IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CLAYTON JACOB DANNENMILLER and SCOTT EUGENE KAHNS, No. 87652-0-I
Respondents, DIVISION ONE v.
JANICE G. KEMMING, UNPUBLISHED OPINION
Appellant.
CHUNG, J. — Janice Kemming appeals from the trial court’s order granting
summary judgment to Clayton Dannenmiller and Scott Kahns, removing her as co-
trustee, and awarding attorney fees and costs. Kemming asserts that her declaration
and the declaration of a medical expert raised a triable issue of fact as to the validity of
the amendment to the Samuel and Margie King Living Trust, which precluded summary
judgment. We disagree, affirm the trial court, and award Dannenmiller and Kahns their
attorney fees.
FACTS
Samuel and Margie King, a married couple, created the Samuel and Margie King
Living Trust (“the Trust”) in 1993 and restated it on June 7, 2000. Under the original
terms of the Trust, upon the second of the Kings to die, their real and personal property
would be transferred to Samuel’s two children, Gary Vance King and Richard Henry
King, and Margie’s two children, Patricia Dannenmiller and Janice Kemming, with No. 87652-0-I/2
Samuel’s children receiving a greater share of the property than Margie’s. 1 The Kings
appointed themselves as co-trustees of the Trust and named Patricia and Kemming to
serve as co-trustees following the Kings’ deaths. Clayton Dannenmiller and Scott
Kahns, who are Patricia’s sons and the Kings’ grandsons, were not named as
beneficiaries under the original terms of the Trust.
The Kings also each executed pour-over wills, distributing all of their property into
the Trust upon their deaths. Both wills appointed the other spouse to act as personal
representative and named Patricia and Kemming to serve as co-personal
representatives in the event of the other spouse’s inability or unwillingness to serve.
In 2019, the Kings reached out to attorney Timothy Lehr to update their estate
planning. The Kings first met with Lehr at their home on November 13, 2019. At the
time, Dannenmiller and Kahns had been tending to cattle and working the farm on the
Kings’ 70-acre property for approximately six years, after Samuel became too old to
manage the farm on his own. According to Lehr, “[t]he Kings made clear their intent was
that their grandsons would keep the property in the family and keep working the
property as Sam and Margie had for decades.” The Kings met with Lehr again on
December 9, along with their financial advisor Mike Rue, with whom they had worked
for the previous 13 years. At this meeting, the Kings asked Rue to consolidate all of
their financial accounts into one “Transfer on Death” account. Dannenmiller and Kahns
were not made beneficiaries of the Transfer on Death account, as they were to get the
1 Because Patricia shares a last name with one of the Respondents, we use her first name to
avoid confusion. We refer to Samuel and Margie King as “the Kings” collectively and use their first names when referring to them individually, also to avoid confusion.
2 No. 87652-0-I/3
family farm instead. Patricia was present at both meetings, but according to Lehr and
Rue, did not participate in the substantive discussions about the Kings’ wishes.
On February 5, 2020, the Kings executed an amendment to the Trust naming
Dannenmiller and Kahns as the sole recipients of the Kings’ real property. All other
provisions of the Trust remained in full force and effect. On the same date, the Kings
also signed a power of attorney and a healthcare directive. Lehr, Rue, and Patricia were
all present when the Kings signed the Trust amendment, power of attorney, and
healthcare directive. None of them perceived any issues with the Kings’ capacity to sign
their updated estate planning documents. Lehr and Rue also did not perceive that
Patricia was exerting any control over the Kings during these meetings.
In October 2019, Kemming traveled to Washington from Colorado to visit Margie
in the hospital. According to medical records dated October 13, Margie’s daughter
reported that Margie had experienced a fall several days prior “though the patient does
not remember the incident.” Kemming expressed concern to Patricia that Margie may
need a guardianship in light of her declining physical and cognitive health. Kemming
ultimately did not petition for a guardianship because she believed that Patricia could
handle their concerns through the power of attorney.
In June 2020, Margie King was hospitalized after sustaining another fall. Hospital
staff noted that she had “poor [medical] history recollection.” Patricia did not want
Margie to return home, as she and Samuel King both believed that they would not be
able to physically get Margie out of the car and into the house.
