of those [the proponent] recommended . . . and . . .
[the proponent] drove [the decedent] to the attorney’s office on both occasions.”
18
No. 80155-4-I/19
57 Wn.2d 565, 570, 358 P.2d 801 (1961). And in Mueller, our Supreme Court
confirmed, citing Malloy, that “the mere act of driving [the decedent] to the
meeting with her attorney is not sufficient in and of itself to satisfy this Dean
factor.” 185 Wn.2d at 12.
Here, even if we accept as fact Brett’s speculation that Jamie or Roxie
called Starkenburg-Kroontje, Brett points to no evidence that Jamie or Roxie
“actively dictated the terms of [the] transaction” on behalf of James. Denley, 177
Wn. App. at 577. Therefore, Brett fails to establish that Jamie and Roxie actively
participated in the procurement of the 2018 Will as contemplated under the
second Dean factor. Cf. In re Estate of Haviland, 162 Wn. App. 548, 566, 255
P.3d 854 (2011) (concluding that will proponent actively participated in the
procurement of the challenged will where, among other things, the proponent
typed a letter to the decedent’s attorney enclosing a copy of the previous will with
the proponent’s interlineated draft changes).
Dean Factor 3: Unusually or Unnaturally Large Part of the Estate
“Under the third Dean factor, the effect of undue influence must manifest
in the testamentary instrument in an ‘unnatural’ or ‘unusual’ way.” Mueller, 185
Wn.2d at 13. “‘Unusualness’ or ‘unnaturalness’ can be measured by comparison
to the decedent’s previous testamentary instruments . . . or bequests to other
beneficiaries.” Mueller, 185 Wn.2d at 13. “A will is unnatural ‘when it is contrary
to what the testator, from his known views, feelings, and intentions would have
been expected to make.” Mueller, 185 Wn.2d at 14.
Here, Brett avers that “the will for the majority of [James]’s life was to be
19
No. 80155-4-I/20
distributed equally,” and in the 12 years before James executed the 2018 Will,
“[James] had not taken steps to change his will.” Brett also points out that
according to his father Mark, James and Mark’s mother, Kathleen, gave Mark the
keys to certain lockboxes and safes holding valuable property. Brett contends
that this constitutes evidence that James “actually desired that Mark control
important portions of the estate.” Brett then contends that the 2018 Will is
unnatural because it was “specifically not equal” and instead “g[a]ve Jamie and
Roxie the majority of the estate.” Brett’s contention fails for three reasons.
First, Brett points to no evidence that James intended to distribute his
estate equally among his children before executing the 2018 Will. He relies on
Mark’s declaration that after speaking with James alone in the spring of 2018, it
was Mark’s “understanding” that James’s estate “was to be distributed equally
and fairly.” But Mark’s “understanding” is at best just that. It is not competent—
much less persuasive—evidence of what James in fact intended or that James
intended to distribute his estate strictly equally. Similarly, Mark’s declaration that
he was given keys to certain lockboxes and safes containing his parents’
property is insufficiently probative of James’s intent, regarding his estate as a
whole, to support Brett’s assertions with regard to the unnaturalness of the 2018
Will.6 Indeed, this case is readily distinguishable from Haviland, the only
published opinion that Brett cites. In Haviland, there was ample evidence of the
6 Because we conclude that Mark’s testimony about his “understanding” of
James’s intent with regard to his estate and James’s giving to Mark certain keys
to safes and lockboxes do not support Brett’s arguments under the third Dean
factor, we need not address Roxie and Jamie’s contention that Mark’s testimony
is barred by the dead man’s statute, RCW 5.60.030.
20
No. 80155-4-I/21
decedent’s known views, feelings, and intentions in the form of the decedent’s
earlier trust and estate documents. See 162 Wn. App. at 553-54, 555. Here, by
contrast, Brett presented no similar evidence of James’s prior intent with regard
to his estate.
Second, although Brett asserts that James did not take any steps to
change his will in the 12 years before James executed the 2018 Will, that
assertion is not supported by citation to the record. And though we are not
obligated to do so, we have diligently searched the record and found nothing to
support that assertion. Rather, according to Starkenburg-Kroontje, James “made
changes to his estate documents to address life changes at different times within
the past twelve years.”
