Opinion
No. 36238-4-II.
May 13, 2008.
Appeal from a judgment of the Superior Court for Grays Harbor County, No. 99-4-00150-1, F. Mark McCauley, J., entered March 27, 2007.
Affirmed by unpublished opinion per Van Deren, A.C.J., concurred in by Bridgewater and Armstrong, JJ.
David A. Black appeals the trial court's decision rejecting his contest to the probate of his father's last will and testament. He contends that the trial court (1) applied the incorrect burden of proof, (2) erred in finding that the will was properly executed, and (3) erred when it failed to enter specific findings of fact about his father's testamentary intent. Finding no error, we affirm.
FACTS
On July 31, 1990, James A. Black married his long time companion, Joan Stone. Black had two children from a previous marriage and Stone had five children from a previous marriage. Shortly after the marriage, Black's attorney, Francis Cushman, prepared wills for both Black and Stone.
In January 1998, Black was diagnosed with lung cancer. Shortly thereafter, on February 17, 1998, Black executed an updated will also prepared by Cushman. Black signed this last will at Cushman's office, where it was witnessed by Sylvia Lang, Cushman's secretary, and Henrietta Powell, a secretary in the realty office that shared space with Cushman. Lang and Powell signed a form affidavit in which they both swore under oath: (1) that they were each of legal age and competent to be a witness to the will; (2) that Black declared the instrument to be his will, signed it in their presence, and requested that they act as witnesses to the will; and (3) that they believed Black to be of sound mind and not under duress, menace, fraud, or undue influence. Cushman then notarized the will. Later that same day, the Virginia Mason Medical Center emergency room treated Black for a high temperature associated with his lung cancer. Medical records from that visit indicate that Black was "alert and oriented" and that his "[c]ranial nerves, strength and sensory exams [were] normal." Ex. 7 at 13.
On December 10, 1998, Black succumbed to the disease. Stone filed and recorded his last will on September 1, 1999, but she did not file it for probate until April 21, 2005. Stone explained that the reason she delayed so long in petitioning for probate of the estate was that she was unaware of the requirement to do so.
The will named Stone as personal representative and left everything to her. It also provided that, if Stone predeceased Black, his estate was divided into six equal shares, with each of Stone's children to receive one full share and "my husband's two sons to share equally in one share." Clerk's Papers (CP) at 2. This same phrase, "my husband's two sons" was repeated in the contingent provision of a credit shelter trust. Ex. 3 at 3. Thus, in accordance with the will, if Stone predeceased Black and Black did not thereafter revise his will, Black's biological children would share one-sixth of the estate, while his step-children — Stone's biological offspring — would each receive a one-sixth share. And, if Stone did not predecease Black and chose to create a credit shelter trust by disclaiming Black's assets, the same distribution of the six shares would occur on her death.
The will provided that if Stone disclaimed any portion of Black's estate, that portion would form a credit shelter trust with Stone named as trustee and primary beneficiary.
On August 18, 2005, David, one of Black's sons, filed a petition contesting the will, asserting that Black lacked "testamentary capacity," and asking that the will be declared null and void. David subsequently amended his petition to include the additional challenge that "the will was not executed in accordance with RCW 11.12.020." CP at 27.
We use David's first name to distinguish him from his father. We mean no disrespect.
Black's "issue" would receive "[o]ne-half of [his] net separate estate" if the will was declared null and void. RCW 11.04.015. RCW 11.02.005(4) defines issue as "all ? lineal descendents" which would only include Black's two biological offspring.
The trial court heard the testimony of Stone, David's uncle (Black's elder brother), and David. The trial court also considered Cushman's and Lang's deposition testimony. Lang, who had typed the will, explained that the inclusion of the word "husband's" was a clerical error. She explained that she used the same form for preparing a couple's will and that, in formatting the will template for Black, she had forgotten to delete the word "husband's." CP at 41. The exhibits at trial included the will, medical record notes from three visits Black made to the hospital in January 1998, and the medical record notes from Black's emergency room visit on the same day he signed the will. The trial court ultimately denied and dismissed David's petition contesting the will.
David appeals.
ANALYSIS
We review an appeal from a will contest de novo. In re Estate of Black, 153 Wn.2d 152, 161, 102 P.3d 796 (2004). "A will contest is a statutory proceeding governed by chapter 11.24 RCW." In re Estate of Kordon, 157 Wn.2d 206, 209, 137 P.3d 16 (2006).
I. Burden of Proof under RCW 11.24.030
David contends that the trial court erred in not shifting the burden of proof to Stone in deciding the will contest. He admits that the burden of proof under RCW 11.24.030 rests with the party contesting the will and that the challenger must show by clear, cogent, and convincing evidence that the challenger should prevail. David does not assert that he presented clear, cogent, and convincing evidence to the trial court sufficient to persuade the trial court that his challenge to the will was meritorious. He only argues that the trial court employed the wrong standard of proof in this case because "Washington law provides for the shifting of the burden of proof when the equities so favor." Br. of Appellant at 6.
Once a will has been admitted for probate, "RCW 11.24.030 provides that . . . the will is presumed to be valid, and the burden is upon the contestants to prove the contrary by clear, cogent, and convincing evidence." In re Estate of Riley, 78 Wn.2d 623, 656, 479 P.2d 1 (1970); In re Estate of Knowles, 135 Wn. App. 351, 356, 143 P.3d 864 (2006). Our Supreme Court has held that, in cases where undue influence is alleged, the challenging party can shift the burden of proof if they prove the existence of undue influence by clear, cogent, and convincing evidence. In re Estate of Riley, 78 Wn.2d at 663.
David has not alleged undue influence. His argument is based on the will's clerical errors and its provisions favoring Stone's children. He argues that, because Black's will contained clerical errors and favored his stepchildren over his biological children, the "usual statutory burden of proof" was shifted to Stone. Br. of Appellant at 7. But, here, the trial court's conclusions of law specifically state that David "completely failed to satisfy his burden of proof of clear, cogent and convincing evidence." CP at 157. Thus, the trial court applied the proper threshold burden of proof and David's contention is without merit.
II. The Will's Execution
Next, David contends that the will was not properly executed. RCW 11.12.020(1) states, in pertinent part, that "[e]very will shall be in writing signed by the testator . . . and shall be attested by two or more competent witnesses, by . . . signing an affidavit that complies with RCW 11.20.020(2), while in the presence of the testator and at the testator's direction or request." And RCW 11.20.020(2) states, in pertinent part, that "any or all of the attesting witnesses to a will may, at the request of the testator, . . . make an affidavit before any person authorized to administer oaths, stating such facts as they would be required to testify to in court to prove such will, which affidavit may be . . . attached to the will."
Division Three of this court has succinctly stated the requirements for a will's proper execution:
The requirements for execution of a will are minimal. In re Estate of Price, 73 Wn. App. 745, 751, 871 P.2d 1079 (1994) (citing In re Estate of Chambers, 187 Wash. 417, 425, 60 P.2d 41 (1936)). The will must be in writing, signed by the testator, and "shall be attested by two or more competent witnesses, by subscribing their names to the will, or by signing an affidavit that complies with RCW 11.20.020(2), while in the presence of the testator and at the testator's direction or request. . . ." RCW 11.12.020(1); Price, 73 Wn. App. at 751.
A witness is one who has personal knowledge that the will was signed by the testator. [ Price, 73 Wn. App. at 751] (citing In re Estate of Cronquist, 45 Wn.2d 344, 345, 274 P.2d 585 (1954)). But RCW 11.12.020 does not require that the testator sign the will in the presence of the witnesses, nor does it require that the witnesses sign in the presence of each other. In re Estate of Gardner, 69 Wn.2d 229, 236, 417 P.2d 948 (1966); Chambers, 187 Wash. at 425; In re Estate of Ricketts, 54 Wn. App. 221, 225, 773 P.2d 93 (1989). The witnesses need only subscribe their names in the presence of the testator and at his direction or request. Ricketts, 54 Wn. App. at 225.
In re Estate of Lindsay, 91 Wn. App. 944, 948-49, 957 P.2d 818 (1998).
David cites the chapter on will drafting in Washington Practice for the proposition that "[d]uring the signing, the testator should be asked to state to the witnesses that the instrument he or she is signing is his or her last will and testament and that he or she desires them to act as witnesses to the will." Br. of Appellant at 9 (emphasis omitted) (quoting 1 Kelly Kunsch et al., Washington Practice: Methods of Practice § 28.16, at 625 (4th ed. 1997)). David acknowledges that an affidavit setting forth the elements of the witnesses' proof is sufficient, specifically pointing to the form affidavit found at 26 Cheryl C. Mitchell Ferd H. Mitchell, Washington Practice: Elder Law and Practice with Forms § 2.14, at 84-85 (2d ed. 2004), and he admits that "[s]omething like this affidavit, although in incomplete form, was used here." Br. of Appellant at 9. But he claims that the attestation was insufficient because the "witnesses to this Will, on their own testimony, merely acted as signatories to the document, but did not know, and failed to ascertain, the information necessary to verify that the Will was right, proper and lawful." Br. of Appellant at 12.
Only one attesting witness — Lang — testified. The transcript of Lang's testimony shows that, although she remembered Black and the will she had typed eight years earlier, she was unable to clearly remember the specifics of the will signing meeting. Lang testified that, based on her 14 years' experience in the law office and working on countless other wills, she assumed Black's will was handled in the same way as the other wills in their ofiice. Her testimony does not call into question the validity of her attesting signature and adds no information about the other witness's attesting signature. This does not amount to clear, cogent, and convincing evidence that the will was invalid. Furthermore, David does not provide authority for the "right, proper and lawful" standard that he claims was not met in the will's execution. Br. of Appellant at 12.
David also contends that the will was not properly executed because Black was not asked if, nor did not affirmatively state that, the will and signature were his in the presence of the attesting witnesses. In fact, Lang's testimony confirming that the initials present on each page of Black's will were the initials of the attesting witnesses' indicated that they had, in fact, observed Black sign the will. Moreover, David's suggestion, that the law office secretary, who typed and witnessed Black's will, was somehow unaware that it was his will and that he had signed it, is without merit.
Here, the attesting witnesses signed a form affidavit in which they both swore under oath: (1) that they were each of legal age and competent to be a witness to the will; (2) that Black declared the instrument to be his will, signed it in their presence, and requested that they act as witnesses to the will; and (3) that they believed Black to be of sound mind and not under duress, menace, fraud, or undue influence. Cushman notarized the will and the affidavit of the witnesses. This is sufficient to attest to proper execution of a will. See RCW 11.12.020; In re Estate of Price, 73 Wn. App. at 751-52. And RCW 11.20.020(2) commands that such an affidavit "shall be accepted by the court as if it had been taken before the court." See also In re Estate of Chafey, 167 Wash. 185, 189, 8 P.2d 959 (1932) (stating that an attestation clause to a will that bears the testator's signature is prima facie evidence of the will's execution).
The trial court's findings that these minimum statutory requirements were met are amply supported by the evidence; therefore, as David offered no clear, cogent convincing evidence otherwise, we hold that the will was properly executed.
III. Testator's Intent
Finally, David contends that the trial court erred when it "fail[ed] to enter findings or make rulings on the decedent's testamentary intent (or lack thereof) when signing the probated Will." Br. of Appellant at 1. He argues that when the meaning of a will "is not clear from its face of the document because of alleged drafting errors" the trial court is required to make specific findings and ruling on the testator's intent. Br. of Appellant at 2. David offers no authority in support for this contention. Therefore, we may decline to address it. See RAP 10.3(a)(6); Howell v. Spokane Inland Empire Blood Bank, 117 Wn.2d 619, 624, 818 P.2d 1056 (1991) (assignment of error unsupported by legal argument will not be considered on appeal).
Furthermore, Black's intent was not an issue before the trial court and, therefore, no specific finding of fact on intent was required. The testator's intent is to be found within the four corners of an unambiguous will. In re Estate of Burks, 124 Wn. App. 327, 331, 100 P.3d 328 (2004). Although David's argument is somewhat unclear, he seems to assert that the clerical errors made Black's intent unclear. He also asserts that the attesting witnesses "did not inquire into or learn the intent." Reply Br. of Appellant at 6. But, again, he provides no supporting authority for this contention of error. Nor does he assert that clear, cogent, and convincing evidence was submitted to the trial court, only that "[u]nresolved [q]uestions [e]xist," and that the trial court failed to make required specific findings and rulings on the issue. Br. of Appellant at 14.
But the trial court specifically found, based on the evidence, that the errors David questioned were clerical errors and that, despite Page 9 these errors, the will was valid and David failed to prove otherwise. No further findings by the trial court were required; thus, this contention is also without merit.
IV. Attorney Fees on Appeal
Stone requests attorney fees and costs on appeal under RCW 11.24.050. David offers no opposing argument in reply. Stone explains that, although the trial court reserved ruling on her motion for attorney fees below under RCW 11.24.050, the statute may be interpreted to also allow for attorney fees on appeal.
We assume that Stone has abandoned her request for fees and costs at trial.
RCW 11.24.050 states, in relevant part, that if a "will be 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." This good faith and probable cause standard has generally been interpreted to mean that, a good faith presentation of a prima facie case precludes the award of attorney fees in a will contest. See In re Estate of Chapman, 133 Wash. 318, 322, 233 P. 657 (1925); In re Estate of Kessler, 95 Wn. App. 358, 370, 977 P.2d 591 (1999). Thus, unless it appears that a petitioner acts with probable cause and in good faith in contesting the will, the trial court has the discretion to award attorney fees to the opposing party. See In re Estate of Starkel, 134 Wn. App. 364, 375, 134 P.3d 1197 (2006).
Here, on appeal, David failed to show probable cause or present a prima facie case indicating that a challenge to Black's will or an appeal of the trial court's rulings was warranted. And his lack of authority for his arguments and the misapplication of the law to his arguments on appeal support an award of the fees and costs relating to the appeal to Stone, subject to her compliance with RAP 18.1.
RAP 18.1(a) provides:
If applicable law grants to a party the right to recover reasonable attorney fees or expenses on review before either the Court of Appeals or Supreme Court, the party must request the fees or expenses as provided in this rule, unless a statute specifies that the request is to be directed to the trial court.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, and ARMSTRONG, JJ., concur.