Margie was hospitalized multiple times in July 2020 and was diagnosed with
unspecified altered mental status and problems with urination. On August 3, 2020,
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medical records from another hospital visit noted that Margie’s past medical history “is
significant for Alzheimer’s dementia” which “seems to be somewhat progressive.”
Margie King died on November 28, 2020. Samuel King died on December 8,
2021. Despite acting as co-trustee, Kemming did not transfer the real property to the
beneficiaries designated in the Trust amendment. Kemming also failed to make
arrangements to pay property taxes, utilities, and upkeep costs on the real property for
over one year.
On April 13, 2022, Kemming filed a Trusts and Estates Dispute Resolution Act
(TEDRA) petition in Skagit County Superior Court, alleging that Margie King lacked the
capacity to amend the Trust in 2020. Subsequently, Kemming took no action in the
matter for over one year. On July 10, 2023, Dannenmiller and Kahns filed a TEDRA
petition requesting that Kemming be removed as co-trustee for breaching her fiduciary
duties and the terms of the Trust.
The two TEDRA actions were consolidated on August 11, 2023. Later that
month, the court issued a discovery order pursuant to RCW 11.96A.100(10) and
11.96A.115, ordering that the following materials were subject to discovery in the
consolidated proceeding:
1. All financial accounts of Margie and Samuel King (the “Deceased”) and of the Trust; 2. Discovery from any law firms that were involved in making the Trust, the Pour Over Wills, and/or the First Amendment to the Trust, including, but not limited to, Stiles Law, Inc., P.S., and John J. Kamrar, Attorney at Law, P.S.; 3. All correspondence between the Deceased and the Beneficiaries of the Trust regarding the Trust or any Trust assets; 4. All medical records of the Deceased during the last ten (10) years; 5. Correspondence between financial advisors, specifically Michael Rue of Evergreen Wealth Managers, and the Deceased; and 6. Any materials between the parties related to the Trust.
4 No. 87652-0-I/5
The court declined to appoint an independent personal representative at that time but
indicated that if either party “run[s] into a quandary, then we can appoint a [personal
representative], if needed.”
Kemming issued subpoenas to seven medical providers requesting Margie and
Samuel King’s medical records. Between November 2023 and January 2024, Kemming
received medical records from three providers. Kemming’s counsel believed that some
records were omitted from production, although he did not specify what he believed to
be missing. It is not clear from the record whether Kemming issued any additional
subpoenas, discovery requests, or deposition notices to other parties or witnesses.
Dannenmiller and Kahns filed a motion for summary judgment on the claims
asserted in their TEDRA petition on July 3, 2024. Kemming filed a response asking that
the motion be denied and, in the alternative, that the motion be continued under CR
56(f) so that she could obtain additional discovery. The court granted Kemming’s CR
56(f) motion, continued the hearing to August 22, then continued it again until October
31 after a substitute judge recused himself. On September 6, 2024, the court appointed
an independent personal representative to waive medical and attorney-client privileges
held by the decedents.
In her supplemental response to the summary judgment motion, Kemming
requested that Patricia be removed as a trustee and an independent person be
appointed to act in that capacity. Kemming did not request an additional continuance.
In support of her supplemental response, Kemming submitted the declaration of
William J. Newman, MD, a professor of psychiatry at universities in Texas and
Oklahoma. Dr. Newman opined that Margie had Alzheimer’s disease and “would likely
5 No. 87652-0-I/6
have been unable to properly understand and appreciate the legal consequences of any
legal document she was provided in February of 2020.” Dr. Newman further opined that
“[i]t would be highly unusual for someone who is diagnosed with chronic advanced
Alzheimer’s disease, in July or August 2020, to not exhibit the signs and symptoms of
Alzheimer’s disease, for a substantive period of time prior to that diagnosis, likely
years.” Dr. Newman also stated that “[b]eing unable to recall an event such as a fall,
demonstrates Ms. King’s cognition was impaired in at least October 2019.”
The trial court granted Dannenmiller and Kahns’ motion for summary judgment.