Finally, even assuming that a prior will exists in which James distributed
his estate equally among his children, Brett points to no evidence in the record to
support his contention that the 2018 Will, which bequeathed the Everson
Property to Mark, Dana, and Rebecca and the Bellingham Property and the
remainder of the estate to Jamie and Roxie, resulted in a comparatively unusual
or unnaturally large distribution to Jamie and Roxie. Specifically, he points to no
evidence of the value of the Bellingham Property or the Everson Property, nor
does he explain how to account for the 2018 Will’s distribution of $185,000 in
cash gifts to beneficiaries other than Roxie and Jamie. He also does not cite any
authority supporting the proposition that a distribution is unnatural merely
because it is unequal among siblings. Cf. Haviland, 162 Wn. App. at 564, 566(will was unnatural where it “effectively disinherit[ed the decedent’s] children, and
21
No. 80155-4-I/22
cut bequests to charitable organizations by nearly half”). For these reasons, we
conclude that the third Dean factor does not weigh in Brett’s favor.
Other Considerations
In addition to the three main factors under Dean, “‘other considerations,
such as the age or condition of health and mental vigor of the testator, the nature
or degree of relationship between the testator and the beneficiary, the
opportunity for exerting an undue influence, and the naturalness or
unnaturalness of the will’” may also weigh in favor of finding undue influence.
Mueller, 185 Wn.2d at 11 (quoting Dean, 194 Wash. at 672). These other
considerations “speak to the testator’s vulnerability to undue influence due to
mental or physical infirmity and the nature of the relationship with the
beneficiary.” Mueller, 185 Wn.2d at 14.
Here, Brett contends that these other considerations also weigh in his
favor because James was in poor health, Jamie and Roxie had the same degree
of relationship with their father as their older siblings, Jamie and Roxie were
James’s caretakers and had “unrestricted opportunity” to exert undue influence,
and the will was unnatural for reasons already discussed. But although Brett
presented evidence that James was hard of hearing, weak, and had difficulty
moving and walking “[t]hroughout the last year of his life,” he does not explain
how these physical limitations made James particularly susceptible to undue
influence. Nor does he present any evidence that James experienced any
cognitive impairment. Accordingly, this case is distinguishable from Mueller, on
which Brett relies, because in Mueller, the trial court found that the testator was
22
No. 80155-4-I/23
“‘extremely vulnerable to undue influence due to physical limitations, [and] some
degree of cognitive impairment.’” 185 Wn.2d at 14 (emphasis added) (alteration
in original); see also Haviland, 162 Wn. App. at 567 (other considerations under
Dean supported invalidation of will where there was evidence that the decedent
“experienced substantial physical disabilities[ and] exhibited symptoms of
dementia as early as 2000,” six years before he executed his final will (emphasis
added)).
Brett also fails to show that the nature of Jamie and Roxie’s relationship
with James weighs in favor of a finding of undue influence, or that the will was
unnatural. Brett implies that Jamie and Roxie should have received the same
distribution as their other siblings because “[t]hey all had the same degree of
relationship.” But as before, Brett cites no authority for the proposition that a will
is unnatural merely because it is unequal among siblings. Indeed, this case is
again distinguishable from Mueller, where the testator made a “‘radical and
unnatural change to her prior wills’” by disinheriting her closest living relatives
with whom she shared a close family relationship in favor of a woman who was
51 years younger than the testator, was unrelated to the testator, and became
consistently involved with the testator only in the last few years of her life. 185
Wn.2d at 14.
Finally, Brett contends that Roxie and Jamie saw to it that they “had
unrestricted access to [James]” by attempting to “limit and control [James]’s
interactions with [Mark, Dana, and Rebecca].” In other words, Brett contends
that Roxie and Jamie had the opportunity to exert influence. But “opportunity
23
No. 80155-4-I/24
alone . . . is not sufficient basis for drawing the inference that undue influence
was exerted.” In re Estate of Jolly, 197 Wash. 349, 351, 85 P.2d 267 (1938).
Conclusion: Undue Influence
Brett does not point to evidence sufficient to satisfy the three most
important Dean factors. He also fails to establish the presence of other
considerations that weigh in favor of a finding of undue influence. At best, Brett’s
allegations establish that Roxie and Jamie had the opportunity and the motive to
influence James. But “‘[m]ere suspicion, even when accompanied by opportunity
and motive, is insufficient to raise a substantial inference of undue influence.’”
Melter, 167 Wn. App. at 302 (internal quotation marks omitted) (quoting In re
Estate of Smith, 68 Wn.2d 147, 157, 411 P.2d 879, 416 P.2d 124 (1966)).
