IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Estate of No. 70210-6-1 CALVIN H. EVANS SR., (consolidated with No. 70193-2-1 & No. 70317-0-1)
SHARON EADEN, VICKI SANSING, and DIVISION ONE KENNETH EVANS, PUBLISHED OPINION Respondents/Cross Appellants r--3 t.; i <\
v. m.
ESTATE OF CALVIN H. EVANS SR. ro
Appellant/Cross Respondent,
LINDSAY EVANS, CORY EVANS, JESSE o EVANS, and CALVIN EVANS III,
Respondents/Cross Respondents. FILED: May 27, 2014
Appelwick, J. —Washington's antilapse statute, RCW 11.12.110, applies when a
beneficiary under a will is deemed to have predeceased the testator, because he or she
financially abused the testator under chapter 11.84 RCW. In this case, the testator's
intent did not overcome the presumed application of the antilapse statute. The trial court
did not abuse its discretion in awarding attorney fees to both competing beneficiary
groups and assessing those fees against the Estate. We affirm. No. 70210-6-1/2
FACTS
Calvin H. Evans, Sr. (Cal Sr.) was born on March 8,1933. At the time of his death,
Cal Sr. was no longer married and had four children: Kenneth Evans, Vicki Sansing,
Sharon Eaden, and Calvin H. Evans, Jr. (Cal Jr.).1
Cal Sr. suffered from a medical condition called polycythemia, which results in a
thickening of the blood. He had his first stroke related to the condition in 2000.
In 2003, Cal Sr. purchased a 40 acre ranch in Sultan, Washington. Soon after he
purchased another 70 acre parcel nearby. Cal Sr. requested that Cal Jr. and his family
move to the ranch to help care for him. They did so in early 2005.
In March 2005, Cal Sr. was hospitalized for another stroke and was diagnosed with
dementia secondary to the stroke. Cal Sr.'s health continued to decline over the course
of the year. His teeth began falling out and he lost substantial weight. Cal Jr. observed
forgetfulness and memory loss in his father.
While living on the Sultan ranch, Cal Jr. made several large purchases using his
father's money. For instance, Cal Jr. used $20,000 of Cal Sr.'s money to purchase a
dump truck. He borrowed another $75,000 from his father to make improvements to the
ranch. He also spent $15,000 of his father's money to buy a park model mobile home.
On December 28, 2005, Sharon filed a guardianship petition in Snohomish County
alleging that Cal Sr. was incapacitated and needed a guardian. An order appointing a
guardian ad litem was entered the same day. Cal Sr. did not want to be subject to a
guardianship and was upset with Sharon for filing the petition.
1We refer to the parties by their first names to avoid confusion. No disrespect is intended. No. 70210-6-1/3
Early in 2006, Cal Jr. and his wife prepared a will for Cal Sr. The will left Cal Sr.'s
Sultan ranch and his Cessna airplane to Cal Jr. The will divided Cal Sr.'s remaining real
properties equally between Vicki and Kenneth, but not Sharon. It left only $25,000 to
Sharon. The residue of Cal Sr.'s estate was to be placed in trust. Every year on the
anniversary of his death, the trustee was to disburse $10,000 to Cal Sr.'s children,
excluding Sharon, and $5,000 to each of his grandchildren.
The will was witnessed and executed on March 7, 2006. Cal Sr.'s attorney Charles
Diesen and Diesen's law partner Carol Johnson questioned Cal Sr. privately and believed
he had testamentary capacity. The will named Diesen as personal representative of the
"Estate."
Cal Sr. died on April 5, 2011. By that time, the only real property he still owned
was the Sultan ranch. The rest had been sold to pay for his care.
On April 29, 2011, Cal Sr.'s will was filed with the trial court, along with a petition
to admit the will to probate and appoint Diesen as personal representative of Cal Sr.'s
Estate. The court did so on the same day following an ex parte proceeding.
