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PROBATE AND TRUST

Spice v. Estate of Mathews, 10 Wn.App.2d 1043, 50915-6-II (Div. II, 2019, UNPUBLISHED):  This is the third of three cases brought by Mr. Spice against the Mathews Estate.  Among other non-probate issues, the case addresses the caselaw which holds that, while RCW 11.04.250 vests title in real property in an estate to the heirs or beneficiaries on death, the personal representative retains all rights to the property until closure of the estate.

In re Estate of Rai-Choudhury, 7 Wn.App.2d 1052, No. 77740-8-I (Div. I, February 25, 2019, UNPUBLISHED):  Margaret Rai-Choudhury executed a will in 2015 with the assistance of attorney Steve Avery. She made a specific bequest to a friend and the remainder of the estate was to be divided evenly between the University of British Columbia and her grandson Khashon Haselrig. The will included a no contest provision, whereby a beneficiary who contests the will loses his interest in the estate. Stephanie Inslee was named as the personal representative.

Margaret died on November 25, 2016. The original will could not be located, so Mr. Avery filed a copy of the will with the superior court. He and the two witnesses to the will attested that it was a true and correct copy. The court admitted the will to probate and appointed Ms. Inslee as PR,

On January 25, Khashon filed a motion for removal of the personal representative, appointment of a new personal representative, and revocation of testate probate. He argued that the will copy should not have been admitted to probate. He argued Inslee violated RCW 11.20.070, because she failed to prove that the will was not intentionally revoked and failed to provide required notice to interested parties before admitting the will to probate.

The superior court denied the motion and held that there was no evidence that the will was lost or destroyed under circumstances that would result in the revocation of the will and that the will should be admitted to probate. Khashon did not request reconsideration or appeal this order.

On June 19, 2017, Khashon filed a motion to void fraudulent admission of copy will, removal of personal representative, obtain full accounting and impose sanctions. On August 22, 2017, he filed a motion to strike defendants’ responses and receive default judgment in favor of plaintiff’s motion to void fraudulent admission of copy will, removal of personal representative, obtain full accounting and impose sanctions. On August 25, 2017, the court denied the relief that Khashon sought in both motions because the issue had previously been raised and ruled upon.

On September 20, 2017, Ms. Inslee filed a motion for judicial determination, arguing Khashon’s actions violated the no contest provision in the will and therefore barred him from receiving any property from the estate. The trial court granted this motion, Khashon appealed, and the court of appeals affirmed the trial court’s ruling.

Khashon appealed on the basis that his probate litigation was procedural and therefore did not violate the will’s no contest provision. He argued that challenging the validity of admission of a copy of the will did not arise to contesting the will itself.

“A court may treat a motion as a will contest, even where the petitioner styles it otherwise.” In re Estate of Finch, 172 Wn. App. 156, 162, 294 P.3d 1 (2012). The court in this case found Khashon s pleadings were a challenge to the admission and validity of the will. Under Finch, Khashon cannot circumvent the no contest provision by styling his attack on the validity of the will as a procedural motion. In re Estate of Rai-Choudhury, 2019 Wash. App. LEXIS 423,  7, 2019 WL 931658.

Also, Khashon had the opportunity to appeal the admission of the copy after the February 2017 hearing, but he did not do so.

In re Estate of Irwin, 450 P.3d 663, 10 Wn.App.2d 924 (Div. II, 2019):  Gerald Irwin left a life estate in real property, which was subject to a mortgage, to Barbara Kelley.  The will was silent on payment of the mortgage.  Ms. Kelley claimed that she was not responsible for the payments.  The court ruled that RCW 11.12.070, which makes recipients of specific bequests of real property responsible for mortgages unless the will specifies another payment, applies to life estates.

In re Estate of Troyer, 10 Wn.App.2d 1052, 36238-8-III (Div. III, 2019 UNPUBLISHED):  Addresses the court’s authority to appoint a third-party administrator rather than the executor named in the will.  The case also discusses the bases the court may use to make its determination, including (1) the court’s belief that the executor will not comply with fiduciary duties and (2) potential conflicts between the executor and beneficiaries.

In re Estate of Holmes, 11 Wn.App.2d 1010, 78922-8-I (Div. I, 2019 UNPUBLISHED):  Addresses the issue of a will that names no beneficiaries.  The court found that such a will is not necessarily ambiguous, but under RCW 11.96A.125, the unambiguous will could be reformed to correct the purported mistake of omitting the beneficiaries.

In re The Estate of Geneiva Tate: Monica Tate v. Partners In Care, Et Al. (Div. I, 2019 UNPUBLISHED):  Addresses the standards for reviewing an administrator’s actions in settling a preexisting lawsuit against the decedent.  Also addresses a claim of unequal distribution of estate assets based on a challenge to an appraisal of real property and the standard by which the court evaluates the evidence of estate asset valuation.

Benjamin v. Singleton, 436 P.3d 389, 7 Wn.App.2d 527 (Div. I, 2019): Successor estate administrator has no cause of action against counsel for prior administrator who was removed for converting estate funds.

In re Estate of Reugh, 447 P.3d 544 (Div. III, 2019):  Discusses the standard for removal of executors and trustees for failing to carry out their fiduciary duties.  Also discusses numerous procedural issues relating to bringing a petition to remove an executor.

Estate of Primiani, No. 35845-3-III (Div. I, May 30, 2019, UNPUBLISHED):  Fine-tuning the enforceability of no-contest clauses. A son brings a Will contest alleging undue influence or competence issues, and trial court dismissed the contest due to lack of proper service; strict compliance is required. The decision contains an interesting discussion of the enforceability of no-contest clauses in Wills. It analyzed the leading cases regarding the enforceability of no-contest clauses and found that it’s not true that no-contest clauses won’t be enforced if the challenge is brought in good faith and with probable cause. The Court said that the no-contest clause only won’t be enforced if the challenge is brought in good faith and with probable cause and is based on public policy. Public policy, the Court said, would be a challenge based the Will violating the rule against perpetuities, for example, or removal of a bank as executor when it had a conflict of interest, or conditions in restraint of marriage or of lawful trade. Personal grounds, on the other hand, would be the soundness of a testator’s mind, or undue influence. So a will contest brought on the basis of competence or undue influence, if it weren’t successful, would result in enforcement of the no-contest clause. But, if the no-contest clause in the Will specifies that it won’t be enforced if contests are brought in good faith and with probable cause, that would allow broader challenges for competence, Wn.2d 906, undue influence, etc.

Osborne v. Dep’t of Revenue, 7 Wn.App.2d 1056, No. 50762-5-II (Div. II, February 26, 2019, UNPUBLISHED):  Joseph Mesdag died in 2002 and his estate created a qualified terminable interest property (QTIP) for the benefit of his surviving spouse, Barbara Mesdag. When Barbara died in 2007, the applicability of Washington estate tax to QTIP was in a state of confusion. After multiple Supreme Court decisions and new legislation, the court concluded in an earlier decision that the Estate owed estate tax on the QTIP and remanded to the Department of Revenue (DOR) for determination of whether the Estate additionally owed interest on the portion of the estate tax attributable to QTIP. The Question of how much interest was owed ultimately came down to when the estate tax on the QTIP was technically due. DOR and the trial court found the Estate owed interest dating back to 2010. The Estate argued that the estate tax was not due until 2013 when the legislature amended the statute. The Court of Appeals agreed with the Estate and ordered the DOR to refund the Estate’s overpaid taxes along with interest.

In 2005, the legislature amended the Washington estate tax in light of changes to the federal estate taxation scheme to impose an estate tax on “every transfer of property located in Washington” and applied it prospectively but not retroactively. In re Estate of Bracken, 175 Wn.2d 549, 559, 290 P.3d 99 (2012) (quoting RCW 83.100.040(1)).

In 2012, the Supreme Court in Bracken interpreted the new taxation scheme to provide an exception for QTIP trusts created by people who died prior to 2005, but whose surviving spouses died after 2005. 175 Wn.2d at 553. The QTIP had been “transferred” by the first spouse prior to passage of the purely prospective tax and no “transfer” of QTIP property occurred upon the death of the surviving spouse. Bracken, 175 Wn.2d at 566-67. Accordingly, under the 2005 law, as interpreted by Bracken, such QTIP trusts would never be subject to any Washington estate tax.

In 2013, in response to Bracken, the legislature amended the estate tax. Laws of 2013, 2d Spec. Sess., ch. 2, § 1. The legislature “broadened the meaning of ‘transfer’ to its ‘broadest possible meaning consistent with established United States supreme court precedents “and intended the amendments to”’ apply both prospectively and retroactively to all estates of decedents dying on or after May 17, 2005.’” Hambleton, 181 Wn.2d at 813-14 (quoting Laws of 2013, 2d Spec. Sess., ch. 2, §§ 1(5), 9.

The Supreme Court affirmed the legislature’s authority to retroactively amend the estate tax in Hambleton. 181 Wn.2d at 836. While the court found that the legislature had this authority, the court found that the tax cannot come “due” and therefore cannot state accruing interest until the law is passed.

The court concluded that “[t]he legislature has authority to issue a retroactively applicable tax. However, it cannot have intended to make such a tax come due and begin accruing interest as early as eight years before its own enactment. We conclude that, while the Bracken amendment applies to the estates of all persons dying on or after 2005, such taxes came “due” in 2015 at the time the legislature passed the amendment and not earlier. Accordingly, we reverse and remand to DOR for it to refund the Estate the interest it paid in 2010 and interest on that interest, consistent with RCW 83.100.130(1). Osborne v. Dep’t of Revenue, 2019 Wash. App. LEXIS 437, *11-12, 2019 WL 949432

Rathbone v. Rathbone 190 Wn.2d 332 (Wash. 2018) 412 P.3d 1283:  Decedent died, appointing her son, Todd, as personal representative via a nonintervention will.  The will contained the following no contest provision:

5.4 NO CONTEST PROVISION. My Personal Representative and Trustee shall have the authority to construe this Will and trusts and to resolve all matters pertaining to disputed issues or controverted claims. I do not want to burden my Estate or any trust with the cost of a litigated proceeding to resolve questions of law or fact…..

… [A]ny person, agency or organization who has, or who may have, a present, future, or contingent interest in this Will or any trust set forth herein or in the trust property, will by his contest (i.e., a contest, dispute or other legal proceeding commenced without the consent of my Personal Representative or Trustee) forfeit any interest which he, his issue has or may have. My Estate shall be distributed and any trust will continue thereafter as if the person, agency, or organization were deceased or dissolved. I specifically desire that my son, Glen, and his children, do not contest, challenge, or harass my Personal Representative and Trustees.

The will also left a piece of property to Todd’s brother, Glen, but granted Todd the right of first refusal to purchase the property for $350,000. Todd exercised that right and purchased the property, paying the estate $350,000. Todd then included the $350,000 in the residuary estate, which he divided evenly between himself, Glen, and another brother, consistent with the residuary bequest in their mother’s will.

Glen disagreed with Todd’s interpretation of the will as requiring the $350,000 to be added to the residual estate, rather than paid to him (Glen) in full. He filed suit under RCW 11.68.110 seeking court approval of his brother’s fees and an accounting. He also filed a separate TEDRA petition asking the court to find that the distribution of the $350,000 was not consistent with the terms of his mother’s will. The trial court granted Glen’s petition, construing the will to mean that he should have received the full $350,000 from Todd’s purchase of the property.

Todd appealed on the basis that the court did not have authority to construe the will. The court of appeals affirmed, and the matter was appealed to the Washington Supreme Court.

The Supreme Court reversed, finding that the will expressly granted Todd, as personal representative, rather than the court, “the authority to construe this Will and trusts and to resolve all matters pertaining to disputed issues or controverted claims.” It held that the remedy for addressing claims arising against the personal representation of a nonintervention will is found in RCW 11.28.250. See RCW 11.68.070. That statute “allows heirs to invoke a superior court’s authority to remove or restrict the powers of a personal representative for failing to comply with his or her fiduciary duties. This limited remedy strikes a balance between judicial supervision of personal representatives to ensure compliance with the will’s directions and the testator’s intent that courts not be involved in the administration of a nonintervention estate.”

Portmann v. Heard 2 Wn.App.2d 452 (Div. II, 2018) 409 P.3d 1199:  This case involved whether Cross and Morse, long-time domestic partners who owned several properties together, had agreed to execute “mutual wills.” Cross and Morse both executed wills in 1992 and in1995. Those wills “had similar provisions and generally provided that upon the death of the testator, the remainder of the estate would pass to the surviving partner. The wills also provided that upon the survivor’s death, the remainder of the survivor’s estate would be divided between Cross’s family members and Morse’s family members.”

Cross and Morse revised their wills in 1998. Cross signed his will in January of that year. Morse said that he wanted more time to consider his estate plan. In September of that year, Morse executed a will with a slightly different survivorship provision than was included in Cross’s 1998 will.

Morse died in 2000. Cross executed revised wills in 2002 and 2005, reducing the size of his bequests to Morse’s family members with each revision. In 2010 he executed another will that left nothing to Morse’s family. Cross died in 2015, and his 2010 will was admitted to probate.

One of Morse’s family members filed a TEDRA action “to specifically enforce the distribution of the remainder of the estate in Cross’s 1998 will and to invalidate inconsistent portions of Cross’s 2010 will.” The relative argued that Cross and Morse had agreed to execute mutual wills and that Cross’s 1998 will became irrevocable after Morse died in 2000. The trial court ruled that the relative had not demonstrated a genuine issue of material fact that Cross and Morse had agreed to execute mutual wills and denied the petition.

The same attorney had drafted all Cross’s and Morse’s wills. He provided a declaration stating that Cross and Morse had never expressed an intent to execute mutual wills. Just the opposite, they had discussed that they each wanted to have autonomy about how to leave their estates. He also said that, if there had been an agreement to execute mutual wills, then he would have included a statement expressing this intent in the wills.

Morse’s family member provided several declarations. One of them was from the husband of a family member and stated that Cross and Morse had expressed an intent to recognize each other’s families in their wills. The court struck portions of this declaration under the Deadman’s Statute and as hearsay.

The court of appeals began by noting that “[m]utual wills are two wills that are ‘executed pursuant to an agreement between two individuals as to the manner of the ultimate disposition of their property after both are deceased.'” (quoting Newell v. Ayers, 23 Wn. App. 767, 769, 598 P.2d 3 (1979)). It contrasted “mutual wills” with “reciprocal wills” that “are two wills that are similar or identical but are executed ‘with no intention that the wills shall be mutual in the sense that neither will can be revoked.'” (quoting Auger v. Shideler, 23 Wn.2d 505, 509, 161 P.2d 200 (1945)).