Furthermore, although Roxie and Jamie may have had the opportunity to
influence James, Brett does not point to any evidence that Roxie and Jamie
exerted undue influence, i.e., “‘influence tantamount to force or fear which
destroys the testator’s free agency and constrains him to do what is against his
will.’” In re Estate of Kessler, 95 Wn. App. 358, 377, 977 P.2d 591 (1999)
(quoting Lint, 135 Wn.2d at 535). For these reasons, we conclude that Brett
failed to satisfy his burden of production with regard to undue influence.
But even if Brett did satisfy his burden of production, he failed to satisfy his
burden of persuasion in light of the rebuttal evidence submitted by Roxie and
Jamie. See Mueller, 185 Wn.2d at 15 (“If the facts raise a presumption of undue
influence, the burden of production shifts to the will proponent, who must then
rebut the presumption with evidence sufficient to ‘balance the scales and restore
24
No. 80155-4-I/25
the equilibrium of evidence touching the validity of the will.’ However, the will
contestant retains the ultimate burden of proving undue influence by ‘clear,
cogent, and convincing’ evidence.” (citation omitted) (quoting Dean, 194 Wash.
at 671-72)).
Most significantly, Starkenburg-Kroontje, James’s attorney, declared that
James made changes to his estate documents at various times over the past 12
years but that since 2007, Roxie and Jamie had been named PRs jointly or
individually. Additionally, Starkenburg-Kroontje, who had been advising James
for more than 10 years and had met with him more than 30 times, attested that
“[a]t no time during the course of our conversation on June 26, 2018[, when
James executed the 2018 Will,] did [she] question [James]’s capacity to
understand what he was doing.” She also observed that James “was articulate
and our conversation spanned several different topics.” And, she declared that
James “expressed frustration with the behavior of his three older children and
how they were treating him” and believed the property distribution under the 2018
Will to be fair, even though it may not have been equal.
To this end, Jamie attested in her declaration that James’s relationship
with his three eldest children had been strained for some time; that Mark, Dana,
and Rebecca refused when asked to help Roxie and Jamie care for their father;
that Mark frequently showed up to James’s house unannounced; that on one
such visit in June 2018, Mark angrily confronted James about money; and that
shortly after that confrontation, there was another argument involving James and
Mark, Rebecca, and Dana.
25
No. 80155-4-I/26
In other words, and even without considering the parts of Jamie’s
declaration that Brett contends are barred by the dead man’s statute,7 Jamie’s
declaration, together with Starkenburg-Kroontje’s declaration, are sufficient to
rebut any presumption of undue influenced raised by Brett’s evidence:
Starkenburg-Kroontje’s observations about James’s behavior and capacity at the
meeting contradict Brett’s assertions that James was susceptible to undue
influence. And her testimony that James expressed frustration with how his three
older children were treating him and believed the 2018 Will to be fair, though not
strictly equal, contradict Brett’s assertions that the 2018 Will was the result of
undue influence. Specifically, together with Jamie’s declaration regarding the
strained relationship between James and his three oldest children, Starkenburg-
Kroontje’s testimony presents an explanation, other than undue influence, for the
2018 Will: that James chose to change his will in June 2018 because of his
frustration with his oldest children, with whom he had recently argued. 8
Brett points out that even the trial court “recognized that much of what
7 Jamie also testified that “[i]n early June 2018, my father asked my older
siblings to call prior to visiting him at home”; that “my father asked that I take him
to Mark’s house so he could personally reiterate his desire that my older siblings
call before visiting”; and that James asked her to have his locks changed and to
take him to Starkenburg-Kroontje’s office.
8 Although Brett contended below that Starkenburg-Kroontje’s testimony
was barred by the dead man’s statute, he does not renew that argument on
appeal. In any event, Starkenburg-Kroontje is neither the executor nor a
beneficiary under the 2018 Will. Therefore, Brett’s earlier argument that she is a
party in interest to whom the dead man’s statute applies is unpersuasive. Cf. In
re Estate of Shaughnessy, 97 Wn.2d 652, 653, 656, 648 P.2d 427 (1982)
(holding that attorney who drafted the will in contest was a party in interest under
the dead man’s statute where he was both the executor and a beneficiary under
the will).
26
No. 80155-4-I/27
happens in undue influence cases goes on outside of the attorney’s office” and
that a person can appear to make a choice “but actually be under the influence
and control of the individuals [ex]erting undue influence.” But Brett bore the
ultimate burden to prove clearly, cogently, and convincingly that such influence
was in fact exerted. And for reasons already discussed, the evidence Brett
presented was not sufficient to meet that burden in light of the contradictory
evidence that Roxie and Jamie produced.
As a final matter, Brett contends that the trial court erred by not conducting
an on-the-record evaluation of the Dean factors. But he cites no authority for the
proposition that the trial court was required to conduct an on-the-record analysis,
much less that an on-the-record analysis is required to support a negative
conclusion on an issue with respect to which Brett bore the burden of proof. Cf.
Eagleview Technologies, Inc. v. Pikover, 192 Wn. App. 299, 314, 365 P.3d 1264(2015) (“A trial court is ‘not required to enter negative findings or findings that a
certain fact has not been established.’” (quoting Gen. Indus., Inc. v. Eriksson, 2
Wn. App. 228, 229, 467 P.2d 321 (1970))). Brett’s contention fails.
Fraudulent Inducement
Brett next contends that the trial court erred by denying his petition with
regard to fraudulent inducement. We disagree.
Under RCW 11.24.010, “a person interested in a will may, within four
months following probate of the will, petition a court . . . and claim that the will
was procured by fraud.” Lint, 135 Wn.2d at 533. “All of the elements of fraud
must . . . be shown . . . in order for the will to be set aside.” Lint, 135 Wn.2d at
27
No. 80155-4-I/28
533. “The elements of fraud are: (1) representation of an existing fact; (2)
materiality of the representation; (3) falsity of the representation; (4) knowledge
of the falsity or reckless disregard as to its truth; (5) intent to induce reliance on
the representation; (6) ignorance of the falsity; (7) reliance on the truth of the
representation; (8) justifiable reliance; and (9) damages.” Lint, 135 Wn.2d at 533
n.4.
Like claims of undue influence, claims of fraudulent inducement must be
proved by clear, cogent, and convincing evidence. Lint, 135 Wn.2d at 533. And
as discussed, that standard of proof has two elements: the burden of production
and the burden of persuasion. Accordingly, as with a will contestant alleging
undue influence, a will contestant alleging fraudulent inducement bears the initial
burden of producing substantial evidence to merit the production of rebuttal
evidence. Additionally, as with claims of undue influence, the will contestant can
satisfy this initial burden by establishing suspicious circumstances under the
Dean factors. Dean, 194 Wash. at 672 (“The combination of facts shown by the
evidence in a particular case may be of such suspicious nature as to raise a
presumption of fraud or undue influence.”).
Here, and as discussed in the context of undue influence, Brett failed to
satisfy his burden of production via the Dean factors. And although he raises two
additional arguments specific to fraud, neither is persuasive.
First, Brett contends that a “piece of evidence demonstrating that Jamie
and Roxie would lie to [James] to cause [James] to fear and mistrust [Mark,
Dana, and Rebecca] is exemplified through the lies Roxie would tell about
28
No. 80155-4-I/29
Dana’s food.” To this end, Dana declared that she “cooked dinner for [her] father
and mother every night for over a year” and that she “found out later
that . . . Roxie would sometimes throw out the food that I cooked and tell my
mother and father that I was trying to poison them.” But James’s late wife,
Kathleen, passed away in April 2015. Accordingly, even if Roxie did falsely tell
Kathleen and James that Dana was trying to poison them, that
misrepresentation, made while Kathleen was still alive, was too temporally
removed from James’s execution of the 2018 Will to constitute a basis for
fraudulent inducement. Put another way, Brett’s contention fails because he
points to no evidence that James relied on the misrepresentation in executing the
2018 Will. See W ILL CONTESTS § 8:10 at 463 (“Nor can there be relief if . . . the
fraud was not sufficiently near in time to execution to justify a reasonable
inference that the testator entertained mistake when doing the testamentary
act.”).
Brett next contends that the “most damaging falsity that Jamie and Roxie
represented to [James] was that Mark intended to put [James] into a nursing
home.” Specifically, Brett points to the following events that allegedly took place
in late May and early June 2018, and that Mark described in his declaration as
follows:
On May 28, 2018 I went to visit my father, but I was turned
away. I went back on May 30, 2018 to visit and was turned away
again. I returned a third time on June 1, 2018 and Jamie and Roxie
attempted to exclude me another time, but I insisted on seeing my
father.
