IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Estate of: ) No. 78178-2-1 MICHAEL JAMES SCOTT, JR., and ) NADINE IRENE SCOTT ) DIVISION ONE ) Deceased, ) UNPUBLISHED OPINION ) ) AMY MARIE SCOTT-ZERR, ) ) Appellant ) v. ) ) MICHAEL JAMES SCOTT III, personal ) representative, ) ) Respondent. ) ) FILED: August 19, 2019
HAZELRIGG-HERNANDEZ, J. — RCW 11.96A.125 permits courts to change
the contents of a will to conform to the testator's intentions if clear, cogent, and
convincing evidence shows that the testator's intent and the terms of the will were
affected by a mistake of fact. Michael Scott III asked the trial court to reform his
parents' wills without referring to the appropriate statute or standard. We reverse
and remand to the trial court to evaluate this case under RCW 11.96A.125.
FACTS
Michael Scott, Jr. and Nadine I. Scott had four children, Michael III, Anola,,
Nadine D. and Linda.1 Michael Jr. and Nadine I. created a number of documents
I Due to the number of Scott family members in this case, we refer to them by their first name, or first name and middle initial or suffix, if necessary. No disrespect is intended. No. 78178-2-1/2
purporting to be wills that were notarized but not signed by two witnesses, including
purported wills dated July 10, 2008, and January 6, 2011. Each of the purported
wills devised their entire estates to Michael III. They also created documents titled
Codicil to Last Will and Testament of Michael Scott Jr. and Codicil to Last Will and
Testament of Nadine I. Scott, dated January 14, 2015. The 2015 Codicils were
signed by two witnesses, Michael III and Anola. Both 2015 Codicils contain the
following language: "I hereby confirm and republish my will dated July 10, 2006."
No evidence supporting the existence of wills or purported wills dated July 10,2006
was submitted to the court.
Nadine I. and Michael Jr. died in early 2016. Their daughter, Linda, had
predeceased them in 2002. Michael III submitted Nadine I. and Michael Jr.'s 2011
purported wills to probate. Amy Scott-Zerr, Linda's ,daughter, challenged those
wills because they were not properly executed. The order admitting those wills to
probate was revoked. Michael III submitted an amended petition to admit the 2015
Codicils and the July 10, 2008 wills to probate. Scott-Zerr opposed the verified
petition.
After a trial, the court found that there was no room for doubt that Michael
Jr. and Nadine I. intended to incorporate their July 10, 2008 purported wills in their
2015 Codicils. It found that Michael III and Anola both testified credibly that the
July 10, 2008 wills were on the table in front of Michael Jr. when he executed the
2015 Codicils. It found that the reference to July 10, 2006 wills rather than July
10, 2008 wills was a scrivener's error. The court held the 2015 Codicils were
validly executed and admitted them to probate as wills. It held that the 2015
2 No. 78178-2-1/3
Codicils incorporated the July 10, 2008 purported wills by manifesting the intent to
incorporate and sufficiently describing the purported wills. Scott-Zerr appeals.
DISCUSSION
I. The trial court must consider the evidence presented under the reform
statute before it decides whether the 2015 Codicils incorporate the July
10, 2008 purported wills.
The parties agree that the 2015 Codicils are valid wills. They dispute
whether or not the 2015 Codicils incorporate the July 10, 2008 purported wills by
reference. The parties focused their arguments at trial and to this court on RCW
11.12.255, the incorporation by reference statute, which permits a will to
incorporate by reference any extant writing when the will manifests the testator's
intent to incorporate the writing and describes the writing sufficiently to permit its
identification.
The party claiming a will incorporates a document by reference has the
burden of proving the incorporation. Baarslaq v. Hawkins, 12 Wn. App. 756, 760,
531 P.2d 1283 (1975), review denied, 86 Wn.2d 1008 (1976). The will "must
clearly and definitely describe or identify the documents intended to be
incorporated, or render them capable of identification by extrinsic evidence, so that
no room for doubt can exist as to what papers were meant." Woodard v. Gramlow,
123 Wn. App. 522, 527, 95 P.3d 1244 (2004) (internal quotation marks omitted)
(quoting Baarslaa, 12 Wn.App. at 763). The will must describe the document "with
sufficient certainty that it may be identified and distinguished from other similar
documents . . . to protect against fraud, substitution and tampering." Baarslao, 12
3 No. 78178-2-1/4
Wn. App. at 761 (internal quotations omitted)(quoting 2 PAGE ON WILLS: THE LAW
OF WILLS § 19.23 (3d ed. 1960)). If the will is written in such vague or inaccurate
terms that the document to be incorporated can only be identified by evidence
outside the will or contradicting the will, the document may not be incorporated in
the will. Baarslaq, 12 Wn. App. 762 (quoting 2 W. PAGE, WILLS § 19.23 (3d ed.