The court concluded that Kemming had breached her duties as trustee by “refusing to
distribute the Family Farm to Petitioners as required by the Amendment to the Trust,
filing litigation to invalidate the Amendment, and failing to pay upkeep/general
maintenance on the Family Farm.” Kemming was removed as a trustee and ordered to
pay attorney fees pursuant to RCW 11.96A.150 because the litigation was necessitated
by the breaches of fiduciary duty and the terms of the Trust. The court declined to
remove Patricia as a trustee and ordered that she distribute the real property pursuant
to the terms of the Trust.
Kemming appeals.
ANALYSIS
On appeal, Kemming challenges the trial court's decision to grant summary
judgment in favor of Dannenmiller and Kahns, alleging that she provided evidence to
raise a genuine issue of material fact. She also challenges the trial court's award of
attorney fees and costs to Dannenmiller and Kahns.
6 No. 87652-0-I/7
I. Margie King’s Capacity
We review orders granting summary judgment de novo. Keck v. Collins, 184
Wn.2d 358, 370, 357 P.3d 1080 (2015). This requires the reviewing court to consider
“the evidence and all reasonable inferences from the evidence in the light most
favorable to the nonmoving party.” 2 Id. Summary judgment is appropriate when “there
is no genuine issue as to any material fact,” meaning the moving party is entitled to
judgment as a matter of law. CR 56(c). A “material fact” is one that impacts the outcome
of the litigation. Owen v. Burlington N. & Santa Fe R.R. Co., 153 Wn.2d 780, 789, 108
P.3d 1220 (2005). Further, there is a genuine issue of material fact when “the evidence
is sufficient for a reasonable jury to return a verdict for the nonmoving party.” Keck, 184
Wn.2d at 370.
The party moving for summary judgment has the initial burden of showing the
absence of an issue of material fact. Young v. Key Pharm., Inc., 112 Wn.2d 216, 225,
770 P.2d 182 (1989). A party moving for summary judgment can submit affidavits to
demonstrate that no issue of material fact exists or can point out that the opposing party
lacks competent evidence to support an essential element of their case. Id. at 225, 226
n.2. The burden then shifts to the opposing party, who must sufficiently demonstrate
“the existence of an element essential to [their] case, and on which [they] will bear the
burden of proof at trial.” Id. at 225. The failure to make such a showing will result in the
trial court granting summary judgment. Id.
2 In its order granting summary judgment, the trial court entered numerous findings of fact.
Findings of fact entered in a summary judgment order are nullities, unless they are not actually and in good faith controverted. Haley v. Amazon.com Servs., LLC, 25 Wn. App. 2d 207, 235, 522 P.3d 80 (2022) (citing Duckworth v. City of Bonney Lake, 91 Wn.2d 19, 21-22, 586 P.2d 860 (1978)); see also CR 56(d). In deciding this matter, we have disregarded the trial court’s factual findings.
7 No. 87652-0-I/8
Kemming contends that the trial court erred by granting summary judgment to
Dannenmiller and Kahns because she did not breach either her fiduciary duties or her
duties under the terms of the Trust. Kemming asserts that Margie lacked capacity to
change the terms of the Trust in February 2020, and that, therefore, the amendment
was invalid and she was not obligated to transfer ownership of the real property to
Dannenmiller and Kahns. 3 We disagree.
A person executing a testamentary document, such as a trust, is said to have
capacity if they have sufficient mind and memory to understand the transaction in which
they are engaged, can comprehend generally the nature and extent of the property
which constitutes her estate and of which she is contemplating disposition, and can
recollect the objects of their bounty. In re Estate of Bottger, 14 Wn.2d 676, 685, 129
P.2d 518 (1942). Where a testamentary document is “rational on its face, is shown to
have been executed in legal form, the law presumes that the testator had testamentary
capacity and that the will speaks [their] wishes.” Id.
To overcome the presumption of capacity, the challenger must present clear and
convincing evidence of the signatory’s lack of capacity. In re Estate of Riley, 78 Wn.2d
623, 646, 479 P.2d 1 (1970). Clear, cogent, and convincing evidence is a standard that
is less than “beyond a reasonable doubt,” but more than a mere “preponderance.” Davis
v. Dep’t of Lab. & Indus., 94 Wn.2d 119, 126, 615 P.2d 1279 (1980). Rather, the
evidence must be sufficient to convince the fact finder that the fact in issue is “ ‘highly
probable.’ ” In re Welfare of Sego, 82 Wn.2d 736, 739, 513 P.2d 831 (1973) (quoting
3 Kemming does not assert that Samuel lacked capacity to sign the amendment to the Trust.
Neither party has addressed whether the incapacity of one testator is sufficient to invalidate the trust, when there are other testators whose capacity is not challenged. Due to the lack of briefing on the issue, we do not address it.