. . . I found my father in his bedroom, laying down on his
bed. I was shocked to see that the entire side of my father’s face
was black and blue with bruising. In explanation of the obvious
29
No. 80155-4-I/30
bruising, my sister Roxie stated that my father kept falling and had
hit his face on the bedside table. While Roxie and I were with my
father, I asked my father how he came to have the bruises. He
repeated exactly the same thing that Roxie had said. I told Roxie
that I needed to be informed when issues of this sort happened to
my father, but I was never told of any subsequent falls or other
injuries or sicknesses.
. . . That same afternoon, after I had already visited with my
father in his home, Jamie brought my father to my house. My
father was quite weak and ill and should not have been out of bed;
he could hardly walk while she pulled him up the sidewalk. Once
inside my home, Jamie said to my father “tell him.” She repeated it
several times forcefully. In response, my father stated to me
“Promise me you’ll let Roxie take care of me until the end.” I
promised my father that I would let her take care of him. Then,
before leaving, Jamie turned to me and said “By the way, you are
no longer in charge. I’m in charge now.” She further stated “Don’t
come see him for two weeks.”
....
. . . It was common knowledge in our family that my father
was very afraid that he would be put in a nursing home when he got
old. He made me promise that I would never allow him to be put in
a home. When Jamie came to my house on June 1, 2018 . . . , she
kept repeating to my father that “Mark is a greedy man, and he
keeps saying you need to go to an age home.” . . . I can confirm I
had no intention and never spoke of anything related to putting him
in a nursing home and fully intended to keep my promise to him.
Brett contends that “coupled with the lie that ‘Mark is a greedy man,’ it is evident
that Jamie intended [James] to believe that Mark wanted [James]’s estate and for
that reason wanted to put him in a home.” He avers that “multiple witnesses
overheard this lie being repeated to [James] only a few weeks before [James]
changed his will,”9 and that because “it was well known among the family that
[James] was afraid of being put in a nursing home,” James was particularly
susceptible to this lie. Brett characterizes this alleged misrepresentation as
9 (Emphasis omitted.)
30
No. 80155-4-I/31
“textbook fraudulent inducement[ ] as it clearly fulfills every element of fraud and
led to the will in contest.”
We conclude that these alleged misrepresentations, as well as their
temporal proximity to the execution of the 2018 Will, create suspicious
circumstances that shifted the burden to Jamie and Roxie. Nevertheless, Jamie
and Roxie came forth with rebuttal evidence “sufficient to ‘balance the scales and
restore the equilibrium of evidence touching the validity of the will.’” Mueller, 185
Wn.2d at 15 (quoting Dean, 194 Wash. at 672). Specifically, and as discussed,
Jamie attested in her declaration that James’s relationship with his eldest
children had been strained for some time. Jamie also declared that Mark
“expressed desire to place [James] in a nursing home” when James was being
treated for cancer in 2006 and that when Roxie and Jamie asked for Mark’s help
with James’s care after James returned home, Mark “angrily refused, stating ‘No!
This is what YOU wanted!’” Jamie declared that Dana and Rebecca also refused
to help with James’s care.
With regard to the bruising described in Mark’s declaration, Roxie
declared that James did suffer a fall in summer of 2018. She explained that the
fall “occurred late at night when my father attempted to get up to use the
restroom” and that her understanding was that James “was very susceptible to
bruising, due to his advanced age.” Jamie declared that she took James to see
his doctor afterward, and no medical concerns were noted.
Additionally, both Roxie and Jamie declared that despite having been
treated for cancer in 2006 and though his health declined sharply in the final
31
No. 80155-4-I/32
weeks of his life, James’s “health was good after he beat cancer at age eighty-
three.” Roxie declared that James “was very proactive in maintaining his muscle
strength and flexibility and cardiovascular fitness by engaging in daily weight
lifting, stationary cycling and walking.”
Finally, and as discussed, Jamie declared that Mark frequently showed up
to James’s house unannounced; that on one such visit in June 2018, Mark
angrily confronted James about money; and that shortly after that confrontation,
there was an argument involving James and Mark, Rebecca, and Dana.
In short, Roxie and Jamie’s evidence contradicts Mark’s assertion that he
“had no intention and never spoke of anything related to putting [James] in a
nursing home,” thereby rebutting Brett’s contention that Jamie’s characterizations
of Mark’s wishes were false and made with knowledge of their falsity.
Furthermore, and as discussed with regard to Brett’s undue influence claim,
Roxie and Jamie’s rebuttal evidence presents a plausible explanation, other than
fraud, that James changed his will in 2018: that James’s already strained
relationship with his eldest children became more strained as a result of the
eldest children’s refusals to assist with James’s care, their unannounced visits to
James’s home, and Mark’s demand for money in June 2018. In light of this
plausible explanation presented by Roxie and Jamie’s rebuttal evidence, and
because Brett points to no evidence of James’s reliance on any alleged
misrepresentation by Roxie or Jamie, we cannot say that Brett presented clear,
cogent, and convincing evidence that the 2018 Will was induced by fraud.
Brett disagrees and asserts that he “has presented evidence of the exact
32
No. 80155-4-I/33
same situation” as in Lint, where our Supreme Court affirmed the trial court’s
conclusion that a will was procured by fraud. 135 Wn.2d at 534. But in Lint,
there had been a lengthy bench trial with live testimony, and the trial court made
extensive findings of fact in the will contestant’s favor. 135 Wn.2d at 530.
Accordingly, on review, the Supreme Court needed “only to determine whether
the evidence viewed most favorable to [the will contestant] supports the
challenged finding[s].” Lint, 135 Wn.2d at 532. Here, by contrast, there was no
live testimony, the trial court made no findings, and the will contestant—Brett—
did not prevail. Accordingly, the evidence that Brett contends he presented to
the trial court is not entitled to the same deference in light of Jamie and Roxie’s
rebuttal evidence.
Moreover, Lint is distinguishable on its facts: In Lint, there was
considerable evidence that the testator was experiencing significant cognitive
impairment when she executed her last will. See Lint, 135 Wn.2d at 523, 526-27.
There was also considerable evidence of the will proponent’s fraud: For example,
although he was purportedly dating the testator, who was 18 years his senior, he
maintained relationships with other women, including a longtime girlfriend. Lint,
135 Wn.2d at 522. He also attempted to be named the testator’s attorney in fact,
fired the testator’s housekeeper of 15 years and replaced her with his own
employees, instructed the testator’s hospice nurse not to respond to inquiries
about her health and not to record anything in her logbook that would suggest the
testator was incompetent, and married the testator in a “mock ceremony,” the
video of which revealed that the testator “was unable to complete sentences or
33
No. 80155-4-I/34
repeat words after they were spoken to her.” Lint, 135 Wn.2d at 523-26. Lint is
not persuasive here.
Brett also contends, as he did with regard to undue influence, that the trial
court erred by not conducting an on-the-record analysis of each of the elements
of fraud. But Brett again cites no authority that requires the trial court to do so,
and as discussed, a trial court is not required to enter negative findings.
As a final matter, at oral argument before this court, Brett’s counsel
suggested that the trial court erred inasmuch as it treated the hearing on Brett’s
petition to invalidate the 2018 Will as a hearing on the merits, without giving Brett
an opportunity to conduct additional discovery and present live testimony. But in
Brett’s opening brief, Brett argued only that he conclusively proved fraud and
undue influence based on the evidence submitted to the trial court. He did
argue, with regard to his petition to remove Roxie and Jamie as PRs, that
additional discovery was warranted to investigate Jamie and Roxie’s alleged
breaches of their fiduciary duties. But he did not argue, with regard to his petition
to invalidate the 2018 Will, that he should have been permitted to conduct
discovery and present live testimony, much less support any such argument with
relevant authority. Cf. RCW 11.96A.100(7) (providing that “[t]estimony of
witnesses may be by affidavit”). Accordingly, we do not consider Brett’s
contention that the trial court erred by treating the hearing on Brett’s will contest
as a hearing on the merits and deciding the issue without additional discovery or
live testimony. See Norcon Builders, LLC v. GMP Homes VG, LLC, 161 Wn.
App. 474, 486, 254 P.3d 835 (2011) (appellate court “will not consider an
34
No. 80155-4-I/35
inadequately briefed argument”).
PETITION TO REMOVE PERSONAL REPRESENTATIVES
Brett contends that the trial court erred by denying his petition to remove
Roxie and Jamie as personal representatives of James’s estate. We disagree.
