Opinion
No. 61564-5-I.
April 27, 2009.
Appeal from a judgment of the Superior Court for King County, No. 06-4-06621-6, William L. Downing, J., entered April 7, 2008.
Reversed and remanded by unpublished opinion per Leach, J., concurred in by Cox and Lau, JJ.
Daniel Huckins challenges the quitclaim deed conveying his stepfather's house to his sister, Melanie Huckins, arguing that Melanie procured it by undue influence. Because the superior court applied the incorrect burden of proof in this case, we reverse and remand.
First names will be used for clarity; no disrespect is intended by this informality.
Background
The parties in this case are Daniel Huckins and Melanie Huckins, the stepchildren of Tony Maletta. Daniel challenges the validity of a quit claim deed conveying Mr. Maletta's house to Melanie approximately three years before his death, arguing that Melanie obtained the deed through undue influence. Under Mr. Maletta's will, Melanie and Daniel were to share equally in Mr. Maletta's estate. Before the signing of the quit claim deed, the house was the primary asset in that estate. After a bench trial, the trial court concluded that there had been no undue influence and quieted title in the house in Melanie.
Mr. Maletta was the surviving spouse of Marietta Maletta, to whom he was married for 40 years. When Marietta married Tony Maletta, she had two children, Melanie, who was 13 years old, and Daniel, who was 8 years old. Although neither Melanie nor Daniel was raised primarily in the home of their mother and stepfather, they both had a good relationship with Mr. Maletta, whom they called Tony.
In 1993, while his wife was still living, Mr. Maletta executed a will in which he bequeathed specific items of personal property to Melanie and Daniel and the residue of his estate in equal shares to each of them, if his wife Marietta should not survive him. Melanie and Daniel were named as co-executors. In 1998 the Malettas executed a community property agreement and in 1999 they each executed a durable power of attorney.
In 1999, Marietta Maletta was beginning to fail physically. She asked her daughter Melanie to return from California to move in with her and her husband to provide assistance, which Melanie did. After Marietta died in 2000, Melanie stayed on and continued to live with and take care of Mr. Maletta. Mary Rock, Mr. Maletta's niece, occasionally visited him in his home and testified that Melanie helped him with grocery shopping, housework, and cooking. She related that Melanie took good care of him and made arrangements for Mary to check in on him whenever she was away. Melanie has lived in the house continuously since she moved there in 1999.
In early 2001, Melanie contacted attorney Gerald Tarutis on behalf of her stepfather. The trial court found that associates of Mr. Maletta referred him to this attorney, who specialized in estate planning and Medicaid issues. The trial court also found that Melanie had no prior relationship with Mr. Tarutis when she set up an appointment for him to meet with Mr. Maletta, who was to become his client. In 2001 and 2002, with attorney Tarutis's assistance, Mr. Maletta executed a new durable power of attorney, which named both Melanie and Daniel as attorneys in fact, and a first codicil to his will, which bequeathed his household goods and personal effects to Melanie but did not change the equal division of the residue of his estate between Melanie and Daniel.
Despite some dizziness and memory loss, Mr. Maletta continued to work almost full time running the freight elevator at the Columbia Tower in downtown Seattle after his wife passed away. During 2003, when Mr. Maletta was 86 years old, he fell on an escalator on his way to work. Sometime after the accident, Mr. Maletta met with attorney Tarutis again, with both Melanie and his niece Mary Rock present. After the meeting, Mr. Tarutis dictated a memorandum for his file to create a clear record upon which he and others could rely. This memorandum was prepared soon after the events in question, while they were fresh in his mind and could be accurately set down. About one week later, on October 22, 2003, Mr. Tarutis sent a letter to Mr. Maletta and Melanie summarizing what they had discussed and asking them to return a signed copy if all were in agreement and they wished him to proceed to prepare legal documents. Mr. Maletta and Melanie signed and returned this letter to Mr. Tarutis. The trial court found that "the attorney-client discussions and interactions occurred generally as recounted in Mr. Tarutis' memorandum and letter," both of which were entered into evidence.
The trial court incorporated excerpts from the memorandum and letter in its findings of fact, including the following excerpts from the October 16, 2003, memorandum:
• On Tuesday, October 14, 2003 I met with Tony Maletta to discuss changes to his estate plan.
• Mary [Rock] attended to assure that Tony's needs and desires were being reflected and to provide for clarification after the meeting if Tony had any questions.