1960)). Michael III argues that the reference to July 10, 2006 wills is a scrivener's
error, and that the 2015 Codicils intended to incorporate the July 10, 2008
purported wills. Scott-Zerr argues that RCW 11.12.255 and the case law
surrounding it do not leave room for errors. She argues that the 2015 codicils do
not sufficiently describe the July 10, 2008 purported wills to incorporate them by
reference. Regarding the incorporation by reference statute, she is correct. Any
extrinsic evidence considered by the court to support the incorporation of the July
10, 2008 purported wills would contradict the plain language of the 2015 Codicils.
The rule in Baarslag would not have permitted incorporation by reference in this
case. But in 2013, the legislature enacted RCW 11.96A.125, which permits judicial
reformation of a will in the case of a mistake.
The Trust and Estate Dispute Resolution Act (TEDRA)2 governs the
resolution of disputes involving estates. RCW 11.96A.010. TEDRA grants courts
plenary power to administer and settle all matters concerning the estates of
deceased persons. RCW 11.96A.020(1)(a). RCW 11.96A.125 states
the terms of a will or trust, even if unambiguous, may be reformed by judicial proceedings under this chapter to conform the terms to the intention of the testator or trustor if it is proved by clear, cogent, and
2 Ch. 11.96A RCW
4 No. 78178-2-1/5
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Estate of: ) No. 78178-2-1 MICHAEL JAMES SCOTT, JR., and ) NADINE IRENE SCOTT ) DIVISION ONE ) Deceased, ) UNPUBLISHED OPINION ) ) AMY MARIE SCOTT-ZERR, ) ) Appellant ) v. ) ) MICHAEL JAMES SCOTT III, personal ) representative, ) ) Respondent. ) ) FILED: August 19, 2019
HAZELRIGG-HERNANDEZ, J. — RCW 11.96A.125 permits courts to change
the contents of a will to conform to the testator's intentions if clear, cogent, and
convincing evidence shows that the testator's intent and the terms of the will were
affected by a mistake of fact. Michael Scott III asked the trial court to reform his
parents' wills without referring to the appropriate statute or standard. We reverse
and remand to the trial court to evaluate this case under RCW 11.96A.125.
FACTS
Michael Scott, Jr. and Nadine I. Scott had four children, Michael III, Anola,,
Nadine D. and Linda.1 Michael Jr. and Nadine I. created a number of documents
I Due to the number of Scott family members in this case, we refer to them by their first name, or first name and middle initial or suffix, if necessary. No disrespect is intended. No. 78178-2-1/2
purporting to be wills that were notarized but not signed by two witnesses, including
purported wills dated July 10, 2008, and January 6, 2011. Each of the purported
wills devised their entire estates to Michael III. They also created documents titled
Codicil to Last Will and Testament of Michael Scott Jr. and Codicil to Last Will and
Testament of Nadine I. Scott, dated January 14, 2015. The 2015 Codicils were
signed by two witnesses, Michael III and Anola. Both 2015 Codicils contain the
following language: "I hereby confirm and republish my will dated July 10, 2006."
No evidence supporting the existence of wills or purported wills dated July 10,2006
was submitted to the court.
Nadine I. and Michael Jr. died in early 2016. Their daughter, Linda, had
predeceased them in 2002. Michael III submitted Nadine I. and Michael Jr.'s 2011
purported wills to probate. Amy Scott-Zerr, Linda's ,daughter, challenged those
wills because they were not properly executed. The order admitting those wills to
probate was revoked. Michael III submitted an amended petition to admit the 2015
Codicils and the July 10, 2008 wills to probate. Scott-Zerr opposed the verified
petition.
After a trial, the court found that there was no room for doubt that Michael
Jr. and Nadine I. intended to incorporate their July 10, 2008 purported wills in their
2015 Codicils. It found that Michael III and Anola both testified credibly that the
July 10, 2008 wills were on the table in front of Michael Jr. when he executed the
2015 Codicils. It found that the reference to July 10, 2006 wills rather than July
10, 2008 wills was a scrivener's error. The court held the 2015 Codicils were
validly executed and admitted them to probate as wills. It held that the 2015
2 No. 78178-2-1/3
Codicils incorporated the July 10, 2008 purported wills by manifesting the intent to
incorporate and sufficiently describing the purported wills. Scott-Zerr appeals.