On July 14, 2011, three of Cal Sr.'s children—Sharon, Kenneth, and Vicki
(collectively Eaden)—filed a petition under the Trust and Estate Dispute Resolution Act
(TEDRA), chapter 11.96A RCW. Eaden's petition challenged the validity of Cal Sr.'s will
and sought a declaration of rights pursuant to RCW 11.84.020. Eaden argued that Cal
Sr. lacked testamentary capacity at the time he made the will and was acting under
fraudulent representations and undue influence from Cal Jr. Eaden also asserted that
Cal Jr. was a financial abuser, because he participated in the willful and unlawful financial
exploitation of his father, a vulnerable adult under RCW 74.34.020. Therefore, Eaden No. 70210-6-1/4
argued, Cal Jr. should be treated as predeceased under RCW 11.84.020 and the Estate
should pass to Cal Sr.'s three other children.
On May 31, 2012, the trial court upheld the will, denying Eaden's request to declare
Cal Sr.'s will invalid due to lack of testamentary capacity and undue influence by Cal Jr.
However, the trial court held Cal Jr. to be an abuser under RCW 11.84.010(1), finding
that he financially exploited Cal Sr. Therefore, the trial court deemed Cal Jr. to have
predeceased Cal Sr. Cal Jr. was accordingly disinherited and ordered to "take nothing
from the Estate by devise or legacy, or by laws of descent and distribution." The trial
court entered extensive findings of fact and conclusions of law on the same day. That
decision was not appealed.
On September 12, 2012, Eaden filed a second TEDRA petition requesting that the
trial court not apply Washington's antilapse statute, RCW 11.12.110, in favor of Cal Jr.'s
children—Lindsey Evans, Cory Evans, Jesse Evans, and Calvin Evans III. Eaden
acknowledged that the antilapse statute would ordinarily apply when a beneficiary
predeceases the testator, but argued that applying it here would be contrary to Cal Sr.'s
testamentary intent. Therefore, Eaden argued that any bequests made to Cal Jr. should
pass to the residue of the Estate, rather than to Cal Jr.'s children.
On January 25, 2013, Cal Jr.'s children requested an award of attorney fees,
against either Eaden or the Estate. On February 11, 2013, Eaden requested attorney
fees under RCW 11.96A.150(1) for the second TEDRA petition. They asked that the fees
be assessed against the Estate, because the litigation involved all beneficiaries to the
Estate. No. 70210-6-1/5
On March 12, 2013, the trial court denied Eaden's second TEDRA petition and
held that the antilapse statute applied:
3. The slayer/abuser statute, RCW 11.84.020, is clear on its face and does not preclude the issue of the abuser inheriting under the anti-lapse statute;
4. The anti-lapse statute, RCW 11.12.110, is clear on its face and applies to circumstances of financial abuse in the same manner as it would in a case of a slayer;
5. The residuary trust created by Calvin Evan Sr.'s Will cannot be construed as an expression of the testator's intent sufficient to avoid the application of the anti-lapse statute;
6. The Petitioner's Petition for Declaration of Rights of Beneficiaries Re: Non-Application of Anti-Lapse Statute Under Chapter 11.94A RCW (TEDRA) is DENIED; and
7. The children of Calvin Evans, Jr., shall inherit his bequests of the ranch and the units of membership in the C & C Aviation LLC by reason of the application of the anti-lapse statute.
The trial court also held that Diesen, the Estate's personal representative, had standing
to appear and urge the application of the antilapse statute to the bequests made to Cal
Jr.
The trial court granted both parties' request for attorney fees and ordered the fees
to be paid by the Estate.
The Estate appeals the trial court's award of fees to Eaden and the court's
assessment of both fee awards against the Estate. Eaden cross appeals the denial of
the second TEDRA petition, challenging the court's application of the antilapse statute to
the abuser statute. No. 70210-6-1/6
DISCUSSION
I. Application of the Antilapse Statute
Eaden argues that the trial court erred in holding, as a matter of law, that
Washington's antilapse statute applies to bequests to persons deemed to have
predeceased the testator because of financial abuse under chapter 11.84 RCW. Instead,
Eaden advocates for an equitable exception to the antilapse statute in which courts
consider whether applying the statute benefits the abuser; prevents disinheritance of an
entire branch of the testator's family; offends the decedent's overall testamentary plan by
exacerbating the effect of abuse on that plan; and results in the loss caused by the abuse
to fall only or disproportionately on the beneficiaries other than the abuser's issue. Eaden
also argues that it would be an abuse of discretion to apply the antilapse statute here,
because all elements of this equitable exception are met.2
Simply put, we must decide whether the antilapse statute is triggered when a
beneficiary is found to be a financial abuser and deemed to predecease the testator under
chapter 11.84 RCW. This is an issue of first impression in Washington. If yes, we must
then determine whether Cal Sr.'s testamentary intent overcomes the rebuttable
presumption that the antilapse statute applies.
