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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In the Matter of the Estate of ) ) No. 86412-8 JAMES W. HAVILAND, ) ) EnBanc Deceased. ) ) Filed -MAR 14 2013
MADSEN, C.J.-During the pendency of a will contest involving Dr. James
Haviland's estate, the legislature amended the slayer statutes to disinherit those who
financially abuse vulnerable adults. In light of the amendments, the administrator of the
Haviland estate requested the trial court to determine whether Mary Haviland should be
disinherited based on her conduct as found by the trial court. The trial court determined
that the abuser statutes could not be applied to deny Ms. Haviland benefits from the
Haviland estate because the statutes are triggered by financial abuse, which would require
improper retroactive application of the statutes. The Court of Appeals reversed and
remanded for further proceedings, holding that the petition filed during probate to
adjudicate whether an individual is an abuser is the triggering event for application of the
statutes and that the statutes acted prospectively as applied to this estate. We affirm the No. 86412-8
Court of Appeals and hold that the abuser statutes act prospectively and that the filing of
the abuser petition during probate triggers the statutes.
FACTS
Dr. James Haviland was a medical doctor practicing in the Seattle area. For
several decades, he was married to Marion Haviland, with whom he had four children.
She died in 1993 and much of their estate was put into a living trust for the benefit of Dr.
Haviland and his children and grandchildren upon his death. Three years later, Dr.
Haviland, then 85, met 35-year-old Mary Haviland (then Mary Burden) who worked at
Providence Hospital where he was a patient. Following Dr. Haviland's discharge, he and
Ms. Burden began dating and he agreed to pay $100,000 toward her education and an
additional $300,000-$350,000 for a "nest egg." Clerk's Papers (CP) at 13.
Dr. Haviland and Ms. Burden married in 1997. The day before their marriage, Dr.
Haviland changed his will to include Ms. Burden and revised it several more times during
their marriage in 1998, 2002, and 2006. The 2006 will authorized Dr. Haviland's total
probate estate to pass to Ms. Haviland, with the exception of specific bequests of
$55,000, only leaving his children the right of first refusal to purchase his property on
Shaw Island if Ms. Haviland decided to sell it. The will also directed that Ms. Haviland
would be one of the estate's personal representatives. During the marriage, Dr. Haviland
also amended his living trust and transferred securities for Ms. Haviland's benefit, and
made large cash gifts to her family members. Additionally, large sums were transferred
from their joint checking account to Ms. Haviland's separate account.
2 No. 86412-8
Dr. Haviland suffered advanced dementia at the end of his life; however, it is
unclear if he suffered the condition during the signing of the 2006 will. He died in
November 2007. The 2006 will was admitted to probate the following month.
In April2008, three of Dr. Haviland's children commenced an action challenging
the 2006 will, alleging that Dr. Haviland lacked testamentary capacity and that the will
was the product of undue influence by Ms. Haviland. They also sought removal of Ms.
Haviland as copersonal representative ofthe estate under RCW 11.36.010 because of her
ineligibility due to past criminal convictions. In May, Ms. Haviland resigned as
copersonal representative, and a week later the court also granted the petition to remove
her as the representative. The trial court found that "the lifetime Estate of Dr. Haviland
was so depleted by Mary's transfer of funds that, after distribution of specific bequests,
the total value of the Estate is a negative $45,834.38." CP at 36. The court invalidated
the 2006 will, finding by clear, cogent, and convincing evidence that the will was the
product of undue influence by Ms. Haviland. The court also awarded attorney fees to the
petitioners, paid from Ms. Haviland's share of the probate and nonprobate assets of the
estate, and appointed Richard Furman as administrator of the estate.
Ms. Haviland appealed the trial court's ruling to the Court of Appeals. The court
affirmed, determining that the trial court correctly analyzed the undue influence claim
and that there was substantial evidence from the record supporting the trial court's
written findings of fact and conclusions of law. In re Estate of Haviland, 162 Wn. App.
548, 569, 255 P.3d 854 (2011).