DISCUSSION
I. The trial court must consider the evidence presented under the reform
statute before it decides whether the 2015 Codicils incorporate the July
10, 2008 purported wills.
The parties agree that the 2015 Codicils are valid wills. They dispute
whether or not the 2015 Codicils incorporate the July 10, 2008 purported wills by
reference. The parties focused their arguments at trial and to this court on RCW
11.12.255, the incorporation by reference statute, which permits a will to
incorporate by reference any extant writing when the will manifests the testator's
intent to incorporate the writing and describes the writing sufficiently to permit its
identification.
The party claiming a will incorporates a document by reference has the
burden of proving the incorporation. Baarslaq v. Hawkins, 12 Wn. App. 756, 760,
531 P.2d 1283 (1975), review denied, 86 Wn.2d 1008 (1976). The will "must
clearly and definitely describe or identify the documents intended to be
incorporated, or render them capable of identification by extrinsic evidence, so that
no room for doubt can exist as to what papers were meant." Woodard v. Gramlow,
123 Wn. App. 522, 527, 95 P.3d 1244 (2004) (internal quotation marks omitted)
(quoting Baarslaa, 12 Wn.App. at 763). The will must describe the document "with
sufficient certainty that it may be identified and distinguished from other similar
documents . . . to protect against fraud, substitution and tampering." Baarslao, 12
3 No. 78178-2-1/4
Wn. App. at 761 (internal quotations omitted)(quoting 2 PAGE ON WILLS: THE LAW
OF WILLS § 19.23 (3d ed. 1960)). If the will is written in such vague or inaccurate
terms that the document to be incorporated can only be identified by evidence
outside the will or contradicting the will, the document may not be incorporated in
the will. Baarslaq, 12 Wn. App. 762 (quoting 2 W. PAGE, WILLS § 19.23 (3d ed.
1960)). Michael III argues that the reference to July 10, 2006 wills is a scrivener's
error, and that the 2015 Codicils intended to incorporate the July 10, 2008
purported wills. Scott-Zerr argues that RCW 11.12.255 and the case law
surrounding it do not leave room for errors. She argues that the 2015 codicils do
not sufficiently describe the July 10, 2008 purported wills to incorporate them by
reference. Regarding the incorporation by reference statute, she is correct. Any
extrinsic evidence considered by the court to support the incorporation of the July
10, 2008 purported wills would contradict the plain language of the 2015 Codicils.
The rule in Baarslag would not have permitted incorporation by reference in this
case. But in 2013, the legislature enacted RCW 11.96A.125, which permits judicial
reformation of a will in the case of a mistake.
The Trust and Estate Dispute Resolution Act (TEDRA)2 governs the
resolution of disputes involving estates. RCW 11.96A.010. TEDRA grants courts
plenary power to administer and settle all matters concerning the estates of
deceased persons. RCW 11.96A.020(1)(a). RCW 11.96A.125 states
the terms of a will or trust, even if unambiguous, may be reformed by judicial proceedings under this chapter to conform the terms to the intention of the testator or trustor if it is proved by clear, cogent, and
2 Ch. 11.96A RCW
4 No. 78178-2-1/5
convincing evidence that both the intent of the testator or trustor and the terms of the will or trust were affected by a mistake of fact or law, whether in expression or inducement. This does not limit the ability to reform the will or trust using the binding nonjudicial procedures of RCW 11.96A.220.
RCW 11.96A.125 was first enacted in 2011. Laws of 2011, ch. 327 §11. The
provision permitting courts to reform wills was a major departure from former
Washington law and the common law rule that did not allow the correction of
mistakes in wills. Karen E. Boxx & Katie S. Groblewski, Washington Trust Laws'
Extreme Makeover: Blending with the Uniform Trust Code and Taking Reform
Further with Innovations in Notice, Situs, and Representation, 88 Wash. L. Rev.
813, 890-91 (2013); Cf. Feeney v. Lufkin, 159 Wash. 82, 87, 292 P. 257 (1930)
(parol evidence is not admissible to prove a testator's mistake or any intention not
expressed in the language of the will); see also In re Estate of Berqau, 103 Wn.2d
431, 437,693 P.2d 703(1985)(evidence of testator's intent only admissible when
will is ambiguous). TEDRA imposes no additional conditions on the evidence that
can be used to prove those intentions, it only requires the evidence to be clear,
cogent, and convincing. See RCW 11.96A.100.