Statutory interpretation is a question of law that we review de novo. State v. Gray,
174 Wn.2d 920, 926, 280 P.3d 1110 (2012). Our primary duty in construing a statute is
to ascertain and carry out the legislature's intent. Lake v. Woodcreek Homeowners Ass'n,
169 Wn.2d 516, 526, 243 P.3d 1283 (2010). Statutory interpretation begins with the
2 Eaden's motion to dismiss the Estate as a party to the antilapse cross appeal, dated October 14, 2013, is denied.
6 No. 70210-6-1/7
statute's plain meaning, which we discern from the ordinary meaning of the language
used in the context of the entire statute, related statutory provisions, and the statutory
scheme as a whole. ]d. Ifthe statute's meaning is unambiguous, our inquiry is at an end.
State v. Armendariz. 160 Wn.2d 106,110,156 P.3d 201 (2007). Conversely, a statute is
ambiguous when it is susceptible to two or more reasonable interpretations, but not
merely because different interpretations are possible. In re Pet, of Aston. 161 Wn. App.
824, 842, 251 P.3d 917 (2011), review denied. 173 Wn.2d 1031, 277 P.3d 668 (2012).
A. Antilapse Statute Triggered by Abuser Statute
Washington's antilapse statute provides for statutory succession when a named
heir predeceases the testator of a will. RCW 11.12.110. The statute specifies, in relevant
part:
Unless otherwise provided, when any property shall be given under a will, or under a trust of which the decedent is a grantor and which by its terms becomes irrevocable upon or before the grantor's death, to any issue of a grandparent of the decedent and that issue dies before the decedent, or dies before that issue's interest is no longer subject to a contingency, leaving descendants who survive the decedent, those descendants shall take that property as the predeceased issue would have done if the predeceased issue had survived the decedent.
Id. (emphasis added).
The antilapse statute reflects a legislative determination that, as a matter of public
policy, when the testator fails to provide for the possibility that his consanguineous
beneficiary will predecease him, the lineal descendants of the beneficiary take his or her
share. In re Estate of Rehwinkel. 71 Wn. App. 827, 829, 862 P.2d 639 (1993). At common
law, testamentary gifts lapse if a beneficiary predeceased the testator. In re Estate of
Niehenke. 117 Wn.2d 631, 638, 818 P.2d 1324 (1991). The legislature enacted the No. 70210-6-1/8
antilapse statute to prevent this, in derogation of the common law. |d. "This is said to be
a recognition of a natural and instinctive concern for the welfare of those in a testator's
bloodline." In re Estate of Allmond. 10 Wn. App. 869, 871, 520 P.2d 1388 (1974).
Under chapter 11.84 RCW—the slayer statute—a slayer cannot benefit from the
death of the decedent. RCW 11.84.020. The chapter is to "be construed broadly to effect
the policy of this state that no person shall be allowed to profit by his or her own wrong,
wherever committed." RCW 11.84.900. In July 2009, the legislature expanded the scope
of the slayer statute to include financial abusers as well as slayers. Laws of 2009, ch.
525, §§ 1-17. "Abuser" is defined as "any person who participates, either as a principal
or an accessory before the fact, in the willful and unlawful financial exploitation of a
vulnerable adult." RCW 11.84.010(1).
The statute provides for the disposition of property if a beneficiary is found to be a
slayer or abuser. RCW 11.84.020 specifies that "[n]o slayer or abuser shall in any way
acquire any property or receive any benefit as the result of the death of the decedent, but
such property shall pass as provided in the sections following." (Emphasis added.) The
following section in the statute provides that "[t]he slayer or abuser shall be deemed to
have predeceased the decedent as to property which would have passed from the
decedent or his or her estate to the slayer or abuser." RCW 11.84.030 (emphasis added).