• Tony appears to be doing very well.
• Tony appears to be physically robust and fit, he was aware of his surroundings, he participated in the conversation and appeared to understand all that was being said and discussed.
• Finally, we discussed the preparation and signing of a quit claim of the house from Tony to Melanie. I explained several times that if Tony made a gift of the house to Melanie, that this would be a final and irrevocable act. To the best of my knowledge and belief, I believe that Tony does understand this and desires for me to draft the quit claim deed. I advised Melanie and Tony that before drafting the deed and having it signed, I would write a letter to each outlining the effect and giving them a few days to think it over and thence to confirm to me that they still desire to proceed.
The following excerpts from the letter were also included in the trial court's findings:
• The purpose of this letter is to follow up on our initial conference of last week concerning Tony's desire to transfer his home to Melanie and to make modifications to his existing estate plan.
• By way of background, at present, Tony owns a home located at the mailing address above. In January 2002, Tony signed a codicil to his existing Will. That codicil provided that the residuary of his estate, which would include the home, would be divided between his two stepchildren.
• Melanie has been residing in the home with Tony, has been providing care and services to Tony as needed, and is currently unemployed. Tony wishes to repay Melanie for the kindness that she has extended to him and for the services and care that she has provided.
• It is [the] opinion of both Tony and Melanie as well as Tony's family that Tony is still well aware of his property, understands what he is doing, knows the natural objects of his bounty and appreciates the adverse affects that any immediate transfer of property can cause. In simpler terms, Tony is not incapacitated or incompetent as a result of age or any other physical or mental incapacity.
• Tony wishes to insure that whatever may happen to him, he will be able to provide his current residence to his stepdaughter, Melanie. As a result, Tony has requested that I prepare a Quit Claim Deed that would transfer his interest in the home to Melanie and that this Deed would be effective immediately upon signing.
• Tony further understands that by executing the Quit Claim Deed as discussed in previous paragraphs, the provision in his Will providing for an equal distribution of his estate upon his death will no longer include an equal distribution of the home. Rather, the home will be in the name of Melanie and will not be subject to the distribution directions of Tony's Will and First Codicil.
Both Mr. Maletta and Melanie signed and returned the letter to Mr. Tarutis.
On December 30, 2003, Mr. Maletta, Melanie, and Mary Rock again met with Mr. Tarutis at his office, and Mr. Maletta executed the quit claim deed and second codicil to his will. Acting as notary public, Mr. Tarutis indicated that Mr. Maletta had signed the documents "as his free and voluntary act and deed." The two witnesses to the codicil, Angela Engelhardt and Eric Brunstrom, attested that Tony Maletta "appeared to be of sound and disposing mind and memory and was not acting under any duress. . . ." Although Mary Rock was unable to provide any specific recollection as to what was said or done at either the October or December meetings, she was able to generally affirm that the discussions were consistent with what Mr. Maletta wanted, which was to put the house in Melanie's name. The trial court found that, "[w]ith assurance, she [Mary Rock] testified that both mentally and physically Mr. Maletta was doing `fine' at that time." The court found that Mr. Maletta had the capacity to understand the discussions regarding the conveyance and to act upon a donative intent.
The trial court found that at the time the quit claim deed was executed, Mr. Maletta was in the process of obtaining a loan to be secured by the house, and because of the loan the deed would be held by a custodian rather than being immediately recorded after it was signed. The court found that despite the plan to postpone recording the deed, Mr. Maletta intended that the conveyance would be "effective immediately upon signing" and irrevocable. Furthermore, although the time for recording was unsettled, there were no remaining conditions or contingencies that needed to be fulfilled before recording could take place. The trial court concluded that there was legal delivery of the deed.
Standard of Review
We review the trial court's decision following a bench trial to determine whether the findings are supported by substantial evidence and whether those findings support the conclusions of law. "Substantial evidence exists if a rational, fair-minded person would be convinced by it. Even if there are several reasonable interpretations of the evidence, it is substantial if it reasonably supports the finding. And circumstantial evidence is as good as direct evidence." Whether the trial court applied the correct burden of proof and legal standard is a question of law this court reviews de novo.
Dorsey v. King County, 51 Wn. App. 664, 668-69, 754 P.2d 1255 (1988).
Rogers Potato Service, LLC v. Countrywide Potato, LLC, 152 Wn.2d 387, 391, 97 P.3d 745 (2004) (internal citations omitted).