3 No. 86412-8
While the will challenge was pending, the legislature amended the slayer statutes,
extending the statutes' application to prevent financial abusers of vulnerable adults from
acquiring property or any benefit from their victims' estates. 1 LAWS OF 2009, ch. 525,
codified in chapter 11.84 RCW, RCW 26.16.120, RCW 41.04.273, and RCW
11.96A.030. In light of this change, Furman, as administrator, filed a petition to
determine whether Ms. Haviland engaged in a pattern of transferring assets from Dr.
Haviland's estate for her and her designees' benefit, constituting financial exploitation
sufficient for application of chapter 11.84 RCW.
The trial court denied the petition, concluding that the triggering event for
application of the statutes was the financial exploitation of Dr. Haviland. The court noted
the effective date of the statute was July 26, 2009, and declined to apply the statute
retroactively. The Court of Appeals reversed. In re Estate of Haviland, 161 Wn. App.
851, 858, 251 P.3d 289 (2011). The court concluded that the triggering event for
applying the statutes was the filing of the petition during probate to declare a person an
abuser. Thus, any application of the abuser statutes in the Haviland probate would not
constitute a retroactive application. ld. at 851. It remanded the matter to the trial court to
determine whether the trial court's findings of financial exploitation were sufficient to
determine that Ms. Haviland was an abuser for purposes of the statutes. ld. We granted
1 "No 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." RCW 11.84.020. An abuser is "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). 4 No. 86412-8
Ms. Haviland's petition for review. In re Estate of Haviland, 173 Wn.2d 1001, 268 P.3d
941 (2011).
ANALYSIS
Resolution of this case requires that we determine the triggering event for applying
the financial abuse prong of the amended slayer statutes. 2 The estate and Dr. Haviland's
children contend that the legislature intended the statutes to act prospectively and that the
filing of the abuser petition during probate is the triggering event for applying the
statutes. Ms. Haviland agrees that the statutes must be applied prospectively; however,
she argues that the date of the decedent's death is the triggering event. Thus, she
contends that applying the statutes in this case would be an improper retroactive
application. She also argues that application of the statutes would impair her vested
rights, in violation of due process protections. To resolve this issue, we turn to the plain
language of the statutes and applicable case law.
We review questions of statutory interpretation de novo. Jackowski v. Borchelt,
174 Wn.2d 720, 729, 278 P.3d 1100 (2012). A statute has retroactive effect when the
precipitating event under the statute occurred before the statute's enactment. In re Pers.
Restraint of Carrier, 173 Wn.2d 791, 809, 272 P.3d 209 (2012); State v. Belgarde, 119
Wn.2d 711, 722, 837 P.2d 599 (1992). A statute may also act retroactively when it takes
away or impairs vested rights, or imposes new duties or disabilities in respect to past
2 Both parties allude to concerns over the application of the abuser statutes to nonprobate assets; however, our decision is limited to the triggering event of these statutes. The scope of the abuser statutes to nonprobate assets is a question that is not before this court and may be addressed by the trial court if Ms. Haviland is deemed an abuser. 5 No. 86412~8
transactions; however, a statute is not retroactive '"merely because it relates to prior facts
or transactions where it does not change their legal effect. It is not retroactive because
some of the requisites for its actions are drawn from a time antecedent to its passage or
because it fixes the status of a person for the purposes of its operation.'" State v. Varga,
151 Wn.2d 179, 195, 86 P.3d 139 (2004) (quoting State v. Scheffel, 82 Wn.2d 872, 879,
514 P.2d 1052 (1973)); State v. Pillatos, 159 Wn.2d 459, 471, 150 P.3d 1130 (2007)
(citing Pape v. Dep 't of Labor & Indus., 43 Wn.2d 736, 740~41, 264 P.2d 241 (1953)).
Conversely, "[a] statute operates prospectively when the precipitating event for the
application of the statute occurs after the effective date of the statute, even though the
precipitating event had its origin in a situation existing prior to the enactment of the
statute." Aetna Life Ins. Co. v. Wash. Life & Disability Ins. Guaranty Ass 'n, 83 Wn.2d
523, 535, 520 P.2d 162 (1974); In re Estate of Burns, 131 Wn.2d 104, 110~11, 928 P.2d
1094 (1997). Statutes are presumed to apply prospectively, absent contrary legislative
intent. Burns, 131 Wn.2d at 110.