RCW 11.84.040 then states that "[property which would have passed to or for the benefit
of the slayer or abuser by devise or legacy from the decedent shall be distributed as if he
or she had predeceased the decedent." (Emphasis added.)
This statutory language is unambiguous and provides an express method for
distributing an abuser's inheritance. If a beneficiary is found to be an abuser, he or she
8 No. 70210-6-1/9
is deemed to predecease the testator. RCW 11.84.030. Any property or benefit to the
abuser must then be distributed as if the abuser predeceased the decedent.3 RCW
11.84.040. The antilapse statute then provides for the division of property when a
beneficiary predeceases the testator. RCW 11.12.110. Nothing in the abuser statute
indicates that the term predecease means anything different than it does in the antilapse
statute. Thus, the abuser statute's consistent use of the term "predecease" triggers the
antilapse statute, even though the antilapse statute is not explicitly referenced.
Furthermore, the legislature is presumed to know the law in the area in which it is
legislating. Wvnn v. Earin. 163 Wn.2d 361, 371, 181 P.3d 806 (2008). The legislature is
likewise presumed to enact laws with full knowledge of existing laws. Jametskvv. Olsen.
179 Wn.2d 756, 766, 317 P.3d 1003 (2014). We can presume that the legislature knew
that treating an abuser as predeceased would trigger the antilapse statute. The
legislature could have specified that the abuser's descendants were also disinherited. It
did not do so.
Legislative history supports our conclusion that the legislature intended for the
antilapse statute to apply. The slayer statute was adopted in 1955. Laws of 1955, ch.
141. The final bill signed into law was practically a verbatim copy of a model slayer statute
proposed by John Wade in 1936. J. Gordon Gose & Joseph W. Hawley, Probate
3 Except, RCW 11.84.170(2) gives trial courts discretion to allow an abuser, but not a slayer, "to acquire or receive an interest in property or any other benefit described in this chapter in any manner the court deems equitable." In doing so, the court may consider (1) various elements of the decedent's dispositive scheme; (2) the decedent's likely intent given the totality of the circumstances; and (3) the degree of harm resulting from the abuser's financial exploitation of the decedent. RCW 11.84.170(2). The trial court did not do so here, nor did Cal Jr. appeal from that decision. The discretion granted in RCW 11.84.170(2) further suggests that, by contrast, courts have no discretion in whether the antilapse statute is triggered by the abuser statute. No. 70210-6-1/10
Legislation Enacted by the 1955 Session of the Washington Legislature. 31 Wash. L. Rev.
22, 26 (1956); see also John W. Wade, Acguisition of Property bv Willfully Killing
Another—A Statutory Solution. 49 Harv. L. Rev. 715 (1936). However, section 4 of
Wade's model statute expressly provided that the antilapse statute did not apply, with the
result that property did not pass to the slayer's issue. Wade, Acguisition, supra, at 727.
The Washington legislature did not include Wade's section 4 in the slayer statute.
Compare Laws of 1955, ch. 141, §§ 2-3, wjth Wade, Acguisition. supra, at 727. By not
specifically precluding application of the antilapse statute, the Washington legislature
mandated that the slayer be treated as if he or she predeceased the decedent, allowing
children of slayers to take the slayer's share by substitution.
The Washington Supreme Court in Haviland explained that the abuser statute
regulates the receipt of benefits. In re Estate of Haviland, 177 Wn.2d 68, 76, 301 P.3d
31 (2013). The statute is not intended to be penal. See id.; see also Armstrong v. Bray,
64 Wn. App. 736, 741, 826 P.2d 706 (1992). The Haviland court noted that the "financial
abuse slayer statutes only affect those persons who both abuse a vulnerable adult and
are beneficiaries of the abused person." 177 Wn.2d at 76. The innocent descendants of
the slayer or abuser do not meet this criteria.
In the context of slayers, the Washington Supreme Court recognized that most
states have been "reluctant to extend the rule beyond the slayer and deny the slayer's
heirs from taking directly from the victim's estate." In re Estate of Kissinger, 166 Wn.2d
120, 126, 206 P.3d 665 (2009). This reluctance generally rests on the notion of fairness
to innocent persons. Mary Louise Fellows, The Slaver Rule: Not Solely a Matter of Eouitv,
71 Iowa L. Rev. 489, 495 (1986). In her law review article, Fellows points out that the
10 No. 70210-6-1/11
purpose of the antilapse statute is to imply a devise to further the testator's intent, jd. at
530. The antilapse statute "should not be viewed differently than a provision in the victim's
will for an alternative taker to the slayer; therefore, extending the fiction of the slayer's
death to the antilapse statute seems correct." jd. She likewise notes that "[wjhen the
slayer does not have the right to control the disposition" of the testator's estate, "any
indirect benefit that results from allowing the natural objects of the slayer's bounty to take
from the victim's estate does not warrant disqualifying these innocent persons." jd. at
495.
Despite Eaden's attempt to distinguish slayers and abusers, the legislature did not
do so, and instead addressed them together in a single statutory scheme. Washington's
abuser statute prevents the abuser from controlling disposition of the testator's estate.
The abuser is cut off from any direct benefit or inheritance, except as provided in RCW
11.84.170(2). Therefore, as Fellows argues, any incidental benefit to the abuser does
not warrant denying benefits to the abuser's innocent heirs.
We hold that Washington's antilapse statute, RCW 11.12.110, applies when a
beneficiary under a will is deemed to have predeceased the testator, because he or she
financially abused the testator under chapter 11.84 RCW.
B. Antilapse Application to the Facts of this Case
Once the antilapse statute is triggered, there is a presumption in favor of its
application. However, its application is not absolute. It can be rebutted by the testator's
clear intent to preclude operation of the antilapse statute.
In determining whether the antilapse statute applies, the paramount duty of the
court is to give effect to the testator's intent. Rehwinkel, 71 Wn. App. at 830. Such
11 No. 70210-6-1/12
intention must, if possible, be ascertained from the language of the will in its entirety. ]cL
The party opposing its operation bears the burden of showing that it does not apply. Id.
All doubts are to be resolved in favor of the statute's operation, which is to be liberally
construed. Id.
The intent on the part of the testator to preclude operation of the antilapse statute
must be clearly shown, jd. Where the testator uses words of survivorship indicating an
intention that the devisee shall take the gift only if he or she survives the testator, the
antilapse statute does not apply. Id. at 831. The statute likewise does not apply if the
testator provides for an alternative disposition. IcL at 830.
In Kvande, the testator bequeathed the balance and residue of his estate "'for the
use and purpose to help maintain and care'" for his sister Olga, who predeceased him.
In re Estate of Kvande, 74 Wn. App. 65, 66-67, 871 P.2d 669 (1994). The appellate court
held that this indicated the testator's intent to condition Olga's gift on her survival, with no
intent for the gift pass on to Olga's son. jU at 69. This precluded operation of the
antilapse statute. Id.
Similarly, the appellate court held in Rehwinkel that bequests in the testator's will
"'to those of the following who are living at the time of my death'" demonstrated a clear
intent to preclude application of the antilapse statute. 71 Wn. App. at 831. Such
survivorship language manifests a testator's intent that named beneficiaries take under
the will only if they survive the testator. jU at 833; see also Niehenke, 117 Wn.2d at 641
(applying antilapse statute where there was no "clear manifestation of the testator's
intention to condition the gift on [the beneficiary's] survival").
12 No. 70210-6-1/13
There is no clear intent in Cal Sr.'s will to preclude application of the antilapse
statute or to disinherit Cal Jr.'s descendants. In fact, the opposite is true. Cal Sr.'s will
included the following three provisions:
VI. I give, devise and bequeath my interest in the Cessna 310 123DE airplane and six (6) parcels of real estate owned by me in Snohomish County, Washington to my son, Calvin H. Evans Jr. . . .
VII. Igive, devise and bequeath all of the remaining real estate owned by me in two(2) equal portions to Vicki Ann Sansing and Kenneth Lee Evans.
VIM. All of the rest, residue and remainder of my estate including bank accounts, securities or annuities, I give in trust with Frontier Bank with directions that on the first anniversary of my death and on each year after, the Trustee disburse $10,000 to each of three(3) of my children, Vicky Ann Sansing, Calvin H. Evans, Jr., and Kenneth Lee Evans and $5,000 to each of my grandchildren. If any beneficiary should die during the administration of the trust and before the trust is exhausted, their bequest shall be disbursed to their heirs.
Cal Sr. did not condition inheritance on the survival of Cal Jr. or the survival of any
other beneficiaries. Rather, the final sentence of Section VIII suggests that Cal Sr. wanted
the antilapse statute to apply. If any beneficiaries died before the trust was exhausted,
he wanted their bequest to pass to their heirs. Given this language, applying the antilapse
statute gives effect to Cal Sr.'s intent to provide for his heirs and their descendants.
Eaden is correct that Cal Jr.'s children would not be completely disinherited ifthe antilapse
statute did notapply. However, they have failed to show any intent by Cal Sr. to preclude operation of the antilapse statute. We therefore hold that the trial court properly applied
the antilapse statute here.
13 No. 70210-6-1/14
II. Trial Court Attorney Fees Award
The Estate argues that the trial court erred in awarding Eaden attorney fees and
costs under RCW 11.96A.150, because they were not the prevailing party in the TEDRA
action. The Estate acknowledges that RCW 11.96A.150 gives the trial court broad
discretion to award attorney fees. Nevertheless, the Estate contends that awarding fees
to the losing party is manifestly unreasonable.
The Estate argues that even if the trial court properly awarded fees to Eaden, it
erred in assessing both fee awards against the Estate. The Estate contends that the
dispute here was solely between two competing classes of beneficiaries and therefore
could not result in a substantial benefit to the Estate.4
RCW 11.96A. 150(1) provides:
Either 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; (b) from the assets of the estate or trust involved in the proceedings; or (c) from any nonprobate asset that is the subject of the proceedings. The court may order the costs, including reasonable attorneys' fees, to be paid in such amount and in such manner as the court determines to be equitable. 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 benefits the estate or trust involved.
We review a trial court's award of fees under RCW 11.96A.150 for abuse of discretion.
In re Estate of Black, 153 Wn.2d 152, 173, 102 P.3d 796 (2004). Atrial court abuses its
4 Eaden argues that the Estate's appeal of the attorney fees award should be dismissed, because the Estate is not an aggrieved party under RAP 3.1. We decline to hold that an estate cannot be an aggrieved party for purposes of challenging fee awards. However, in this particular case, the benefit to the Estate from a challenge to the fee award eludes us.
14 No. 70210-6-1/15
discretion if its decision rests on unreasonable or untenable grounds. Dix v. ICT Grp.,
Inc., 160 Wn.2d 826, 833, 161 P.3d 1016 (2007).
RCW 11.96A. 150(1) allows a court to consider any relevant factor, including
whether a case presents novel or unique issues. In re Guardianship of Lamb, 173 Wn.2d
173, 198, 265 P.3d 876 (2011). The statute does not limit fee awards to only the
prevailing party. Rather, it states that the court may award fees to "any party" from the
"assets of the estate." RCW 11.96A. 150(1). This is precisely the situation here.
The Estate argues that the touchstone of an attorney fees award from an estate is
whether the litigation resulted in a substantial benefit to the estate. In re Estate of Black,
116 Wn. App. 476, 490, 66 P.3d 670 (2003), affd, 152 Wn.2d 152. In Niehenke, the
Washington Supreme Court held that it is inappropriate to assess fees against an estate
when the litigation benefits only certain rival beneficiaries to the estate. 117 Wn.2d at
648. Such an award would unfairly penalize the beneficiaries not involved in the litigation.
However, the legislature amended RCW 11.96A.150(1) in 2007 to add the
sentence, "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 benefits the estate or trust involved." Laws of 2007, ch.
475, § 5 (emphasis added). Based on this amendment, the continuing vitality of the
substantial benefit requirement is questionable.
Furthermore, the Niehenke court did not hold that attorney fees could never be
appropriately awarded against an estate. 117 Wn.2d at 648. Where all the beneficiaries
to an estate are involved in a dispute, the trial court may award both sides fees from the
15 No. 70210-6-1/16
estate, because the litigation resolves the rights of all. Black, 116 Wn. App. at 491; see
a|so In re Estate of Watlack. 88 Wn. App. 603, 612-13, 945 P.2d 1154 (1997). Thus,
where both sides advance reasonable, good faith arguments in support of their respective
positions, the trial court may assess fees against the estate, so that all the contesting
parties bear the costs of the dispute. Black, 116 Wn. App. at 491.
Based on the plain language of RCW 11.96A. 150(1) and well-established case
law, the trial court properly awarded fees to both parties and assessed those fees against
the Estate. The will named Cal Sr.'s four children as beneficiaries: Sharon Eaden,
Kenneth Evans, Vicki Sansing, and Calvin H. Evans, Jr. The dispute here was between
Cal Jr., his heirs, and Cal Sr.'s three remaining children—all the beneficiaries to Cal Sr.'s
estate. The litigation resolved all of their respective rights. Awarding fees against the
Estate does not unfairly penalize any absent beneficiaries, because all the beneficiaries
to the Estate participated in the dispute. The concerns expressed by the Niehenke court
do not apply here. Moreover, Eaden raised a novel issue of law regarding the application
of the antilapse statute to the financial abuser statute. This was a reasonable, good faith
argument.
The trial court followed the language of RCW 11.96A. 150. Therefore, we hold that
the trial court did not abuse its discretion in awarding fees to both sides and assessing
those fees against the Estate.
III. Eaden's Motion to Strike
Eaden moved to strike two portions of the clerk's papers, pages 290-95 and 530-
70, both transcripts of the trial court's oral decisions in the first and second TEDRA
16 No. 70210-6-1/17
petitions. Eaden argues that clerk's papers must be limited to written decisions of the trial
court, because the Estate does not assert that the court's written orders are incomplete.
RAP 9.1(c) specifies that clerk's papers include "the pleadings, orders, and other
papers filed with the clerk of the trial court." RAP 9.6(b)(1)(C) explains that the clerk's
papers shall include "any written order or ruling not attached to the notice of appeal."
Eaden argues that the RAPs nowhere provide for oral decisions to be included in the
clerk's papers. Motion to Strike, 3-4. An oral decision has no final or binding effect unless
formally incorporated into the findings, conclusions, and judgment. Grieco v. Wilson. 144
Wn. App. 865, 872, 184 P.3d 668 (2008), aff'd by In re Custody of E.A.T.W, 168 Wn.2d
335, 227 P.3d 1284 (2010). In Grieco, we granted a motion to strike a transcript of the
oral decision supplementing written findings when the superior court's written order was
not incomplete and did not need clarification, jd. at 871-72.
Here, the trial court's written orders in the first and second TEDRA petition are
complete and do not need clarification. The trial court did not formally incorporate its oral
decisions into its written orders. To the extent that these transcripts conflict with the
written orders, they have not been considered here.5
5 See Engstrom v. Goodman, 166 Wn. App. 905, 909 n.2, 271 P.3d 959 (2012) ("[A] motion to strike is typically not necessary to point out evidence and issues a litigant believes this court should not consider. No one at the Court of Appeals goes through the record or the briefs with a stamp or scissors to prevent the judges who are hearing the case from seeing material deemed irrelevant or prejudicial. So long as there is an opportunity (as there was here) to include argument in the party's brief, the brief is the appropriate vehicle for pointing out allegedly extraneous materials—not a separate motion to strike."), review denied, 175 Wn.2d 1004, 285 P.3d 884 (2012).
17 No. 70210-6-1/18
IV. Attorney Fees on Appeal
Eaden and Cal Jr.'s children both request their reasonable attorney fees and costs
on appeal pursuant to RCW 11.96A.150(1) and RAP 18.1(a). RCW 11.96A.150(1) allows
for a discretionary award of attorney fees to any party, against any party or against the
Estate, at both the trial court and appellate court level. We deny the request for fees by
Cal Jr.'s children. We grant Eaden's request only for reasonable fees and costs
associated with defending the Estate's appeal of the trial court's attorney fees award.
This award shall be assessed against the Estate.
We affirm.
WE CONCUR:
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