Under RCW 11.68.070, the court may, upon petition by certain interested
parties, remove or restrict the powers of a nonintervention PR if the PR “fails to
execute his or her trust faithfully or is subject to removal for any reason specified
in RCW 11.28.250.” RCW 11.28.250 authorizes the court to remove a PR who
has “wasted, embezzled, or mismanaged, or is about to waste, or embezzle the
property of the estate” or “for any other cause or reason which to the court
appears necessary.” Although Brett is correct that any findings the trial court
makes in connection with its decision to remove a personal representative are
reviewed for substantial evidence, see In re Estate of Jones, 152 Wn.2d 1, 8, 93
P.3d 147 (2004), a trial court’s ultimate decision whether to remove a personal
representative “receives considerable deference and will not be disturbed absent
a manifest abuse of discretion.” In re Estate of Jones, 116 Wn. App. 353, 361,
67 P.3d 1113 (2003), rev’d on other grounds, 152 Wn.2d 1, 93 P.3d 147 (2004).
Here, Brett does not argue on appeal that Roxie and Jamie should have
been removed as PRs because they did, or were about to, waste, embezzle, or
mismanage the property of the estate. Instead, his argument that Roxie and
Jamie should have been removed as PRs rests entirely on his assertions that
Roxie and Jamie unduly influenced and fraudulently induced James, and that this
conduct constituted an “other cause or reason” for removal under
35
No. 80155-4-I/36
RCW 11.28.250. His argument fails for three reasons.
First, we assume without deciding that a PR’s procurement of the will the
PR is charged with executing, through undue influence or fraud, is an “other
cause or reason” for removal under RCW 11.28.250. But as discussed, Brett
failed to establish that Roxie and Jamie procured the 2018 Will through undue
influence or fraud.
Second, Brett cites no authority supporting the proposition that a PR’s
undue influence or fraud necessitates removal. He points to Haviland, where we
affirmed the trial court’s conclusion that the PR procured the will by undue
influence and the trial court’s removal of the PR. 162 Wn. App. at 552, 557. But
nothing in Haviland indicates that the PR’s removal was a consequence of the
PR’s undue influence, and a later Supreme Court decision in Haviland indicates
that the PR was removed not because of undue influence, but because of her
ineligibility due to past criminal convictions. In re Estate of Haviland, 177 Wn.2d
68, 72, 301 P.3d 31 (2013). Therefore, Brett’s reliance on Haviland is misplaced.
Finally, as the trial court observed, Brett petitioned for removal only a very
short time after letters testamentary were issued. Furthermore, Roxie and Jamie
each submitted declarations confirming that they had been advised of and
understood their fiduciary duties and describing the activities they had
undertaken since being appointed, including gathering and securing James’s
personal property, insuring high-value items, notifying tenants and doctors,
closing bank accounts, notifying creditors, paying outstanding debts, opening an
estate bank account, obtaining appraisals, and closing credit card accounts.
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Under these circumstances, we cannot say that the trial court abused its
discretion by denying Brett’s petition to remove Roxie and Jamie as PRs.
As a final matter, Brett contends in the alternative that remand is required
to allow him to conduct discovery into his suspicions that Roxie and Jamie are
committing waste by allowing Roxie to live on the estate rent free, logging an
estate property, and hiding estate assets. He argues that “RCW 11.28.250 and
RCW 11.68.070 were clearly created with the intention of protecting
beneficiaries’ rights and removing improper personal representatives who cannot
and will not fulfill their fiduciary duties.” He argues further that it would be
“unjust” to not allow him to conduct discovery because he “has not had the
opportunity to fully prove that Roxie and Jamie are not fulfilling their fiduciary
duties” and that this situation is “totally contrary to the entire purpose of
RCW 11.28.250 and RCW 11.68.070.”
But Brett cites no authority for the proposition that the trial court was
required to allow discovery, and his arguments ignore the fact that James’s
estate was declared a nonintervention estate, for which “the statutory objective is
to simplify the probate actions and procedures by minimizing court involvement.”
26B W ASHINGTON PRACTICE: PROBATE LAW AND PRACTICE § 12:2 at 194; see also
Rathbone, 190 Wn.2d at 339 (“Once a court declares a nonintervention estate
solvent, the court has no role in the administration of the estate except under
narrow, statutorily created exceptions that give courts limited authority to
intervene.”). They also ignore that there are other statutory means of obtaining
information that already balance an interested party’s desire for information
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against the “substantial independence” afforded to nonintervention PRs. See
26B W ASHINGTON PRACTICE: PROBATE LAW AND PRACTICE § 1:3 at 4. For example,
RCW 11.68.065 provides a means for a beneficiary to request “a report of the
affairs of the estate,” and RCW 11.68.110 provides a means for interested
parties to petition the court for an accounting upon the completion of probate and
before the PR is discharged.
Furthermore, Brett does not dispute Roxie and Jamie’s assertion that the
procedures set forth in RCW 11.96A.100 applied to his petition. Under RCW
11.96A.100(8), “[u]nless requested otherwise by a party in a petition or answer,
the initial hearing must be a hearing on the merits to resolve all issues of fact and
issues of law.” (Emphasis added.) Here, Brett did not request, in his petition to
remove Roxie and Jamie as PRs, that the trial court’s initial hearing not be a
hearing on the merits. For these reasons, we decline to remand for discovery.