We look to the subject matter regulated by the statute and consider its plain
language to determine the precipitating or triggering event. Carrier, 173 Wn.2d at 809
(citing State v. TK., 139 Wn.2d 320, 330, 987 P.2d 63 (1999)); Burns, 131 Wn.2d at 112.
"The court's fundamental objective is to ascertain and carry out the Legislature's intent,
and if the statute's meaning is plain on its face, then the court must give effect to that
plain meaning as an expression of legislative intent." Dep 't of Ecology v. Campbell &
Gwinn, LLC, 146 Wn.2d 1, 9~10, 43 P.3d 4 (2002).
6 No. 86412-8
The abuser statutes regulate the receipt of benefits. This is evidenced by the
language in RCW 11.84.020 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" and in RCW
11.84.900, which states that "no person shall be allowed to profit by his or her own
wrong, wherever committed." The language plainly seeks to prevent a financial abuser
from receiving any property or other benefit from a decedent's estate. While the slayer
statutes will disincentivise abuse, deterrence for the commission of these acts exists
elsewhere in the code, under the criminal statutes for murder and the vulnerable adult
protection act, chapter 9A.32 RCW and chapter 74.34 RCW. Indeed the financial abuse
slayer statutes only affect those persons who both abuse a vulnerable adult and are
beneficiaries of the abused person.
For the statutes' purpose to be effectuated, they must be applied to prevent
distribution of property and other benefits to a financial abuser. When the victim's estate
is subject to probate, the probate proceeding, not the decedent's death, clears title and
results in distribution of the assets. Distribution of assets that pass outside of probate
may also be challenged when there is a claim that distribution of property or other
benefits is prevented under the slayer statute. 3 In either case, there must be a
determination made about whether a slaying or financial exploitation of a vulnerable
adult bars acquisition of a decedent's property or other benefits. It is the challenge to
3 See, e.g., RCW 41.04.273 (explaining process for which property that would have passed to or from one of the retirement systems listed in RCW 41.50.030 is distributed when the beneficiary was a slayer or abuser of the decedent). 7 No. 86412-8
property distribution based on abuse that triggers application of the statute, even though
the abuse itself occurred in the past.
RCW 11.84.900 provides that the slayer and abuser chapter is to be "construed
broadly" so that "no person shall ... profit by his or her wrong." The definition of a
"decedent" under that chapter also contains no limitations, stating that a decedent is one
who "at any time during life in which he or she was a vulnerable adult, was the victim of
financial exploitation by an abuser." RCW 11.84.010(2)(b). Viewing the filing of a
petition challenging distribution based on financial abuse as the triggering event best
effectuates the statutes' stated goal of broad application.
It is also significant that the legislature did not specify an effective date for
. application of the financial abuse amendments, particularly when contrasted with other
provisions within Title 11 RCW, which do state effective dates and application terms.
See, e.g., RCW 11.11.901 (application of the chapter to any will of an owner who dies
while a state resident on or after July 1, 1999, regardless of the date of execution or
republishing, and regardless of when the beneficiary was designated); see also RCW
11.20.020 ("Effective date-- Application-- 1977 ex.s. c 234: 'This 1977 amendatory act
shall take effect on October 1, 1977 and shall apply to all proceedings in probate with
respect to decedents whose deaths occurred after the effective date."'). These provisions
demonstrate that the legislature is capable of expressing a triggering event and has done
so in the past. Its decision not to do so here further supports broad application of the
abuser statutes.
8 No. 86412-8
Our conclusion is consistent with existing case law, which demonstrates that the
proper triggering event is that which the statute intends to regulate. See Belgarde, 119
Wn.2d at 722 (constitutional amendment authorizing a retired judge to hear cases
pending before his retirement is triggered by the retirement of a judge with pending
cases, not the cases themselves). In Burns, 131 Wn.2d at 105, the court was required to
determine the precipitating event for statutory amendments relating to the state's ability
to recover medical benefits from a person's estate, where the benefits were received prior
to the effective date of the statute authorizing recovery of the benefits. We considered
the plain language of the statute to determine the activity that the provision regulated and
held that the precipitating event was the receipt of benefits giving rise to indebtedness
because the statute regulated the collection of debt and not the creation of the decedent's
estate. Id. at 115. Thus, the state's attempt to apply the amendment to recover earlier
benefits constituted an improper retroactive application. Id. at 120.
