Opinion
No. 27161-7-III.
May 12, 2009.
Appeal from a judgment of the Superior Court for Spokane County, No. 06-4-01188-2, Tari S. Eitzen, J., entered May 12, 2008.
Affirmed by unpublished opinion per Schultheis, C.J., concurred in by Sweeney and Korsmo, JJ.
UNPUBLISHED OPINION
Certain beneficiaries of an estate dispute the intent of the decedent's will. One group of beneficiaries contends that one of the decedent's granddaughters is not entitled to benefit under the terms of the will because the granddaughter is not named as a beneficiary in the same provision as the primary beneficiaries and her mother is not a designated beneficiary through which the granddaughter's benefit could inure. Other beneficiaries contend that the will clearly states the testator's intent that the granddaughter benefit under the will instead of her mother, who had been disinherited. An action was instituted under the Trust and Estate Dispute Resolution Act (TEDRA), chapter 11.96A RCW. The trial court held that the will was unambiguous and the granddaughter was an intended beneficiary, entitled to take a share equal to the shares of the decedents' children named as beneficiaries. This appeal follows. We agree with the trial court and affirm.
FACTS
Under the provisions of her will, the sole beneficiary of the estate of Dorothy Adele Kuest was her husband, Gary Allen Kuest. Gary Allen Kuest died shortly after his wife. Mr. Kuest named Kelli B. Anderson, who is not a beneficiary, as personal representative of his estate.
The personal representative filed a TEDRA action to resolve certain issues, including the construction of the will concerning the intended beneficiaries. Mr. and Mrs. Kuest each had children of former marriages. Mrs. Kuest had four children: Desire Kammerer and Daryl, Dwayne, and Dallas Williams. Mr. Kuest had five children: Chistian, Gary, and David Kuest, Cindy Myers, and Tracy (Alderman) Emmett.
After payment of debts and expenses, Mr. Kuest left the remainder of his estate to his wife. Alternatively, the will provided:
V.
In the event that my wife, Dorothy, predeceases me, then I give all the rest, residue and remainder of my estate to Daryl E. Williams, Dwayne E. Williams, Dallas E. Williams, Christian Allen Kuest, Brian David Kuest, and Tracy Lynn Alderman in equal shares.
I have not included Desire L. Kammerer, Cindy Marie Myers, and Gary Arthur Kuest in my estate, as they are not to be beneficiaries of this estate.
Should any of the above designated beneficiaries predecease me, I give the share of my estate which would have gone to said deceased child or stepchild, had he or she survived me, in equal share to his or her children living or in being at the time of my death. Should any of the above designated beneficiaries leave no children surviving or in being at the time of my death, then I give said share equally between my other children or stepchildren, excluding only Desire L. Lewis [sic], Cindy Marie Kuest [sic], and Gary Arthur Christian Kuest, Jr. [sic] as they are not beneficiaries in this estate. My reference to grandchildren is intended to include only the natural or adopted children of my children or stepchildren.
Clerk's Papers (CP) at 2-3.
The will continues:
VIII.
It is my wish and desire that all of my grandchildren know that I love them very much. My intention is that they receive benefits under this Will through their parents.
However, for reasons which are my own and need not be discussed in this Will, my stepdaughter Desire will not receive any benefit. In ordinary course, this would mean that my stepdaughter Desire's child, Jennica Conry, would not receive any benefit or inheritance, since no benefit would accrue to Desire.
Trusting that all my other grandchildren will understand and honor my decision, I make the following provisions.
1. Should my stepdaughter Desire predecease me, the equal share that Desire would have received had she been a beneficiary under this Will, shall pass to my stepgranddaughter, Jennica Conry.
2. Should I predecease my stepdaughter Desire, my stepgranddaughter Jennica shall receive an equal share of my estate as if my stepdaughter Desire had predeceased me.
It is my intent that my granddaughter, Jennica, be placed in the same position as all of my other grandchildren. As stated in Paragraph V of this Will, should any grandchild's parent predecease me, that grandchild will receive the share that otherwise would be inherited by the deceased parent. This is to apply to my granddaughter, Jennica, under the provisions immediately above.
CP at 4 (emphasis added).
Heir Tracy Emmett moved to resolve, among other things, the issue of Jennica's entitlement to take under the will. Tracy contended that although inartfully written, the decedent's intention was clear that Jennica was intended to take an equal share of the residual estate as the decedent's children named as beneficiaries. Alternatively, if the will was found ambiguous, the ambiguity should be resolved in Jennica's favor, when considering a declaration filed by the attorney who drafted the will. The Williams beneficiaries asserted that the will should have been construed against Jennica or at least found to be ambiguous.