8 No. 87652-0-I/9
Supove v. Densmoor, 225 Or. 365, 358 P.2d 734 (1972)). “When weighing summary
judgment in a civil case in which the standard of proof is clear, cogent, and convincing
evidence, the court determines whether a rational trier of fact could find from the
evidence in the record that the nonmoving party satisfied this evidentiary burden.” Tiger
Oil Corp. v. Yakima County, 158 Wn. App. 553, 562, 242 P.3d 936 (2010) (citing Woody
v. Stapp, 146 Wn. App. 16, 22, 189 P.3d 807 (2008)).
Here, Kemming did not present evidence sufficient to satisfy this standard. In
response to the motion for summary judgment, Kemming submitted her own
declaration, Margie’s medical records, the declaration of an expert who examined those
medical records, and police reports from July and August 2020. But much of this
proffered evidence was not admissible. “Evidence considered on summary judgment
must be admissible.” Spohn v. Dep't of Lab. & Indus., 20 Wn. App. 2d 373, 378–79, 499
P.3d 989 (2021) (citing SentinelC3, Inc. v. Hunt, 181 Wn.2d 127, 141, 331 P.3d 40
(2014)).
First, the police reports Kemming submitted were not admissible as evidence.
See Fite v. Mudd, 19 Wn. App. 2d 917, 936, 498 P.3d 538 (2021) (“Because police
reports that include eyewitness testimony and the conclusions of officers are not
objective records, they are not admissible under the business records exception” to the
prohibition on hearsay). Similarly, most of Kemming’s declaration recounts statements
allegedly made by Patricia, which are inadmissible hearsay. See ER 801(d)(2);
Desranleau v. Hyland’s, Inc., 10 Wn. App. 2d 837, 844, 450 P.3d 1203 (2019) (hearsay
only constitutes an admission of a party-opponent when used against the person who
made the statement). When all of the inadmissible hearsay is removed from Kemming’s
9 No. 87652-0-I/10
declaration, the only evidence left is her observation that Margie “was suffering mental
confusion and was becoming fearful of things that appeared to be unfounded and
unrealistic,” and her impression that Margie was in need of a guardianship. However,
neither mental confusion nor the need for a guardianship are clear and convincing
evidence of incapacity. In re Estate of Kessler, 95 Wn. App. 358, 371, 977 P.2d 591
(1999) (lapses in memory alone do not establish incapacity); Bottger, 14 Wn.2d at 697
(guardianship does not establish incapacity).
What remains are Margie’s medical records and Dr. Newman’s declaration based
on his review of those records. As Dannenmiller and Kahns point out, the majority of the
records submitted to the court were from June through August 2020, several months
after the Kings created and signed the amendment to the Trust. The records that
predate the execution of the Trust amendment indicate that Margie could not remember
a fall that occurred in September or October 2019 and that she had poor recollection of
the onset of an illness in December 2019. But, “ ‘[f]ailure of memory is not alone enough
to create testamentary incapacity, unless it extends so far as to be inconsistent with the
sound and disposing mind and memory requisite for all wills.’ ” Kessler, 95 Wn. App. at
371 (internal quotation marks omitted) (quoting In re Estate of Denison, 23 Wn.2d 699,
714, 162 P.2d 245 (1945)). While the records are evidence that Margie had difficulty
recalling recent medical events, they go no further than that.
Dr. Newman’s declaration also is not sufficient to create an issue of material fact
under the clear and convincing evidence standard. Dr. Newman opined that Margie was
“likely suffering from advancing Alzheimer’s disease” in February 2020 and that “this
condition would make it difficult for Ms. King to understand the legal significance of any
10 No. 87652-0-I/11
document she was signing.” It is undisputed that Dr. Newman never met Margie King.
Rather, Dr. Newman based his opinion on Margie’s medical records, the majority of
which post-date the execution of the Trust amendment by several months and which
make no mention of Alzheimer’s disease until August 2020.
Bottger is illustrative of evidence that fails to create a genuine issue of material
fact under the clear and convincing evidence burden of proof. 14 Wn.2d 676. There, our
Supreme Court reversed a judgment invalidating a will based on the supposed
incapacity of the testator. Id. at 707-08. The evidence presented by the party
challenging the will consisted of testimony from (1) two lay witness who, though
disinterested in the outcome, had limited interactions with the decedent, (2) the doctor
who treated the decedent on her deathbed, nearly a year after the challenged will was
signed, and (3) an expert who had never met the decedent, yet testified that the
decedent was incompetent “[i]n response to a long hypothetical question propounded by
respondents’ counsel, which on its face called for an answer favorable to respondents.”
Id. at 689-94. The testimony of the expert witness, the court noted, was based not only
on the decedent’s medical records, but also on a number of assumptions, including that
the decedent experienced lapses in memory, required a guardianship, and that her
death was primarily caused by arteriosclerosis rather than the other three comorbid
heart conditions listed on her death certificate. Id. at 694. The court referred to the
testimony of the expert as “the weakest and most unsatisfactory sort” of evidence. Id.
The Bottger court contrasted the evidence presented by the will’s challengers to
the evidence presented by the proponents of the will, which consisted of the testimony
of 14 lay witnesses who knew the decedent well and two physicians who had actually
11 No. 87652-0-I/12
examined the decedent around the time that she executed her will. Id. at 691-92. The
court held, in light of the presumption of competency and heightened burden of proof
upon the challengers, the evidence presented by the will’s challengers was insufficient
to prove incapacity and that the will’s proponents were entitled to judgment as a matter
of law. Id. at 698.
Like the expert’s testimony in Bottger, Dr. Newman’s declaration similarly is
based not only on his review of Margie’s medical records but also on some assumptions
about her condition’s effect on her capacity. Dr. Newman states that Margie was
“diagnosed with chronic advanced Alzheimer’s disease, in July or August 2020” and that
it “would be highly unusual for someone who is diagnosed . . . to not exhibit the signs
and symptoms of Alzheimer’s disease, for a substantive period of time prior to that
diagnosis, likely years.” But the medical records from August 2020 describe Margie
having Alzheimer’s dementia that “seems to be somewhat progressive,” not “advanced,”
as Dr. Newman stated. Further, to reach his conclusion that it would be “highly unusual”
for someone with advanced Alzheimer’s not to exhibit symptoms for years prior to
diagnosis and that Margie was incapacitated by Alzheimer’s disease as early as
February 2020, Dr. Newman assumed a certain course and rate of progression of the
disease. Dr. Newman also opines that because Margie was “unable to recall an event
such as a fall,” her “cognition was impaired in at least October 2019.” But, as noted
above, some confusion or lapses in memory alone do not establish incapacity. See
Kessler, 95 Wn. App. at 371.
Further, Kemming’s only other evidence consists of two statements contained in
her own declaration that “[b]efore December 31, 2019, I understood and believed a
12 No. 87652-0-I/13
guardianship was probably needed and appropriate for my mother because of her
cognitive and physical decline” and “on October 4, 2019 . . . [i]t was clear to me . . . our
mother was suffering mental confusion and was becoming fearful of things that
appeared to be unfounded and unrealistic.” This is far less than the evidence deemed
legally insufficient in Bottger. Given the presumption of competency and Kemming’s
burden to overcome this presumption with clear and convincing evidence, the trial court
was correct in concluding that Kemming did not present a triable issue of fact as to
Margie’s capacity. 4
II. Undue Influence
Kemming similarly argues that she was not obligated to transfer ownership of the
real property to Dannenmiller and Kahns because the amendment to the Trust was
invalid due to undue influence. Specifically, Kemming asserts that Patricia exercised
coercion and undue influence over Margie by inducing her to sign the Trust amendment.
We disagree.
A testamentary document may be deemed invalid, even where the executor had
capacity, if a beneficiary exercised undue influence over the executor. Kessler, 95 Wn.
App. at 376. To void a trust based on undue influence, there must be more than “mere
influence.” In re Estate of Lint, 135 Wn.2d 518, 535, 957 P.2d 755 (1998). Specifically,
undue influence is influence
4 To the extent that Kemming argues that she was not permitted to complete discovery due to the
late appointment of an independent personal representative, we note two things. First, after receiving a two-month continuance under CR 56(f), Kemming did not request a continuance when she submitted a supplemental response to the motion for summary judgment or at the hearing on October 31, 2024. Second, the lack of a personal representative who could waive Margie’s privilege did not prevent Kemming from issuing discovery requests or subpoenas to anyone who did not have privileged communications with Margie, including family, friends, neighbors, and her financial advisor. Kemming’s lack of diligence does not demonstrate error by the trial court.
13 No. 87652-0-I/14
“which, at the time of the testamentary act, controlled the volition of the testator, interfered with his free will, and prevented an exercise of his judgment and choice[,] . . . [i.e.,] influence tantamount to force or fear which destroys the testator’s free agency and constrains him to do what is against his will.”
Id. (quoting Bottger, 14 Wn.2d at 700) (citations omitted). As with claims of incapacity,
the party asserting undue influence has the burden to prove it by clear, cogent, and
convincing evidence. Id. (citing In re Estate of Mitchell, 41 Wn.2d 326, 350, 249 P.2d
385 (1952)).
A presumption of undue influence may arise if the party presents evidence of
what is commonly referred to as the Dean factors.
The most important of such facts are: (1) That the beneficiary occupied a fiduciary or confidential relation to the testator; (2) that the beneficiary actively participated in the preparation or procurement of the will; and (3) that the beneficiary received an unusually or unnaturally large part of the estate. Added to these may be other considerations such as the age or condition of health and mental vigor of the testator, the nature or degree of relationship between the testator and the beneficiary, the opportunity for exerting an undue influence, and the naturalness or unnaturalness of the will.
Dean v. Jordan, 194 Wash. 661, 672, 79 P.2d 331 (1938); see also Mueller v. Wells,
185 Wn.2d 1, 10-11, 367 P.3d 580 (2016) (holding that trial court’s findings “established
an unrebutted presumption of undue influence based on the Dean factors, supported by
“further positive evidence,” which together were sufficient to establish undue influence
by clear, cogent, and convincing evidence). Where the presumption arises, the burden
shifts to the proponents of the challenged document to produce evidence to rebut the
presumption. Mueller, 185 Wn.2d at 15. Ordinarily, whether the factors raise a
presumption of undue influence is a question of fact. Mueller, 185 Wn.2d at 9. However,
“factual questions . . . may be resolved on summary judgment if, given the evidence in
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the record, a court could reach only one reasonable result.” Alaska Pac. Trading Co. v.
Eagon Forest Prods., Inc., 85 Wn. App. 354, 361, 933 P.2d 417 (1997).
Kemming does not engage with the Dean factors in her brief and in fact does not
engage in any legal analysis concerning undue influence at all. “A contention not
supported by authority or argument need not be considered on appeal.” Rhinehart v.
Seattle Times, 59 Wn. App. 332, 336, 798 P.2d 1155 (1990) (citing RAP 10.3(a)(5)).
If this court were to engage with the Dean factors, Kemming is not entitled to the
presumption of undue influence for one clear reason: Patricia was not named as a
beneficiary in the amendment to the Trust. 5 Thus, under the third Dean factor, Patricia
did not receive an unusually large part of the Kings’ estate; rather, the amendment to
the Trust decreased Patricia’s share of the Kings’ estate. This factor weighs heavily
against application of the presumption. Moreover, Kemming makes no argument, and
presents no evidence that the beneficiaries under the Trust amendment, Dannenmiller
or Kahns, exercised any influence over the Kings related to the Trust. Nor does
Kemming present any evidence or cite any legal authority by which a court could fairly
impute Patricia’s actions to her adult children. Therefore, the trial court correctly
declined to apply a presumption of undue influence to Kemming’s claim. 6
5 Patricia was named as a beneficiary under the original terms of the Trust and presumably
received a share of the Kings’ personal property. Kemming does not challenge Patricia’s status as a beneficiary under the Trust’s original terms. 6 Even if we considered the other Dean factors, Kemming would still not be entitled to a
presumption of undue influence. While Patricia was granted power of attorney for the Kings, this fact alone does not establish that Patricia had a fiduciary relationship with the Kings at the time they signed the Trust amendment. “Rather, a fiduciary relationship arises when the agent exercises dominion and control over the principal's property sufficient to alienate the principal’s right to the property.” In re Estate of Palmer, 145 Wn. App. 249, 263, 187 P.3d 758 (2008). The Kings signed the power of attorney held by Patricia on the same day as the Trust amendment. And the Trust amendment was signed by the Kings themselves, not by Patricia in her role as power of attorney. Because Kemming did not present evidence that Patricia had a fiduciary relationship with the Kings when the amendment was drafted and signed, this factor weighs against application of the presumption.
15 No. 87652-0-I/16
Because Kemming is not entitled to the presumption of undue influence, the
burden did not shift to Dannenmiller and Kahns to present evidence to refute
Kemming’s claim. See Mueller, 185 Wn.2d at 15. Kemming was thus required to
present evidence to raise a triable issue of fact that the Trust amendment was the
product of undue influence. Kemming did not satisfy this burden. Kemming presented
no evidence at all of any undue influence by Dannenmiller or Kahns and relied on
speculation that Patricia unduly influenced Margie because she was a vulnerable adult.
A party cannot defeat a motion for summary judgment by relying on “ ‘speculation and
conclusory statements.’ ” Strauss v. Premera Blue Cross, 194 Wn.2d 296, 301, 449
P.3d 640 (2019) (quoting Volk v. DeMeerleer, 187 Wn.2d 241, 277, 386 P.3d 254
(2016)).
The evidence Kemming presented would not allow a rational trier of fact to find
undue influence by clear, cogent, and convincing evidence. Accordingly, the trial court
did not err by granting summary judgment to Dannenmiller and Kahns.
III. Kemming’s Breach of Duties as Trustee
Kemming nevertheless asserts that she did not breach her duties as co-trustee
because she acted within her discretion. “[A] trustee is a fiduciary who owes the highest
degree of good faith, diligence and undivided loyalty to the beneficiaries.” In re Estate of
Second, while Kemming alleged that Patricia actively participated in the preparation of the Trust, the Kings’ attorney, their financial advisor, and Patricia herself all testified in their declarations that Patricia did not participate in any substantive discussions about the content of the amendment. Kemming presented no evidence to refute this. Third, the amendment to the Trust was not unnatural. The unrefuted evidence showed that Dannenmiller and Kahns, the Kings’ grandsons, raised cattle and maintained the farm on the Kings’ real property for approximately six years prior to the amendment of the Trust, as Samuel became too old to perform this work. It is natural that the Kings would wish to bequeath their farm to the relatives that were devoted to maintaining it. Overall, no reasonable fact finder could determine that the age and health of the testators and the opportunity for exerting undue influence outweigh the other Dean factors as outlined above.
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Ehlers, 80 Wn. App. 751, 757, 911 P.2d 1017 (1996) (citing Estate of Jordan v. Hartford
Accident & Indem. Co., 120 Wn.2d 490, 502, 844 P.2d 403 (1993); Wilkins v. Lasater,
46 Wn. App. 766, 774, 733 P.2d 221 (1987)). “A trustee’s duties and powers are
determined by the terms of the trust, by common law and by statute.” Id. While a trustee
may, in certain circumstances, have discretion over management of the trust, the
trustee does not have the discretion to disregard the terms of the trust. See Retail Store
Emp. Union, Local 1001 Chartered By Retail Clerks Int’l Ass’n, AFL-CIO v. Washington
Surveying & Rating Bureau, Washington Bureau, 87 Wn.2d 887, 904, 558 P.2d 215
(1976) (trustee can exercise only those powers conferred in specific words by the trust
or that are necessary or appropriate to carry out purposes of trust).
“The trustee must carry out the intent of the settlor as determined by the terms of
the trust.” Conserv. Nw. v. Comm’r of Pub. Lands, 199 Wn.2d 813, 829, 514 P.3d 174
(2022) (emphasis added) (citing RESTATEMENT (THIRD) OF TRUSTS § 76). Here, the terms
of the Trust clearly state “[u]pon the death of the second one of us to die, our Trustee
shall distribute, free of the trust, the specific distributions of trust property” delineated in
the Trust document. The amendment to the Trust dictated that “our Trustee shall
distribute [the family farm] equally to SCOTT [] KAHNS and CLAYTON []
DANNENMILLER.” Nevertheless, Kemming admitted that in her capacity as trustee, she
did not distribute the real property as the Trust required.
Additionally, common law dictates that the trustee “use reasonable care and skill
to preserve the trust property.” RESTATEMENT (SECOND) OF TRUSTS § 176 (1959).
Kemming admitted that she did not pay for any upkeep of the property for over one
year, nor did she pay any of the property taxes, which could have subjected the
17 No. 87652-0-I/18
property to foreclosure had Dannenmiller and Kahns not paid the taxes on the Trust’s
behalf. Based on her own admissions, the trial court did not err by concluding that
Kemming had breached her duties as trustee.
The trial court also did not err by removing Kemming as a trustee. “A court has a
‘wide latitude of discretion’ to remove the trustee, ‘when there is sufficient reason to do
so to protect the best interests of the trust and its beneficiaries.’ ” In re Estate of
Cooper, 81 Wn. App. 79, 94-95, 913 P.2d 393 (1996) (quoting Schildberg v.
Schildberg, 461 N.W.2d 186, 191 (Iowa 1990)). One valid reason to remove a trustee is
a conflict of interest between the trustee and the other beneficiaries of the trust. Waits v.
Hamlin, 55 Wn. App. 193, 198, 776 P.2d 1003 (1989). Here, if Kemming succeeded on
her TEDRA petition, the original terms of the trust would control. Those terms gave her
an interest in the real property described in the amendment. This created a conflict of
interest between her and the beneficiaries of the real property under the amendment,
Dannenmiller and Kahns. Thus, even if Kemming had not breached her duties as
fiduciary, the court had ample reason to remove her as a trustee. Kemming fails to
demonstrate any error by the trial court.
IV. Attorney Fees
Kemming contends that the trial court erred by awarding attorney fees to
Dannenmiller and Kahns because their TEDRA petition did not benefit the Trust. In
awarding fees to the respondents, the trial court was not required to consider whether
there was any benefit to the Trust. See RCW 11.96A.150(1) (“In exercising its discretion
under this section, the court may consider any and all factors that it deems to be
relevant and appropriate, which factors may but need not include whether the litigation
18 No. 87652-0-I/19
benefits the estate or trust involved.”). The cases on which Kemming relies to argue
otherwise all concern fees that were awarded against the trust itself. Here, the trial court
did not award fees against the Trust—it awarded fees against Kemming personally.
Kemming makes no argument that the trial court erred by awarding fees against her
personally. We therefore affirm the trial court’s award of fees to Dannenmiller and
Kahns.
Both parties request an award of fees on appeal. RAP 18.1(a) allows us to award
reasonable attorney fees or expenses “[i]f applicable law grants to a party the right to
recover” such attorney fees or expenses. RCW 11.96A.150 states that “[e]ither the
superior court or any court on an appeal may, in its discretion, order costs, including
reasonable attorneys' fees, to be awarded to any party: (a) From any party to the
proceedings.” RCW 11.96A.150(1)(a) “Ordinarily, the trust estate must bear the general
costs of administration of the trust, including the expenses of necessary litigation.
Where litigation is necessitated by the inexcusable conduct of the trustee, however, the
trustee individually must pay those expenses.” Allard v. Pac. Nat. Bank, 99 Wn.2d 394,
408, 663 P.2d 104 (1983) (citations omitted). As in Allard, the trustee in this matter–
Kemming–breached her fiduciary duty to the beneficiaries of the Trust. Having prevailed
in this appeal, Dannenmiller and Kahns are entitled to an award of fees against
Kemming, contingent upon their compliance with the applicable procedural
requirements. Because Kemming is not the prevailing party, we decline her request for
an award of fees.
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CONCLUSION
Affirmed.
WE CONCUR: