Opinion
No. 55741-6-I.
May 1, 2006.
Appeal from a judgment of the Superior Court for Snohomish County, No. 04-4-00404-2, Linda C. Krese, J., entered December 9, 2004 and January 19, 2005.
Counsel for Appellant(s), Michael T. Schein, Michael T. Schein Attorney, 7023 20th Ave NW, Seattle, WA 98117-5618.
Peter J. Andrus, Jelsing Tri West Andrus PLLC, 2926 Colby Ave, Everett, WA 98201-4011.
Counsel for Respondent(s), G. Douglas Ferguson, Anderson Hunter Law Firm, PO Box 5397, Everett, WA 98206-5397.
Affirmed by unpublished opinion per Cox, J., concurred in by Coleman and Grosse, JJ.
The proponent of a lost will has the burden to prove by clear, cogent, and convincing evidence both the content and proper execution of such a will. Moreover, the proponent of a lost mutual will must prove it by evidence that is "conclusive, definite, certain, and beyond all legitimate controversy." Here, there are no genuine issues of material fact respecting any of these elements of the claim of Lorraine Cattell, Gloria Foster, and Lynn Lopez that Irene Hodgson made a lost mutual will in 1987. The trial court properly granted summary judgment to them. We affirm.
Carlton v. Black (In re Estate of Black), 153 Wn.2d 152, 161-62, 102 P.3d 796 (2004); RCW 11.20.070.
See Auger v. Shideler, 23 Wn.2d 505, 507, 161 P.2d 200 (1945).
Irene and Henry Hodgson married in 1970. Henry had three daughters from three previous marriages. They are Lorraine Cattell, Gloria Foster, and Lynn Lopez (collectively, "Cattell").
Irene had two sons from a previous marriage, Douglas and David Knutson. Douglas died in 1987. Her surviving son, David ("Knutson"), is the appellant in this case.
Henry executed a will containing a mutual will provision in September 1987. He executed a codicil to that will in 1997, republishing the 1987 will and slightly modifying some of the original will's dispositions. When Henry died in January 1998, Irene probated his 1987 will, as modified by the codicil.
A year after Henry's death, Irene executed a new will. Her January 1999 will made specific bequests of $5,000 each to her three step-daughters (Cattell), but left the remainder of her estate to her son David Knutson. Thereafter, it appears that she established certain bank accounts in which she and Knutson were listed as joint tenants. These accounts totaled approximately $980,000 at the time of her death in July 2003.
The record does not reflect the exact dates the joint accounts were opened. However, they appear to have been created sometime between 1998 and 2003.
No one has found a copy of Irene's alleged 1987 mutual will. However, in February 2004, Cattell petitioned the trial court to probate Irene Hodgson's alleged 1987 will as a lost mutual will. The petition was based, in part, on Henry's probated 1987 will, which contained a mutual will provision, and the testimony of other witnesses. Under the provisions of Irene's alleged 1987 mutual will, except for a number of smaller, individual dispositions, the four surviving children of Irene and Henry were entitled to equal shares of Irene's estate.
Cattell's petition was filed under cause no. 04-4-00165-5.
In March 2004, Knutson appeared ex parte under a separate cause number from Cattell's pending proceeding. He asked the court to probate Irene's 1999 will without advising it of Cattell's separate, pending petition. The court issued an order admitting Irene's January 1999 will to probate, appointing Knutson the personal representative, and issuing letters testamentary. Two days later, the court vacated its order admitting Irene's 1999 will to probate and revoked the letters testamentary issued to Knutson because of his failure to disclose the pendency of Cattell's petition.
Knutson's petition was filed under cause no. 04-4-00404-2.
Cattell then commenced this proceeding, contesting Irene's 1999 will and seeking specific performance of the alleged mutual will contract in Irene's alleged lost mutual 1987 will. Knutson answered, seeking an order establishing Irene's January 1999 as the only valid will.
Cattell and Knutson both moved for summary judgment. Each side sought to take under the different wills of Irene. After striking or limiting the use of certain declarations, the court granted Cattell's motion. The court denied Knutson's motion for reconsideration.
His appeal followed.
LOST MUTUAL AND RECIPROCAL WILL Standard of Review and Burden of Proof
Knutson argues that genuine issues of material fact exist whether Irene made a valid mutual will in 1987. We disagree.