The intent to execute mutual wills can be expressed in the wills themselves or it can be agreed to orally. Oral agreements are disfavored. Washington courts have adopted the test that the proponent of an oral agreement to execute mutual wills must present evidence to “establish to a high probability that the claimed agreement existed,” meaning that the agreement must be established with “clear, cogent, and convincing evidence.”

The court of appeals found that the trial court properly excluded portions of the declaration presented by Morse’s relative. The court found that the evidence presented did not establish that there was a high probability that Morse and Cross actually entered into an agreement to execute mutual wills-which was the central question at issue on appeal. The evidence suggesting that the wills could be “mutual wills” also suggested that they could be non-binding “reciprocal wills.” This, coupled with the evidence that the wills were not intended to be mutual-such as the testimony of the attorney that drafted the wills, the fact that they were executed at different times, and the fact that the wills did not expressly state they were intended to be mutual led the court of appeals to find that the trial court correctly dismissed the claims asserted in the TEDRA petition. It also imposed a fee award against Morse’s relative for bringing the petition.

Harris v. Griffith 2 Wn.App.2d 638 (Div. I, 2018): (Insurance Defense Attorneys Defending an Estate in a Wrongful Death Matter Cannot Take a Position Adverse to the Personal Representative Unless They Comply with RPC 1.9.) “An insurance defense lawyer who files a notice of appearance on behalf of an estate may not, after withdrawing from representation of the estate, later act on behalf of another client to remove the personal representative of the estate.”

A 16-year-old driver crossed the center line and hit another vehicle. Both drivers were killed. The personal representative of the deceased driver of the second vehicle sued both the teen driver and his parents for wrongful death.

The teen’s parents, through their insurance-company-appointed defense counsel, sought to be appointed as personal representatives of his estate. The plaintiff in the wrongful death matter objected, saying that the parents had a conflict of interest and asked that a well-known plaintiffs’ attorney, Brad Moore, be appointed personal representative of the teen’s estate instead of his parents. The insurance company attorney filed a motion for revision of the decision and refused to provide Moore with “any sensitive case information.” Additional attorneys appointed by defense counsel eventually appeared on behalf of “the estate” of the teen.

The teen was found liable as a matter of law on summary judgment, and plaintiff moved to dismiss his parents from the case without prejudice. Moore and plaintiff’s counsel then agreed to have the matter heard in private arbitration over the objection of defense counsel.  The court granted the request to move the matter to arbitration.

Appointed defense counsel then withdrew as counsel for the teen’s estate, but informed the court that they represented his parents. The parents then moved to intervene in the wrongful death action and to stay the arbitration until a final decision came down on the motion for revision regarding Moore’s right to serve as personal representative. The court granted both motions over plaintiff’s objection. The parents then filed a TEDRA petition to remove Moore as personal representative, which was consolidated with the motion for revision of the order appointing Moore.

Plaintiffs alleged that the appointed defense counsel could not continue to represent the teen’s parents because doing so conflicted with their prior representation of Moore, in violation of RPC 1.9. Appointed defense counsel said that RPC 1.9 did not apply because Moore was not their former client. The trial court found that Moore was a former client and held that defense counsel was disqualified from representing the teen’s family and taking a position adverse to Moore.

The court of appeals upheld this decision, finding:  The appellants argue that the “estate” was their client but Moore was not. This argument is untenable. In probate, the attorney-client relationship exists between the attorney and the personal representative of the estate.

A lawyer appointed by an insurance company to defend two clients, and who files a notice of appearance on behalf of each of them, may not continue to represent only one of those clients without satisfying the requirements of RPC 1.9. [Defense counsel] could not continue to represent only the [teen’s] parents without Moore’s waiver of the conflict. Because [defense counsel] did not comply with the rule, the order disqualifying them was properly entered.

A Committed Intimate Relationship Can Exist in the Absence of Sexual Fidelity or Sexual Activity Between the Partners.

Muridan v. Redl 3 Wn.App.2d 44 (Div. II, 2018) 413 P.3d 1072:  Murdian and Redl were involved in a six-year relationship, during which they lived together, had a child, shared household expenses, and were engaged to be married. The court found that a committed intimate relationship (“CIR”) existed even though Murdian and Redl did not have a sexual relationship for the last four years of the CIR and Redl had an affair and became pregnant by her affair partner during the relationship.

“As the trial court correctly observed, a couple can be ‘quite intimate and on the level of marriage [despite] not necessarily hav[ing] a sexual relationship.'” “Evidence of infidelity weighs against a court’s determination that the unfaithful party intended to form a CIR, but is not solely determinative.”

Estate of Maiuri 2 Wn. App. 2d 1010 (Div. III, 2018, UNPUBLISHED):  (Formal Notice of Probate Must be Provided to Estate Beneficiaries, but the Beneficiaries’ Rights to Relief Could be Limited if they Received Actual Notice of the Probate and Delayed in Filing Suit.)  Decedent died in 1995. Her will was admitted to probate, but the personal representatives did not give notice to all beneficiaries of the pendency of probate. The personal representatives then proceeded to distribute the estate’s property in a manner that was not consistent with the will and failed to give all beneficiaries notice when probate was completed in 1996.

In 2002, the beneficiaries who had not received notice of the probate were informed that they had been named in the will and were given a portion of the bequest that was due to them.  In 2003, they signed an acknowledgement stating they had received the full benefits allowed them under the will. One of the beneficiaries said that he signed the acknowledgement because the estate’s attorney told him that there was nothing further available for him and he would have to get an attorney if he wanted more.

In 2015, 19 years after the decedent’s death, the beneficiaries who had received notice filed suit due to failure of the personal representatives to provide them notice of the probate. “They asked the court to (1) reopen the estate, (2) set aside the declaration of completion, (3) remove [the] co-personal representatives, (4) appoint [themselves as] successor co-personal representatives, (5) order [the personal representatives] to file an accounting, (6) order [the PRs] to disgorge estate assets unlawfully received and compensate the estate for assets wasted, and (8) award [their] attorney fees and costs to be paid by [the personal representatives].”

The trial court held a show cause hearing at which it set aside the declaration of competition and ordered the original personal representatives to provide an accounting. After the personal representatives provided the accounting, the court held a two-day trial to determine whether the beneficiaries were entitled to any additional relief. Following the trial, the court found that he mistakes made by the personal representatives were the result of carelessness and over-reliance on legal counsel, rather than fraud. The court also found that, although the beneficiaries did not receive formal notice of the probate, they did have actual notice of it, and it was not reasonable for them to wait 13 years after receiving actual notice before filing suit.

The beneficiaries appealed, alleging that the trial court erred by re-appointing the personal representatives, re-closing the estate, finding the request to re-open the estate to be time barred, ruling that the beneficiaries were barred from further recovery from the estate based upon the acknowledgements they had signed in 2003, and refusing to award them attorneys’ fees and costs.

The court of appeals first determined that the trial court did not err in re-appointing the original PRs. Under RCW 11.28.250, a trial court is authorized to remove a personal representative when he or she

has wasted, embezzled, or mismanaged, or is about to waste, or embezzle the property of the estate committed to his or her charge, or has committed, or is about to commit a fraud upon the estate, or is incompetent to act, or is permanently removed from the state, or has wrongfully neglected the estate, or has neglected to perform any acts as such personal representative, or for any other cause or reason which to the court appears necessary.

Removal of a personal representative is in the discretion of the trial court, RCW 11.68.070, and must be supported by evidence in the record. The court found no abuse of discretion in the trial court’s decision to re-appoint the original personal representatives.

With regard to the finding that the beneficiaries had waived their rights under the will, the court of appeals found that the signed acknowledgements provided sufficient evidence to support this claim. Thus, the beneficiaries were barred from seeking additional recovery under the will. Accordingly, the trial court correctly re-closed the estate because there was nothing further to be done.

The appellate court held that the trial court made a single error when it found that the re-opening of the estate was time barred. The court found that a void decision need not be set aside “within a reasonable time,” but can be set aside “at any time.” However, it found this error to be harmless because it was not the only basis for the trial court’s decision.

In re Verah Landon Testamentary Tr., No. 76007-6-I (Div. I, June 11, 2018, as corrected on denial of reconsideration June 4, 2018, UNPUBLISHED):  (Even a non-beneficiary, non-creditor, co-LLC owner can have standing in a TEDRA proceeding.)  A testamentary trust owned part of a valuable LLC, and another party owned half the LLC. The half-owner asserted he had standing to participate in proceedings to discharge the trustee and pay their fees and appoint a successor trustee. The commissioner and Superior Court (on motion for revision) that he had no standing, presumably because he was not a beneficiary of the Trust. The Court closely analyzed who is a “party of interest” for purposes of RCW 11.96A. It analyzed Toland and Becker re participants in TEDRA agreements, drawing particular attention to the wording in the statute that the analysis is of the “particular proceeding,” not the trust or probate as a whole. The court found that because the LLC would be affected by the results of the proceedings, the half-owner of the LLC was a party of interest. The Court noted that the trustee is the “sole undisputed member of a member managed LLC”, which is significantly more than the trust simply having a financial interest in the trust, so the discharge and appointment of the trustee has a “substantial effect on the LLC’s operation.”

Matter of Estate of Westall, 4 Wn.App.2d 877 (Div. II, 2018) 423 P.3d 930:  (Executors can sell property that’s been bequeathed to others. And, think carefully before invoking jurisdiction.)  Paul Westall’s wife bequeathed her half of the community property to a special needs trust for their daughter Destiny, with her brother as Trustee. After her death, though the brother was nominated Personal Representative, the Court appointed co-PRs: Westall for the community property and the brother for the separate property, both with nonintervention powers. After the wife’s death, Westall lived in a building they had owned that was commercial on the lower level and residential above, with a view of Gig Harbor. Both Westall and the trust offered to purchase the other’s half of the property, but they disagreed over valuation. Westall’s final offer was based on an appraisal obtained by the trust, but he received no response. Westall then filed a motion to sell the estate’s one-half interest in the property to himself based on the trusts’ most recent appraisal, seeking Court approval to avoid the appearance of a conflict of interest. The trust requested the Court instead order that the property be listed for sale to receive offers to determine the fair market value, which the trial court did. Westall appealed.

The Court found:

Because Westall invoked the Court’s authority by filing a motion seeking Court approval of his actions, the Court had jurisdiction over the issue. (In a footnote citing Rathbone, the Court points out that in the context of nonintervention estates, “jurisdiction” and “authority” are synonymous.)

It was within the Personal Representative’s authority to sell the estate’s one- half interest that had been bequeathed to the trust. The Court examined the powers given to Personal Representatives to sell property, including RCW 11.98.070(15) which gives a Trustee powers to “select any part of the trust estate in satisfaction of any partition or distribution, in kind, in money or both”, and noted that a personal representative is given a trustee’s powers under RCW 11.68.090(1). The Court weighed those powers against the vesting statute, RCW 11.04.250, which states that a decedent’s title to property vests immediately in his or her heirs or devisees. The Court found that the Personal Representative’s ability to sell property controls. The holding was based on a close read of the statutory sections, but also an examination of Jones, a 2004 case in which the state supreme court held that executors control estate property during administration, and that heirs may not treat estate real property as their own.

The Court noted that because the Court’s jurisdiction was invoked, Westall needed Court approval to sell the property. The implication appears to be that if jurisdiction had not been invoked, Westall would have had authority to sell himself the property without any involvement of the Court.

A personal representative’s sale of estate property to himself is not necessarily a breach of his fiduciary duties. The court analyzed both executors’ and trustees’ fiduciary duties and found that a sale for full market value, or a sale approved by the Court, would not be a breach. In a petition for permission such as Westall’s, the Court said, the trial court may evaluate whether a sale breached the executor’s fiduciary duties as one of the factors in whether to approve the sale.

The Court noted that the typical remedy for an executor’s breach of fiduciary duties is removal, or restriction of nonintervention powers. However, that remedy was not available here as no petition for removal or restriction had been filed.

The trial court did not err in denying Westall’s motion for permission to sell the property himself at the value set by the trust’s most recent appraisal, because evidence showed there was uncertainty regarding the true market value of the property.

The Court had the authority to order that the whole of the real estate be listed for sale, even the half that was Westall’s community property, because the Court has jurisdiction over the entirety of the community property, including the one-half interest owned by, and confirmed in, Westall. RCW 11.02.070. And, Westall had invoked the Court’s jurisdiction regarding the property, and once jurisdiction was invoked, the Court has plenary powers under RCW 11.96A.020(2) to “administer all matters concerning the estate’s assets.” And, the Court was not actually ordering the property be sold, but only that it be listed for sale.

Gourde v. Gannam, 9 Wn.App.2d 625 (Div. II, 2018) 417 P.3d 650:  (Res judicata bars heirs from bringing an action after probate is closed.)  Decedent Mr. Gourde left Ms. Gannam a life estate in his home, with the remainder to his sons. Gannam, the Personal Representative, filed a declaration of completion, and a week later recorded a deed giving herself the life estate. The sons timely objected, arguing that the deed was missing a term from the Will (that the life estate would also terminate if she abandoned the property for six months) and asking for an accounting.

They wrote to Gannam stating they would withdraw the objection and not contest anything further if she re-recorded the deed with corrected language. She did so.

Ten months later, the sons filed a declaratory judgement action against Gannam, alleging that the deed was in error because the Will bequeathed the home to Gannam, but not the underlying real estate, which should have passed to the sons through the residue. Gannam cross-filed for summary judgment arguing res judicata, estoppel and waiver.

The Court analyzed res judicata first (and last). It found that res judicata applies to claims that were or might have been litigated in a prior action, and when there has been a final judgment on the merits in the prior suit. It found that a declaration of completion is equivalent to a final judicial decree when there is no petition for accounting. The sons’ letter stating there would be no further contest if she re-recorded the deed to reflect the will language, and Gannam’s doing so, meant their petition for accounting had been withdrawn. Therefore, the declaration of completion was effective. Res judicate also only applies if the cases involve the same cause of action and the same parties, and the Court found that both were the case.

Matter of Estate of Meeks, 4 Wn.App.2d 255 (Div. III, 2018) 421 P.3d 963:  (The will reformation statute cannot be used to import the testator’s later-expressed wishes into a will.)  Lloyd and Mabel Meeks had a revocable living trust with a bypass or credit trust and a marital trust. The full trust Agreement became irrevocable after the first death, but the surviving spouse retained a limited power of appointment over the bypass trust. It could be exercised for lineal descendants (they had one child, Mary), or tax-exempt organizations. At Lloyd’s death, all the couple’s assets were in the trust, and should have been retitled into the bypass trust (though that didn’t happen). Mrs. Meeks met with their estate planning attorney to change some of the couple’s gifts, including reducing some, adding new beneficiaries, and leaving assets to Fred Hutchinson for breast cancer research. Rather than preparing a new will or codicil exercising her power of appointment, the attorney prepared a first amendment to the trust, which she executed.

A few years later their daughter died, and Mrs. Meeks returns to the attorney to make more changes, including a $100,000 college scholarship fund for working single mothers and a gift to the University of Washington to research the form of cancer that had affected her daughter. The attorney prepared a second amendment to the trust, which she executed.

After Mrs. Meeks’ death, her Personal Representative/Successor Trustee sought judicial determination of the validity and enforceability of the trust amendments. Fred Hutchinson appeared. It argued that the court should reform the trust, on the theory that the Meeks’ hadn’t intended it to be irrevocable, or, alternately, to conform with the trustor’s charitable intents. Or, alternately, that the court should reform the Will to conform with Mrs. Meeks’ clearly expressed intentions. The trial court found that the trust was irrevocable, but it reformed the will to exercise her power of appointment in favor of the charities listed in the second amendment to the Trust.

The Court of Appeals agreed with the Successor Trustee’s argument that the will reformation statute, RCW 11.96A.125, is not intended to give the court the power to circumvent the Will execution statutes. The statute is intended to give the court the power to reform a will to conform to the testator’s intent in executing the will, not to import intent from another occasion.

The Court noted that if there had been proof the irrevocability clause had been an error, perhaps the trust could have been reformed to allow the amendments. Or, if the second trust amendment had been executed with the formalities required of a codicil, the trial court could have concluded that it was a codicil, and that it exercised Mrs. Meeks’ power of appointment. However, neither of these was the case.

In re Estate of Reid, 401 P.3d 437, 200 Wn.App. 137 (Div. II, 2017):  Adopted-out children are not beneficiaries in wrongful death claims. The mother of three children, one of whom was adopted by his grandparents at birth, died in circumstances that led to a wrongful death settlement. The adopted-out child argued he was entitled to inherit because the wrongful death statute, RCW 4.20.020, does not define the term “child”. The COA disagreed, reading the law in harmony with adoption statutes and probate statutes to conclude that an adopted-out child is not a statutory beneficiary of her or his natural parents. This is in best interest of adopted children, the Court said, to give them a fresh start, as well as contributing to finality and a stable home.

Estate of Roe, No. 34545-9-III (Div. III, July 27, 2017 UNPUBLISHED):  Writing “loan” on a check doesn’t necessarily make it a loan. After the father of four children died, the mother wrote 14 checks to two of her children, totaling about $45,000, and writing the word “loan” on each. After the mother’s death, the executor sibling sought to have the “loans” offset in probate. The younger siblings filed a TEDRA action asking that the loans be characterized as gifts. The Court agreed that they were “not sufficiently memorialized to qualify as loans.” A different, older loan to a sibling was more clearly documented, including additional evidence that was submitted with a motion for reconsideration. The COA instructed the trial court to weigh the late-submitted evidence in evaluating whether that loan had been forgiven.

Lazar v. Kroncke, 862 F.3d 1186 (9th Cir. 2017):  Divorce revocation statutes do work. Mr. Kroncke established an IRA in 1992 naming his then-wife as beneficiary; they divorced in 2008: his son tried to claim the IRA after his father’s death in 2012; Charles Schwab froze the account. Revocation-on-divorce clauses can be held unconstitutional because the Contracts Clause of the U.S. Constitution bars states from “impairing the Obligation of Contracts.” U.S. Const. art. 1, § 10, cl. 1. The Ninth Circuit, however, said that IRAs have two parts: contractual and donative. The contract includes the terms of service and actual services; the donative includes beneficiary designations. The state statute didn’t affect the contract part of the IRA, so it didn’t violate the Contracts Clause. Washington’s revocation-on-divorce statute for nonprobate assets is at RCW 11.07.010. Nonprobate assets are defined at RCW 11.02.005, which does include IRAs.

Estate of Johnson, No. 34315-4-III (Div. III, July 13, 2017, UNPUBLISHED):  Helpful explanations of Dead Man Statute and court’s authority in TEDRA. Decedent executed Will to give majority of his estate to friend/girlfriend/business partner/caregiver, excluding his five children. The Will was not probated because the estate was small, but two decades later it was discovered he owned valuable mineral rights in another state. The beneficiary began an action to admit a copy of the Will to probate. The case is useful for its thorough analysis of the Dead Man Statute as it applies to testimony, and the court’s authority in initial hearings under TEDRA, as well as the standards for admitting a will copy. Regarding the Dead Man Statute (or dead man’s statute, RCW 5.60.030), the Court points out it only bars an interested party from testifying about a transaction with the Decedent or words or acts involving the transaction. “Thus, an interested party can still testify about a range of matters, as long as they do not concern a specific transaction with the decedent or reveal a statement made by the decedent.” Regarding TEDRA’s initial hearing on the merits, it can be final, but if the court finds a genuine issue of material fact at that hearing, it can resolve that issue any way it seems proper, including holding an evidentiary hearing on any particular issue. It notes that this is expressly authorized in 11.96A.100(10), but that the court’s plenary powers (11.96A.020(2)) also helps. (Note also that the Court exercised its discretion to award fees against the challengers.)

Estate of Ackerley v. Dep’t of Revenue, 187 Wn.2d 906 (Wash. 2017) 389 P.3d 583:  In determining the taxable estate for Washington residents, the Supreme Court has held that, even though Washington does not have a gift tax, an estate must include federal gift tax paid within three years of the date of death.

Barry Ackerley died on March 21, 2011. In 2008 and 2010, Mr. Ackerley made substantial gifts and, as a result, paid federal gift taxes in the amount of approximately $5.5 million. Following his death, his Personal Representative filed a federal estate tax return and, in accordance with IRC § 2035(b), included in his federal taxable estate the gift tax paid three years prior to his death. The Personal Representative also filed a Washington estate tax return; however, in determining Washington’s taxable estate, the Personal Representative chose not to include the tax paid on pr    ior gifts on the return. Washington’s Department of Revenue (“DOR”) issued a notice of assessment for tax due on the tax paid. The Estate petitioned for a review in the Thurston County Superior Court, which court held that Ackerley’s Estate owed the tax. The case was certified to the Washington Supreme Court for direct review.

The Court analyzed the legislative intent in creating Washington’s stand-alone estate tax to determine whether the legislature intended the federal taxable estate and the Washington taxable estate to be identical. The Court first turned to Washington’s definition of “taxable estate,” as codified in RCW 83.100.020(15), which defines the taxable estate as “the federal taxable estate”, which is further defined as the taxable estate as determined under chapter 11 of the Internal Revenue Code. Because the federal taxable estate, under chapter 11 of the Internal Revenue Code, include tax paid on gifts made within three years of the Decedent’s date of death, the Court held that Washington’s taxable estate must also include such tax.

The Court next turned to a Washington Tax Practitioner’s favorite analysis – what is the definition of a “transfer” for estate tax purposes. As you may recall, when last we left the Supreme Court on this issue, in In re the Estate of Hambleton (181 Wn.2d 802, 810, 335 P.3d 398 (2014)), the Supreme Court opined that because the estate tax is an “excise tax”, the tax must be imposed on transfers of the taxable estate. For that reason, the Supreme Court reviewed the broad definition of the term transfer to determine whether gift tax paid on a transfer is a “transfer” within the description of the word.  The Court noted that it has rejected a narrow interpretation of the word “transfer” and instead has found that the estate tax is an excise tax upon the happening of an event, namely, death, where the death brings about certain described changes in legal relationships affecting property. Because the gift tax paid is included in the “single transfer that occurs to the entire taxable estate upon death”, the Decedent’s estate was required to include the tax paid in the determination.

In re Estate of Patton, 1 Wn. App. 2d 342, 405 P.3d 205 (Div. III, 2017)

Patton had received a home loan from Countrywide, which was secured by a deed of trust on his home. Bank of America purchased Countrywide and became the beneficiary under the deed of trust.

Patton died intestate, and a guardian was appointed for his only heir, a minor. Probate was opened, and Patton’s brother was appointed personal representative. The estate did not make any payment on the home loan. Patton’s brother petitioned for, and the court granted, limited non-intervention powers, based on the assertion that the estate was insolvent because the principal amount of the home loan exceeded the total estate assets.

Two creditors-Bank of American and the City of Union Gap-filed  creditors  claims. The estate recorded two notices of costs of administration for attorneys’ fees and guardian ad litem fees. The personal representative petitioned the court for approval of the sale of the home and for permission to pay the attorneys’ fees and guardian ad litem fees.

The trustee of the deed of trust sent notice that the bank was going to conduct a nonjudicial foreclosure sale of the home. “Bank of America opposed the [e]state’s petition seeking approval of the Estate’s sale of the residence and the [e]state’s proposed distribution of sales funds. Bank of America contended that RCW 11.76.110 did not establish any order of payment from a deed of trust sale because the bank, under RCW 11.40.135, could realize on its security independent of the probate process.”

The estate withdrew the request to sell the home, but it maintained its request that estate administration fees be paid from the proceeds from the sale of the home prior to paying Bank of America. “The Estate argued that RCW 11.76.110 created a super priority lien on all decedent’s assets in favor of administration expenses.” The probate court ruled in favor of the estate.

The appellate court reversed the probate court’s decision. The court of appeals considered four statutes when reaching its decision: RCW 11.40.135, 11.76.110, 11.96A.160, and 61.24.080.  “RCW 11.76.110 establishes an order of payment priority for estate debts, with the cost of administration holding first urgency[, but] does not mention to what sources of estate revenue the order of priority extends, let alone declare that the list of priority applies to proceeds from the sale of the decedent’s secured property by  the secured creditor.”  Although “Chapter 11.40 RCW governs claims against an estate[, u]nder RCW 11.40.135.provisions of the chapter do not impact the right of a creditor to realize on its security.[because] the creditor may foreclose on its collateral without filing a claim and engaging in the estate administration  process.” RCW 11.96A.160 provides that a court may appoint a guardian ad litem who is then entitled to reasonable compensation for his or her fees. Finally, the deed of trust act provides that the trustee “shall apply the proceeds of the sale” to the expenses of the sale, the obligation secured by the deed of trust, and the “interests in, or liens or claims of liens against the property eliminated by sale under this section shall attach to the surplus in the order of priority that it had attached to the property, as determined by the court.” RCW 61.24.080.

The court found that the statutes likely did not conflict, but if they did, then RCW 61.24.080 was the only one that “exclusively addresses distribution of funds from proceeds of a deed of trust nonjudicial foreclosure sale.” As a result, the appellate court found that the proceeds of the sale were required to satisfy the debt to Bank of American before being used for any estate administration expenses.

In re Estate of Blowers, 74932-3-I (Div. I, October 2, 2017, UNPUBLISHED):  (A Personal Representative Appointed in Another State Can Pursue a Wrongful Death Matter on Behalf of the Estate in Washington.)  Blowers, a resident of Florida, died in a car accident in Washington, leaving behind a minor child. Blowers died intestate, and the wrongful death action was the sole asset of her estate.

Her fiancé opened probate in Washington and was appointed personal representative with full non-invention powers and without bond for purposes of pursuing the wrongful death action for the sole benefit of Blowers’ daughter. Blowers’ fiancé did not initially notify her daughter or her father that he had opened a probate matter in Washington and had been appointed personal representative. In the meantime, Blowers’ father was appointed personal representative of her estate in Florida.  When he learned about the Washington probate action, he moved to dismiss it, arguing that the Florida probate gave him authority to pursue the wrongful death matter in Washington. The commissioner granted the motion, finding no prejudice to Blowers’ daughter by permitting Blowers’ father to pursue the lawsuit because the Florida court would oversee the probate. The commissioner also found that the fiancé did not comply with the requirement that he provide notice of his nonintervention powers.

The fiancé filed a motion for revision, and the judge adopted the findings of the commissioner.  The fiancé appealed.

Blowers’ father argued that the fiancé lacked standing to file the appeal because he was not an “aggrieved party.” The court of appeals agreed, finding that the fiancé did not have the same rights as a spouse under Florida law, and therefore had no right to serve as personal representative. The court also found that the appointment of a Settlement Guardian Ad Litem would protect the rights of Blowers’ child.

Estate of Ottmar 1 Wn. App. 2d 1044 (Div. III, 2017, UNPUBLISHED):  Ottmar and his wife married in 1987. He had one son from a prior marriage. In 2005, Ottmar executed a will leaving half of his estate to his wife and half to his son.

Ottmar became ill and remained in poor health for the remainder of his life. Despite this fact, and that fact that he voiced concerns about distribution of his extensive gun collection after his death, he never sought to change his will.

In January 2015, Ottmar was admitted to the hospital. His wife called his close friend, who was also the attorney who had drafted the 2005 will.

According to the wife, she requested a copy of Ottmar’s will, and the attorney said that he did not have it because he had retired. She also claimed that the attorney said that there was a problem with the will and he suggested she contact a second attorney to correct it.

According to the attorney, although he had retired, he knew how to get a copy of Ottmar’s will and would have done so had the wife requested. He also did not voice any concerns about the will and only gave the name of the second attorney because the wife said Ottmar needed to “get his affairs in order.” There had been no discussion about a new will.

The wife then asked a neighbor if they could recommend an attorney to prepare a will, and the neighbor recommended her son. Operating under the understanding that the 2005 will had been lost, this attorney prepared a new will for Ottmar at his wife’s direction. He never met with Ottmar about his will or discussed it with him, nor was he present when the will was executed.

Ottmar executed the new will in the intensive care unit of the hospital a few days before he died. An attorney, although not the attorney who had drafted the will, was present, and Ottmar’s wife read the will to Ottmar. The attorney who notarized the will asked if Ottmar understood, and he said that he did. At that same meeting, at his wife’s direction Ottmar changed the beneficiary designation on his retirement account so that it named only his wife as sole beneficiary. The 2005 will had provided that his wife and his son would both be equal beneficiaries of this account.

Ottmar’s medical records from his time in the hospital describe a vacillating medical condition. Sometimes he was alert and oriented, other times he was unfocused and confused.

Two days after he signed the new will, Ottmar called his original attorney/friend, but the attorney could not understand what Ottmar was saying, so the call was short. Ottmar’s wife was angry about the call, and she texted the attorney saying that Ottmar had been trying to say goodbye. The attorney asked if he could visit Ottmar, and the wife declined.  Ottmar had refused visitors, and his wife would not let anyone in to see him.

Ottmar died six days after he signed the new will.

The trial court invalidated the will on two grounds: (1) undue influence, and (2) lack of capacity.

