Opinion
No. 61979-9-I.
January 26, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-4-06052-6, William L. Downing, J., entered June 30, 2008.
Affirmed by unpublished per curiam opinion.
UNPUBLISHED OPINION
When a will has been lost or destroyed, the law presumes it was revoked, and its proponent must prove otherwise by clear, cogent and convincing evidence. Here, the trial court found that the decedent had not destroyed the will and did not intend to revoke it. We have reviewed the record and reach the same conclusion.
We affirm the trial court in all respects, including the court's application of the no contest clause to bar the challenger from any share in the estate, and its ruling awarding attorney fees.
FACTS
Betty Jane Beers died in October 2007. She had been a longtime resident of California, but moved to Normandy Park in late 2006 to be closer to her sister, L. Darlene Munroe. Upon Beers' death, Munroe petitioned to open an intestate probate, with herself as personal representative. She provided no notice to any others, and claimed the entire estate as the only surviving blood relative of the deceased.
Upon discovering Munroe's petition, Linda Bates, Betty Beers' stepdaughter, presented a copy of a will executed in California, and sought its admission to probate as a lost or destroyed will. Generally, the will and its companion trust provided for distribution of Beers' property as follows: personal property to Bates, and the remainder in equal thirds to Munroe, Bates, and Beers' sister-in-law, Betty Ann Fritz. The will contained a no contest clause which, if invoked, would nullify any taking by a beneficiary contesting the will or the trust. Bates sought to invoke that provision against Munroe.
We note there is no dispute as to the contents of these documents. The exhibits admitted at trial are not in the record on appeal.
Because the original will was authenticated but unavailable, the main issue at trial was whether Beers intended to revoke it.
The trust and pour over wills were originally executed by Beers and her husband in 1994. After his death, Ms. Beers amended the trust in 2005 and executed a codicil. The California attorney who drafted the amendments and codicil testified that Bates was the family member to whom Beers felt the closest and in whom she had the most trust. When Beers moved to Washington, the attorney mailed her the original will, advising her to consult a Washington estate planning attorney. He retained the original trust documents.
Beers did consult with a Washington estate planning attorney. Munroe referred Beers to her own attorney, Gayle M. Brenchley. Brenchley testified that Beers stated clearly that her jewelry was to go to her stepdaughter, Bates, and the residue of her estate was to be divided equally between Munroe, Bates and Fritz. After examining Beers' existing documents, Brenchley determined no change was needed. She explained to Beers, in the presence of Munroe, that if the will and trust were no longer in existence, Beers' entire estate would go to her sister under the rules of intestate succession. Beers responded by clearly expressing her desire to distribute her estate in equal parts to the three beneficiaries. Brenchley then prepared (1) an amendment to the trust naming Bates as first successor trustee, (2) a financial power of attorney naming Bates as her attorney in fact, and (3) a medical power of attorney naming Munroe as her medical agent. These documents were executed in late December 2006.
Charelaine Hampton was a childhood friend of Bates now living in Washington. Hampton testified to the lifelong mother-daughter relationship between Beers and Bates. Bates visited Beers several times in the year she lived in Washington, and Hampton spent some time with them. She specifically described visits during the month or so before Beers died. Hampton said that Beers left no doubt that she was leaving her jewelry to Bates. Beers told Hampton she would "make sure she [Bates] is financially taken care of."
Report of Proceedings (RP) (June 16, 2008) at 63.
Bates testified that Beers raised her from the time she was six years old. Beers had no children of her own, and after Bates reached adulthood, they remained close. On one of her last visits to Washington before her stepmother died, Bates stayed at Beers' apartment. She saw a collection of estate planning documents including the trust documents, the will, and the documents prepared by Brenchley.
Munroe, however, testified that after moving to Washington, Beers said she wanted to make some changes to her estate plan, and later said she had got rid of her will. Munroe denied ever seeing any of the documents at issue, although she said she made a diligent search after Beers' death, and said she believed Beers left no document purporting to be a will or a trust. Munroe testified that Beers withdrew money from the trust accounts and opened new accounts jointly with her. She denied being in the room when Brenchley told Beers that Munroe would inherit everything if Beers died intestate. Munroe admitted she had not contacted Brenchley or the California attorney who prepared the documents for Beers.
Munroe described an unpleasant confrontation between herself and Bates the day after Beers died. She said Bates threatened her with a cane after being told there was no will.
Bates' version of the confrontation was different. She asked what needed to be done about probate. Munroe told her Beers had destroyed the documents and there was no will. Bates did not believe her. Bates asked for the name of the probate attorney Beers had consulted, but Munroe refused to tell her. Bates admitted to being angry, but denied threatening Munroe in any way. She stated that she could not have threatened Munroe with her cane because she would have fallen over.
Bates conducted a search for the Washington attorney and after placing a "seeking lost will" ad, she discovered Brenchley.
The court found Hampton and Brenchley, but not Munroe, credible, and found no credible evidence that Beers revoked her will. Rather, the court found that Beers did not intend to die intestate, did not destroy her will, and did not intend to revoke it. The court concluded that clear, cogent and convincing evidence established the existence of the last will and testament of Betty Jane Beers.
Additionally, the court found that Munroe sought to obtain an adjudication that would void, nullify, or set aside the provisions of Beers' will and trust, resulting in significant financial gain for Munroe at the expense of the other intended beneficiaries, and that her actions were not taken in good faith. The court removed Munroe as personal representative and ruled that under the terms of the no contest clause, she was precluded from taking any share.
The court admitted the lost will to probate, appointed Bates as personal representative, ordered Munroe to reimburse the estate for advances or expenses paid, and awarded attorney fees.
DECISION Standard of Review
In her reply brief, Munroe asks us to strike a portion of the brief of the respondent for failure to make proper cites to the record. Munroe is correct that Bates' brief cites only to findings of fact, several of which are challenged. This is improper. See RAP 10.3 (4) (reference to the record required for each factual statement). It has caused frustration and unnecessary work for the court. However, pursuant to RAP 17.4(d), "[a] party may include in a brief only a motion which, if granted, would preclude hearing the case on the merits." Since that is not the case here, the purported motion is denied.
Probate proceedings are equitable in nature and are reviewed de novo on the entire record. In such circumstances, the reviewing court gives considerable weight to credibility determinations made by the trier of fact.
Estate of Bowers, 132 Wn. App. 334, 339, 131 P.3d 916 (2006); Estate of Black, 116 Wn. App. 476, 483, 66 P.3d 670 (2003).
See, e.g., In re Disciplinary Proceedings Against Anderson, 138 Wn.2d 830, 843, 981 P.2d 426 (1999).
Admission of Will Under RCW 11.20.070
When a will is lost or destroyed, the common law presumes the testator intended to revoke it. RCW 11.20.070 governs proof of a lost or destroyed will:
Bowers, 132 Wn. App. at 342-43 (legislature did not abandon common law presumption).
(1) If a will has been lost or destroyed under circumstances such that the loss or destruction does not have the effect of revoking the will, the court may take proof of the execution and validity of the will and establish it, notice to all persons interested having been first given. The proof must be reduced to writing and signed by any witnesses who have testified as to the execution and validity, and must be filed with the clerk of the court.
(2) The provisions of a lost or destroyed will must be proved by clear, cogent, and convincing evidence, consisting at least in part of a witness to either its contents or the authenticity of a copy of the will.
(3) When a lost or destroyed will is established under subsections (1) and (2) of this section, its provisions must be distinctly stated in the judgment establishing it, and the judgment must be recorded as wills are required to be recorded. A personal representative may be appointed by the court in the same manner as is herein provided with reference to original wills presented to the court for probate.
(Emphasis added.)
There is no issue here concerning compliance with the requirements of RCW 11.20.070(2) and (3). Beers' original will and trust (with codicil and amendments) were authenticated and properly executed. The only dispute is whether the presumption of intent to revoke has been overcome by clear, cogent and convincing evidence of the contrary intent. Here, this is entirely a matter of credibility.
Munroe's challenge relies almost exclusively upon her own testimony. But all the other evidence tended to establish Beers' strong affection for Bates, her insistence that Bates be provided for, and her insistence that the bulk of her estate be shared three ways. In its finding that there was no credible evidence of intent to revoke, the court necessarily rejected Munroe's credibility.
Munroe's other argument relates to the joint accounts she described. The record on appeal, however, contains no banking records, and even if the accounts are as she described, they offer no enlightenment as to Beer's estate plan.
We have reviewed the record and agree with the trial court's determination of credibility and its other findings. Clear, cogent and convincing evidence established that Beers did not intend to revoke her will.
The No Contest Clause
Next, Munroe claims the court erred by invoking the no contest clause to bar her from taking under the will or trust, and further erred by finding she did not act in good faith.
The no contest proviso stated:
If any devisee, legatee, or beneficiary under this Will, singly or in conjunction with any other person, contests in any court the validity of this Will or seeks to obtain an adjudication in any court that the Will or any of its provisions is void, or seeks otherwise to void, nullify, or set aside this Will or any of its provisions, then the right of such beneficiary to take any interest given to him or her under this Will shall be determined as it would have been determined had such a beneficiary predeceased me without surviving descendants. I hereby authorize my Executor to defend, at the expense of my estate, any contest or other attack of any nature on this will or any of its provisions.
Resp't's Br. at 19-20.
In Washington, clauses barring a beneficiary who contests a trust or will are valid and enforceable, but such a clause does not operate where the contest is brought in good faith and with probable cause. If a contestant brings an action or defends one on the advice of counsel, after fully and fairly disclosing all material facts, he or she will be deemed to have acted in good faith and for probable cause. This determination is to be made upon a preponderance standard.
In re Estate of Mumby, 97 Wn. App. 385, 393, 982 P.2d 1219 (1999).
In re Estate of Kubick, 9 Wn. App. 413, 420, 513 P.2d 76 (1973).
See Black, 116 Wn. App. at 484.
Munroe argues she acted in good faith and with probable cause because her sister told her she "got rid of the will." But again, the court found this testimony not credible. Munroe did not initiate contact with either the Washington or California attorneys, although she had been in contact with Brenchley only weeks before. She did not give notice to others she knew would be interested parties. She refused to communicate with Bates after Beers died, and refused to give her Brenchley's name. She sought significant financial gain for herself at the expense of the other objects of Beers' affection. The trial court specifically found that Munroe's actions "cannot be said to have been done in good faith." We agree.
RP (June 16, 2008) at 36.
Clerk's Papers at 30 (Finding of Fact 20).
Attorney Fees
Bates seeks attorney fees on appeal under the provisions of RCW 11.96A.150, which applies to proceedings involving trusts and decedent's estates and properties. The trial court awarded fees under this provision, and we do the same; the amount to be set by a commissioner of this court upon compliance with RAP 18.1.
RCW 11.96A.150(1) (this court "may, in its discretion, order costs, including reasonable attorneys' fees . . . in such amount and in such manner as the court determines to be equitable").
Affirmed.