Before addressing incorporation by reference, trial courts should decide
whether or not clear, cogent, and convincing evidence shows the terms of the will
were affected by a mistake offact in their expression o intent. Then the court turns
to the question of whether the will should be reformed. Here, Michael III asked the
trial court to correct the mistakes in the 2015 Codicils without providing the court
with the benefit of the proper framework. He conceded at oral argument that he
did not ask the court to reform the will or to consider RCW 11.96A.125. Rather
5 No. 78178-2-1/6
than speculate on the outcome of this case under the statute, we remand to the
trial court for an evidentiary hearing and to apply RCW 11.96A.125 to the 2015
Codicil of Michael J. Scott, Jr., based on the evidence of his intentions, and the
2015 Codicil of Nadine I. Scott, based on the evidence of her intentions.
A. The trial court properly considered Michael Jr. and Nadine l.'s prior
statements and purported wills.
Because we expect it to reoccur on remand, we address Scott-Zerr's
argument that the trial court erred by considering Michael Jr. and Nadine l.'s prior
statements and purported wills when considering their intentions in executing the
2015 Codicils. Scott-Zerr relies on the only published opinion that has applied
RCW 11.96A.125 at this time, In re Estate of Meeks. 4 Wn. App. 255, 421 P.3d
963, rev. denied, 192 Wn.2d 1002 (2018). In Meeks, Lloyd and Mabel Meeks
executed a trust agreement creating the L/M Meeks No. 1 Trust. Id. at 257. They
executed wills the same day that devised their estates to the trust. Id. While both
grantors were still alive, the terms of the trust allowed for its revocation and
modification. Id. at 258. After the death of the first grantor, the trust was not
revocable in whole or in part nor subject to amendment. Id. After Lloyd Meeks
died, Mabel Meeks twice contacted her lawyer to amend the trust. Id. at 259.
Because the trust was no longer subject to amendment, those purported
amendments were ineffective as to the trust. Id. at 261. The trial court instead
reformed Mabel Meeks's will to reflect the amendments. Id. The amendments did
not satisfy the formalities for properly executed wills. Id. at 265. The Meeks court
reversed, because RCW 11.96A.125 does not give the court the ability to import
6 No. 78178-2-1/7
into a valid will terms that conform to the testator's intent at a later date. Id. at 262.
It held that the trial court could not reform an earlier, validly executed will by
importing different terms from a later, invalid will because that would frustrate RCW
11.12.020's requirement for minimum formalities in the execution of a will. Id. at
266.
Scott-Zerr argues that Meeks would not permit the court to consider the
purported wills or prior statements because they were not properly executed
testamentary documents. But Scott-Zerr confuses the expressions of intent which
post-dated the validly executed will considered in Meeks with the expressions of
intent that pre-date the validly executed will at issue here. The 2015 Codicils were
properly executed wills. No rule barred the court from considering earlier
documents or statements that were not properly executed wills when determining
the intentions of Michael Jr. and Nadine I. at the time they executed the 2015
Codicils. While Meeks makes it clear that the court cannot reform a will to conform
to later intentions, it does not preclude the court from altering a properly executed
testamentary document to "express[] the intention it was intended to express." Id.
at 263 (quoting RESTATEMENT (THIRD) OF PROPERTY: WILLS AND OTHER DONATIVE
TRANSFERS §12.1 (comments) (2003)). The trial court was correct to consider
Michael Jr. and Nadine l.'s previous statements and purported wills to determine
their intent at the time they executed the 2015 Codicils.
II. Equity does not support awarding fees to either party.
RCW 11.96A.150 permits the superior court or any court on appeal to award
costs, including attorney fees, to any party, considering any and all factors the
7 No. 78178-2-1/8
court deems relevant and appropriate. The court's discretion to award fees and
costs under RCW 11.96A.150 is extremely broad. Both parties request attorney's
fees in this case. Although Michael Ill's petition to the trial court was clearly
governed by RCW 11.96A.125, Michael Ill's attorney did not address the statute
in any way, and Scott-Zerr's attorney addressed it only in passing, to deny that it
was the appropriate framework for the request. We decline to award attorney fees
to any party.
Reverse and remand.
WE CONCUR: