Estate of Jepsen v. Miles

358 P.3d 403, 184 Wash. 2d 376

• Court: Washington Supreme Court
• Decided: September 24, 2015
• Docket: No. 90874-5
• Status: Published

Opinions

Yu, J.

¶1 — In order to commence a will contest action, there must be timely personal service of the will contest petition on the estate’s personal representative. Here, the will contest petition was never personally served on the personal representative. The action was therefore never fully commenced and should have been dismissed. We reverse the Court of Appeals.

FACTUAL AND PROCEDURAL HISTORY

¶2 Virginia J. Jepsen executed her last will and testament on July 1, 2009, and died on November 16, 2011. On December 20, 2011, the superior court admitted Jepsen’s will to probate, declared the estate was solvent, and appointed Julie Miles as personal representative (PR) with nonintervention powers.

¶3 On March 22, 2012, Jepsen’s adult son, Mack,¹ filed a petition contesting the validity of Jepsen’s will. Mack’s attorney e-mailed the petition to the PR’s attorney the same day it was filed. There is nothing in the record showing that the PR affirmatively agreed to accept e-mail service on her attorney in lieu of personal service on the PR. On April 27, 2012, the PR filed a response to Mack’s petition, denying its substantive allegations but not raising any affirmative defenses.

¶4 On October 31, 2012, the PR filed a motion to dismiss Mack’s petition because it was not personally served within 90 days of filing. The trial court initially granted the PR’s motion but reversed itself on reconsideration, holding that service under RCW 11.24.010 went solely to personal jurisdiction and that any objection on that basis was waived. The PR appealed, and the Court of Appeals affirmed in an unpublished decision. In re Estate of Jepsen, No. 71732-4-1 (Wash. Ct. App. Sept. 8, 2014) (unpublished), http://www .courts.wa.gov/opinions/pdP717324.pdf, review granted, 182 Wn.2d 1002, 342 P.3d 326 (2015).²

ISSUES

¶5 A. Did the Court of Appeals correctly hold that the PR waived any objection to Mack’s failure to comply with RCW 11.24.010?

¶6 B. Is either party entitled to attorney fees and costs on appeal?

ANALYSIS

¶7 RCW 11.24.010 sets forth the steps necessary to commence a will contest action, one of which is personally serving the will contest petition on the PR. Mack did not do so, and the probate of Jepsen’s will is now binding and final. However, we disapprove of the PR’s delay in raising the issue and therefore deny both parties’ requests for attorney fees and costs on appeal.

A. Under the plain language of RCW 11.24.010, the probate of Jepsen’s will is binding and final

¶8 Questions of statutory interpretation are reviewed de novo. In re Marriage of Buecking, 179 Wn.2d 438, 443, 316 P.3d 999 (2013). We must first consider the statute’s plain language. Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002). In this case, our inquiry ends there. A will contest petitioner must satisfy RCW 11.24.010’s requirements in order to commence a will contest action, and Mack did not do so.

¶9 Will contests are special statutory proceedings governed by ch. 11.24 RCW.³ In re Estate of Toth, 138 Wn.2d 650, 653, 981 P.2d 439 (1999). RCW 11.24.010 sets a four-month limitations period for will contests and provides in relevant part:

For the purpose of tolling the four-month limitations period, a contest is deemed commenced when a petition is filed with the court and not when served upon the personal representative. The petitioner shall personally serve the personal representative within ninety days after the date of filing the petition. If, following filing, service is not so made, the action is deemed to not have been commenced for purposes of tolling the statute of limitations.,

If no person files and serves a petition within the time under this section, the probate or rejection of such will shall be binding and final.

(Emphasis added.) This unambiguous language requires no construction. The PR in this case was never personally served with the will contest petition.⁴ The probate of Jepsen’s will is therefore binding and final.

¶10 Mack tries to avoid this plain language by contending that personal service of a will contest petition is necessary only to gain personal jurisdiction over the PR and that the PR waived any objection on that basis under CR 12(h)(1). His primary support for this argument comes from In re Estate of Kordon, 157 Wn.2d 206, 137 P.3d 16 (2006). In that case, we held that issuance of a “citation” under former RCW 11.24.020 (1965) was “equivalent to a civil summons, conferring personal jurisdiction over a party to a will contest.” Id. at 210 (emphasis added). Kordon, however, interpreted RCW 11.24.020, which (in both its current and former versions) sets forth the requirements for giving notice of a will contest action. By contrast, this case concerns RCW 11.24.010, which sets forth the requirements for commencing a will contest action. Washington courts have always strictly enforced the requirements for commencing will contest actions, and we do so again today. See, e.g., Toth, 138 Wn.2d at 656; State ex rel. Wood v. Superior Court, 76 Wash. 27, 30-31, 135 P. 494 (1913); In re Estate of Peterson, 102 Wn. App. 456, 463, 9 P.3d 845 (2000).

¶11 Mack also contends that giving effect to the plain language of RCW 11.24.010 would divest the superior courts of their constitutional jurisdiction over “all matters of probate.” Const, art. IV, § 6. However, “the legislature may prescribe reasonable regulations that do not divest the court of its jurisdiction.” Buecking, 179 Wn.2d at 449. RCW 11.24.010 does just that by setting forth reasonable statutory prerequisites that must be fulfilled in order to commence a will contest action, which, as noted above, is a special statutory proceeding.⁵ Cf. Christensen v. Ellsworth, 162 Wn.2d 365, 370-71, 173 P.3d 228 (2007); James v. Kitsap County, 154 Wn.2d 574, 587-89, 115 P.3d 286 (2005);⁶ In re Parentage of Ruff, 168 Wn. App. 109, 118, 275 P.3d 1175 (2012).

¶12 Mack did not complete the necessary steps to commence his will contest action.⁷ The probate of Jepsen’s will is therefore binding and final.

B. Attorney fees and costs are denied

¶13 Both parties request attorney fees and costs on appeal pursuant to RCW 11.96A.150(1). Mack failed to comply with the plain language of RCW 11.24.010, so we deny his request. However, we disapprove of the PR’s delay in raising the issue, contrary to her statutory duty “to settle the estate ... as rapidly and as quickly as possible, without sacrifice to the probate or nonprobate estate.” RCW 11.48.-.010. We therefore deny her request as well.

CONCLUSION

¶14 For the foregoing reasons, we reverse the Court of Appeals, deny both parties’ requests for attorney fees and costs, and remand for further proceedings consistent with this opinion.

Madsen, C.J., and Fairhurst, Wiggins, and González, JJ., concur.

1 We use Mack’s first name for clarity, intending no disrespect.

2 Mack died in. August 2013, and his estate was substituted as the party in interest. Jepsen, slip op. at 2 n.l.

3 The Trust and Estate Dispute Resolution Act, ch 11.96A RCW, “shall not supersede, but shall supplement” other Title 11 RCW statutes, including statutes governing will contests. RCW 11.96A.080(2). There is no need for supplementation to resolve the merits of this case.

4 An e-mail to an attorney cannot constitute substantial compliance with personal service on a party where, as here, there is no express waiver of personal service, no agreement for electronic service, see GR 30(b)(4), and no acceptance of service by the PR anywhere in the record. Mack does not raise equitable estoppel, so we express no opinion on that issue.

5 Attempting to parse out the “fuzz[y]” distinction between procedural “litigation preconditions” and “jurisdictional” statutes has led to significant confusion in prior cases. Howard M. Wasserman, The Demise of “Drive-By Jurisdictional Rulings," 105 Nw. U. L. Rev. 947,954-55 (2011). We decline to add to that confusion, particularly in the special statutory context of a will contest, where there is “no functional difference between a court lacking power to hear the issue [based on a jurisdictional statute] and a court lacking the opportunity to wield that power [based on a litigation precondition]: either way, it is unable to adjudicate the issue.” Id. at 959-60. Instead, we adhere to our precedent strictly construing will contest statutes, which set forth reasonable requirements that further the long-standing preference for efficient administration and finality of judgments in probate matters. See Toth, 138 Wn.2d at 656; cf. Henderson v. Shinseki, 562 U.S. 428, 440, 131 S. Ct. 1197, 179 L. Ed. 2d 159 (2011) (holding that the deadline for veterans to appeal administrative denial of benefits may be subject to equitable tolling because “[t]he solicitude of Congress for veterans is of long standing” (quoting United States v. Oregon, 366 U.S. 643, 647, 81 S. Ct. 1278, 6 L. Ed. 2d 575 (1961))).

6 Notably, the Land Use Petition Act at issue in James specifically provides that certain defenses based on procedural noncompliance are waived if not timely raised. RCW 36.70C.080(2)-(3). The will contest statutes do not contain similar waiver provisions.

7 Because Mack did not fully commence his will contest action, the PR’s response to his petition was superfluous. However, we note that automatic waiver under CR 12(h)(1) is inconsistent with the plain language of RCW 11.24.010 and so would not apply in any event. CR 81(a).