Summary judgment is proper when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. We do not resolve factual issues. Rather, we determine whether a material fact, one upon which the outcome of the litigation depends, exists. The moving party has the burden of proving there is no genuine issue of material fact and all inferences are construed in the light most favorable to the nonmoving party. If the moving party meets its burden, the nonmoving party must then "set forth specific facts showing that there is a genuine issue for trial." Such facts must be evidentiary in nature, not mere "suppositions, opinions, or conclusions." Proceedings where a will is being challenged are equitable in nature and are reviewed de novo upon the entire record. We review de novo the evidentiary rulings in a summary judgment motion.
Black, 153 Wn.2d at 160.
Id.
Id. at 160-61.
Id. at 161 (citing La Plante v. State, 85 Wn.2d 154, 158, 531 P.2d 299 (1975)).
CR 56(e); Snohomish County v. Rugg, 115 Wn. App. 218, 224, 61 P.3d 1184 (2002).
Black, 153 Wn.2d at 161; In re Estate of Ney, 183 Wash. 503, 505, 48 P.2d 924 (1935).
Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998).
A mutual will contract must be shown by clear and convincing evidence. The applicable statutes for purposes of proving a lost will are the current versions of RCW 11.20.070 and RCW 11.12.020. Under 11.20.070(2), the petitioner must prove the provisions of a lost will 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." To determine whether a will was properly executed, the court must utilize the latter statute. True "mutual" wills are those executed pursuant to a contract between the testators as to the manner of disposition that will occur after both are deceased. The existence of such a contract is ordinarily a question for the trier of fact who must be persuaded by clear, cogent and convincing evidence that the parties entered into such an agreement. When proven, such contracts impose fixed obligations that can be specifically enforced.
Cummings v. Sherman, 16 Wn.2d 88, 93, 132 P.2d 998 (1943) ('[T]he contract to make mutual wills must be established by clear and convincing evidence.').
Black, 153 Wn.2d at 164.
RCW 11.12.020(1) provides as follows:
Every will shall be in writing signed by the testator or by some other person under the testator's direction in the testator's presence, 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: PROVIDED, That a last will and testament, executed in the mode prescribed by the law of the place where executed or of the testator's domicile, either at the time of the will's execution or at the time of the testator's death, shall be deemed to be legally executed, and shall be of the same force and effect as if executed in the mode prescribed by the laws of this state.
Newell v. Ayers, 23 Wn. App. 767, 769, 598 P.2d 3 (1979).
Id. at 769; In re Sego, 82 Wn.2d 736, 739, 513 P.2d 831 (1973) ('highly probable' standard is equivalent to the 'clear, cogent, and convincing evidence' standard).
In re Estate of Richardson, 11 Wn. App. 758, 760-61, 525 P.2d 816 (1974); Cummings, 16 Wn.2d 88.
Here, the parties submitted affidavits and other material to support their respective positions on the cross-motions for summary judgment. Cattell relied on provisions of Henry's 1987 will to establish the contents of the alleged 1987 mutual will of Irene. Specifically, Henry's will contains the following mutual will provision:
IRENE HODGSON is executing a Will containing provisions similar to those herein. This Will, together with the Will of IRENE HODGSON, is executed pursuant to an agreement between us, that the provisions made for each of us are induced by the provisions made by the other. We further declare each for himself, neither of us would have made the provisions in our respective mutual Wills had not the other made similar provisions; each of us, in consideration of the premises and of a like promise and agreement of the other, agrees not to change, alter, or amend his Will, except that the [sic] prior to the death of either of us, this Will may be changed, canceled, annulled or amended by another Will or by a codicil upon written notice to the other.
Clerk's Papers at 408, 412-13, 437-38 (emphasis added).
Cattell submitted the declaration of Mark Schoener, the attorney who drafted Henry's will. Schoener was unable to locate a copy of Irene's mutual will.
However, he testified that he met with Henry and Irene and discussed the preparation of their wills with them. According to Schoener's declaration, he discussed with Henry and Irene the nature of mutual wills, explaining the contractual obligations that bind them in making mutual wills. Schoener attached a copy of Henry's will containing the mutual will provision to his declaration. He stated "While I have no specific recollection without reviewing the actual Will of Irene Hodgson, it has always been my practice not to prepare mutual reciprocal Wills unless I prepare them for both parties to sign at the same time and in my presence." On the basis of his customary practice, Schoener testified that "I am therefore confident that Irene Hodgson executed her Will with the same mutual reciprocal provision as contained in Henry's Will, except that the reference therein to 'Irene Hodgson' was a reference to 'Henry Hodgson' in her Will."
Clerk's Papers at 415-16.
Clerk's Papers at 416.
Id.
Schoener further testified that he prepared a 1997 codicil to Henry's 1987 will, modifying several of the specific bequests made in the original will but otherwise leaving the provisions of the 1987 will unchanged. Schoener testified that this event "reinforces my recollection that Irene Hodgson executed her mutual reciprocal Will in 1987, as I would not have prepared and participated in Henry Hodgson's execution of the above-referenced Codicil, republishing his September 30, 1987 Will had Irene Hodgson not previously executed her mutual reciprocal Will." In deposition testimony, Schoener conceded that though it was his practice to reaffirm all the provisions of the 1987 will with Henry at the time he executed the 1997 codicil, Schoener had no specific recollection of so doing.
Clerk's Papers at 417.
Clerk's Papers at 198.
In addition to Schoener's testimony, Cattell submitted the declaration of Patricia Fortune, Schoener's legal assistant in 1987. Fortune testified to a specific recollection of typing and witnessing Henry's 1987 will. Moreover, Fortune also testified that "I specifically recall typing the reciprocal [will] provision . . . as well as typing the mutual reciprocal Will for Irene Hodgson which contained virtually identical provisions." Fortune further testified that "Although I have not subsequently reviewed a copy of Irene Hodgson's executed Will, I am quite certain that Mr. Schoener and I witnessed her execution of the mutual reciprocal Will when she came in with her husband Henry Hodgson at the time he executed his on September 30, 1987."
Clerk's Papers at 408.
Knutson argues that this testimony was insufficient to establish a lost mutual will. He relies on In re Estate of Black, in which the supreme court affirmed on different grounds the reversal by the court of appeals of a summary judgment order establishing a lost will.
In Black, a will executed by Margaret Black in 1992 was admitted to probate. Later, Black's daughter, Myrna, sought to admit an unsigned copy of a 1993 will that she argued was lost. The trial court granted the daughter's motion for summary judgment, determining as a matter of law that Myrna met the requirements of the lost will statute. The court of appeals reversed the order to admit the will and remanded. The supreme court affirmed, holding that Myrna failed to show proper execution of the 1993 will by clear, cogent, and convincing evidence.
Id. at 157-58.
Id. at 157.
Id. at 159.
Id. at 174.
The court considered affidavits from three witnesses for purposes of deciding whether summary determination of execution of the will was proper. The first, Paul Blauert, the attorney who prepared the 1993 will, was not present at its signing. Though Blauert testified that the will, when returned to him after execution, was signed by two attesting witnesses, he could not recall the witnesses' names.
Id. at 167.
The recollection of Taylor, a notary public who apparently was present at the will's signing, was based solely on customary practice. Taylor testified that though she had no recollection of either witnessing the will or of notarizing the power of attorney signed the same day, she surmised that she must have "personally witnessed" Margaret sign the power of attorney document, because she only notarized documents in the presence of the signing party.
The third witness, Reiter, stated that he read the will to Margaret and verified its provisions with her. He then witnessed her initial each page and sign the will in his presence and in the presence of a notary public. He could not recall the name of the notary public who served as the second attesting witness.
Id. at 159.
Id.
In its analysis, the court first clarified that absent a signed attestation clause, witness testimony that he or she signed the document in the presence of the testator and testimony to facts showing attestation as a matter of law may prove proper execution of a lost will. The court explained that under the lost will statute, a witness is "one who has personal knowledge of the fact that the will was signed by the testator."
Id. at 166.
Id.
Because Blauert neither witnessed the will nor recalled the names of the witnesses, his testimony was insufficient. He lacked personal knowledge of the relevant facts. The court similarly concluded that Taylor's testimony was inadequate to show she served as the second attesting witness because of her lack of personal knowledge. Finally, while the court found Reiter's testimony sufficient to prove that he acted as the first attesting witness, his testimony could not prove the presence of a second witness by clear, cogent, and convincing evidence because he failed to recall the identity of the second witness. His recollection of Taylor as the second witness was based solely on circumstantial evidence, rather than his personal knowledge.
Id. at 158-59, 167.
Id. at 159, 168.
Id. at 166.
Here, Schoener's testimony alone, relying on his customary practice, is arguably insufficient to prove proper execution of the lost will by clear, cogent, and convincing evidence. However, Fortune's testimony distinguishes the evidence here from that in Black. Fortune testified from personal knowledge that both she and Schoener served as attesting witnesses. This is sufficient to prove execution of the lost will. Moreover, there is no genuine issue of material fact regarding the content of the lost mutual will. Proof of the content consists of the mirror image of terms provided in Henry's 1987 will, which had been admitted to probate prior to this contest. The testimony of Schoener, the scrivener of both Irene's and Henry's wills supports the evidence of the content of the former's 1987 lost mutual will. Fortune's testimony provides further evidence of content to the extent of establishing that the former will contained a mutual will provision. This is sufficient.
See Id. at 161-62 (The contents of a lost 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.' (citing RCW 11.20.070(2))).
Knutson argues that because there is great opportunity for fraud and because courts are reluctant to invalidate a later-executed will, proof of a mutual will contract requires "evidence [that] is conclusive, definite, certain and, beyond all legitimate controversy." However, where courts have applied this "higher standard" the issue was the existence of an oral contract to make a mutual will. Such promises resting "in parol, are not favored, are regarded with suspicion, [and] will be enforced only on the strongest evidence and when founded on a valuable consideration and deliberately entered into by the deceased."
Appellant's Brief at 17 (citing Arnold v. Beckman, 74 Wn.2d 836, 841, 447 P.2d 184 (1968); Jennings v. D'Hooghe, 25 Wn.2d 702, 706, 172 P.2d 189 (1946); Auger, 23 Wn.2d at 509).
Allen v. Dillard, 15 Wn.2d 35, 50, 129 P.2d 813 (1942) ('An oral promise to make a will or an oral contract to devise or bequeath property must be established by evidence that is conclusive, definite, certain, and beyond all legitimate controversy.') (emphasis added); Resor v. Schaefer, 193 Wash. 91, 95, 74 P.2d 917 (1937) (because oral contracts to devise property are easily fabricated and hard to disprove, courts require proof by evidence that is conclusive, definite, certain, and beyond all legitimate controversy); see also Newell, 23 Wn. App. at 770 n. 1 ('In both Arnold v. Beckman, supra, and Auger v. Shideler, supra, the contract was oral and was not referred to at all in the will itself.').
Beckman, 74 Wn.2d at 840.
Finally, Knutson maintains that even if the evidence is sufficient to prove a lost will, it remains insufficient to show a lost mutual will. He fails to persuasively explain any qualitative difference between the two. In any event, the case authority supports the conclusion that the proof requirements for both were established in this case. The testimony that Irene's and Henry's wills contained mutual will provisions, the uncontested mutual will provisions of Henry's 1987 probated will, Schoener's testimony as to the testators' intent, and Fortune's testimony regarding the content and proper execution of the wills, all show there is no genuine issue of material fact regarding the content and proper execution of Irene's lost 1987 mutual will.
See e.g. Cummings,16 Wn.2d 88 (attorney testified in detail about his meeting with the testators, their discussion about the difference between mutual and individual wills, the binding nature of the former, and the testators' express intent to execute final, irrevocable wills; the court found this evidence sufficient). Accord Auger, 23 Wn.2d at 509-13 (same result on very similar facts; the court noting that attorney, who remembered many details, testified to facts, not mere conclusions); c.f. Beckman, 74 Wn.2d 836 (in reversing finding of oral contract, the court noted that attorney's testimony regarding the testators' intent seemed uncertain or speculative and was not corroborated).
Evidentiary Rulings
Knutson argues that the trial court improperly excluded portions of his affidavit as inadmissible under the deadman's statute. We are unpersuaded by this argument.
Specifically, Knutson contends that the stricken testimony supported Irene's estate, was not adverse to it, and was therefore admissible in spite of the fact that he is an interested party in the proceedings. We reject this novel argument.
The deadman's statute governs the admissibility of testimony in will contests. It provides, in relevant part:
That in an action or proceeding where the adverse party sues or defends as executor, administrator or legal representative of any deceased person, or as deriving right or title by, through or from any deceased person, . . . then a party in interest or to the record, shall not be admitted to testify in his or her own behalf as to any transaction had by him or her with, or any statement made to him or her, or in his or her presence, by any such deceased . . . person.
The interpretation and application of a statute is generally a question of law that we review de novo. Thus, this court makes its own independent determination as to the admissibility of the portions of Knutson's testimony stricken by the trial court.
See Doe v. Gonzaga University, 143 Wn.2d 687, 699, 24 P.3d 390 (2001); State v. Jackson, 91 Wn. App. 488, 491, 957 P.2d 1270 (1998) (review is de novo when the inquiry turns on the application of a statute to a specific set of facts and is entirely an issue of law).
Folsom, 135 Wn.2d at 666 (holding that when reviewing de novo a grant of summary judgment, the appellate court reviews testimony redacted by the trial court to determine admissibility, in order to conduct the same inquiry as the trial court).
The purpose of the deadman's statute is to prevent interested parties from giving self-serving testimony regarding conversations or transactions with a decedent. The statute precludes testimony by a "party in interest" about "transactions" with, or statements made to the party by the deceased. A witness is deemed to be a party in interest if he or she stands to gain or lose from the judgment.
Thompson v. Henderson, 22 Wn. App. 373, 379-80, 591 P.2d 784 (1979).
O'Steen v. Estate of Wineberg, 30 Wn. App. 923, 935-36, 640 P.2d 28 (1982).
In Estate of Shaughnessy, the supreme court held that
In will contest cases the executor who has an interest, as well as the contestant, is an interested party because the statute applies to will contests. In other words, two opposing parties who both claim from the deceased are each an adverse party as to the other and an interested party as to the other and thus each is barred from testifying in his own behalf.
97 Wn.2d 652, 656, 648 P.2d 427 (1982) (quoting 5 R. Meisenholder, Wash. Prac. Sec. 167 (1965)).
In Shaughnessy, the respondent asserted that the deadman's statute did not apply to his testimony because he was "testifying in favor of the will and thus in favor of the estate. . . ." The court rejected this argument, citing In re Estate of Tate wherein the court excluded testimony by an executor or executrix in support of a will.
Id.
In re Estate of Tate, 32 Wn.2d 252, 254, 201 P.2d 182 (1948).
In Tate, the issue was whether the contested will had been executed under undue influence. The trial court excluded the testimony of the executor and executrix offered in support of the will as inadmissible under the deadman's statute. Though that testimony was not adverse to the estate under the terms of the contested will, the supreme court affirmed, holding that "The test of the competency of a witness to testify as to conversations and transactions had with the deceased in a will contest case is whether he would gain or lose by a decree sustaining or revoking a will already admitted to probate." In such case, the testimony is inadmissible even if the witness testifies in a representative capacity.
Id.
Id.
Id.
In contrast, the cases cited by Knutson, permitting testimony that is not "adverse" to the estate, do not involve will contests.
Cattell also cites McFarland v. Dep't of Labor and Indus., 188 Wash. 357, 362, 62 P.2d 714 (1936) (holding the statute not applicable, in industrial insurance appeal, to testimony of widow which supported the claim of deceased worker's estate for worker's compensation).
Fies v. Storey is an adverse possession case. There, Fies claimed a piece of real property she received through her mother. At issue was whether her mother had, before her death, acquired the property from Storey through adverse possession. The trial court, applying the deadman's statute, prevented Fies and her husband from testifying to conversations with the decedent, which showed the decedent's intent to hold the property adversely against all the world.
Fies v. Storey, 21 Wn. App. 413, 585 P.2d 190 (1978), overruled on other grounds by Chaplin v. Sanders, 100 Wn.2d 853, 676 P.2d 431 (1984).
Id. at 415.
Id. at 418.
The court of appeals reversed, holding that "[t]he scope of this . . . rule excludes the testimony of the survivor of a transaction with a decedent, when offered against the latter's estate." The court explained that the testimony did not apply to Fies' offered testimony because it was "offered not against the claim made through [the decedent's] estate but rather on its behalf." Fies claimed to derive title through the decedent; therefore the court pointed out, she was the "adverse party" and Storey was the "party in interest" who was prohibited from testifying "in behalf of her own claim about conversations with [the decedent]," because Storey's claim would have been offered against the claim of the decedent's estate.
Id. (italics in original) (citing 2 J. Wigmore, Evidence sec. 578, at 695 (3d ed. 1940)).
Id.