Home Builders Ass'n of Kitsap County v. City of Bainbridge Island, 137 Wn. App 338, 345, 153 P.3d 231 (2007).
Discussion
A. Undue Influence
The existence of undue influence is a factual question. As a general rule, a party seeking to set aside an inter vivos gift has the burden of showing the gift is invalid. However, if the recipient of the gift has a confidential or fiduciary relationship with the donor, the burden shifts to the recipient to prove that a gift was intended and that it was not the product of undue influence.
McCutcheon v. Brownfield, 2 Wn. App. 348, 356, 467 P.2d 868, (1970).
Lewis v. Estate of Lewis, 45 Wn. App. 387, 388, 725 P.2d 644 (1986).
Lewis, 45 Wn. App. at 388-89; White v. White, 33 Wn. App. 364, 371, 655 P.2d 1173 (1982).
[E]vidence to sustain the gift between such persons
"must show that the gift was made freely, voluntarily, and with a full understanding of the facts. . . . If the judicial mind is left in doubt or uncertainty as to exactly what the status of the transaction was, the donee must be deemed to have failed in the discharge of his burden and the claim of gift must be rejected."
McCutcheon, 2 Wn. App. at 356 (alteration in original) (quoting 38 Am. Jur. 2d Gifts § 106 (1968)).
Such a recipient must prove the absence of undue influence by clear, cogent, and convincing evidence.
Pedersen v. Bibioff, 64 Wn. App. 710, 720, 828 P.2d 1113 (1992).
Here, the trial court failed to recognize that the burden of proof for inter vivos gifts differs from the burden of proof required to show that a decedent lacked testamentary capacity. In a case with similar facts, Division Two of this court distinguished between these two burdens of proof. In In re Estates of Palmer, Donald Palmer challenged transfers of funds from his mother's account to a joint account his mother had with his sister, Dawn Golden. Golden had transferred the funds using a durable power of attorney she had for her mother. The trial court decided in Palmer's favor. Relying on the presumption of testamentary capacity, Golden argued on appeal that her mother approved of or acquiesced in all the actions challenged by Palmer. The court held that the presumption did not apply to inter vivos gifts, and instead applied the common law of gifts. As attorney in fact, Golden had a confidential relationship with her mother and was therefore required to prove by clear, cogent, and convincing evidence that she did not exert undue influence in obtaining the gifts. The same burden applies here.
145 Wn. App. 249, 187 P.3d 758 (2008).
Palmer, 145 Wn. App. at 261.
Palmer, 145 Wn. App. at 261.
Palmer, 145 Wn. App. at 261 (citing Doty v. Anderson, 17 Wn. App. 464, 471, 563 P.2d 1307 (1977)).
Palmer, 145 Wn. App. at 261.
In its conclusions of law, the trial court stated that "[t]he law presumes that the estate planning documents executed by Tony Maletta, rational on their face and executed in legal form, reflected his true wishes and that he had the capacity to execute them." Furthermore, the trial court found by "[a] preponderance of the evidence" that the documents expressed Mr. Maletta's true intent and that his actions were not the product of undue influence. However, the quit claim deed was not a testamentary instrument. It was an inter vivos gift because it purported to transfer the property to Melanie while Mr. Maletta was still alive. In addition, Melanie concedes that she had a confidential relationship with Mr. Maletta. Therefore, Melanie has the burden of proving by clear, cogent, and convincing evidence that the conveyance was intended as a gift and that she did not exert undue influence.
Daniel attempts to analogize this case to McCutcheon in order to convince this court that Melanie cannot meet her burden of clear, cogent, and convincing evidence. However, this court's review is limited to reviewing the legal issues de novo and the findings of fact for substantial evidence. As this court stated in McCutcheon, "[w]e cannot substitute our findings for those of the trial court." The clear, cogent, and convincing burden of proof contains two components, the burden of production and the burden of persuasion. To meet the burden of production, there must be substantial evidence, which is evidence sufficient to merit submitting the question to the trier of fact. The burden of persuasion requires a quantum of proof less than beyond a reasonable doubt but greater than a preponderance of the evidence. This standard is met if the trier of fact is convinced that the fact in issue is "highly probable." In determining whether the evidence meets the clear, cogent, and convincing standard of persuasion, the trial court must make credibility determinations and weigh and evaluate the evidence.
McCutcheon, 2 Wn. App. at 359 (citing Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d 570, 343 P.2d 183 (1959).
Endicott v. Saul, 142 Wn. App. 899, 909-10, 176 P.3d 560 (2008).
Endicott, 142 Wn. App. at 909-10.
City of Wenatchee v. Owens, 145 Wn. App. 196, 203, 185 P.3d 1218 (2008).
Endicott, 142 Wn. App. at 910 (citing Colonial Imports, Inc. v. Carlton Nw., Inc., 121 Wn.2d 726, 734-735, 853 P.2d 913 (1993)).
Endicott, 142 Wn. App. at 910 (citing Bland v. Mentor, 63 Wn.2d 150, 154, 385 P.2d 727 (1963)).
What constitutes clear, cogent, and convincing proof necessarily depends upon the character and extent of the evidence considered, viewed in connection with the surrounding facts and circumstances. Whether the evidence in a given case meets the standard of persuasion, designated as clear, cogent, and convincing, necessarily requires a process of weighing, comparing, testing, and evaluating — a function best performed by the trier of the fact, who usually has the advantage of actually hearing and seeing the parties and the witnesses, and whose right and duty it is to observe their attitude and demeanor.
Bland, 63 Wn.2d at 154.
Because the trier of fact must determine whether evidence is clear, cogent, and convincing, the appellate court's role begins and ends "with ascertaining whether or not there is substantial evidence supporting the facts as found."
Bland, 63 Wn.2d at 154.
Daniel argues that substantial evidence does not support the trial court's findings that (1) the "attorney-client discussions and interactions occurred generally as recounted in Mr. Tarutis' [sic] memorandum and letter"; (2) the "evidence does not establish that Melanie played any central role in the procurement of a disproportionate share of her stepfather's estate"; and (3) Mr. Maletta acted with the assistance of independent counsel. We disagree.
Daniel argues that Mr. Tarutis's memorandum and letter do not constitute substantial evidence because no witnesses testified at trial as to what occurred in the meetings between Mr. Maletta and Mr. Tarutis. Substantial evidence is evidence of a sufficient quantity to persuade a fair-minded, rational person of the truth of the declared premise. As the trial court found, testimony by the three living witnesses was limited: Melanie's testimony was limited by the Dead Man's Statute, Mary Rock's testimony was limited by her fading memory, and Mr. Tarutis's testimony was limited by his own potential legal liability as well as a fading memory. However, the trial court was convinced that Mr. Tarutis's memorandum and letter accurately portrayed his discussions and interactions with Mr. Maletta. It found that the memorandum was completed soon after the events in question, while they were fresh in Mr. Tarutis's mind. Daniel argues that other evidence sheds doubt on the accuracy of the memorandum and letter. Specifically, the telephone record from Melanie's call to Mr. Tarutis's office on October 9, 2003, contains the note, "Quitclaim house to brother Melanie." However, this telephone record is evidence of Melanie's understanding before the meeting and therefore does not directly conflict with the evidence regarding what took place at the meeting. Despite her inability to recall specifics, Mary Rock was able to remember Mr. Maletta's intent to convey the property to Melanie, and the trial court found her testimony credible.
Bering v. SHARE, 106 Wn.2d 212, 220, 721 P.2d 918 (1986).
The memorandum and letter are consistent with one another and with other evidence presented in the case. Therefore, the trial court's finding of fact 17 is supported by substantial evidence.
Next, Daniel challenges the trial court's finding that Melanie did not exert undue influence and that Mr. Maletta was assisted by independent counsel. The trial court found that Mr. Maletta wished to show his gratitude to Melanie for her kindness to him. This intent is described in Mr. Tarutis's letter. Both Melanie and Mr. Tarutis testified that Mr. Tarutis had never represented Melanie. Mr. Tarutis's engagement letter was addressed only to Mr. Maletta, and only Mr. Maletta signed the engagement letter on April 2, 2001. Although there may be other reasonable interpretations of the evidence, it reasonably supports the trial court's finding. Thus, there is substantial evidence to support the trial court's finding of fact 19.
See Rogers Potato Service, 152 Wn.2d at 391.
Although there is substantial evidence to support the trial court's findings of fact, we must remand for the trial court, as the trier of fact in this case, to determine whether the evidence supporting the inter vivos gift is clear, cogent, and convincing, as discussed above.