The declaration of drafting attorney James Burnett stated that it was the decedent's intent that Jennica inherit directly under the will in place of Jennica's mother. The Williams beneficiaries sought to impeach Mr. Burnett's declaration as, the heirs suggested, Mr. Burnett's self-interest tainted his declaration insofar as the poorly drafted instrument would garner a complaint to the bar association and expose him to civil liability. Mr. Burnett was also alleged by the Williams beneficiaries to have been suspended from the practice of law.
The trial court heard the parties' argument and ruled that the will was not ambiguous and Jennica was an intended beneficiary under the will. The Williams beneficiaries appeal.
DISCUSSION
"[T]he paramount duty of a court in construing and interpreting the language of a will is to determine and implement the intent of the testator or testatrix." In re Estate of Newbert, 16 Wn. App. 327, 330, 555 P.2d 1189 (1976) (citing RCW 11.12.230; In re Estate of Griffen, 86 Wn.2d 223, 543 P.2d 245 (1975)). If possible, intent must be determined from the four corners of the will. In re Estate of Long, 82 Wn. App. 609, 613-14, 918 P.2d 975 (1996) (citing McDonald v. Moore, 57 Wn. App. 778, 780, 790 P.2d 213 (1990)). We must give effect to the testator's intent as of the time of the will's execution. In re Estate of Bergau, 103 Wn.2d 431, 435-36, 693 P.2d 703 (1985). The will should be considered in its entirety and effect given to every part. Id. at 435. This court reviews de novo the trial court's interpretation of a will, including whether or not there is an ambiguity. Woodard v. Gramlow, 123 Wn. App. 522, 526, 95 P.3d 1244 (2004) (citing King v. Snohomish County, 146 Wn.2d 420, 423-24, 47 P.3d 563 (2002)); In re Estate of Burks, 124 Wn. App. 327, 331, 100 P.3d 328 (2004).
Without citation to authority, Ms. Emmett advocates review under the abuse of discretion standard. This court has on one occasion followed an abuse of discretion standard of review. In re Estate of Elmer, 91 Wn. App. 785, 790, 959 P.2d 701 (1998). Elmer cites a case discussing the standard of review for challenged findings of fact. Id. at 790 (citing In re Estate of Niehenke, 117 Wn.2d 631, 647, 818 P.2d 1324 (1991)). Here, there are no disputed factual findings of fact; review is de novo. In re Estate of Curry, 98 Wn. App. 107, 112-13, 988 P.2d 505 (1999).
The Williams beneficiaries first point to the residual clause in paragraph V that identifies them as beneficiaries as well as Christian Allen Kuest, Brian David Kuest, and Tracy Lynn Alderman. They note that Jennica is not a named beneficiary. They also note that in the next paragraph, Jennica's mother Desire is intentionally excluded as a beneficiary. They contend that, had Jennica been meant to be a beneficiary, she would have been listed along with the other beneficiaries. These clauses, however, must be read in context with the entire will. Bergau, 103 Wn.2d at 435.
The Williams beneficiaries argue that the clause in paragraph V that permits grandchildren to become beneficiaries applies only when the grandchildren's parents are "designated beneficiaries." CP at 3. Because Jennica's mother is not a designated beneficiary, they argue, Jennica is excluded as a beneficiary. Paragraph VIII, however, explains the exception for Jennica.
In paragraph VIII, the decedent first explained that he loved all of his grandchildren and expressed his intention that "they receive benefits under this Will through their parents." CP at 4. The will goes on to single out Desire's exclusion as a beneficiary and acknowledge how that would, under the terms of the will, make Jennica ineligible as a beneficiary. But the decedent then goes on to convey his intention to make Jennica a beneficiary, whether her mother Desire predeceases the decedent or not, in Desire's place.
The Williams beneficiaries assert that this interpretation is contrary to the decedent's "intent that my granddaughter, Jennica, be placed in the same position as all of my other grandchildren." CP at 4. As a beneficiary to the will, however, Jennica will not benefit any differently than the other grandchildren. As previously noted, the decedent intended that the grandchildren "receive benefits under this Will through their parents." CP at 4. Because Jennica's mother was disinherited, Jennica could not benefit from the will in the same fashion as the other grandchildren, whether her mother was living or not.
The will is not ambiguous. Jennica Conry is an intended beneficiary.
Affirmed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, J. and KORSMO, J., concur.