Id. at 419; accord Diel v. Beekman, 7 Wn. App. 139, 153, 499 P.2d 37 (1972) (prohibiting, under the statute, a party's testimony as to conversations with a deceased person through whom the adverse party has derived title), overruled on other grounds by Peeples v. Port of Bellingham, 93 Wn.2d 766, 613 P.2d 1128 (1980) and Chaplin v. Sanders, 100 Wn.2d 853.
Malacky v. Scheppler, also cited by Knutson, is even less applicable to this case. It involved an action for an accounting of payments on a real estate contract under a guardianship. There, a mother delivered quitclaim deeds to her three children, for land she had sold on a contract. No consideration was paid.
69 Wn.2d 422, 419 P.2d 147 (1966).
Id. at 148.
The mother became incapacitated and one of the children acted as guardian until the mother's death. The guardian used the real estate payments for the mother's care under the guardianship. In contesting the guardian's final report, the plaintiffs sought to strike her testimony. The court held that the guardian's testimony, which related the oral agreement between the siblings to use the payments for their mother's care prior to her death as a mechanism for avoiding tax liability, was not barred by the deadman's statute. The testimony refuted the plaintiff's claim to any interest in the mother's property, prior to, rather than after, the mother's death.
Id.
Id.
Id. at 425.
Id.
Here, two competing wills were admitted to probate. Each opposing party here claims from the deceased. Therefore, each is an adverse and interested party as to the other. Therefore, each is barred from testifying in his own behalf.
The trial court properly struck portions of Knutson's affidavits as inadmissible under the deadman's statute and correctly declined to consider that testimony when making its summary judgment ruling.
Dunlap v. Wayne, 105 Wn.2d 529, 535, 716 P.2d 842 (1986) (a court cannot consider inadmissible evidence when ruling on a motion for summary judgment).
Knutson further contends that this court should disregard the limited purpose for which the trial admitted declarations from Irene's friends, Mary Peterson and Dixie Hoffart. We decline to do so.
Peterson's declaration contained the following statements: "[Irene] said that Henry wanted her to leave nearly all of their assets to his large number of descendants, but that she would not sign his will with him. She told me in the beginning months of 1999 that she had finally signed a will."
Cattell moved to strike these statements as hearsay. In response, Knutson asserted that the statements were not being offered for their truth, but rather to show Irene's intent not to enter into a mutual will contract with Henry. The court limited the statement to that purpose.
Dixie Hoffart's declaration provided, in relevant part:
Henry . . . asked her to sign a will with him leaving their assets to his family and excluding her son David. She said she refused to do this. Then she told me Henry added David back in the will and again asked her to sign a will with him. She said she still refused to sign a will with him because his family was so much larger than hers and his large number of relatives would inherit most of the estate. In early 1999, she told me she had gone to an attorney and made out a will that left Henry's daughters $5,000 a piece. She said she did this because she had contributed much more financially to the marriage than Henry did.
Clerk's Papers at 77.
Cattell also moved to strike statements in Hoffart's declaration as hearsay. Knutson responded that Hoffart's statements regarding two attempts by Henry to have Irene sign a will and how she refused to do so "are not offered for the truth of the matter asserted (i.e. to establish that Irene refused to sign Henry's will)." Rather, they were offered as evidence of Irene's testamentary intent. Irene's statements regarding the 1999 will were also offered as evidence of Irene's continuing intent to not make a mutual will contract.
These declarations do not create a genuine issue of material fact. They do nothing to contradict the very specific testimony that Irene executed a mutual will in 1987 that contained the terms mirrored in Henry's will of the same date. At best, they show that she expressed hesitation at times over signing some proposed wills. Speculative assertions are insufficient to defeat summary judgment.
For the first time on appeal, Knutson maintains this court should consider these two declarations as admissible without restriction, citing ER 803(a)(3). However, de novo review of a summary judgment order does not extend to considering arguments not made below, except in limited situations that are not involved here. Accordingly, we shall not consider this argument further.
Effect of Henry's 1987 Codicil
Knutson argues that, even assuming there had been a mutual will contract between the parties, Henry's 1997 will codicil terminated any mutual will contract because it was executed without any notice to Irene. We disagree.
Cattell argues that the codicil did not invalidate the mutual will contract because, at the very least, Irene had notice of its existence when she probated it along with Henry's will. This argument is well taken.
Irene probated Henry's 1987 will and the 1997 codicil which made some minor changes to individual dispositions and republished the terms of the original will. Knutson does not dispute that she had notice of the mutual will provision at least at the time of the probate. And he fails to explain why Irene was prejudiced in any way by not knowing earlier of the provision at issue. Under the circumstances of this case, we conclude that she had sufficient notice that such a provision existed in Henry's will.
CONSTRUCTIVE TRUST
Knutson argues that the trial court erred in invalidating transfers to him outside probate by means of JTRS accounts and in establishing a constructive trust upon those funds. We disagree.
Inter vivos transfers that are, in effect, testamentary dispositions contrary to a mutual will agreement are void. A testamentary instrument (1) must be executed with testamentary intent; (2) is revocable during the testator's lifetime; and (3) operates upon property existing at the date of death and is effective upon the testator's death. The most important indicator of intent is whether the instrument creates a present interest or one that takes effect upon the testator's death. A court may impose a constructive trust, which arises in equity, when there is clear, cogent, and convincing evidence of the basis for impressing the trust.
Newel, 23 Wn. App. at 770.
In re Estate of Verbeek, 2 Wn. App. 144, 149, 467 P.2d 178 (1970).
Id. at 150.
Baker v. Leonard, 120 Wn.2d 538, 547, 843 P.2d 1050 (1993).
In Morse v. Williams, Marvin Tucker executed a joint and mutual will, in accordance with a prior separation agreement and community property agreement with his wife, which provided "all property shall pass without probate to either one of us who shall survive the other." Shortly after executing the will, Tucker separated from his wife and began living with Myrtle Williams. In 1983, he opened an account and named Ms. Williams as a joint tenant with right of survivorship. The account existed at the time of his death.
48 Wn. App. 734, 740 P.2d 884 (1987).
Id. at 735.
The court construed RCW 30.22.090(2) to create a rebuttable presumption "that joint accounts with right of survivorship transfer interests at death only; i.e., they do not give a non-depositing party any present interest in the account funds." The court concluded that because Tucker (1) deposited all the funds into the account, (2) did not intend to transfer a present interest or make an inter vivos gift, and (3) only intended to create an at-death transfer, he intended a testamentary deposition to Williams, which was ineffectual because it violated the will and prior agreements.
Id. at 740-41.
Id. at 742.
Here, after probating Henry's will, Irene deposited the bulk of her estate into joint tenancy with right of survivorship accounts under which Knutson was the beneficiary. Nothing in the record indicates that Knutson exercised any control over the funds prior to Irene's death. The transfers were clearly in violation of the terms of the mutual will contract, which contemplated dividing the remaining estate equally among the four children of Henry and Irene.
We conclude that the trial court properly imposed a constructive trust on the funds transferred outside probate.
ATTORNEY FEES
Both parties request attorney fees under RCW 11.96A.150, RCW 11.24.050, and RAP 18.1. Here, the controlling statute, RCW 11.96A.150, leaves the award of attorney fees to the discretion of the court both at trial and on appeal. Based on the holdings in In re Estate of Jolly, and In re Estate of Watlack, we conclude that fees should be awarded to both parties.
Black, 153 Wn.2d at 173; see also RCW 11.24.050 (attorney fee statute under the will contest chapter stating that where a will is revoked assessment of costs shall be in the court's discretion).
3 Wn.2d 615, 101 P.2d 995 (1940).
88 Wn. App. 603, 945 P.2d 1154 (1997).
In Watlack, the court ordered the estate to pay the attorney fees of all parties to the will dispute because the litigation involved all beneficiaries and affected the rights of all the beneficiaries. In Jolly, the court determined that an award to an executor was appropriate where the executor unsuccessfully defended a will in good faith.
Id. at 612-13 (distinguishing In re Estate of Niehenke, 117 Wn.2d 631, 818 P.2d 1324 (1991), a case where the dispute did not involve all beneficiaries); see also Niehenke, 117 Wn.2d at 648 (noting that where all beneficiaries are not involved in litigation an award from the estate would harm the uninvolved beneficiaries).
Jolly, 3 Wn.2d at 626-27 n. 13.
This case is analogous to Watlack and Jolly. All beneficiaries shall benefit by a final determination of what will controls. Moreover, there is no showing of a lack of good faith in bringing this appeal. Accordingly, fees of both sides should be assessed against the estate of Irene.
We affirm the orders that are before us on appeal.
GROSSE and COLEMAN, JJ., concur.