B. Delivery of the Deed Daniel challenges the trial court's finding that the quit claim deed was constructively delivered to Melanie. The court states in finding of fact 21,
At the time of execution of the quit claim deed, Tony Maletta was in the process of obtaining a Bank of America loan to be secured by the house. To avoid problems with this loan, it was agreed that the deed, once signed and notarized, would be held by a custodian rather than being immediately filed and recorded. Despite this oddity and the risks attendant thereto, it was understood by all that the conveyance would be "effective immediately upon signing" and irrevocable. Although the time for recording was unsettled — and this led to the neglect of that formality which has yet to occur — there were no remaining conditions or contingencies upon which that step might not occur. There was a legal delivery of the deed.
Daniel also argues that this finding should be treated as a conclusion of law to the extent that it makes the legal conclusion that there was delivery of the deed. In conclusion of law 7, the trial court states,
In light of Tony Maletta's intent and belief, the constructive delivery of the quit claim deed of December 30, 2003 should be deemed an effective delivery. See, McCarton v. Watson, 39 Wn. App. 358, 693 P.2d 192 (1984).
While Daniel is correct that whether the deed was effectively delivered is a conclusion of law and that the trial court may have applied an incorrect legal standard, its error, if any, was harmless.
The factual element of finding of fact 21 is supported by Mr. Tarutis's memorandum and letter as well as by the testimony of Mary Rock. Although Daniel argues that "no witness testified to any such `understanding'" (that the conveyance would be effective immediately upon signing), this intent was clearly described in Mr. Tarutis's letter to Mr. Maletta and Melanie, which Mr. Maletta signed and returned to Mr. Tarutis.
Daniel argues that the trial court erroneously relied on McCarton v. Watson in its conclusion of law. In McCarton, this court held that delivery of a gift causa mortis "`may be constructive or symbolical, but the general rule is that it must be as perfect and complete as the nature of the property and the attendant circumstances and conditions will permit.'" Here, the gift was given approximately three years before Mr. Maletta's death, so it is not a gift causa mortis. Daniel argues that the court should have instead followed Puckett v. Puckett, which holds that the where the grantor has retained manual control over the deed, the grantor's intention that title pass immediately and that he should lose all control over it must be clearly shown. Here, however, Mr. Maletta did not retain manual control over the deed, but rather provided it should be held by a custodian and left the deed with Mr. Tarutis. Although no custodian was named, it does not necessarily follow that there was no delivery, in light of the evidence that Mr. Maletta clearly intended title to pass immediately upon signing.
39 Wn. App. 358, 693 P.2d 192 (1984).
McCarton, 39 Wn. App. at 364 (quoting Phinney v. State, 36 Wash. 236, 246, 78 P. 927 (1904)).
See McCarton, 39 Wn. App. at 363.
29 Wn.2d 15, 185 P.2d 131 (1947).
Puckett, 29 Wn.2d at 18-19.
In Holohan v. Melville, our Supreme Court addressed the question whether a grantor intended deeds to pass title immediately although the deeds were left with an attorney. The deeds were left with the attorney under an agreement that they should be delivered to the grantee after the death of the grantor, but subject to the condition that if the grantor should survive the grantee, they should be returned to the grantor. The court held that there was no intention of the grantor that the deeds should presently convey title because the delivery was conditioned upon who died first. Furthermore, because the deeds did not intend to pass title until the grantor's death, they were testamentary in character. In contrast, here there is substantial evidence that Mr. Maletta intended to pass title to Melanie immediately upon signing the deed and that there were no conditions that needed to be met before title passed.
41 Wn.2d 380, 249 P.2d 777 (1952).
Holohan, 41 Wn.2d at 385.
Holohan, 41 Wn.2d at 385.
Holohan, 41 Wn.2d at 385.
Daniel argues that there were several conditions, namely that Mr. Maletta retained the right to sell the property to third parties and that Melanie would be financially responsible for Mr. Maletta's care if he should require nursing home care during a 36 month look-back period under the Medicaid transfer rules. However, the evidence does not show that the transfer was subject to any conditions or contingencies. Mr. Tarutis's memorandum states, "I explained several times that if Tony made a gift of the house to Melanie, that this would be a final and irrevocable act. To the best of my knowledge and belief, I believe that Tony does understand this and desires for me to draft the quit claim deed." Mr. Tarutis's letter states that "Tony is still well aware of his property, understands what he is doing, knows the natural objects of his bounty and appreciates the adverse effects that any immediate transfer of property can cause." (Emphasis added.) It further states, "Tony has requested that I prepare a Quit Claim Deed that would transfer his interest in the home to Melanie and that this Deed would be effective immediately upon signing." (Emphasis added.)
