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Simmons v. Dubois

The Court of Appeals of Washington, Division Three
Sep 11, 2008
146 Wn. App. 1052 (Wash. Ct. App. 2008)

Opinion

No. 26658-3-III.

September 11, 2008.

Appeal from a judgment of the Superior Court for Benton County, No. 06-4-00179-1, Robert G. Swisher, J., entered November 9, 2007.


A widow was granted nonintervention powers when her husband died intestate. Two sons from the decedent's previous marriage received notice, as beneficiaries of the estate, that the declaration of completion was filed. Within the time required to petition for an accounting, the sons served notice of mediation that sought to "resolve[H22073] by mediation . . . [t]he proper accounting and distribution of assets of the Estate." Clerk's Papers (CP) at 97. The widow disregarded the notice and, after the statutory time had passed, distributed the estate assets.

We conclude that the mediation notice was sufficient to invoke the jurisdiction of the court and should have been construed as a petition for an accounting and/or a mediation notice. We therefore reverse and remand. We deny the personal representative's request for attorney fees.

FACTS

Craig Preston DuBois died on May 20, 2006. Mr. DuBois is survived by his wife of three years, Tanya V. Simmons, and his two sons from a previous marriage, Christopher and Clayton DuBois. Ms. Simmons was named personal representative of her husband's estate. No will was found.

In June 2006, after notice to the sons and without objection to the petition, the court granted nonintervention powers to Ms. Simmons, permitting her to administer the estate without further court intervention. See RCW 11.68.110. Later that month, the sons filed a notice of appearance in the probate action.

In August 2006, the personal representative sent the estate inventory to the sons together with a letter that informed them that the estate intended to market estate real property and invited the sons' involvement in the sale. The personal representative received no response from the sons.

In February 2007, the sons forwarded to the personal representative's counsel interrogatories concerning the assets of the estate. In a letter dated March 28, 2007, counsel informally responded to the substance of the interrogatories and provided supporting documentation, though he questioned the sons' authority to propound the questions.

On April 5, the personal representative filed a declaration of completion of the probate, which was sent to the sons with a notice of the declaration of completion. The notice informed the sons that they were permitted 30 days in which to petition for an accounting. See RCW 11.68.110(3). The letter accompanying the documents set forth an accounting of the estate's assets and expenses.

On April 19, the sons filed and served a notice of mediation under RCW 11.96A.300 of the Trust and Estate Dispute Resolution Act (TEDRA). The notice sought to "resolve[H22073] by mediation . . . [t]he proper accounting and distribution of assets of the Estate." CP at 97. The personal representative did not respond to the notice and proceeded to close the probate. In May 2007, disbursement of the estate assets was made to the sons.

In August 2007, the sons moved to reopen the probate. The sons asserted that the probate was not properly closed because a mediation notice was pending, which sought to resolve accounting issues. They claimed they had not received an adequate breakdown of separate and community property and that at least one asset "the Idaho real property" had been grossly undervalued. The sons requested that the court reopen the probate to allow the mediation of estate values to proceed. The trial court denied the sons' motion.

DISCUSSION

The sons argue rights under the provisions of chapter 11.68 RCW and TEDRA, chapter 11.96A RCW. Their claim therefore concerns statutory interpretation, which is a question of law and subject to de novo review. In re Estate of Jones, 152 Wn.2d 1, 8-9, 93 P.3d 147 (2004).

a. Nonintervention Estate

RCW 11.68.110(2) relevantly provides:

Subject to the requirement of notice as provided in this section, unless an heir . . . of a decedent petitions the court either for an order requiring the personal representative to obtain court approval of the amount of [administrative] fees paid . . ., or for an order requiring an accounting, or both, within thirty days from the date of filing a declaration of completion of probate, the personal representative will be automatically discharged without further order of the court and the representative's powers will cease thirty days after the filing of the declaration of completion of probate, and the declaration of completion of probate shall, at that time, be the equivalent of the entry of a decree of distribution in accordance with chapter 11.76 RCW for all legal intents and purposes.

Here, the personal representative provided the notice. She argues that because the sons did not file a petition for either an order approving fees or an accounting, the estate automatically closed by operation of the statute and upon notice properly given. The sons argue that within the 30 days required for the filing of such a petition, they filed a notice for mediation under RCW 11.96A.300, which served as the functional equivalent of a petition for an accounting. The personal representative counters that because she had nonintervention powers and RCW 11.68.110(2) expressly requires a "petition," the court lacked jurisdiction to enforce a mediation request.

Although RCW 11.68.110(2) discusses the requirement for the filing of a petition, no particular form or content is required. The statutory scheme requires neither a summons nor a citation. RCW 11.68.110(2). The personal representative cites no authority for her proposition that a particular form or content is required for a petition or that the sons' document is deficient.

In fact, the sufficiency of the content of the sons' document is not questioned by the personal representative. Counsel for the personal representative conceded in oral argument before the trial court that he could discern what the sons' mediation notice requested" that the sons took issue with the informal accounting provided in a letter by the counsel for the personal representative and wished to have that, and the distribution of estate assets, mediated. But counsel for the personal representative persuaded the trial court that, because no "petition" for an accounting was filed, the sons' request should be disregarded because they did not strictly comply with the statute. Report of Proceedings (RP) at 25.

A petition is simply "a document embodying a formal written request." Webster's Third New International Dictionary 1690 (1993). We also note that the entire statutory scheme is geared toward efficiency. Myers v. Myers, 8 Wn. App. 475, 477-78, 506 P.2d 1336 (1973); In re Estates of Aaberg, 25 Wn. App. 336, 344-45, 607 P.2d 1227 (1980).

The sons' writing therefore suffices as a petition for a formal accounting. To hold otherwise would be to elevate form over substance. The personal representative was on notice. The writing should have precluded the closure of the estate by operation of the statute. The sons evidently took the informal accounting to be a formal one under the statute and because they had already received the accounting, the next step was to request mediation of the issues they had with the accounting.

b. TEDRA

The TEDRA mediation statute relevantly provides: "A party may cause the matter to be subject to mediation by service of written notice of mediation on all parties or the parties' virtual representatives." RCW 11.96A.300(1). A "matter" as referred to in RCW 11.96A.300(1) "includes any issue, question, or dispute involving . . . (c) [t]he determination of any question arising in the administration of an estate or trust, or with respect to any nonprobate asset, or with respect to any other asset or property interest passing at death." RCW 11.96A.030(1). Matters subject to TEDRA "include, without limitation, questions relating to . . . (iv) an accounting from a personal representative or trustee." RCW 11.96A.030(1)(c).

To note a TEDRA mediation when "no hearing on the matter has been set," notice must be served "before any petition setting a hearing on the matter is filed with the court." RCW 11.96A.300(1)(a). No hearing had been set on the matter. The personal representative does not suggest that the sons' mediation notice failed to comply with the statute. Instead, she argues that any TEDRA action requires an underlying petition. A "judicial proceeding" under TEDRA "may be commenced as a new action or as an action incidental to an existing judicial proceeding relating to the same trust or estate or nonprobate asset." RCW 11.96A.090(2). The sons here commenced their mediation action incidental to the probate. No petition was needed.

c. Jurisdiction

The personal representative asserts that because the sons failed to serve a summons under TEDRA, they did not invoke the jurisdiction of the court. The personal representative relies on RCW 11.96A.100(2) and In re Estate of Kordon, 157 Wn.2d 206, 137 P.3d 16 (2006). The statute provides:

A summons must be served in accordance with this chapter and, where not inconsistent with these rules, the procedural rules of court, however, if the proceeding is commenced as an action incidental to an existing judicial proceeding relating to the same trust or estate or nonprobate asset, notice must be provided by summons only with respect to those parties who were not already parties to the existing judicial proceedings.

RCW 11.96A.100(2) (emphasis added).

Kordon interpreted this statutory provision in conjunction with RCW 11.96A.080(2), which provides that TEDRA "shall not supersede, but shall supplement, any otherwise applicable provisions and procedures contained in this title." The Washington Supreme Court held that, while a party contesting a will under RCW 11.24.020 "must issue a citation to parties to any existing probate proceeding[,] TEDRA cannot eliminate that requirement without superseding RCW 11.24.020." Kordon, 157 Wn.2d at 212. Therefore, RCW 11.96A.100(2) did not eliminate the will contest statute's requirement that a will contestant issue a citation, regardless of whether a summons would not be required to be served on an existing party under RCW 11.24.020. Id.

We agree with the sons that Kordon is inapposite. As previously mentioned, the nonintervention estate statute requires neither a summons nor a citation. RCW 11.68.110(2); see also RCW 11.96A.110(1) (requiring, when notice is required, "notice must be personally served on or mailed to all parties or the parties' virtual representatives at least twenty days before the hearing on the petition unless a different period is provided by statute or ordered by the court").

The personal representative further argues that the fact she was granted nonintervention powers is significant to jurisdiction because "[t]he personal representative is entitled to administer the estate and to distribute the estate without intervention of the Court." RP at 24. While the quoted statement is true, neither an heir's request for an accounting nor a request for mediation is inappropriate in a nonintervention estate. RCW 11.68.110(2); RCW 11.96A.030(1)(c), .300(1).

Prior to the amendment of the probate statutes, the court had no power to order an accounting under a nonintervention will, unless mismanagement was alleged in a petition of an heir or creditor. State ex rel. Johnson v. Superior Court, 131 Wash. 264, 268-69, 230 P. 434 (1924); accord In re Estate of Passage, 122 Wash. 249, 210 P. 370 (1922). After the trial court decreed that the estate was solvent and authorized the executor to administer it, the court's jurisdiction was terminated. Johnson, 131 Wash. at 268-69; accord State ex rel. Cox v. Superior Court, 21 Wash. 575, 578-79, 59 P. 483 (1899). But the statutes were amended and the court retains limited jurisdiction, including the jurisdiction to require the personal representative to produce a report or accounting. RCW 11.68.065, .110(2); Jones, 152 Wn.2d at 17 n. 11. RCW 11.96A.080(1) provides that "any party may have a judicial proceeding for the declaration of rights or legal relations with respect to any matter, as defined by RCW 11.96A.030."

CONCLUSION

We conclude that the sons' filing was sufficient to preclude the automatic closure of the estate by operation of RCW 11.68.110. It is also sufficient to invoke the court's jurisdiction to commence mediation of the issues raised by the sons. We therefore reverse and remand to the superior court for proceedings consistent with this opinion. We deny the personal representative's request for attorney fees.

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.

KORSMO, J. and SWEENEY, J., concur.


Summaries of

Simmons v. Dubois

The Court of Appeals of Washington, Division Three
Sep 11, 2008
146 Wn. App. 1052 (Wash. Ct. App. 2008)
Case details for

Simmons v. Dubois

Case Details

Full title:In the Matter of the Estate of CRAIG PRESTON DUBOIS. TANYA V. SIMMONS…

Court:The Court of Appeals of Washington, Division Three

Date published: Sep 11, 2008

Citations

146 Wn. App. 1052 (Wash. Ct. App. 2008)
146 Wash. App. 1052