Brett points out that under RCW 11.96A.100(9), “[a]ny party may move the
court for an order relating to a procedural matter, including discovery, . . . in the
original petition, answer, response, or reply, or in a separate motion, or at any
other time.” He then asserts that he made a “proper request for discovery” at the
hearing before the trial court. Specifically, at the hearing, Roxie and Jamie
indicated through counsel that if the court were inclined not to deny Brett’s
petition outright, their “fallback position” was that the matter should be set for
trial. Brett’s counsel then indicated her agreement that “this is a case that would
benefit from quite a bit of discovery, depositions, interrogatories, request[s] for
production[ ], et cetera, because there’s a lot of information out there.” But even
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No. 80155-4-I/39
if Brett’s counsel’s agreement that discovery would be desirable was a proper
motion under RCW 11.96A.100(9), for reasons already discussed, Brett does not
persuade us that the trial court erred by denying that motion.
ATTORNEY FEES
As a final matter, Roxie and Jamie request fees on appeal pursuant to
RCW 11.24.050. That statute provides that if a contested will is sustained, “the
court may assess the costs against the contestant, including, unless it appears
that the contestant acted with probable cause and in good faith, such reasonable
attorney’s fees as the court may deem proper.” RCW 11.24.050. The statute
“allow[s] the court to exercise considerable discretion.” Atkinson v. Estate of
Hook, 193 Wn. App. 862, 874, 374 P.3d 215 (2016).
A will proponent is not entitled to fees merely because the will contestant
did not prevail in overthrowing the will. In re Estate of Kubick, 9 Wn. App. 413,
420, 513 P.2d 76 (1973). That said, “when a contestant does not make a prima
facie case, and merely offers evidence which the trial court is justified in holding
as a matter of law does not require any proof to combat it, attorney’s fees should
be charged against the contestant.” Barbee v. Barbee, 134 Wash. 318, 423, 235
P. 945 (1925). Thus, for example, in Barbee, our Supreme Court upheld a fee
award against children who unsuccessfully contested their mother’s will where
there was evidence that “the petitioners knew at the time they brought the action
that [their mother] was displeased with them, and had every reason to believe
any will which she might make would not provide for her children equally.” 134
Wash. at 422-23. By contrast, we have declined to award fees to an
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No. 80155-4-I/40
unsuccessful will contestant where the will contestant “raised a number of valid
and debatable issues concerning the result.” Kessler, 95 Wn. App. at 382.
Specifically, in Kessler, we declined to award attorney fees to the will proponent
where the question of testamentary capacity was “a close one” and the will
contestant successfully raised a presumption of fraud and undue influence. 95
Wn. App. at 373, 375-76, 378-79.
We deny Roxie and Jamie’s request for fees on appeal for three reasons.
First, although Brett failed to establish his standing and failed to raise a
presumption of undue influence, Roxie and Jamie did not argue the issue of
standing below, and Brett did, as discussed, satisfy his burden of production with
regard to at least one aspect of his fraud claim. Second, this case is not as
extreme as Barbee, where there was evidence of the will contestants’ knowledge
of their mother’s displeasure with them and that “[t]hey not only knew of the ill
feeling, but what caused it, and the part each had played therein, for they had
discussed the matter with their mother.” Barbee, 134 Wash. at 423. Third and
finally, although Roxie and Jamie assert that they are entitled to fees, they
provide no argument as to RCW 11.24.050’s good faith inquiry, which is distinct
from the issue of whether the trial court erred with regard to the merits of Brett’s
claims. See Kessler, 95 Wn. App. at 370 (“[I]n considering the question whether
[the will contestants] acted in good faith and on probable cause in contesting the
will . . . , we have treated that question and the question whether they prevailed
on the merits as two distinct questions. To do otherwise ‘would be to do a great
wrong and tend to discourage the assertion of legitimate claims.’” (quoting In re
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No. 80155-4-I/41
Estate of Eichler, 102 Wash. 497, 500-01, 173 P. 435 (1918))); see also Phillips
Bldg. Co. v. An, 81 Wn. App. 696, 705, 915 P.2d 1146 (1996) (“Argument and
citation to authority are required under [RAP 18.1].”).
We affirm.
WE CONCUR:
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