Although the memorandum and letter discuss the Medicaid waiting period, it is not discussed as a condition precedent to transfer of the property. Rather, Mr. Tarutis was ensuring that Melanie understood that as a grantee, she would be financially liable for any nursing home care costs if Mr. Maletta entered a nursing home during the waiting period. The memorandum states that Mr. Tarutis
explained in great detail the Medicaid transfer rules, the necessity for a 36 month waiting period, the need for Melanie to understand that she would be required to assume the financial liability for Tony's care if he required nursing care home [sic] prior to the 36 months and the potential civil and criminal liability if she failed to provide such care.
In the letter, Mr. Tarutis explained that the transfer would affect Mr. Maletta's Medicaid eligibility if he entered nursing home care during the 36 month waiting period:
Melanie understand [sic] and agrees that if the property is transferred to her and Tony should require nursing home care within the next 36 months, she will be responsible for making the payments to the nursing home. If for any reason she cannot make those payments, then she will be responsible for transferring the property back to Tony's name so that he or his estate may make the necessary payments until the 36 month waiting period has expired.
Thus, the memorandum and letter show that the transfer was intended to be immediate, but that Mr. Tarutis advised Mr. Maletta and Melanie about the possible effect of the transfer on Mr. Maletta's Medicaid eligibility. The transfer itself was not conditioned on Mr. Maletta's entry into a nursing home. Rather, Mr. Tarutis ensured Melanie understood that because of the transfer, she would have to pay for any nursing home care if Mr. Maletta entered care during the waiting period. If Melanie could not pay, she would have to reconvey the property to Mr. Maletta in order to avoid liability for the cost of the nursing home care. However, such a reconveyance was entirely within Melanie's control and not in Mr. Maletta's control.
Next, Daniel argues that the fact that Mr. Tarutis advised Mr. Maletta and Melanie in his letter that a bona fide purchaser from Mr. Maletta could negate the deed is evidence that the transfer was not immediate. However, this evidence merely shows that Mr. Tarutis advised Mr. Maletta and Melanie of the risks incumbent in choosing not to immediately record the deed. The letter explains that Mr. Tarutis advised that the deed not be recorded immediately to avoid any problems with Mr. Maletta's pending loan application, which was to be secured by the home. The letter states that "[b]oth Tony and Melanie appreciate the risk involved, but both have indicated they have sufficient confidence and trust in one another not to proceed in a different fashion." It is reasonable to infer from this record that Mr. Tarutis wanted both Mr. Maletta and Melanie to know the risks of not recording the deed immediately, but that this did not affect the immediate nature of the transfer.
Finally, Daniel makes much of Mr. Tarutis's testimony that he would not have known what to do if Melanie asked him to record the deed. He argues that this evidence shows that the transfer did not take effect immediately upon signing. However, at the time of Mr. Tarutis's testimony, the validity of the deed was already in dispute. Mr. Tarutis testified that Mr. Maletta intended that the ownership of the property would transfer immediately when the deed was signed. When asked by Melanie's attorney whether he had been asked to record the deed, he said he did not recall being asked, but if he had been, he would have referred the issue to his attorney. His testimony merely indicates that if he had been asked to record the deed after its validity had been challenged, he would have referred the question to his attorney. This testimony is consistent with the trial court's finding that Mr. Maletta intended the title to transfer immediately when the deed was signed.
The trial court's finding that there were no remaining contingencies or conditions that had to be met before delivery would be effective is supported by substantial evidence. This finding supports the legal conclusion that delivery was effective.
C. Attorney Fees
Melanie requests attorney fees on appeal under RCW 11.96A.150. We do not decide this question but remand the issue of attorney fees at trial and appeal for determination by the trial court under the discretion provided it by RCW 11.96A.150.
Conclusion
We find that there is substantial evidence in the record to support the trial court's findings of fact regarding undue influence and effective delivery. However, because the trial court placed the burden of proof on the incorrect party and did not apply the clear, cogent, and convincing burden of persuasion, we remand for the trial court to determine whether Melanie has carried her burden of proving that the gift was intended and that it was not obtained through undue influence.
Reversed and remanded.
WE CONCUR.