Similarly, in Aetna, 83 Wn.2d at 525-26, we considered an act that required
insurers to become members of a guaranty association and pay an assessment if another
insured received a liquidation order. There, the insurers contended that the state
unconstitutionally applied the statute retroactively when it collected assessments on
premiums received before the statute's enactment. Id. at 534. We determined that the
liquidation order was the precipitating event, rather than the insolvency or receipt of
premiums, since no assessments were made or relief provided until after a liquidation
order. Id. at 535. Here, the abuser statutes intend to regulate the receipt of benefits, not
9 No. 86412-8
the financial abuse itself. Thus, despite the fact that abuse occurred prior to the
amendments at issue, the triggering event is the attempt by the abuser to receive property
or any other benefit from the estate of the abused person.
Ms. Haviland argues, however, that the statutes act retroactively when applied to
this estate because, she says, vested rights are impaired. In re Pers. Restraint of Flint,
174 Wn.2d 539, 547-48, 277 PJd 657 (2012) ("A statute has retroactive effect if it takes
away or impairs a party's vested rights acquired under existing laws. The same is true if
a statute's application increases liability for past conduct or imposes new duties or
disabilities with respect to completed transactions." (citations omitted)).
We disagree. A vested right is more than a mere expectation. Carrier, 173 Wn.2d
at 811. In Carrier, we said that to vest, the right '"must have become a title, legal or
equitable, to the present or future enjoyment of property, a demand, or a legal exemption
from a demand by another."' ld. (quoting Godfrey v. State, 84 Wn.2d 959, 963, 530 P.2d
630 (1975)). For example, inState v. Varga, 151 Wn.2d 179,197,86 P.3d 139 (2004),
we considered whether a defendant had a vested right in the "washed out" status of his
prior convictions when the legislature amended the Sentencing Reform Act of 1981,
chapter 9.94A RCW, to require courts to include these offenses in the offender score
calculation. While distinguishing another case involving vested rights, we said:
Unlike T.K., Varga could not exercise his alleged "right" to the "washed out" status of his prior convictions until he committed a new offense. T.K. on the other hand could have moved the court to expunge his juvenile adjudication under the former version ofRCW 13.50.050(11). Given that Varga's ability to exercise his right depended on his commission
10 No. 86412-8
of a new offense, we cannot conclude that Varga is entitled to the same protections as T.K.
Varga, 151 Wn.2d at 197. We held that Varga had no vested right to a "wash out" ofhis
prior conviction because whether the offense "washed out" depended on whether Varga
committed a crime in the future. !d. at 197-98. Applying this rationale to the case at
hand, Ms. Haviland's right in her deceased husband's property depends upon the
outcome of probate proceedings and whether there are claims of fraud, undue influence,
creditor claims, or other challenges. See RCW 11.04.250. Thus, prior to probate, Ms.
Haviland's interest is not vested for purposes of determining retroactivity.
Our conclusion is also supported by the language of the descent and distribution
statutes. For example, RCW 11.04.250 states that while title in real estate vests
immediately irr the heirs or devisees upon the death of the decedent, no person is a
devisee until the will has been probated. Further, a probate order is conclusive except
when there is a will contest. RCW 11.20.020. Accordingly, Ms. Haviland cannot inherit
until probate has been completed.
This conclusion also follows from case law, which holds that while heirs have an
interest in the property at death, that interest is subject to the administrator until the
completion of probate. See Wendler v. Woodard, 93 Wash. 684, 685, 161 P. 1043 (1916)
(citing Gibson v. Slater, 42 Wash. 347, 84 P. 648 (1906) (heirs take title immediately, but
the administrator has the right of possession and recovery for the estate)); see also In re
Estate ofVerchot, 4 Wn.2d 574, 582, 104 P.2d 490 (1940) (heirs acquire a vested
equitable right in the decedent's personal property, but only the interest in the estate
11 No. 86412-8
vests, not the title); In re Estate of Peterson, 12 Wn.2d 686,734, 123 P.2d 733 (1942)
("Only after an estate has been closed can the heirs, by acquiring these additional rights
in the property, become entitled to treat it as their own."); In re Estate ofTurner, 191
Wash. 145, 150, 70 P.2d 1059 (1937) (noting that an estate vests immediately in an heir
upon an ancestor's death, subject to creditors, and that there, the probate of the estate had
been fully completed and the estate was "fully vested in the heirs and devisees" under the
probate statute).