The court of appeals considered three factors when analyzing whether it should find a presumption of undue influence: “(1) the beneficiary had an opportunity for undue influence due to the existence of a fiduciary or confidential relationship, (2) the beneficiary’s active participation in procuring the will supports finding the beneficiary caused undue influence, and (3) the resultant will is suggestive of undue influence, due to an unusually or unnaturally large bequest.”

Regarding the first factor, it was undisputed that the wife was involved in all aspects of her husband’s financial and personal affairs when he was in the hospital. This fulfilled the first element.

The court also found significant evidence that Ottmar’s wife was involved in procuring the will. “[She] was not just involved in her husband’s general affairs, she was specifically involved in the preparation and execution of [Ottmar’s] 2015 will. It was [she] who advised [Ottmar] he needed a new will. She selected legal counsel and dictated the new will’s terms.”

The court found that the 2015 will, giving Ottmar’s entire estate to his wife and disinheriting his son, was contrary to his known and long-standing wishes. As a result, there was sufficient evidence that the 2015 will provided for an “unusually or unnaturally large bequest” in favor of Ottmar’s wife.

The appellate court also found that Ottmar’s physical condition in the days before his death made him vulnerable and especially susceptible to undue influence. Accordingly, it found that the trial court had appropriately found that there was a presumption of undue influence, regardless of whether Ottmar lacked testamentary capacity. Because Ottmar’s wife lacked sufficient evidence to overcome this presumption, the trial court correctly invalidated the 2015 will. The court concluded by noting:

It is undisputed that Elizabeth Ottmar was a devoted and loving wife. Given her long marriage to Dennis, it is likely Elizabeth genuinely believed she knew her husband’s mind as well as her own and assumed he would want to leave behind a will less cumbersome than the 2005 document. But whenit comes to someone who is ill and nearly incapacitated, love can sometimes have an undue influence. That is what happened here. The trial court’s order revoking letters testamentary is affirmed.

Estate of Primiani No. 34200-0-III (Div. III May 2, 2017, UNPUBLISHED):  (A Photocopy of a Lost Will Is Admitted to Probate Because It Was Properly Executed and Is Authentic.  Failure to Establish Personal Service on the Personal Representative and Lack of Standing Lead to Possible Enforcement of a No-Contest Clause Against a Beneficiary of the Estate.)  Primiani executed a will in 2008, which appointed her daughter (Anna) as personal representative with nonintervention powers. Primiani’s son (Frank) was the successor personal representative. The will divided Primiani’s property between Anna and Frank.  It also contained the following no contest clause:

In the event that any person shall contest this Will or attempt to establish that he or she is entitled to any portion of my estate or to any right as an heir, other than as herein provided, I hereby give and bequeath unto any such person the sum of one dollar.

Primiani died in 2014. Her will was admitted to probate, and Anna was appointed as personal representative of the estate.

The son filed a TEDRA petition titled: “petition for determination of claims of the estate against Anna and Michael Iliakis, for an accounting and removal of personal representative and for partition of acreage.” The TEDRA petition was filed in the probate, rather than as a separate action. It asked the court to “partition [Primiani’s] real property, sought damages on behalf of the estate from Anna and her husband Michael, alleged violations of the abuse of vulnerable adults act, chapter 74.34 RCW, sought to remove Anna as personal representative, and asserted “[u]ndue influence, misrepresentation, or concealment involving making or execution of [the] Will.” Rather than personally serving Anna with the petition, Frank mailed a copy to her attorney. The estate filed an answer asserting multiple affirmative defenses and seeking to enforce the no contest clause.

Frank’s attorney subpoenaed Primiani’s medical records. The estate objected to the subpoena. It also sent a letter to the medical provider asking it not to produce the medical records until the court had ruled on the objection, sending a copy of the letter to Frank’s attorney. Despite these objections, Frank’s attorney gathered the medical records from Primiani’s provider. The estate moved for a protective order to quash the subpoena and to require Frank and his attorney to destroy or return all of the medical records. The court granted this motion.

Following a hearing, the trial court dismissed the petition because it had not been personally served on Anna, the personal representative of the estate, and did not have standing to assert other claims included in the petition. The court also awarded the estatethe fees and costs it incurred in seeking a protective order for the medical records, finding that the actions of Frank’s attorney has been in bad faith. Finally, the court enforced the no contest clause against Frank.

The court of appeals first addressed the requirement that a will contest be timely and personally served on the personal representative. A will contest must be filed within four months of the will being admitted to probate. RCW 11.24.010. “The four month period is tolled provided the petition is timely filed and the personal representative is served within 90 days of the petition’s filing.” Frank filed the petition one day before the deadline, but he did not personally serve within four months of filing. The appellate court found that the rules for filing and service of a will contest are strictly applied and that substantial compliance is not sufficient. As a result, it upheld the trial court’s dismissal of Frank’s will contest claims.

The court of appeals also upheld the trial court’s ruling that Frank lacked standing to assert claims related to the abuse of vulnerable Primiani as a vulnerable adult and under the Slayer Statute. The court held that only the personal representative-not a beneficiary-can bring such claims on behalf of the estate. See RCW 11.48.010.  Because Anna, not Frank, was the personal representative of the estate, Frank lacked standing to assert these claims.

Turning to the no contest clause, the appellate court held that the trial court did not make findings necessary to support its decision that the clause should be enforced against Frank. No contest clauses are generally enforceable in Washington, but “a no contest clause is inoperable if the challenger brings his or her contest in good faith and with probable cause.” Because the trial court did not enter findings about whether Frank lacked good faith and probable cause when he asserted his claims, the court reversed the enforcement of the no contest clause against Frank and remanded the case to the trial court for further proceedings on that issue.

The court upheld the trial court’s finding that Frank’s attorney obtained Primiani’s medical records in bad faith, finding that there was substantial evidence to support this conclusion. It also found that the award of fees related to the medical records were within the trial court’s inherent authority, and that it had not erred in imposing fees.

Hansen v. Rozgay, Nos. 74636-7-I, 75131-0, 75132-8 (Div. I, October 23, 2017, UNPUBLISHED):  Son (Rozgay) took his parents to update their estate plan in 2010. The attorney drafted a thorough plan that created a living trust, LLC, irrevocable trust and wills, all of which benefited the son and his brother, and disinherited the parents’ two daughters. The parents already had full-time live-in caretakers and early the next year took up residence in a memory loss care unit with dementia. After the mother’s death, one of the daughters (Hansen) learned of the changed estate plan and sought to invalidate theestate plan, restoring the prior plan which benefited all four children equally. The trial court granted the son’s motion for summary judgment dismissing all claims and awarded him attorney fees. The Court of Appeals affirmed in part and reversed in part.

First, the Court of Appeals found that the trial court had erred in finding that expert witness for Hansen, Jullie Gray, an extremely well qualified and experienced social worker, was not qualified to provide expert testimony on capacity and vulnerability to undue influence.3

Second, the Court of Appeals found that the trial court erred in finding that Hansen’s challenge of the validity of estate planning documents (Community Property Agreement, revocable and irrevocable trusts, and a LLC) were will contests time barred by RCW

11.24.010. “The Living Trust, Irrevocable Trust, and the LLC, were all created separate and apart from Barbara’s will and a claim challenging their creation does not require the court to determine issues ‘affecting the validity of’ Barbara’s will.” Hansen v. Rozgay, No. 74636-7-I, 2017 WL 4773441, p. 7 (Oct. 23, 2017) (Westlaw).

Third, the Court of Appeals outlined the levels of capacity necessary for validity of a living trust (testamentary capacity) as opposed to the capacity necessary for validity of an irrevocable trust (which can in effect be an inter vivos gift) and LLC (transactional capacity).

Fourth, the Court of Appeals describes the factors necessary to show undue influence in acquisition of an inter vivos gift (in this case the irrevocable trust). “In reviewing wills and gifts, the most important are: (1) a confidential fiduciary relationship between testator and beneficiary, (2) a beneficiary’s active participation in the transaction, and (3) whether the beneficiary received an unusually large part of the estate.” Hansen v. Rozgay, No. 74636-7-I, 2017 WL 4773441, p. 10 (Oct. 23, 2017) (Westlaw) (citing Kitsap Bank v. Denley, 177 Wn. App. 559, 570-71, 569–70, 312 P.3d 711 (2013); In re Trust and Estate of Melter, 167 Wn. App. 285, 298, 273 P.3d 991 (2012)). The Court goes on to cite precedent pointing out who bears the burden of proving or disproving undue influence. “But if the recipient has a confidential or fiduciary relationship with the donor, the burden shifts to the donee to prove ‘a gift was intended and not the product of undue influence.” Endicott v. Saul. 142 Wn. App. 899, 922, 176 P.3d 560 (2008) (quoting Lewis v. Estate of Lewis, 45 Wn. App. 387,389, 725 P.2d 644 (1986)); White v. White, 33 Wn. App. 364, 368, 655 P.2d 1173 (1982).

Fifth, the Court addresses whether a fiduciary (Rozgay) can defend a charge of breach of duty with uncorroborated conversations with a deceased person to support the actions the fiduciary took and finds Rozgay’s testimony is inadmissible under RCW (the “deadman’s statute”) because the charge is that he improperly withdrew funds for his own benefit.

Matter of Estate of Kangas, 1 Wn.App.2d 1022, No. 49867-7-II (Div. II, November 14, 2017, UNPUBLISHED):  (How to justify a $60,000 Personal Representative’s fee.)  Representative and trustees, handling many issues including timber sales. Along the way the parties signed two settlement agreements, including one in which one of the couple’s sons released and discharged any “claims, loss, liability, accounting or damage, whether known or unknown” against the other brother regarding management and administration of the estates. The son who released the claims died and his son replaced him in the probate. In 2016, ready to close the probate, the surviving son petitioned for approval of PR fees of $30,000, and professional fees of $30,000 for managing the timber sales. His nephew objected. The trial court awarded the fees, and the COA, on review, analyzed cases that state that Personal Representatives should be reasonably compensated, as well as the release in the settlement agreement, plus a persuasive affidavit from a timber company owner who stated that the PR did indeed bring expertise to bear on the timber sales. The COA found that the trial court did not abuse its discretion in awarding the fees.

In re Estate of Muller, 47013-6-II (Div.  I, 2017, UNPUBLISHED):  Addressing various procedural and evidentiary issues (Dead Man Statute) related to will contest and undue influence.

In re Estate of Collister, 195 Wn. App. 371, 382 P.3d 37, 2016 (Div. II, 2016):  Holding- A testator may direct the distribution of life insurance proceeds payable to the testator, his or her estate, or his or her personal representative.  Where proceeds are payable to PR in personal capacity, they are not controlled by will.  In order to distribute such assets by will, the testator must leave them to the PR in his or her capacity as executor of the estate.

In re Estate of Mower, 193 Wn. App. 706, 374 P.3d 180 (Div. II, 2016):  Analysis of RCW 11.12.051 provision revoking testamentary distributions to former spouses.  Those provisions no not automatically apply to revoke gifts to a former spouses family members.  Disinheritance of former spouse under statute does satisfy the condition precedent (ie in the will the death of the spouse) to place the right to inherit upon the residual beneficiaries.

In re Estate of Hook, 193 Wn. App. 862, 374 P.3d 215, (Div. I, 2016):  Will not “executed” under RCW 11.12.020 until the occurrence of the last formal act necessary to make the will valid.  Although the testator and one witness signed the will in Arizona, the second witness signed in Washington.  Therefore, the will was executed in Washington, not in Arizona.  The will is not valid in Washington because the second witness did not sign in the testator’s presence.

In re Estate of Langeland, 195 Wn. App. 74, 380 P.3d 573 (Div. I, 2016):  Attorney fees paid by estate pursuant to court order are subject to later disgorgement by court of appeals where underlying decision of the trial court is later overturned.

Estate of Berto v. Dep’t of Soc. & Health Servs., 195 Wn. App. 128, 379 P.3d 146, (Div. III, July 19, 2016):  Under the facts of this case, a testamentary (MESH power) trust is an available resource for determining Medicaid eligibility.

Triplett v. Dep’t of Soc. & Health Servs., 193 Wn. App. 497, 373 P.3d 279 (Div. III, April 21, 2016):  Concerning State’s duty to protect in situation where individual who was voluntarily admitted to state care facility died due to possible negligence of the facility.  PR of decedent sued the State of Washington and individuals as “State Actors.”  Held, summary judgment denying state immunity as to the individual “State Actors” is affirmed.

In re Estate of Barnes, 185 Wn.2d 1, 367 P.3d 580 (Wash, 2016, January 28, 2016):  Will invalidated by trial court due to Undue Influence.  Trial court found that there was testamentary capacity, but invalidated due to undue influence.  COA in unpublished decision determined that the trial court did not enter findings demonstrating undue influence but instead relied solely upon the presumption of undue influence, and therefore remanded the trial court decision.  Issue before Supreme Court was whether trial court findings of fact sufficient to support the conclusions of law.  Supreme Court reaffirms and details analysis of Dean v. Jordan factors raising presumption of undue influence.  Held “the appellate court’s role is to review findings supporting the conclusions the trial court did reach, not look for evidence supporting an alternate conclusion the court could have reached.”  Held: Mere suspicion of undue influence (and the rebuttable presumption) is not enough, rather the contestant must establish undue influence by producing direct or circumstantial “positive evidence.”   The Court of Appeals erred, and the decision of the trial court that the presumption of undue influence was not sufficiently rebutted, and that there was sufficient positive evidence of undue influence to invalidate the will, was upheld.

Porter v. Boisso, 188 Wn. App. 286, 354 P.3d 892 (Div. III, June 16, 2015):  A creditor of a decedent’s estate who is notified by the personal representative of rejection of his claim is required by Washington’s nonclaim statute to bring suit within 30 days, failing which his claim is forever barred.  RCW 11.40.100.  The statute provides that the personal representative’s notification of rejection “must advise the claimant that the claimant must bring suite in the proper court against the personal representative within thirty days.”  Id.  These consolidated cases involve a creditor’s claim filed in a Kittitas County probate that was dismissed because the holder of the claim filed his post rejection lawsuit in the Superior Court for Pierce County.  Held: claims for relief asserted in Pierce County were subject to the nonclaim statute, the proper court in which to assert them was the superior court.  Issue was one of venue, not “proper court” and motion to transfer venue from Pierce to Kittitas counties should have been granted.

In re Estate of Lowe, 191 Wn. App. 216, 361 P.3d 789 (Div. III, 2015):  Action challenging the administration of a decedent’s estate. In particular, the plaintiff challenged the personal representative’s disposition of silver bars and silver coins that had belonged to the decedent. The personal representative retained the silver and liquidated a portion thereof per the decedent’s written instructions giving the personal representative the discretion to distribute “any and all silver coins and bars” as the personal representative “shall determine or to retain for himself.”  Holding that the trial court did not abuse its discretion by denying the plaintiff’s motion to amend his complaint, that the trial court properly refused to remove the personal representative, that the silver bars and coins were properly retained and liquidated by the personal representative per the decedent’s written instructions because they constituted precious metals and not normal currency or legal tender for purposes of the statute authorizing the disposition of personal property by a separate writing referred to in a will, and that attorney fees were properly awarded by the trial court, but that attorney fees would not be awarded on appeal in the discretion of the court, the court affirms the judgment and denies an award of attorney fees on appeal.

Estate of Ray Merle Burton, 189 Wn. App. 630, 358 P.3d 1222 (Div. II, August 24, 2015):  A decedent’s former assistant and caretaker claimed that he was willed the decedent’s estate under testamentary documents that were drafted and signed by the decedent at different times and that were witnessed and signed by separate individuals. The decedent’s cousin and legal heir moved for an order declaring that the decedent died intestate.  The Court held that the decedent’s testamentary documents did not constitute a valid will because they did not satisfy statutory attestation requirements, the court affirms the trial court’s order.

Estate of Lundy v. Lundy, 187 Wn. App. 948, 352 P.3d 209 (Div. I, July 1, 2015):  A decedent’s estate sought to recover retirement benefits that were distributed to the decedent’s former wife after his death. The estate based its claim on a state statute providing that the designation of a spouse as the beneficiary of a nonprobate asset is automatically revoked when the marriage is dissolved. The decedent’s retirement plan was governed by the federal Employee Retirement Income Security Act.  The Court held that the federal law preempted the state-law-based claim for recovery of the pension benefits distributed to the former spouse, the court reverses the judgment.

GUARDIANSHIP

Guardianship of Ursich v. Ursich, 448 P.3d 112, 10 Wn.App.2d 596 (Div. I, 2019):  The Court ruled that the best interest standard was appropriate when a court ordered that Ms. Ursich reside with her father rather than her mother, and that the substitute judgement standard applied in medical treatment cases was not applicable non-medical decisions by the Court.  The Court also found that it was not a violation of Ms. Ursich’s liberty and autonomy to limit her contact with her mother given the facts of the case.  The the trial court did not abuse its discretion in reaching that conclusion.

In re Guardianship of Black, 7 Wn. App.3d 1077 (Div. III, March 14, 2019, UNPUBLISHED):  Lori Sorensen, the guardian of the person of Anna May Black, petitioned for Ms. Black’s trust to pay for attorneys’ fees Ms. Sorensen incurred. The attorneys’ fees in question were incurred by Ms. Sorensen’s attorney in representation of Ms. Sorensen. The superior court denied the request for payment of fees from Ms. Black’s trust and the Court of Appeals affirmed on the basis that the attorney represented Ms. Sorensen, not Ms. Black and because Ms Sorensen inappropriately inserted herself into the affairs of the estate of Ms. Black when she had no interest as the guardian of the person in estate affairs.

Ms. Sorensen was appointed as the guardian of the person of Ms. Black in 2015 after Ms. Black was determined to be incapacitated and in need of assistance in personal matters. The superior court made a specific finding that no guardianship of the estate was needed in this case because Ms. Black’s estate was held in a Living Trust for her benefit and managed by the Trustees of that Trust. Despite that finding, Ms. Sorensen continued to engage with her attorney, Mr. Buckholdt, to discuss issues and disputes regarding the Trust.

The Trust was the subject of a lawsuit and mediation between Ms. Black’s children and a Guardian ad Litem was brought on to advocate for Ms. Black’s interest in the dispute. Ms. Sorensen argued that no GAL was necessary because she should represent the interests of Ms. Black in any mediation. The superior court disagreed and a GAL was appointed.

The GAL asked that Ms. Sorensen attend the mediation and suggested that her attorney, Mr. Buckholdt, attend as well. Mr. Buckholdt send a mediation letter ahead of the mediation which addressed many issues that were not the subject of the mediation and also attended the mediation. The mediation resulted in a settlement which included: “The Trust will pay the fees of Lori Sorensen to attend this mediation and the costs and fees of Richard W. Perednia [the GAL] to the end of this mediation. Fees of Lori Sorensen’s counsel will be submitted and if approved paid by James P. Spurgetis.” In re Guardianship of Black, 2019 Wash. App. LEXIS 618, *15, 2019 WL 1222964. Mr. Buckholdt then forwarded his fee invoice for all attorney’s fees and costs, in the amount of $33,377,78, to the trustee and GAL, but redacted all descriptions of the work performed. When the trustee attempted to obtain copies of the sealed invoices in order to respond to the request, Ms. Sorensen directed that the fee invoices should not be released ot any party, but did not withdraw her request for payment.

Trustee filed a motion to unseal, which was granted by the superior court, which also imposed sanctions of $500 against Ms. Sorensen and Mr. Buckholdt. After the invoice was disclosed, the trustee argued that Ms. Sorensen’s authority as guardian of the person was limited by RCW 11.92.043, that Ms. Buckholdt actually represented Ms. Black, and that Mr. Buckholdt had a conflict of interest because of his prior representation of Ms. Blackin a related matter. The superior court found that Mr. Buckholdt’s client was Ms. Black, not Ms. Sorensen and that Ms. Sorensen acted outside the scope of her guardianship powers and therefore lacked the authority to incur $33,377.78 in fees on behalf of her ward.

Ultimately the court concluded the following for guardians of the person:

The guardian of the person does not have the authority to represent the individual’s interest in litigation. That is the duty of a trustee or GAL.

The guardian of the person does not have the authority to hire an attorney to represent the individual without prior court approval.

Despite this ruling in the first year, Ms. Sorensen sought an order requiring the trust to pay for Mr. Buckholdt’s fees incurred during the second year of the guardianship in the amount of $50,924.96. Most of these fees were for services performed by Mr. buckholdt in attempting to recover fees incurred in the first year of the guardianship.

The sole question on appeal is whether the trial court committed error when denying both of Ms. Sorensen’s applications for payment, from living trust assets, of attorney fees incurred to Mr. Buckholdt. Ms. Sorensen argued that the statutory law governing guardianships does not require court approval to hire an attorney and incur legal fees during the course of the guardianship.

The court found that “[t]wo fatal flaws permeate Lori Sorensen’s contention. … First, the superior court found that William Buckholdt represented Anna May Black, not Lori Sorensen. Therefore, under RCW 11.88.045(2), Sorensen or Buckholdt needed to obtain court approval before the incurring of fees. Second, Sorensen seeks payment for fees for services incurred when acting beyond her authority as guardian of the person.” In re Guardianship of Black I, 2019 Wash. App. LEXIS 618, *24, 2019 WL 1222964.

The court affirmed the denial of Ms. Sorensen’s request for the trust to pay attorney’s fees and granted the opposing party reasonable attorney fees and costs against Ms. Sorensen on appeal.

In re Guardianship of Christopher Junk,197 Wn. App. 1001 (Div. 2, Dec. 6, 2016, UNPUBLISHED):  GAL’s recommendation re trustee fees should be weighed along with Powell factors. Christopher Junk is a beneficiary of a special needs trust established with settlement proceeds as the result of debilitating injuries suffered in a fall from a tree in 1998 when he was eight years old. RBC Trust Company was appointed Trustee. RBC oversaw the trust investments and delegated investment duties to UBS Financial Services, Inc. The trust allowed the Trustee to receive compensation “in accordance with the [t]rustee’s schedule of fees, applying to trust accounts of this kind at the time such services are rendered,” and that the court is to review and approve fees paid to any professional trustee. The trust also authorized the trustee to hire others who are “reasonably necessary for the management of the [T]rust” and to compensate them “as the [t]rustee shall determine to be proper.”

From 2009-2013 the court approved the fee schedules for RBC and UBS. In 2014, the court sua sponte appointed a GAL to review the trustee’s report, including fees and costs. The GAL recommended that the fees be reduced. The superior court reduced RBC’s fees.

The Appeals court reversed and remanded to the superior court. They ruled that RBC’s fees were consistent with the fee schedule in the trust agreement, and that the superior court should have considered the five factors from In re Trust Estate of Powell, 68 Wn.2d 38, 41, 411 P.2d 162 (1966)1 when considering reasonableness of the fee schedule. However, the Junk court noted the following (in a footnote):

We note that RBC also argues that the trial court erred by relying on the GAL’s recommendation regarding the reasonableness of the fee schedule in the trust agreement. A superior court has the discretion under RCW 11.88.090(1) and 11.96A.160(1) to appoint a GAL as an agent of the court in order to protect the interests of the incapacitated person. Matthews, 156 Wn. App. at 210. A GAL is not a formal expert, but may be appointed as a nontraditional expert in a guardianship case. In Re Guardianship of Stamm, 121 Wn.App. 830, 837-38, 91 P.3d 126 (2004). A superior court has discretion under ER 702 to permit a GAL to testify to his or her opinion if the court is persuaded that the GAL’s testimony will assist the court. Stamm, 121 Wn. App. at 837.

Here, the superior court did not abuse its discretion in appointing the GAL to offer a recommendation regarding the reasonableness of the fee schedule in the fee agreement. However, in further proceedings regarding the reasonableness of the fee schedule in the trust agreement, the superior court may only rely on the GAL’s recommendation in so far as the superior court is persuaded that the GAL’s testimony will assist the court in evaluating the five Powell factors.

Junk, 2016 WL 7104041 at *4, n. 5.

In re Guardianship of Jensen, 187 Wn.App. 325, 350 P.3d 654 (Div. II, 2015):  In order to avoid statutory apportionment of estate taxes, a trust instrument must contain specific intent for the trust to carry the entire estate tax burden.

Leon Jensen established the Jensen Family Trust and appointed his daughter, Jo, as trustee. When Leon died in 2011, 60.02 percent of his property was held in the Trust and the remaining 39.98 percent was held in pay-on-death (POD) accounts. The Trust property was to be distributed in equal shares to Jo, Judy Barrett, Jodi Wicks, and Chad Jensen. The POD accounts were payable to Jo, November Papaleo, and Chad. Leon’s will provided that all inheritance, estate or other death taxes attributable to the estate be paid out of the residue of the probate estate. The Trust was responsible for any taxes attributable to the Trust. At the time of his death, however, there was no property in the probate estate; rather, Leon’s entire estate was comprised of the Trust property and the POD accounts.

The Trust provided that the Trustee may pay any federal or state taxes arising by reason of Leon’s death before distributing the principal. Jo then paid the estate taxes attributable to the Trust and the POD accounts from the Trust.  While all beneficiaries agreed that Trust assets could be used to pay taxes owed by the Trust, they disagreed about the POD accounts.  Judy, Jodi, and Chad then filed a petition for apportionment of estate taxes attributable to the POD accounts under TEDRA. The trial court ruled that because neither the will nor the trust specifically provided for apportionment of estate taxes and the POD accounts, RCW 83.110A.030 applies and the estate taxes owed by the POD accounts should be apportioned pro rata. Further, the court rejected Jo’s argument that lifetime gifts made from Leon’s assets are not subject to the estate tax apportionment under Washington law.To avoid statutory apportionment, the trust instrument must contain a specific intent for certain property to carry the entire estate tax burden. The Court of Appeals found that the plain language of the Trust did not express a specific intent for the Trust to pay the estate taxes attributable to non-Trust property. Therefore, statutory apportionment was appropriate and the trial court’s decision was affirmed.

In re Marriage of Lane, 188 Wn. App. 597, 354 P.3d 27 (Div. 1, 2015):  The issue here is whether a guardian ad litem in a dissolution proceeding had the authority to waive the rights of an incapacitated person to trial of disputed issues. The court of appeals held that a guardian ad litem did not have the authority to enter into an agreement over the incapacitated spouse’s objections and waive her right to a trial on the disputed issues in the dissolution proceeding.

The court concluded that while a guardian ad litem was properly appointed to the incapacitated spouse and could act in her best interest in the litigation; her authority did not extend to waiving the substantial rights of the incapacitated spouse, including her right to trial. The court of appeals reversed the trial court’s entry of dissolution.

In re Guardianship of Decker, 188 Wn. App. 429, 353 P.3d 669 (Div. II, 2015):  The issue here is whether a commissioner’s adjudication that an elderly woman was incapacitated was sufficient under the guardianship statute. The court held that the commissioner’s findings on the record constituted an adjudication of her incapacity under the guardianship statute.

The court reasoned that even though the elderly woman consented to the guardianship and there was no adversarial trial as to her capacity, the commissioner’s hearing on the record, findings of fact and law, and ruling that she was incapacitated within the meaning of RCW 11.88 constitutes an adjudication under the guardianship statute.  The court further concluded  that this adjudication authorized the trial court to reduce the elderly woman’s attorney’s preadjudication attorney’s fees.

The court of appeals affirmed the trial court, and the Supreme Court of Washington denied review. See In re Guardianship of Decker, 184 Wn.2d 1015 (2015).

In re Guardianship of Cornelius, 181 Wn. App. 513, 326 P.3d 718 (Div. III, June 2014):  Disruptive and combative mother can be removed as the guardian of an adult incapacitated child; mother did not have constitutionally protected interest in time with child, and there is no substantive due process violation when newly appointed guardian limited the time mother could spend with the ward, if it is in the “best interest” of the ward.

In re Disciplinary Proceeding against Petersen, 180 Wn.2d 768, 329 P.3d 853 (Wash, July 2014):  Professional guardian challenged Certified Public Guardianship Board’s sanction of one year suspension and two year probation based on complaints from wards placed in adult family homes.  Supreme Court found that disciplinary delegation to the Board did not violate the separation of powers doctrine, there was no violation of the appearance of fairness doctrine despite claims that the members or Hearings Officer had vendettas, and that the proper evidentiary standard for disciplinary hearing for guardians remains a “preponderance” of the evidence, and not clear and convincing standard. The Court did remand back to the Board to make an explicit “proportionality” inquiry to determine if the sanctions are overly harsh compared to other disciplinary sanctions previously given others.

In re Estate of Alsup, 181 Wn. App. 856, 327 P.3d 1266 (Div. III, June 2014):  After a ward passed away, the personal representative contested the validity of the ward’s marriage and will. The court confirmed that appointment of a guardian does  not  conclusively establish lack of capacity to execute a will,  rendering summary judgment improper, and requiring further proceedings to determine capacity of the deceased. The PR also had no standing to challenge the marriage after the death of the spouse, also noting that there was no fraud, since the guardian was aware of the marriage for 8 years before the death of the ward.

Onewest Bank, FSB v. Erickson, 337 P.3d 1101 (Div. III, November 2014):  When a 90-year old man sought to qualify for Medicaid payments for heart surgery, he (and his daughter) obtained legal advice for the daughter to sue the father for failing to deliver her share of her mother’s estate assets to her (he hid the will that would have done so). She commenced the action, and as a result her father transferred property including the residence they both lived in to the daughter.  Another son residing in Idaho sought to have the transfers reversed, and started an action in Idaho to be appointed guardian or conservator; the Idaho court appointed a conservator who thereafter purported to encumber the Spokane residence by mortgages. The court found that the Idaho court lacked authority to approve a mortgage on property in Washington State, that the conservator’s deed of trust was invalid, and dismissed the bank’s claim made under the encumbrance documents executed by the out of state conservator.

Raven v. Department of Social and Health Services, 177 Wn.2d 804, 306 P.3d 920 (Wash, 2013):  Guardian’s decision not to pursue or place ward in nursing home against ward’s wishes cannot be the basis of a finding of neglect under RCW 74.34.020(12), given the Legislature’s clear mandate against placing incapacitated persons against their will.

FACTS:  Ida became bedbound in 1996, at the age of 75, after a fall fractured a bone in her knee. Ida suffered from several serious and debilitating conditions, including muscle contractures that locked her legs in a splayed position, severe and chronic pain, incontinence, rheumatoid arthritis, dementia, and hallucinations. Bedsores became a significant and recurrent medical issue after Ida become bedbound.

After her fall, this pattern continued, as Ida demonstrated resistance to medical care and was violent, hostile, and uncooperative with her caregivers, including her husband, her daughter, and caregivers from Catholic Community Services (CCS). Ida consistently refused to be placed in a nursing home or other long term care facility, rejected traditional medical treatments, and expressed a preference to die at home. An adult protective services (APS) report in 2001 found that Ida, a retired nurse, had a long history and lifestyle pattern of independence and reliance on naturopathic and alternative medicine.

In 2004, at the age of 83, Ida was adjudicated incapacitated. Resa Raven, a licensed mental health counselor and a newly certified professional guardian, was appointed Ida’s limited guardian of person. Ida was Raven’s first appointment as a certified professional guardian. As Ida was a Medicaid client, Raven was allowed fees of up to $175 per month for her services as a guardian.

Raven reviewed Ida’s history, spoke with Ida’s family, and determined that Ida, when competent, consistently refused to be placed in a nursing home or other long-term care facility. Accordingly, Raven consented to a plan of care that kept Ida in her home. Ida’s personal care continued to be provided by CCS, which contracted with DSHS through DSHS’s agent, Thurston County Area Agency on Aging (AAA).

In the fall of 2005, Assured Home Health and Hospice (Assured) began overseeing Ida’s medical care. In November 2005, Assured suggested that the reemergence of Ida’s pressure sores were caused in part by CCS’s caregivers not turning Ida enough. The problem was exacerbated by Ida’s reluctance to repositioning, staffing shortages, the necessity that two people turn Ida, and concerns that Ida’s husband was not consistently administering Ida’s pain medication.

After a care conference in January, 2006, it was agreed that CCS would embark on a more aggressive turning program with training from Assured staff. In addition, a request to DSHS for more personal care hours was granted in February or March 2006.  In early 2006, Ida’s AAA case manager discussed with Raven the possibility of hiring independent care providers as a way of filling gaps in CCS’s care staffing.1 Raven decided against this option because she did not feel equipped to supervise such providers.

In May 2006, Assured quit because Ida’s husband was not consistently administering medication, and without consistent administration of Ida’s pain and anxiety medication, Ida’s behavior became too combative for Assured staff to manage. When Assured quit, Ida also lost  her primary care physician.

After Assured quit, Raven petitioned the Thurston County Superior Court for instruction. The Court advised Raven to seek an out-of-home placement, and to retain an attorney to petition the court for authority to fire CCS or compel Ida’s caregivers (including her husband) to adhere to her plan of care. Ida did not pursue either.

In August 2006, Raven secured a new hospice team from Providence Home Care/Hospice (Providence) and a physician for Ida. At the time Providence joined Ida’s care team, Ida had no bedsores, even though during this time she did not have all of her care hours filled. But by November 15, 2006, Ida’s condition had deteriorated and she had several very serious bedsores.

Between November 15 and December 14, 2006 Raven had several calls with Providence’s medical social worker about Ida’s bedsores, though Raven did not go to see Ida. Raven told the social worker that she would support Ida being taken to the hospital if that was the social worker’s recommendation. The social worker suggested to Raven that Ida needed 24– hour nursing home care. Raven did not disagree, but explained that she did not believe she could authorize such a placement against Ida’s wishes. Raven suggested that they attempt to have Ida involuntarily committed through a designated mental health provider (DMHP). An immediate referral was made to a DMHP, but the DMHP concluded Ida did not fit the criteria for involuntary commitment.

On December 14, 2006, a severe winter storm hit and both Raven and Ida’s homes were without power for several days. Raven was unable to call out on a telephone or leave her house for several days. Ida’s condition took a turn for the worse, when her special mattress deflated. At some point just after the storm, the Providence social work contacted APS to see if APS could arrange 24–hour care for Ida. On or around December 29, an APS investigator made contact with Ida and determined her condition warranted emergency care. With Raven’s consent, on December 30, Ida was admitted to the hospital. CCS gave notice it was terminating its services, and Raven consented to have Ida transferred to a temporary rehabilitation treatment center on January 8, 2007. Although she stabilized at the treatment center, Ida died on April 24, 2007.

PROCEDURAL HISTORY:  DSHS made a substantiated finding that Raven had neglected Ida, based a pattern of conduct that constituted neglect.

After a five-day administrative review hearing, the administrative law judge reversed the finding of neglect.

DSHS Board of Appeals review judge reversed, made a finding of neglect.

Court of Appeals reversed, affirmed DSHS Board of Appeals decision, and concluded that the neglect finding was proper, because Raven declined to pursue placement for Ida in a residential setting: “In failing to aggressively pursue transitioning Ida from home care to residential care, Raven was not balancing Ida’s wishes against her medical needs; rather, she was allowing Ida’s historical opposition to residential care to override her critical medical needs.”2 Raven argued that the Court of Appeals decision amounted to a mandate that guardians must institutionalize their wards against their will and preferences, or risk neglect findings.

Washington Supreme Court reversed.

DISCUSSION:

Under the Abuse of Vulnerable Adults Act, Chapter 74.34 RCW, neglect is defined, in relevant part, as:

a pattern of conduct or inaction by a person or entity with a duty of care that 1. fails to provide the goods and services that maintain physical or mental health of a vulnerable adult, or that 2. fails to avoid or prevent physical or mental harm or pain to a vulnerable adult

RCW 74.34.020(12)(1)(a) (numeration added)

The DSHS review judge affirmed the finding of neglect on the grounds that Raven’s conduct met the criteria under both prongs of RCW 74.34.020(12)(1)(a).

Critically, the Supreme Court noted, DSHS found that Raven made a good faith determination that Ida would not choose out-of-home care, and the Supreme Court said that it could not second guess this unchallenged finding of fact. The Court held that in light of the legislative mandates set forth at RCW 7.70.065 and RCW 11.92.190, Raven’s good-faith determination that an out-of-home placement is contrary to Ida’s wishes cannot serve as the basis for a finding of neglect. “(I)n matters of consent, though a ward may choose a course of action that would strike many as unreasonable, if the guardian can determine that the ward would choose such an action if competent, the guardian is bound to advocate for that position.”

Citing the Washington Supreme Court’s decision in Ingram, in which the Court was tasked with determining what factors lower courts should consider in determining whether an incompetent person must submit to a life prolonging or curative treatment, the Court confirmed that the “goal is to do what the ward would do, if she were competent to make the decision.”

The Court based its conclusion on the Legislative mandates found at RCW 7.70.065(1)(c) and RCW 11.92.190.

RCW 7.70.065(1)(c) provides the standards for substitute decision making for informed consent, which require that the authorized decision maker “must first determine in good faith that that patient, if competent, would consent to the proposed health care.” If that determination cannot be made, the decision-maker must act in the best interests of the incompetent individual.

RCW 11.92.190 sets forth the prohibition that a guardian cannot place an incapacitated person in a residential care facility against the incapacitated person’s will. Thus, the Court concluded Raven could not have placed Ida in a nursing home against her will, unless she has been involuntary committed under chapters 10.77, 71.05, and 72.23 RCW.

The Court concluded Raven acted consistently with both RCW 7.70.065 and RCW 11.92.190 by not pursuing the placement of Ida in a nursing home contrary to Ida’s wishes. The Court found that Raven’s decision to have Ida remain at home and receive care was the arrangement least restrictive to Ida’s freedom and asserted her rights.

Did Raven’s failures under the CPG Standards amount to neglect?

The conduct of certified professional guardians is governed by the Standards of Practice Regulations for certified professional guardians (CPG Standards). The DSHS review judge evaluated the claim of neglect within the context of the Standards governing residential placement decisions, informed consent for medical care, in-person contact with the incapacitated person, acknowledging and remedying the limits of one’s expertise, and a duty to step aside as guardian so that someone could be appointed who would supervise independent providers.

The DSHS review judge concluded, based on the review of the CPG Standards, that once Raven committed to in-home care for Ida, Raven had a duty to ensure Ida’s needs were met in the home, that Raven failed in her duties, and that these failings resulted in neglect.

The Supreme Court held that the review judge erred in its findings, based on the Standards, that Raven failed a duty to ensure Ida accepted the care provided to her, and that Raven failed a duty to pursue independent providers for Ida. The Court flatly rejected DSHS’s position that the Standards impose upon guardians a duty to ensure their wards accept the care provided to them, as the imposition would set up an “untenable standard for guardians akin to strict liability.”9 The Court also rejected that the Standards implied that a guardian has a duty to resign as guardian so that a more qualified guardian could step in.

The Court upheld the review judge’s determination that substantial evidence supports the conclusions under the CPG Standards, that Raven (1) failed in her duty to adequately research and regularly review Ida’s residential options, (2) failed in her duty to become and stay informed as to Ida’s medical needs, and (3) failed in her duty to make meaningful, in-person contacts with Ida that allowed her to observe Ida’s circumstances and interactions with caregivers.

However, the Court held, Raven’s “shortcomings as a guardian” do not sustain a finding of neglect under RCW 74.34.020(12)(a).

Under the first prong (conduct which fails to provide the goods and services to maintain health), the Court explained that Ida was offered the goods and services that were reasonably available to her, in the setting least restrictive to her freedom and in accordance with her wishes.

At the Superior Court, the Guardian’s request for attorney fees, made under the Equal Access to Justice Act, RCW 4.84.350 was granted. The Supreme Court reversed that award, and denied the Guardian’s request for attorney fees on appeal, finding that DSHS’s petition alleging neglect was substantially justified.

Guardianship of Morse, 175 Wn. App. 1061 (Div. II, 2013, UNPUBLISHED):  Richard Morse appealed the order appointing a limited guardian of his person and a full guardian of his estate, arguing that the trial court erred by appointing counsel for the guardian ad litem and by allowing counsel to participate during his guardianship trial.

In re Guardianship of Hays, 176 Wn. App. 1009, 2013 WL 4607075 (Div. I, August 26, 2013, UNPUBLISHED):  Rebecca Castilleja filed a petition for guardianship with respect to her father, Arthur Hays. Mr. Hays opposed the petition, supported by one of his sons, while his other son supported Ms. Castilleja. After a six day bench trial, a guardian was appointed for Mr. Hays’ estate. Ms. Castilleja was awarded her attorney fees and costs in the amount of $380,592, with the court-appointed guardian being authorized to apportion payment of the fee from “the guardianship estate and/or any other asset/entity in which Mr. Arthur Hays has a beneficial interest.”

RPC 1.5(a) provides: A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following: the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; the fee customarily charged in the locality for similar legal services; the amount involved and the results obtained; the time limitations imposed by the client or by the circumstances; the nature and length of the professional relationship with the client; the experience, reputation, and ability of the lawyer or lawyers performing the services; whether the fee is fixed or contingent; and the terms of the fee agreement between the lawyer and the client, including whether the fee agreement or confirming writing demonstrates that the client had received a reasonable and fair disclosure of material elements of the fee agreement and of the lawyer’s billing practices.

Mr. Hays argued that consideration of several of the factors would have resulted in the conclusion that the fees awarded were excessive.  The Court of Appeals disagreed, noting that the Washington Supreme Court, in McNeary v. American Cyanmid Co., 105 Wn.2d 136, 143, 712 P.2d 845 (1986) held that the factors of RPC 1.5(a) “should be used as guidelines.” The Court of Appeals continued, quoting Mahler v. Szucs, 135 Wn.2d 398, 433, 957 P.2d 632 (1998):

“[C]ourts should be guided in calculating fee awards by the lodestar method in determining an award of attorney fees as costs. This methodology can be supplemented by an analysis of the factors set forth in RPC 1.5(a) which guide members of the Bar as to the reasonableness of a fee.” RCW 11.96A.150 governs attorney fee awards in guardianship proceedings. It states: “In exercising its discretion under this section, the court may consider any and all factors that it deems to be relevant and appropriate.”        Because no authority requires the trial court to make findings demonstrating that it considered the factors in RPC 1.5(a), we find no error in its failure to do so.

Having concluded that attorney fee awards begin with a lodestar analysis, which can, but are not required to, be supplemented with an analysis of the RPC 1.5(a) factors, the opinion described the lodestar method. Quoting from McGreevy v. Or. Mut. Ins. Co., 90 Wn. App. 283, 291-92, 951 P.2d 798 (1998):

To apply the lodestar method, the court considers first the number of hours reasonably expended on the matter. “The attorneys must provide reasonable documentation of the work performed.”  This documentation must include at least

the number of hours worked, (2) the type of work performed, and (3) the category of attorney who performed the work. The court does not need to conduct an hour-by-hour analysis of each lawyer’s time sheets, so long as the court provides a consideration of the relevant factors and reasons sufficient to review the amount of the fee award. “The awarding court should take into  account the hours spent on unsuccessful claims, duplicated effort, or otherwise unproductive time.”

The Court of Appeals noted that a party proposing a deviation from the lodestar amount bears the burden of justifying the departure, citing Bowers v. Transamerica Title Insurance Co., 100 Wn.2d 581, 598, 675 P.2d 193 (1983).

The Court of Appeals also affirmed an award of fees to the prevailing party in the fee dispute, noting that RCW 11.96A.150 had abrogated the rule adopted in prior cases (most notably in In re Estate of Larson, 103 Wn.2d 517, 694 P.2d 1051 (1985)) that “an attorney in probate is not entitled to additional fees for attorneys and experts in proving the reasonableness of his fee in the final report.” In noting that RCW 11.96A.150 superseded Larson, the Court of Appeals cited to an Iowa Supreme Court case, In re Estate of Bockwoldt, 814 N.Wn.2d 215, 225 (Iowa 2012).

Finally, the Court of Appeals awarded Ms. Castilleja all of her fees incurred on appeal:

Because Castilleja is the prevailing party, she filed the petition for guardianship in good faith, the guardianship benefitted Hays, and she did not file the petition out of personal interest or for personal gain, we award her costs and attorneys fees under RAP 18.1 and RCW 11.96A.150.

Raven v. Department of Social & Health Services, 167 Wn. App. 446, 273 P.3d 1017 (Div. II, 2012):  DSHS found that Resa Raven, limited guardian of Ida, had neglected Ida under RCW 74.34.020 by failing to obtain medical care for Ida. Raven appealed and the administrative law judge found no neglect. The DSHS Board of Appeals upheld the ALJ’s dismissal of two specific instances of neglect, but found that Raven generally committed neglect by failing to ensure that she received the care she needed. Superior court reversed and awarded Raven attorney fees. DSHS appealed. Court of Appeals affirmed the Board of Appeals finding that Raven neglected Ida by failing to ensure Ida’s medical needs were meet under the Abuse of Vulnerable Adults Act, chapter 74.34 RCW. The Court held that although Raven’s duty did not include guaranteeing effective care and treatment, it did require that she make “every reasonable effort to provide the care Ida needed” and Raven failed to meet her duty. The Court of Appeals also rejected Raven’s argument that DSHS had to prove neglect by clear, cogent and convincing evidence, rather than a preponderance of the evidence.

In Re Guardianship of Cobb, 292 P.3d 772 (2012; Div. II);  Siblings of man adjudicated incapacitated and appointed a guardian lacked standing to raise issues on appeal on behalf of their brother, and their appeal was frivolous, warranting sanctions.

Sean Cobb is an adult with developmental disabilities and a severe hearing loss. Sean has six older siblings, Daniel, Christine, Lorraine, Susan, Joyce Cobb, and Dianne.  Sean lived with his mother and Lorraine in Lorraine’s home. Sean’s mother was his caregiver until she died in July 2009.In September 2009, Susan, Joyce, and Christine filed a petition seeking to be appointed Sean’s co-guardians. Daniel filed a cross-petition seeking to be appointed Sean’s guardian. On January 15, 2010, Susan and Joyce withdrew their guardianship petition. Trial occurred on the siblings’ guardianship petitions in February, 2010. At the start of trial, Christine withdrew her guardianship petition and, instead, supported Daniel’s petition. Christine, Lorraine, and Daniel filed objections to the GAL’s final report filed on January 19, 2010.Sean was the final witness called and during direct examination by his counsel, Sean produced a writing that may have included a jury demand. The Judge, Sean’s counsel and Sean discussed whether Sean wanted a jury trial and arrived at the understanding that Sean didn’t actually want a jury trial, as he had repeatedly said he didn’t and that what he wanted was to settle matters with less court involvement.

The trial court concluded that Sean was an incapacitated person within the meaning of chapter 11.88 RCW and appointed Lorraine as limited guardian of his person and estate.

Christine and Daniel filed a CR 59 motion for a new trial. Among other assertions, the motion asserted that Sean was wrongfully denied a jury trial, and that the GAL didn’t’ do her duty. Lorraine filed a CR 11 motion for sanctions against Christine and Daniel’s attorney who filed the motion for a new trial.

Christine and Daniel appeal the trial court’s guardianship determination on Sean’s behalf and its denial of their request for a new trial. The court denied both motions. Christine and Daniel appealed.

The Court Appeals first considered the threshold issue of whether Christine and Daniel had standing to assert issues on Daniel’s behalf. Christine and David had not contended that the asserted errors led to an erroneous incapacity determination or resulted in an erroneous appointment of sister as man’s guardian, and none of the asserted errors implicated man’s ability to protect his interests through his appointed guardian.

The Court held that Christine and Daniel did not have standing to raise those issues on their brother’s behalf.

Finding that the appeal was not based on legal authority or even arguable facts or law, and was done with an apparent lack of research about or knowledge of the proper role of the appellate court, the Court of Appeals imposed sanctions for filing the frivolous appeal.

In Re Guardianship of Lamb, 173 Wn. 2d 173, 265 P.3d 876 (Wash., 2011):  Guardians are not entitled to compensation from the assets of their wards receiving Medicaid services for ongoing political advocacy activities that are neither individualized to serve a particular ward’s best interests nor necessary to perform their guardianship duties.

Certified professional guardians sought compensation for their advocacy services for two wards, clients of DSHS, residing at Fircrest when they filed triennial guardian’s reports. A court commissioner awarded advocacy fees of $150 per month as well as usual guardian fees of $175 per month. The department filed a motion to revise. The Superior Court granted the motion, authorized $75 in extraordinary fees for community outreach, and affirmed the award of usual guardian fees. The guardians appealed, and DSHS cross appealed. The Court of Appeals affirmed in part and reversed in part.

In a related case, In re Guardianship of McNamara, the guardians sought fees for advocacy services. A court commissioner denied the fee requests in excess of the maximum set by regulation, concluding that guardians had not shown that their general advocacy activities benefited the individual residents. The guardians filed a motion to revise, and the Superior Court, denied the motion. The guardians filed a motion for direct review. The Supreme Court granted motion and consolidated the two appeals.

The Supreme Court noted that guardians, who calculated their fee requests for advocacy efforts on behalf of all 28 of their wards residing at Fircrest by dividing their time commitment by the total number of their Fircrest clients, “made advocating for institutional care their primary occupation” (at 193). However, but they are entitled to compensation only if the work was necessary and provided a benefit to the guardianships.

In Re the Guardianship of Loren Stamm v. Crowley and Stamm, 121 Wn. App. 830, 91 P.3d 126 (Div. I, 2004):  Children alleged that their 71-year-old father was incapacitated by alcoholism and dementia and as a result his health, safety, and finances were at risk.

Facts: After the death of Loren Stamm’s wife of over forty years, Mr. Stamm established a relationship with another woman. Mr. Stamm’s six children had a poor relationship with Mr. Stamm’s new significant other. Two of Mr. Stamm’s children commenced a guardianship proceeding and alleged that their father was subject to exploitation and abuse by his significant other. ·Mr. Stamm contested the petition and obtained a court appointed attorney. Mr. Stamm requested a jury trial on the issue of his alleged incapacity. During the trial the guardian ad litem testified that her recommendations depended upon her assessment of the credibility of the people she interviewed and that her role was as ”the eyes and ears of the court.” The jury concluded that Mr. Stamm was incapacitated.  The court appointed a guardian for him.  Mr., Stamm appealed.

Holding: It is prejudicial error in jury trial to allow a guardian ad litem to testify that her role is to assess the credibility of witnesses and to act as the eyes and ears of the court.

Discussion: The decision analyzes the role of a guardian ad litem in a guardianship proceeding. ER 702 is examined. The guardian ad litem is not a traditional expert, but rather an expert on the status of the alleged incapacitated person and the dynamics of his circumstances in order to offer an independent and common sense perspective to the court

OTHER CASES OF INTEREST

Garcia v. Dep’t of Soc. & Health Servs., 451 P.3d 1107 (Div. I, 2019):  Garcia v. Department of Social and Health Services (Division I, 2019): Addresses DSHS’s authority to prevent individuals from serving as a long-term caregiver to either children or vulnerable adults, focusing primarily on RCW 74.39A.056 (Background checks on long-term care workers).

Crosswhite v. DSHS, 389 P.3d 731, 197 Wn.App. 539 (Div. III, 2017):  Verda Lee Crosswhite v. DSHS (Division III, 2017): Addressing issues of abuse of a vulnerable adult as related to DSHS’s interpretation of RCW 74.34.020(2) and the definition of “abuse.”  Addresses definition of “willful,” “knew or should have known,” and other issues related to alleged abuse of a vulnerable adult.

In the Matter of the Disciplinary Proceeding Against Donald Peter Osborne, 187 Wn.2d 188, 386 P.3d 288 (Wash, Jan. 19, 2017 (as amended));  Be careful what you sign. Attorney Donald Peter Osborne was disbarred due to his violation of five RPCs as a result of events involving a will and power of attorney he drafted for an elderly woman. He made himself the residuary beneficiary of her estate, the Personal Representative of her estate, and her attorney-in-fact. The power of attorney did not include authority to make health care decisions. Despite this, Osborne signed a “Physician’s Order for Life Sustaining Treatment” (POLST) on his client’s behalf noting on the POLST that he did not have authority to do so. The court affirmed the Disciplinary Board’s finding that this violated RPC 8.4(c): “It is professional misconduct for a lawyer to . . . (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” Id. The fact that Osborne wrote on the POLST that he did have authority to sign it, did not matter. In fact, it went to show that he knowingly “engaged in an act of dishonesty and misrepresented his authority in writing.” In the Matter of the Disciplinary Proceeding Against Donald Peter Osborne, 187 Wn.2d at 202.

While this violation of RPC 8.4(c) is not the focus of this particular case, it is important to be reminded that despite the pressure a Guardian ad Litem may have from a healthcare facility to make medical decisions for an alleged incapacitated person, he or she does not have the authority, and if the Guardian ad Litem is an attorney, doing so would violate RPC 8.4(c).

Matter of Welfare of Cudmore v. Bolliger , Not Reported in P.3d. No. 32024-2-III (July 12, 2016, Div. III, UNPUBLISHED):  Overzealous representation of vulnerable adult. Attorney John Bolliger appealed entry of an order of protection preventing him from having contact with James Cudmore, an elderly former client with dementia. After only a brief acquaintance with Mr. Cudmore, Mr. Bolliger drafted estate planning documents on Mr. Cudmore’s behalf that made him the attorney-in- fact for Mr. Cudmore and nominated him as personal representative of Mr. Cudmore’s estate. Throughout guardianship proceedings in which Mr. Bolliger was not counsel or a party, he noted and filed motions for the court’s consideration and continued efforts to influence Mr. Cudmore. The Court of Appeals affirmed the trial court’s finding that Mr. Bolliger abused or financially exploited Mr. Cudmore. In a second decision on the same case, the COA affirmed the trial court’s CR 11 sanctions for fees incurred due to “post disqualification meddling … that lacked a basis in law or fact.”

In re Reinterment of Remains of Faenov, 194 Wn. App. 42, 376 P.3d 447 (Div. I, 2016):  In the Matter of the Reinternment of the Remains of Kyril Faenov (2016) : Under the General Cemetery Act, RCW 68.50, the right to control the disposition of human remains, in the absence of evidence of a decedent’s expressed wishes regarding the disposition of that person’s remains, “vests in” an “ordered named” that placed the decedent’s surviving spouse at a higher level of statutory kinship priority than the decedent’s surviving parent.   When a private request for exhumation of human remains is made, a corollary statute provides that the same kinship hierarchy governs the request.

Aiken, St. Louis & Siljeg, PS v. Linth, 195 Wn. App. 10, 380 P.3d 565 (Div. II, 2016):  Action to enforce attorney’s lien under RCW 60.40.010(1)(d).  Aiken attempted to remove trustee and force sale of trust real property to repay lien.  Held: 1) the attorney’s lien extends to any monetary sum beneficiary receives in Trust action, not only to monetary sums in beneficiaries possession; 2) there is no authority for a law firm to replace its former client as the litigant and control the litigation to satisfy its own financial interests by taking a position adverse to its former client’s interests; 3) the amount and reasonableness of the attorney fees owed is a disputed fact that requires a hearing.

Woodward v. Emeritus Corp., 192 Wn. App. 584, 368 P.3d 487 (Div. III, February 9, 2016):  In an action against the owners and operators of an assisted living facility and other individual defendants for negligence, elder abuse in violation of the abuse of vulnerable adult act, and wrongful death, the defendants moved to compel arbitration under a predispute arbitration agreement that was signed by the victim’s attorney-in-fact at the time the victim was admitted to the facility.  The court found arbitration clause substantively unconscionable where claim against home was for negligence involving death of a resident.

State v. Friedlund, 182 Wn.2d 388 (Wash. 2015) 341 P.3d 280;  John Friedlund appealed his conviction and exceptional sentence for the theft of $600,000.00 from an elderly woman in his care.

Pal v. DSHS, 342 P.3d 1190 (Div. II, February 2015);  An Adult Health Care Provider sought to challenge a finding of the DSHS that she had neglected a vulnerable adult in her care; however, her request for a hearing was dismissed by the Administrative Law Judge when she faxed the request after 5 p.m. on the 30th day, and failed to mail it on the same day. The court found that while the hearing request was untimely under the WACs, the DSHS notice did not reasonably apprise her of the deadline, and thus violated due process, and that since the Office of Administrative Hearings (OAH) actually received the faxed request, violation of the mailing requirement did not prevent the OAH from exercising jurisdiction. The court reversed the dismissal of the request for hearing.

State v. Knopp, No. 68937-1-I (Div. I, February 18, 2014, UNREPORTED): Sylvia Knopp was convicted of the theft of cash from the bank account of her mother, Maria Volz, while she had durable power of attorney for Ms. Volz.

Gradinaru v. DSHS, 181 Wn. App. 18, 325 P.3d 209 (Div. I, May 2014);  Caretaker/co-owner of adult family home that took a resident’s morphine to commit suicide committed financial exploitation; any furtherance of a caretaker’s own goals constitutes financial exploitation under RCW 74.34.020(6).

In re Disciplinary Proceeding against Hall, 180 Wn.2d 821, 329 P.3d 870 (Wash, July 2014);  An attorney violated the professional rules of conduct when he drafted estate planning documents for a 91-year old woman, who was mentally competent but was in poor health, naming himself as alternate trustee and health care representative, mandating an $8000 a year fee to act a trustee. The hearing officer found violations of: RPC 1.4(b) in acquiring a pecuniary interest by being in control of a client’s assets without explaining potential conflict; RPC 1.5(a) in charging unreasonable fees of $2000 a quarter to act as trustee; RPC 1.15A(f) by refusing to turn over her file after discharge; and RPC 8.4(d) by threatening the new attorney.  A suspension for 2 years was upheld.

