The trial court and the Court of Appeals agreed with Lyle's argument. Following In re Estate of McKiddy, 47 Wn. App. 774, 737 P.2d 317 (1987) (holding that an invalid prenuptial agreement was not a "marriage settlement" for purposes of RCW 11.12.050), the Court of Appeals revoked Georgia's will as to Lyle. Hansen, 77 Wn. App. at 530. Orville L. Moe, one of Georgia's sons from her first marriage and the personal representative of Georgia's estate, petitioned this court to review the Court of Appeals decision.
Whether a child's presence in a violent home meets the definition of "domestic violence" relates to the question of whether the exposure to said violence is harmful under the DVPA, so we will address it here. RAP 2.5 (reviewing courts possess discretion to decide whether an argument was sufficiently raised at trial); see alsoIn re Estate of McKiddy , 47 Wash.App. 774, 779-80, 737 P.2d 317 (1987) (the appellate court considered an issue that "arguably related" to issues raised in the trial court), overruled on other grounds byIn re Estate of Hansen , 128 Wash.2d 605, 910 P.2d 1281 (1996).
Former RCW 11.12.050; In re Estate of McKiddy, 47 Wn. App. 774, 779, 737 P.2d 317 (1987). Here, if the will did not mention the wife in a way that showed the testator intended to disinherit her, then the presumption of revocation is not rebutted and the will is revoked by operation of law as to the spouse and she would take her intestate share of her husband's estate.
The parties also do not dispute that a prenuptial agreement constitutes a "marriage settlement" under RCW 11.12.050. See In re Estate of McKiddy, 47 Wn. App. 774, 778, 737 P.2d 317 (1987) (citing In re Estate of Nelson, 85 Wn.2d 602, 612-13, 537 P.2d 765 (1975)). The sole issue is whether disinheriting a spouse in a marriage settlement makes "provision" for that spouse under RCW 11.12.050.
Without discussing this important competing policy concern, the majority adopts the Tannenbaum and Trainor holdings and concludes that both insurers are estopped from denying nonexistent coverage with scarcely a mention of Washington's long-held doctrine that only a party with "clean hands" may assert estoppel. See Kirk v. Moe, 114 Wn.2d 550, 557, 789 P.2d 84 (1990); Mutual of Enumclaw Ins. Co. v. Cox, 110 Wn.2d 643, 650, 757 P.2d 499 (1988); Puget Sound Bank v. Richardson, 54 Wn. App. 295, 297, 773 P.2d 429 (1989); Ward v. Richards Rossano, Inc., 51 Wn. App. 423, 434, 754 P.2d 120, review denied, 111 Wn.2d 1019 (1988); In re Estate of McKiddy, 47 Wn. App. 774, 780, 737 P.2d 317 (1987); Atlas Bldg. Supply Co. v. First Indep. Bank, 15 Wn. App. 367, 373, 550 P.2d 26 (1976); Christman v. General Constr. Co., 2 Wn. App. 364, 365, 467 P.2d 867, review denied, 78 Wn.2d 994 (1970). A prominent insurance law treatise elaborates on this principle: "'[E]stoppel' involves a preclusion from asserting rights which otherwise might have existed, through an innocent and deleterious change of position of an innocent party in reliance on misleading representations or conduct of the party estopped".
Here, the trial court concluded the Hansens' prenuptial agreement was invalid for lack of full disclosure and therefore did not rebut the presumption of revocation of a will under RCW 11.12.050. This conclusion is supported by In re Estate of McKiddy, 47 Wn. App. 774, 778, 737 P.2d 317 (1987), which held a void agreement does not constitute a marriage settlement. Nevertheless, Mr. Moe argues language in Burmeister supports a holding the invalid agreement satisfies the antirevocation provisions in the statute because it clearly establishes the parties' intent to relinquish any claim each had to the other's separate property, by inheritance or otherwise.
In short, the statutory language strongly suggests different requirements for disinheritance by settlement than by will. In re Estate of McKiddy, 47 Wn. App. 774, 778, 737 P.2d 317 (1987). 80 Wn.2d 293, 494 P.2d 208 (1972).
[1] Parties seeking to invoke equitable estoppel must be free from fault. E.g., Ward v. Richards Rossano, Inc., 51 Wn. App. 423, 434, 754 P.2d 120, review denied, 111 Wn.2d 1019 (1988); In re Estate of McKiddy, 47 Wn. App. 774, 780, 737 P.2d 317 (1987). They "must, at a minimum, make a showing of blamelessness or reasonable conduct under the circumstances or [they are] without standing to assert estoppel as a defense."
A party seeking to invoke an equitable estoppel must be free from fault. E.g., In re Estate of McKiddy, 47 Wn. App. 774, 780, 737 P.2d 317 (1987).