Even in the context of the slayer statute, several jurisdictions have noted that a
slayer is not divested of property already acquired when he is prevented from inheriting
from his victim. See In re Estate of Blodgett, 147 P.3d 702, 710 (Alaska 2006) (citing
Mary Louise Fellows, The Slayer Rule: Not Solely a Matter of Equity, 71 IOWA L. REV.
489, 540 n.160 (1986), and discussing various court rationales for disallowing a slayer to
profit from his victim where constitutional forfeiture clauses prevent a criminal from
forfeiting his property to the state). The conclusion that a slayer is not deprived of
property was also expressed by this court when a slayer sought property in lieu of a
homestead award, prior to the enactment of the slayer statute. In re Estate of Tyler, 140
Wash. 679, 691, 250 P. 456 (1926) (saying that "[t]his property was not his, and he is not
being deprived of it. He has sought to acquire it because of the crime he committed for
the purpose of acquiring it. He had no vested right or interest in it"). 4 Here, the abuser
4 Following Tyler, this court in In re Estate of Duncan, 40 Wn.2d 850, 853, 246 P.2d 445 (1952), allowed a slayer to inherit from the decedent, distinguishing Tyler on the grounds that it related to homestead statutes, not descent and distribution. Duncan reasoned that the legislation passed subsequent to Tyler did not imply a prohibition against inheritance, as it did for homesteads, 12 No. 86412-8
statutes do not have retroactive effect because only upon completion of probate would
Ms. Haviland's interest be vested for this purpose.
Nor is Ms. Haviland faced with new consequences for past actions. Prior to Ms.
Haviland's conduct, financial abuse of a vulnerable adult was regulated by the vulnerable
adult protection act. RCW 74.34.110 (a vulnerable adult may seek relief from financial
exploitation by filing a petition for a protection order), .145 (protection orders for
vulnerable adults issued under this chapter shall bear a notice that violation with actual
notice is a criminal offense under chapter 26.50 RCW, and violation of these orders are
punishable under RCW 26.50.110), .200 (in addition to other remedies, a vulnerable adult
subject to financial exploitation shall have a cause of action for damages). The
vulnerable adult protection act thus provided notice that financial abuse is a wrongful act
and that the financial abuser could be liable for the amount they improperly received.
Finally, we reject Ms. Haviland's argument that applying the financial abuse
statutes in this case would violate the ex post facto clause. U.S. CONST. art. I, § 10;
WASH. CONST. art. I, § 23. This clause pertains to criminal and penal statutes that punish
past or future conduct. State v. Schmidt, 100 Wn. App. 297, 299, 996 P.2d 1119 (2000),
aff'd, 143 Wn.2d 658, 23 P.3d 462 (2001). However, "the slayer statute is not a criminal
statute. Its origins are in equity." In re Estate of Kissinger, 166 Wn.2d 120, 131,206
P.3d 665 (2009). Likewise, the abuser statutes are civil and simply prevent one from
although this result did shock the court's conscience. Id. at 854. The court noted that it was only asked to construe descent and distributions statutes and concluded by inviting the legislature to act to avoid such a result in the future. Id. 13 No. 86412-8
profiting by his own wrongful actions. Cf Tyler, 140 Wash. at 687 (citing Perry v.
Strawbridge, 209 Mo. 621, 108 S.W. 641 (1908)).
In light of our holding that application of the financial abuse statutes in this case is
not an improper retroactive application, we deny Ms. Haviland's motion for attorney fees
and costs.
CONCLUSION
We hold that the abuser statutes act prospectively as applied to this case and are
triggered by the filing of the petition to declare a beneficiary an abuser. We affirm the
Court of Appeals and remand to the trial court for further proceedings.