In re Estate of Evans, 181 Wn. App. 436, 326 P.3d 755 (Div. I, May 2014);  A son financially abused his father, and thus was deemed to predecease him, rendering him unable to inherit under RCW 11.84. The son/abuser’s heirs argued for application of the “anti-lapse” statute, RCW 11.12.110, which allows a descendant to take the property of a predeceased heir. The court found that so long as the testator did not intend to preclude operation of the anti-lapse statute, and did not expressly refuse to pass estate assets to his or her lineal descendants, the son/abusers children were entitled to inherit his portion of his father’s estate.

Vernon v. Aacres Allvest, LLC, 183 Wn. App. 422, 333 P.3d 534 (Div. II, September 2014);  A brother of a deceased and severely disabled resident of a residential care facility brought an action under the Abuse of Vulnerable Adults Act following the resident’s death due to hypothermia. Because the deceased was an adult at the time of his death, the court found that the brother, who was not financially dependent, had no cause of action for wrongful death, but that the court improperly dismissed the viable economic damage claim brought on behalf of the estate of the deceased. The brother made unique arguments that limiting the beneficiaries of a wrongful death claim denied the disabled constitutional access to courts, since if they were not minors, they were unlikely to have the required dependents to pursue a claim, but the court rejected that analysis under the clear terms of the wrongful death statutes; he also argued the court should consider the deceased a minor because of his severe disability. (The court did not consider that claim since it was raised for the first time on appeal).

Boyd v. Pandrea, 182 Wn. App. 1033 (2014) (Div. III, July 24, 2014);  The legal notice section of document appointing an attorney-in-fact, citing California law, did not support summary judgment on claim for breach of fiduciary duty because it was drafted separately from the section that described the attorney-in-fact’s powers, and because Washington does not have similar provisions requiring an attorney-in-fact to keep property separate and distinct nor preventing an attorney-in-fact to accept a gift from the principal, when the principal herself is giving the gift to the agent. In addition, a personal representative’s errors or lapses in the handling of an estate, which do not prejudice the estate or the beneficiaries, do not justify removal.

Mary Pandrea and Ethel Boyd are half-sisters; Edith Clark was their mother. The case revolved around Pandrea’s care of Clark during her final years and her exercise of powers under a power of attorney entered into in California and exercised in Hawaii before Pandrea and Clark moved to Washington where litigation ensued.  Specifically, $90,000 of $100,000 Clark inherited from her brother’s estate and deposited into Clark’s checking account, under which Pandrea was a joint holder, was used to purchase a three acre property with a house in Hawaii. The house was placed in Pandrea’s name supposedly to repay her for the work of caring for Clark over the years.

After Clark and Pandrea moved to Washingotn, and while guardianship proceedings were pending, Clark died intestate, survived by seven children. Boyd was appointed administrator of the estate and in that capacity sued Pandrea, alleging breach of fiduciary duty concerning the power of attorney, conversion, and abuse of a vulnerable adult. The trial court granted summary judgment in Boyd’s favor on the breach of fiduciary duties theory, finding that the language of the power of attorney precluded self-dealing, so Pandrea could not accept the gift from her mother. In addition, Pandrea petitioned to remove Boyd as personal representative for alleged failures to file appropriate reports and tax returns, which the trial court denied.

On consolidated appeal, the Court of Appeals’ analysis centered on a Notice to Person Accepting the Appointment as Attorney–in–Fact and the following specific language, which the trial court held was an operative part of the power of attorney, which Pandrea breached in accepting the Hawaii gift:  “You may not transfer the principal’s property to yourself without full and adequate consideration or accept a gift of the principal’s property unless this power of attorney specifically authorizes you to transfer property to yourself or accept a gift of the principal’s property.”

Disagreeing with the trial court, the Court of Appeals reversed, holding that the restrictions did not apply because 1) they were not listed in the section of the document that described the attorney-in-fact’s powers, and 2) Washington does not have similar provisions requiring an attorney-in-fact to keep property separate and distinct nor preventing an attorney-in- fact to accept a gift from the principal, when the principal herself is giving the gift to the agent. Finally, the Court of Appeals remanded to the trial to sort out “numerous factual questions … including any issues concerning Clark’s capacity, whether Pandrea ever exercised the power of attorney, etc.”

The Court of Appeals further rejected Pandrea’s argument that the trial court erred in denying her motion to remove Boyd as administrator, holding that the trial court did not abuse its discretion in failing to remove Boyd:  Although the specific errors and lapses were unclear, “[t]he essence of the trial court’s ruling was that although Ms. Pandrea established errors or lapses by Ms. Boyd in the handling of the estate, there were no errors that prejudiced the estate or the beneficiaries.  We believe that is a tenable ground for denying the motion to remove Ms. Boyd.”

In re Knight, 178 Wn.App. 929 (Div. II, 2014) 317 P.3d 1068:  In a vulnerable adult protective action opposed by the alleged vulnerable adult, the standard for proving whether the alleged victim is a vulnerable adult is clear, cogent, and convincing evidence.  Ms. Dagmar Knight, age 83 at the time of the proceedings, had two living sons, Eric and Tor. Ms. Knight lived in one of three houses on the family estate in Lakebay, Washington. Ms. Knight’s husband died in 2010, leaving his widow four million dollars in a trust managed by Wells Fargo, and $109,000.00 in life insurance proceeds. Tor, who suffers from schizophrenia and has a criminal history, including several assault convictions and an unlawful possession of a firearm conviction, lived in a house 100 yards away from his mother. Eric served as his mother’s attorney-in-fact.

On February 23, 2012, Eric petitioned for a vulnerable adult protection order for his mother against Tor, and also initiated a guardianship proceeding. In his petition for the protection order, Eric alleged Tor was unduly influencing Ms. Knight, financially exploiting her, isolating her, and threatening her physical well-being. In support of his allegations, Eric provided a recent medical report stating Ms. Knight suffered from dementia, 13 declarations from family and close friends, financial records of Ms. Knight, and other documents. The Superior Court entered a temporary protection order on February 23, 2012.

Ms. Knight learned of the temporary order and the guardianship proceeding the next day. Tor took Ms. Knight to an attorney where she revoked Eric’s authority under her power-of- attorney. The temporary order effectively prevented Tor from living in his house, as it prohibited him from coming with 1000 feet of his mother’s residence. Tor was arrested for violating the order.

On March 8, 2012, a Pierce County Superior Court commissioner conducted a hearing on the protection order petition. Ms. Knight, Tor, and Eric were present at the hearing and each was represented by separate counsel. Ms. Knight opposed the protective action.

Ms. Knight and Tor argued that because contested protection order implicated the due process rights of the vulnerable adult, the petitioner must prove the need for the order by clear, cogent, and convincing evidence. Ms. Knight and Tor argued that Eric failed to prove by clear, cogent, and convincing evidence that Ms. Knight is a vulnerable adult or that Eric is an interested person as defined by RCW 74.34.020(10), (17).

No party requested that the Commissioner hold an additional evidentiary hearing under RCW 74.34.135(1), which provides that when the vulnerable adult objects to “the protection sought in the petition, then the court may … order additional evidentiary hearings.”

The Commissioner dismissed Eric’s petition, determining instead that the guardianship proceeding could adequately address the concerns presented and provide the protections needed.

Eric filed a motion to revise the commissioner’s ruling. Prior to the hearing on the motion for revision, no party requested that the court hold an evidentiary hearing. However, at the hearing on revision, Ms. Knight and Tor stated the need to hold an evidentiary hearing. Eric countered that it was at the court’s discretion to hold an evidentiary hearing.

The Superior Court granted Eric’s motion to revise and entered a protection order against Tor. Ms. Knight and Tor filed a motion for reconsideration which was denied. The appealed, and moved for an emergency stay of the entry of the protection order, which was denied.

The Appellate Court noted that the Abuse of Vulnerable Adults Act (the Act) Ch. 74.34 RCW does not state the requisite standard of proof for the entry of a vulnerable adult protection order. However, the Court noted that the intent of the Act is to protect those who are unable to care for themselves and whose physical or mental disabilities place them in a dependent position.

The Court looked to the guardianship statutes by analogy to provide the standard of proof for the entry of a vulnerable adult protection order. The Court began by noting the similar legislative findings of under the Act and RCW 11.88, in that both recognize that some people with disabilities lack the ability to adequately care for and protect themselves. RCW 74.34.005; RCW 11.88.050. From there, the Court examined language of intent regarding the protection of rights found under RCW 11.88, though absent from RCW 74.34: The legislature’s express intent provided at the clause of the first sentence of the statute, “It is the intent of the legislature to protect the liberty and autonomy of all people of this state…” RCW 11.88.050. The Court explained that because the establishment of guardianship for an incapacitated person affects the person’s liberty and autonomy, the legislature specifically stated the standard of proof in a contested guardianship proceeding is clear, cogent, and convincing evidence. RCW 11.88.045(3).

The Court then reasoned that both the Act and the guardianship statutes are “concerned with” vulnerable or incapacitated adults, and that “just as the legislature recognized that  imposing restrictions on the incapacitated person in a contested guardianship case restricts an individual’s liberty and autonomy interests, so too does granting a protection order against the vulnerable adult’s wishes.” The Court concluded that because a contested vulnerable adult protection order case implicates the vulnerable adult’s liberty and autonomy interests as does a guardianship proceeding, the standard of proof for a vulnerable adult protection order contested by the alleged vulnerable adult is clear, cogent, and convincing evidence.

The Court remanded to Superior Court to determine if the petitioner had proved or could prove by clear, cogent, and convincing evidence, that Ms. Knight is a vulnerable adult, but affirmed the order until any modification by the Superior Court.

In the unpublished portion of the decision, the Court addressed Ms. Knight and Tor’s argument that the Superior Court was required to impose the least restrictive conditions possible in issuing the order of protection, and also to consider the impact of the order on the respondent. The Court rejected the arguments, explaining that the Superior Court may issue any order deemed necessary and that the order is issued to protect the best interests of the vulnerable adult, not the respondent.

Hu Yan v. Pleasant Day Adult Family Home, 180 Wn.2d 1003 (Wash. 2014) 321 P.3d 1206;  Husband of deceased resident of adult family home who died after falling at the home, brought action against adult family home, alleging negligence, neglect of a vulnerable adult, and breach of contract.

Goldsmith v. State, Dept. of Social & Health Services, 169 Wn. App. 573 (Div. II, 2012), 280 P. 3d 1173:  DSHS, Adult Protective Services, retained jurisdiction to investigate allegations of son’s mental abuse of his father, a vulnerable adult, after father’s death.

In March 2006, Thomas Goldsmith Sr. (“Thomas Sr.”) executed a durable power of attorney naming a professional fiduciary as his attorney-in-fact. Thomas Goldsmith, cIII (“Goldsmith”) had significant disagreements with the professional fiduciary agency regarding the handling of his parents’ finances. Goldsmith and his father fought and according to one caregiver, these fights caused Thomas Sr. to cry, refuse to take his medication, and otherwise become noncompliant with caregiver instructions. Thomas Sr.’s attorney-in-fact obtained a vulnerable adult protective order which led to an agreed visitation order which required Goldsmith to refrain from discussing finances with his parents.

In the meantime, on October 30, 2008, the Department’s Adult Protective Services program received an allegation that Goldsmith was mentally abusing his father. After an investigation, the Department issued a substantiated finding of mental abuse of avulnerable adult and notified Goldsmith. He requested an administrative hearing. Thomas Sr. died on March 5, 2009, a few months before the June 2009 hearing.

The administrative law judge affirmed the Department’s finding that Goldsmith mentally abused a vulnerable adult.

The DSHS Board of Appeals affirmed the administrative law judge, entering findings of fact and conclusions of law in support of its conclusion that because Goldsmith willfully yelled at and harassed his father and thereby injured him, Goldsmith mentally abused a vulnerable adult.

Goldsmith sought judicial review in superior court, and the court denied his petition for review and his motion to vacate the Board’s review decision and order. Goldsmith appealed.

Goldsmith argued that the Department lost jurisdiction of this action when his father died in March 2009. He argued that the subject matter of the case was his father’s protection and that when his father died, the action ceased to exist.

Relying on RCW 74.34.210, Goldsmith argued that a claim for damages is the only action that survives the death of a vulnerable adult under the Abuse of Vulnerable Adults Act. The Department responded that his argument ignores other provisions of the Act and that RCW 74.34.200 and .210 were irrelevant to the proceedings. Rather, the case involved the investigation of a report of abuse of a vulnerable adult.

The Department asserted that the legislature has identified several purposes for its findings in order to protect the vulnerable adult victim and other vulnerable adults. RCW74.34.005. In addition, the Department argued, the vulnerable adult victim was not  a party to the proceedings, and his death does not deprive either the Department or the courts of jurisdiction to consider an abuse investigation’s outcome.

Brown v. Washington State Department of Social and Health Services, 145 Wn. App. 177 (Div. III, 2008), 185 P.3d 1210;  In October 2004 Laurie Brown worked in a facility caring for developmentally disabled adults. (She had worked as a care provider for developmentally disabled people for over 23 years.) One of the residents (“L”) attempted to kick another resident and then threatened to kill him. A care provider (not Ms. Brown) attempted to calm L down and L hit her. Ms. Brown intervened by pushing L down on her bed and then left the room. L came out of her room and again threatened to kill the other resident. Ms. Brown placed herself between the two residents. L hit and scratched Ms. Brown, and when she called for another caregiver to call 911, L grabbed her wrists. Ms. Brown performed a defensive release move which caused L to fall. L got up and again went after the other resident again. Ms. Brown intervened again by pushing L to the ground and holding her there until she calmed down. Ms. Brown then helped sooth L by doing her hair. L apologized to Ms. Brown, who was treated at a hospital for her injuries.

Following this incident, Ms. Brown’s employer reported her to APS for abusing a vulnerable adult and APS found she had done so. Ms. Brown appealed and the ALJ found in her favor. DSHS appealed to the Board of Appeals, which reversed in favor of DSHS. Ms. Brown then appealed to the Superior Court which reversed in her favor.

DSHS appealed arguing that the Superior Court should have deferred to DSHS’s interpretation of abuse, and that there was substantial evidence of abuse. The Court of Appeals, Division 3, affirmed the trial court.

The Court of Appeal’s analysis of the definition of “abuse” in RCW 73.34.020(2) included a statement that “[B]oth the definition of “abuse” and “physical abuse” require a willful action to inflict injury.” Brown v. Washington State Department of Social and Health Services, 145 Wn. App. at 183. The court went on: “[H]ere, substantial evidence shows Ms. Brown did not willfully injure L.” id. The court relied on case law from Alaska, which has an abuse of vulnerable adult act that is similar to Washington’s, R.J.M. v. State, 946 P.2d 855, 863 n. 9 (Alaska 1997), “[I]f the harm results from improper action, we label the action abuse”. . . “Here, no improper action is shown.” Id.