14 No. 86412-8
WE CONCUR:
15 In re Estate ofHaviland (James W), No. 86412-8
No. 86412-8
CHAMBERS, J.* (dissenting)-More than a year after Dr. James W. Haviland's death, the legislature amended the slayer statute to disinherit many of
those who financially abuse vulnerable adults. LAWS OF 2009, ch. 525. Based on
that statutory change, Dr. Haviland's children seek to disinherit his wife. The
majority holds that they may. I would hold the amendment is prospective and its
triggering event is the death of the alleged vulnerable adult. Accordingly, I would
hold the amendment does not apply to the facts of this case and reverse the Court
of Appeals.
Dr. Haviland was born in 1911 and lived an accomplished life. Among many other things, he cofounded the Northwest Kidney Centers. Dr. Haviland had
a long marriage with Marion Haviland. They had four children together. After
Marion died in 1993, much of her estate was put into trust for the lifetime benefit of Dr. Haviland, to be distributed at his death to several charities, their children,
and their grandchildren. Three years after Marion died, Dr. Haviland met Mary
Burden who worked as a nurse's assistant at a facility where Dr. Haviland was treated. A romance developed and Dr. Haviland began advancing money to Mary
Burden and then married her. Clerk's Papers (CP) at 13-14. 1
*Justice Tom Chambers is serving as a justice pro tempore of the supreme Court pursuant to Washington Constitution article IV, section 2(a). 1 Mary Haviland was 35 years old and Dr. Haviland was 85 years old when they married. 1 In re Estate ofHaviland (James W.), No. 86412-8
After they married, Dr. Haviland revised his will several times. Each
revision gave a larger portion of the estate to Mary Haviland and less to his
children and charity. Ten years later, "the lifetime Estate ofDr. Haviland [which
had exceeded three million dollars at the time he married Mary Burden] was so
depleted by Mary's transfer of funds that after distribution of specific bequests, the
total value of the Estate is a negative $45,834.38." CP at 14, 36. In September
2009, Judge John P. Eilick set aside the 2006 will as "the product of undue
influence by Mary Haviland," canceled the letters testamentary, and appointed
Richard Furman as an independent personal representative. CP at 38, 40, 174-75.
The Court of Appeals affirmed. In re Estate ofHaviland, 162 Wn. App. 548,255
P.3d 854 (2011). 2 Neither party sought further review and the issue of undue
influence is not before us.
Over a year after Dr. Haviland died, the Washington legislature amended the
slayer statute to largely disinherit those who financially abuse vulnerable adults.
LAWS OF 2009, ch. 525, codified mostly in chapter 11.84 RCW. The amendments
became effective in July 2009. Not long after, the independent personal
representative moved to disinherit Mary Burden Haviland. CP at 1. The real issue
in this case is whether the legislation reaches back in time to cover conduct that
occurred before the legislation was enacted. 3
2 The matter was remanded for further proceedings, is not before us, and may await the result of this review with the administrator offering the 2002 will for probate. 3 "' Abuser"' is defined in the statute 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). Trial judges are empowered to disinherit an abuser if they find "by clear, cogent, and convincing evidence that: (a) The decedent was a vulnerable adult at the time the alleged financial exploitation took place; and (b) The conduct constituting financial 2 In re Estate ofHaviland (James W), No. 86412-8
The legislature's power is plenary, and it may, subject to constitutional constraints, pass retroactive legislation. Wash. State Farm Bureau Fed'n v.
Gregoire, 162 Wn.2d 284, 300-01, 174 P.3d 1142 (2007). But for good reason, we approach such claims with skepticism. "A retrospective law, in the legal sense, is one which takes away or impairs vested rights acquired in the existing laws, or
creates a new obligation and imposes a new duty, or attaches a new disability, in
respect to transactions or considerations already past." Pape v. Dep 't of Labor &
Indus., 43 Wn.2d 736, 740-41, 264 P.2d 241 (1953) (citing 50 AM. JUR. Statutes§
476, at 492 (1944)).
In cases where a statute does not clearly articulate the triggering event, we attempt to determine the event that will best accomplish the legislature's intent
within constitutional limitations. State v. Belgarde, 119 Wn.2d 711, 837 P.2d 599
(1992). I cannot find anything in the text or the legislative history of this act to suggest the legislature intended a retroactive application. While there is no explicit
triggering event found in the financial abuser amendment, the legislature chose to place it within the slayer statute, where plainly, the triggering event is the slaying
of the decedent. 4 It is also consistent with RCW 11.84.170, which provides that
abusers are entitled to inherit if the abused person "[k]new of the financial
exploitation; and ... [s]ubsequently ratified his or her intent" to bequeath an estate.
exploitation was willful action or willful inaction causing injury to the property of the vulnerable adult," with certain exceptions not relevant to us today. RCW 11.84.160(1). 4 1 recognize that no case has explicitly found that the "the willful and unlawful killing of any other person" is in fact the triggering event for application of the pre-2009 slayer statute, but my review of the case law persuades me it is fairly implied. See RCW 11.84.010(5); In re Estate of Kissinger, 166 Wn.2d 120, 206 P.3d 665 (2009) (considering whether a finding of not guilty by reason of insanity barred inheritance under the slayer statute). 3 In re Estate ofHaviland (James W), No. 86412-8
RCW 11.84.170(1 )(a)-(b ). Whether or not the abused person ratified an intent to
bequeath the estate is not final until the person dies since, under most
circumstances, the decedent can change the disposition of the estate up until the
time of death. Fixing the triggering event as the date of death reduces uncertainty. Although will challenges, probate, and other proceedings may consume years, it is
the death that fixes the rights determined by any petitions filed in those
proceedings. The date of death is usually not subject to protracted factual inquiry
as would the date of abuse. Finally, in my view, concluding the statute is triggered by the filing of the petition will, in some cases, place new consequences on
completed acts, in violation of the principle that people are entitled to know the
consequences of their actions before they take them. See State v. Miller, 156
Wn.2d 23, 29, 123 P.3d 827 (2005) (citing Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457, 459 (1897)).
The majority finds evidence of legislative intent in the long standing
statutory admonition that "[t]his chapter shall 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. But, with some tweaks over the
years, that has been the law since 1955. LAWS OF 1955, ch. 141, § 14. This provision tells us little if anything about what the 2009 legislature intended.
The majority also finds some meaning in the fact that the legislature has, at
least twice, announced an effective date in Title 11 RCW legislation. But an
effective date is not a triggering event, and even if it were, what of it? The fact
that the legislature from time to time feels stirred to announce an effective date
4 In re Estate ofHaviland (James W.), No. 86412-8
tells us nothing about what event might trigger the application of a statute that is
silent on the subject. I cannot see why the legislature would not have been clearer
if it intended the amendments to apply to pending cases. In re Estate ofBurns, 131
Wn.2d 104, 110, 928 P.2d 1094 (1997) (citing Landgrafv. US! Film Prods., 511
U.S. 244, 270, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994)).
I cannot agree with the majority that Mary Haviland does not face new
consequences for past actions based on the court's action today. True, it appears
the legislature built on chapter 74.34 RCW, a chapter dedicated to protecting
vulnerable adults, when expanding the slayer statute to disinherit financial abusers. I say "appears" because the bill report the Haviland children call to our attention
does not cite chapter 74.34 RCW directly but refers to the "Abuse of Vulnerable
Adults Act," which is a fair description of chapter 74.34 RCW. H.B. REP. on
Substitute H.B. 1103, at 2, 67th Leg. Reg. Sess. (Wash. 2009). The bill report also
substantially mirrors the definition of"'[v]ulnerable adult"' found in former RCW
74.34.020(16) (2010). Id. However, the "Abuse of Vulnerable Adults Act" does not appear in the Popular Names Table produced by the Statute Law Committee.
No matter. Financial exploitation is broadly defined in chapter 74.34 RCW and
certainly could include actions by one spouse to the detriment of the other. RCW 74.34.020(6). 5 However, chapter 74.34 RCW, at least as it applies to
5 "'Financial exploitation'" includes, but is not limited to: (a) The use of deception, intimidation, or undue influence by a person or entity in a position of trust and confidence with a vulnerable adult to obtain or use the property, income, resources, or trust funds of the vulnerable adult for the benefit of a person or entity other than the vulnerable adult;
5 In re Estate ofHaviland (James W.), No. 86412-8
uncompensated spouses, see RCW 74.34.200, does not set forth a list of clearly
identified prohibited conduct. Instead, relevantly, it creates a mechanism to bring
potential abuse before a judge who is empowered to enter an appropriate protective
order, the violation ofwhich would be a criminal offense. RCW 74.34.130, .145. Only once the order is in place would a spouse have clear notice of what was
prohibited. The remedies in chapter 74.34 RCW are also very different from the
slayer statute. Chapter 74.34 RCW does not give clear notice that conduct like that
proved here could become the basis of future disinheritance by operation of law.
Something new happened in Laws of2009, chapter 525, and if it is applied to
Mary Haviland, something new will happen to her. She will be disinherited; a fact she could not reasonably have ·anticipated on the sad death of her husband.
I do not find that our cases lead us to the majority's conclusion, or in fact, to any useful conclusion. In Belgarde, we were asked to decide whether a
constitutional amendment to article IV, section 7 of our state constitution that
allowed retiring judges to finish pending cases as pro tern judges without the
parties' consent applied to a pending trial. Belgarde, 119 Wn.2d 711. Relying
upon the highly specific legislative history motivating the amendment, we found
that the trial judge's retirement, not the commencement of proceedings, was the triggering event. Id. at 722-23. In Burns, 131 Wn.2d at 107, we considered
whether amendments to chapter 43.20B RCW, that allowed the State to recover
(c) Obtaining or using a vulnerable adult's property, income, resources, or trust funds without lawful authority, by a person or entity who knows or clearly should know that the vulnerable adult lacks the capacity to consent to the release or use of his or her property, income, resources, or trust funds. RCW 74.34.020(6). 6 In re Estate ofHaviland (James W), No. 86412-8
some medical benefits from a person's estate, applied to benefits received prior to
the effective date of the statute. Based on the statutory language, principles of
fairness, and the general definitions of operative terms, we found that the "precipitating event" was the "receipt ofthe benefits." Burns, 131 Wn.2d at 115- 16. And in Aetna Life Insurance. Co. v. Washington. Life & Disability Insurance.
Guaranty Ass 'n, 83 Wn.2d 523, 525, 520 P.2d 162 (1974), we were faced with a
statute that created an insurer-funded guarantee fund to pay claims in the event of
insurer insolvency. One insurer had become insolvent as a matter of fact prior to
the effective date ofthe statute. !d. at 535. Several insurers had challenged the
statute's constitutionality and applicability on a variety of grounds, including its
alleged retroactivity. We rejected the constitutional challenges and concluded it
was not the actual insolvency or receipt of premiums that triggered application of
the statute. Instead, the statute was triggered by entry of a liquidation order against an insolvent insurer. !d. at 534-35. As that order had been entered after the effective date of the statute, it was not being applied retroactively. Taken together,
Belgarde, Burns, and Aetna establish that the triggering or precipitating event may
be the event that precipitates the evil the legislature intends to avoid, absent
statutory indication otherwise. The majority holds that the evil the legislature intends to avoid is the passing
of an estate to a financial abuser. And there is textual support for the majority's
conclusion. But that is a bloodless reason to pass legislation. It is plain to me that the true evil the legislature wished to end was elder abuse, not inheritance by
unworthy heirs.
7 In re Estate ofHaviland (James W.), No. 86412-8
Finally, I am not as confident as the majority that Mary Haviland has no rights the law is bound to respect. Under the legal fiction of relation-back, all rights of inheritance are occasioned by the death of the decedent but are subject to being defeated by all manner of forces that may frustrate the heir's expectation. See In re Estate of Baird, 131 Wn.2d 514, 520, 933 P.2d 1031 (1997) (quoting In
re Estate of Graley, 183 Wash. 268, 274,48 P.2d 634 (1935)). Creditors' claims,
will contests, market collapses, natural disasters-all these things could transform an estate from the time of death to the day the heir takes. Our law recognizes this. But it is a very different thing to hold the legislature can do something new to upset vested rights. I would avoid this question today. I respectfully dissent.
8 In re Estate of Haviland (James W), No. 86412-8