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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE In the Matter of the Estate of: No. 83919-5-I RICHARD D. KOLESAR, PUBLISHED OPINION Deceased.
DWYER, J. — The trial court in this matter took the unusual approach of
issuing three separate orders all purporting to admit Richard Kolesar’s will to
probate. We are today required to determine which of those orders is controlling
for the purpose of establishing the time period in which a will contest may be
initiated. We hold that the trial court’s order of July 9, 2020 is controlling, as it
was the final such order entered. Hence, the deVry family’s will contest claim
was timely asserted and improperly dismissed. We accordingly reverse the
dismissal of the will contest claim and remand the matter for further proceedings
consistent with this opinion.
The deVry family1 (hereinafter Petitioners) also challenges the trial court’s
dismissal of their claim for declaratory relief against Joseph Marsh. With regard
to that claim, we hold that the Petitioners failed to present evidence that Marsh
1 The deVry family consists of Scott deVry, Mary Anne deVry, Andrea Cantu, Roberto
Cantu, Andrew deVry, Nicole deVry, and Corrine deVry. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83919-5-I/2
engaged in financial exploitation of Richard Kolesar. Accordingly, we affirm the
trial court’s dismissal of that claim.
I
Richard Kolesar died on December 15, 2019. Richard2 was married to
Marilyn until the time of her death. The couple had no children. Throughout their
lives, Richard and Marilyn maintained relationships with friends and extended
family, including the children and grandchildren of Marilyn’s cousin Betty deVry.
On May 2, 2011, Richard executed a last will and testament. Richard’s
2011 will placed the bulk of his estate into a trust for Marilyn. The will made cash
bequests to three nonprofit entities and left the residuary of his estate to Marilyn.
It also provided that if Marilyn predeceased Richard, Richard’s brother Donald3
would inherit a sum of $50,000 and the residuary would pass in equal shares to
Mary Anne deVry, Scott deVry, and Richard’s niece Valerie Kolesar. If Valerie,
Mary Anne, or Scott predeceased Richard, their portion of the estate would pass
to Andrew deVry, Andrea Cantu, and Corrine deVry.
Marilyn died in 2012. On February 26, 2014, Richard’s doctor diagnosed
him with hallucinations and adjustment disorder with depressed mood, and
observed that he was exhibiting early signs of psychosis. Richard was admitted
to the Benevolent Adult Family Home (BAFH) in Kirkland, Washington three days
later. BAFH is owned and operated by Reynold Quedado.
Shortly after his admission, Richard changed his power of attorney
2 Due to the number of persons with the same last name, we refer to the Kolesars and
deVrys by their first names to avoid confusion. No disrespect is intended. 3 Donald also predeceased Richard.
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83919-5-I/3
designation, removing Mary Anne and appointing Valerie to act as his attorney-
in-fact. On July 30, 2014, Richard executed a new last will and testament,
revoking the 2011 will. Richard’s 2014 will made cash bequests to the same
nonprofit entities and devised a sum of $25,000 to Scott and Mary Anne deVry,
to be divided between them. The residuary of Richard’s estate was to be divided
as follows:
• 2 percent to Andrew deVry • 2 percent to Andrea Cantu • 2 percent to Corrine deVry • 20 percent to Joseph Marsh • 34 percent to Valerie Kolesar • 40 percent to Reynold Quedado
Valerie was nominated to act as personal representative of the estate.
Respondent Joseph Marsh is the son of John and Betty Marsh, longtime
friends of Richard and Marilyn. Richard met John shortly after World War II,
when they both attended the University of Washington engineering school.
Richard and Marilyn remained good friends with John and Betty for their entire
lives. Richard thus knew Joseph since his birth.
Joseph Marsh4 had acted as Richard and Marilyn’s broker-dealer since
1982. Marsh spoke to both Richard and Marilyn approximately once per month
and Marsh would typically take them to lunch after their annual review. Marsh
also visited Richard every year on his birthday (July 27) after Marilyn’s death. As
a broker-dealer, Marsh’s duty was to make investment transactions with Richard
and Marilyn’s funds after consulting with them and obtaining their approval.
4 Joseph Marsh will hereinafter be referred to by his surname.
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83919-5-I/4
Richard’s 2014 will identifies Marsh as “my friend and financial advisor.”
On May 5, 2020, the trial court issued an order admitting to probate the
“Last Will and Testament of Decedent Richard D. Kolsar,” dated July 30, 2014.
The order appointed Valerie as personal representative of the estate. Richard’s
last name was incorrectly spelled “Kolsar” in both the case caption and on the
letters testamentary.
On July 2, 2020, the trial court entered an amended order probating the
will and confirming the personal representative. Richard’s name was spelled
correctly on this order. A second amended order was entered on July 9, 2020,
directing the clerk of court to reissue letters testamentary with Richard’s name
spelled correctly. Both the July 2 and July 9 orders state that the 2014 will was
“hereby admitted to probate,” with no reference to any prior order.
Valerie resigned as personal representative in September 2020.
Respondent Dominick Driano was named successor personal representative of
the estate.
On October 30, 2020, Petitioners filed a petition contesting the validity of
the 2014 will. Petitioners alleged that the 2014 will was “invalid because Richard
lacked testamentary capacity” and because Richard was “under undue influence
and control from [Quedado], [Marsh], and/or others.” Petitioners also requested
a declaration that Quedado and Marsh were “abusers” as defined by chapter
11.84 RCW and were therefore ineligible to inherit from Richard’s estate.
The personal representative filed a motion to dismiss the will contest as
untimely pursuant to RCW 11.24.010. The personal representative also asserted
4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83919-5-I/5
that only Scott and Mary Anne had standing to contest the will, as they were the
only members of the deVry family named as beneficiaries in Richard’s 2011 will.
Marsh and Quedado joined the motion. Marsh also separately filed a motion to
dismiss all claims against him. The trial court granted both motions.
Marsh then filed a motion requesting an award of attorney fees, which the
trial court denied. The personal representative also moved for an award of
attorney fees. The trial court granted this motion, awarding the personal
representative $23,782 in fees and costs, payable from the estate.
The two dismissal orders were designated as final judgments under CR
54(b) on April 4, 2022. Petitioners timely appealed.
II
Petitioners assert that the trial court erred by ruling that only Scott and
Mary Anne had standing to bring a will contest claim. This is so, they contend,
because the remaining Petitioners were named beneficiaries in Richard’s 2014
will. We disagree.
Interpretation of a probate statute is a question of law that we review de
novo. In re Est. of Jones, 152 Wn.2d 1, 8-9, 93 P.3d 147 (2004). RCW
11.24.010 permits “any person interested in any will” to contest the validity of the
probated will or to challenge the rejection of probate. A “‘person interested is one
who has a direct, immediate, and legally ascertained pecuniary interest in the
devolution of the testator’s estate, such as would be impaired or defeated by the
probate of the will or benefited by the declaration that it is invalid.’” In re
O’Brien’s Estate, 13 Wn.2d 581, 583, 126 P.2d 47 (1942) (internal quotation
5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83919-5-I/6
marks omitted) (quoting Petitt v. Morton, 28 Ohio App. 227, 235, 162 N.E. 627
(1928)). “In other words, the contestant must stand to lose directly in a financial
way if the will which he seeks to attack is permitted to stand.” O’Brien, 13 Wn.2d
at 583.
In contrast to Scott and Mary Anne, who would suffer a large financial loss
if the 2014 will is permitted to stand, the remaining Petitioners would not suffer
any loss. To the contrary, the remaining Petitioners would actually receive a
financial gain if the 2014 will stands, as none of them are named beneficiaries in
the 2011 will.5 A person who will lose his or her financial interest if the will is
invalidated does not have standing to contest the will. The trial court did not err.
III
Petitioners additionally assert that the trial court erred by dismissing their
will contest claim as untimely pursuant to RCW 11.24.010. This is so, they
assert, because the trial court’s July 9 order probating Richard’s will superseded
the May 5 order, thus establishing a different date on which the will was admitted
to probate. We agree.
A
The pertinent statute, RCW 11.24.010, states that a person who wishes to
file a will contest must do so “within four months immediately following the
probate or rejection thereof.” This limitation is strictly construed. In re Est. of
5 Although Andrew, Andrea, and Corrine were named as contingent beneficiaries in the
2011 will if both Scott and Mary Anne were deceased, this is not sufficient to confer standing upon them while Scott and Mary Anne are alive. Cf. Jevne v. Pass, LLC, 3 Wn. App. 2d 561, 567, 416 P.3d 1257 (2018) (“possible contingent future interest” insufficient to confer standing in HOA dispute).
6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83919-5-I/7
Toth, 138 Wn.2d 650, 656, 981 P.2d 439 (1999).
As a general rule, court orders are subject to the same rules of
construction as statutes, contracts, and other legal writings. Soriano v. Dep’t of
Labor & Indus., 8 Wn. App. 2d 575, 583, 442 P.3d 269 (2019). Primary among
these rules is the maxim that there is no need to “look beyond the plain language
of the [writing] to consider extraneous matters where there is no ambiguity
presented by the words used.” State v. Castle, 156 Wn. App. 539, 545, 234 P.3d
260 (2010).
The July 9 order unambiguously states: “The established Will of Richard
D. Kolesar is hereby admitted to probate.” The plain language of this order
clearly indicates that the will was probated on the date of the order.
The personal representative argues that the trial court’s July 9 order was
not intended to alter the date of probate, but instead was meant solely to correct
the case caption in the May 5 order. However, the July 9 order does not state
anything to that effect. The July 9 order is not designated as an order nunc pro
tunc, which would have made the order retroactive. It does not state that the will
had been properly admitted to probate on an earlier date. The July 9 order does
not even mention the May 5 order.6
As the latest entered order, the July 9 order is controlling over all other
orders on the same subject. As such, the date that Richard Kolesar’s will was
6 At oral argument, counsel for the personal representative had no effective counter to
the suggestion that, were the court to adopt his argument, it would be necessary to review all three of the court’s orders and determine from them which of the words in the July 9 order were effective and which were surplusage. No authority was cited to support the announcement of such an unusual duty.
7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83919-5-I/8
probated was July 9, 2020. The will contest claim filed on October 30, 2020 was
therefore timely.
B
Not to be deterred, the personal representative next asserts that the
statutory limitation period for asserting a will contest cannot be extended.7 In
advancing this argument, the personal representative misconstrues the nature of
the trial court’s July 9 order. The court’s order did not purport to extend the
limitation period imposed by RCW 11.24.010. Rather, the order established the
date on which the limitation period commenced. The personal representative’s
argument is, thus, unavailing.
C
The trial court erred by dismissing Scott and Mary Anne’s will contest
claim. Furthermore, Petitioners are correct that the personal representative
should not have been awarded fees because the basis for that award—the
dismissal of the will contest—was improper. We accordingly reverse the
dismissal of the will contest claim asserted by Scott and Mary Anne and direct
the trial court on remand to vacate its award of attorney fees to the personal
representative.
7 The personal representative incorrectly refers to RCW 11.24.010 as a statute of repose.
We recognize that this confusion arises from older case law that unartfully refers to RCW 11.24.010 using the word “repose.” However, as our current law defines the terms statute of limitation and statute of repose, RCW 11.24.010 is plainly a statute of limitation. See Wash. State Major League Baseball Stadium Pub. Facilities Dist. v. Huber, Hunt & Nichols-Kiewit Constr. Co., 176 Wn.2d 502, 510-11, 296 P.3d 821 (2013).
8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83919-5-I/9
IV
Petitioners next assert that the trial court erred by dismissing their
declaratory judgment claim against Marsh, in which they requested that the court
deem Marsh a “financial abuser” pursuant to chapter 11.84 RCW.8 This is so,
they contend, because their burden to present clear, cogent, and convincing
evidence shifted to Marsh once they presented evidence of a fiduciary
relationship. We disagree.
We review orders on summary judgment de novo.9 Boyd v. Sunflower
Props., LLC, 197 Wn. App. 137, 142, 389 P.3d 626 (2016). In doing so, we
engage in the same inquiry as the trial court. Green v. Normandy Park Riviera
Section Cmty. Club, Inc., 137 Wn. App. 665, 681, 151 P.3d 1038 (2007).
Generally, all evidence and reasonable inferences therefrom must be construed
in favor of the nonmoving party. Boyd, 197 Wn. App. at 142. “However, when
reviewing a civil case in which the standard of proof is clear, cogent, and
convincing evidence, [we] ‘must view the evidence presented through the prism
of the substantive evidentiary burden.’” Woody v. Stapp, 146 Wn. App. 16, 22,
189 P.3d 807 (2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254,
106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). Thus, we must determine “whether,
viewing the evidence in the light most favorable to the nonmoving party, a
8 A person who is declared to be a “financial abuser” pursuant to chapter 11.84 RCW is
deemed to have predeceased the decedent and is therefore ineligible to inherit from the decedent’s estate. RCW 11.84.010, .020, .030. 9 Although not styled as such, Marsh’s “Motion to Dismiss” was in effect a summary
judgment motion.
9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83919-5-I/10
rational trier of fact could find that the nonmoving party supported his or her claim
with clear, cogent, and convincing evidence.” Woody, 146 Wn. App. at 22.
We first clarify the elements of Petitioners’ declaratory judgment claim
against Marsh.10 To succeed on their claim requesting that the trial court declare
Marsh to be a “financial abuser,” Petitioners must demonstrate by “clear, cogent,
and convincing evidence that [the] person participated in conduct constituting
financial exploitation against the decedent” and that
(a) The decedent was a vulnerable adult at the time the alleged financial exploitation took place; and (b) The conduct constituting financial exploitation was willful action or willful inaction causing injury to the property of the vulnerable adult.
RCW 11.84.150(2); .160(1). “Financial exploitation” is defined as
(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; (b) The breach of a fiduciary duty, including, but not limited to, the misuse of a power of attorney, trust, or a guardianship appointment, that results in the unauthorized appropriation, sale, or transfer of the property, income, resources, or trust funds of the
10 On July 9, 2021, the trial court issued two orders. In one, the trial court ordered that “[t]he Petitioners’ will contest claims are dismissed as barred by the statute of repose contained in RCW 11.24.010.” In the other, the trial court ordered “that Petitioners’ claims against Joseph Marsh are dismissed with prejudice.” The Petitioners’ complaint asserts only two causes of action: a will contest and a request for declaratory judgment. The will contest, as an in rem cause of action, is not a “claim against” Marsh. See In re Est. of Black, 116 Wn. App. 492, 499, 66 P.3d 678 (2003). Accordingly, the only claim “against Joseph Marsh” dismissed by the trial court’s order was the claim requesting the trial court to declare that Marsh was a “financial abuser” pursuant to chapter 11.84 RCW.
10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83919-5-I/11
vulnerable adult for the benefit of a person or entity other than the vulnerable adult; or (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(7).
Petitioners’ complaint alleges that Marsh was a financial abuser because
he “exercis[ed] undue influence and control over Richard to persuade him to
execute a new will.” Petitioners’ claim thus invokes subsection (7)(a) of RCW
74.34.020. However, Petitioners did not allege that Marsh engaged in any
deception or intimidation. Thus, their claim of financial exploitation rests on the
allegation of undue influence.
In summation, Petitioners’ declaratory judgment claim, as pleaded,
requires Petitioners to prove the following: (1) Richard was a vulnerable adult at
the time the alleged financial exploitation took place; (2) Marsh was in a position
of trust and confidence with Richard; (3) Marsh exercised undue influence; (4)
Marsh did so in order to obtain or use Richard’s property, income, resources, or
trust funds; (5) Marsh’s actions were willful; and (6) Marsh caused injury to
Richard’s property. Both parties focused their briefing to the trial court and to us
on appeal on the second and third elements of the claim. We shall do the same
here.
Petitioners assert that because Marsh was in a fiduciary relationship with
Richard, they are entitled to a presumption that Marsh exercised undue
11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83919-5-I/12
influence, i.e., that the burden shifted to Marsh to disprove the third element of
their declaratory judgment claim. Marsh contends that Petitioners are not entitled
to the presumption of undue influence because Marsh was not in a fiduciary
relationship with Richard and, even if he were, a fiduciary relationship alone is
not sufficient to invoke the presumption. We need not decide whether Petitioners
presented evidence that Marsh was in a fiduciary relationship with Richard, as a
fiduciary relationship alone does not entitle Petitioners to invoke the presumption
and relieve them of their burden of proof.11
RCW 74.34.020(7)(a) does not define the term “undue influence.”
However, “undue influence” is a term of art that has long been utilized in the
common law. “[W]hen ‘the legislature uses a term well known to the common
law, it is presumed that the legislature intended it to mean what it was
understood to mean at common law.’” Schwartz v. King County, 200 Wn.2d 231,
239-40, 516 P.3d 360 (2022) (quoting State v. Dixon, 78 Wn.2d 796, 804, 479
P.2d 931 (1971)). Thus, common law cases concerning undue influence are
pertinent to our decision herein.
The Restatement (Second) of Contracts § 177 (Am. Law Inst. 1981)
defines “undue influence” as “unfair persuasion of a party who is under the
domination of the person exercising the persuasion or who by virtue of the
relation between them is justified in assuming that that person will not act in a
11 On September 21, 2022, Marsh filed a motion to supplement the record with the results
of the Financial Industry Regulatory Authority (FINRA) investigation into Marsh’s receipt of a bequest from a nonfamily member. A commissioner of this court referred Marsh’s motion to this panel. Because these documents do not satisfy the strict criteria set forth in RAP 9.11, we deny the motion.
12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83919-5-I/13
manner inconsistent with his welfare.” This section of the Restatement has been
adopted as the law in Washington. In re Infant Child Perry, 31 Wn. App. 268,
272-73, 641 P.2d 178 (1982). As the comments to the Restatement indicate, a
party claiming that a contract is voidable due to undue influence must prove not
only a qualifying relationship, but also that the contract was induced by unfair
persuasion. RESTATEMENT § 177, cmt. b. In other words, under the Restatement,
proof of a fiduciary or confidential relationship does not in and of itself constitute
proof of undue influence.
Washington cases discussing the presumption of undue influence are in
accord. In In re Estates of Jones, 170 Wn. App. 594, 600-01, 287 P.3d 610
(2012), two sisters filed a TEDRA12 claim against two brothers for the rescission
of a real estate agreement entered into by their mother three years prior to her
death. The sisters asserted that because the brothers had a confidential
relationship with their mother, they were entitled to a presumption of undue
influence and, therefore, the burden of proof shifted to the brothers to prove that
the transaction was not the result of undue influence. Jones, 170 Wn. App. at
601. After both parties moved for summary judgment, the trial court granted
summary judgment to the brothers on the basis that there was no evidence of
undue influence. Jones, 170 Wn. App. at 602.
The appellate court affirmed the trial court’s decision. In so doing, the court
held:
12 Trust and Estate Dispute Resolution Act, chapter 11.96A RCW.
13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83919-5-I/14
An undue influence claim must include more than merely the presumption that can arise from a confidential relationship. In cases where a confidential relationship resulted in undue influence, there typically is evidence of some type of loss resulting from that relationship. In other words, there must be something more than the relationship. Here, there was not. A focus on simply what was given up, without consideration of what was received, is not sufficient to establish that an unfair transaction occurred. In the absence of an unbalanced transaction, there has to be some additional evidence of influence beyond the confidential relationship.
Jones, 170 Wn. App. at 609-10 (emphasis added) (citations and footnote
omitted). Because the sisters had relied solely on the existence of a confidential
relationship and presented no other evidence of undue influence by the brothers
or of loss to the mother, the court concluded that summary judgment was proper.
Jones, 170 Wn. App. at 610.
That a fiduciary or confidential relationship is not sufficient in and of itself
to raise a presumption of undue influence was reaffirmed in Kitsap Bank v.
Denley, 177 Wn. App. 559, 312 P.3d 711 (2013). The administrator of the
decedent’s estate therein alleged that a beneficiary designation on a payable-on-
death (POD) bank account was the product of the undue influence of a bank
teller. The beneficiary moved to dismiss the claim on summary judgment,
asserting that the estate had not presented sufficient evidence to demonstrate
undue influence.13 Denley, 177 Wn. App. at 566-67. The trial court granted the
motion. Denley, 177 Wn. App. at 567.
13 We do not mean to suggest that undue influence exists as a free-standing cause of
action. Rather, undue influence is a legal principle that sounds in contract law, upon which a court may void a transfer of property, be it through a will, beneficiary designation, contract, or gift.
14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83919-5-I/15
We affirmed the trial court’s order. In so doing, we began with the
principle that on summary judgment, “the party bearing the burden to prove the
undue influence claim at trial must present sufficient evidence to make it highly
probable that the undue influence claim will prevail at trial.” Denley, 177 Wn.
App. at 569. Following the Restatement, we held that “[a] presumption of undue
influence requires, at a minimum, that the party attempting to prove undue
influence shows the existence of a confidential or fiduciary relationship, the
beneficiary participated in the transaction, and the beneficiary received a
disproportionate or unnaturally large portion of the estate.” Denley, 177 Wn.
App. at 578. We then analyzed each of these factors as it pertained to the case
at hand.
As to the first factor, we held that it was not enough simply for some sort
of fiduciary relationship to exist. As we noted, “an undue influence claim arises
when ‘the result was produced by means that seriously impaired the free and
competent exercise of judgment.’” Denley, 177 Wn. App. at 574 (quoting Jones,
170 Wn. App. at 607) (internal quotation marks omitted). Accordingly, “the
fiduciary relationship must exist in relation to the asset which is the subject of the
undue influence claim.” Denley, 177 Wn. App. at 574. In that case, there was no
evidence of a fiduciary or confidential relationship at all, much less with respect
to the POD account.
As to the second factor, we clarified that in order to demonstrate that the
beneficiary actively participated in the transaction, the challenger must present
evidence that the beneficiary actively dictated the terms of the transaction, rather
15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83919-5-I/16
than being an observer or minor participant. Denley, 177 Wn. App. at 577. The
only evidence presented in Denley, however, was that the beneficiary had
delivered a $400,000 check to the bank along with an envelope containing
deposit slips, signature cards, and POD designations for three other accounts.
177 Wn. App. at 577. Uncontested evidence also demonstrated that the
beneficiary was unaware that she had been designated as the beneficiary of the
POD account. Denley, 177 Wn. App. at 577. We held that on these facts, “no
rational trier of fact could find clear, cogent, and convincing evidence establishing
that [the beneficiary] participated in the transaction.” Denley, 177 Wn. App. at
577.
We additionally noted that the third factor could not be analyzed because
there was no evidence presented as to the size of the decedent’s estate.
Denley, 177 Wn. App. at 578. Because the Estate had not presented evidence
establishing any of the three factors that could raise a presumption of undue
influence, we held that summary judgment was appropriately granted.
We finally held that even if there had been sufficient evidence to raise the
presumption of undue influence, that presumption was not sufficient to defeat the
bank teller’s motion for summary judgment. Denley, 177 Wn. App. at 578.
“Where a party is unable to present evidence of more than a confidential
relationship, or where the presumption of undue influence is effectively rebutted
by additional evidence, the presumption of undue influence is not sufficient to
defeat a motion for summary judgment.” Denley, 177 Wn. App. at 579. This is
16 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83919-5-I/17
so because “‘[p]resumptions must give way in light of evidence.’” Denley, 177
Wn. App. at 579 (quoting Jones, 170 Wn. App. at 611).
As these cases make clear, under the common law, the existence of a
fiduciary or confidential relationship does not, by itself, create a presumption of
undue influence. The party challenging the transaction cannot rely solely on an
alleged fiduciary or confidential relationship to defeat a motion for summary
judgment.
We acknowledge that Petitioners’ declaratory judgment claim is based in
statute, not in the common law. However, we presume that the legislature’s use
of the term “undue influence” while defining “financial exploitation” was an
intentional invocation of the common law concerning that term. See Schwartz,
200 Wn.2d at 239-40. Accordingly, Petitioners could not dispense with their
burden of proof simply by presenting evidence that Marsh was in a fiduciary
relationship with Richard. A claim of financial abuse also requires evidence that
the defendant participated in the transaction and that any undue influence
asserted resulted in the vulnerable adult’s loss of property.
Petitioners’ briefing to this court, as well as their response to Marsh’s
motion in the trial court, demonstrate that they rely solely on their allegation that
Marsh was in a fiduciary relationship with Richard as evidence of undue
influence. Indeed, Petitioners repeatedly emphasize Marsh’s burden to disprove
their claims, rather than their own burden to present evidence when faced with a
dispositive motion.
17 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83919-5-I/18
Here, the only evidence presented by Petitioners beyond the alleged
fiduciary relationship between Marsh and Richard was:
• A declaration from Marsh stating that he visited Richard every year on his birthday (July 27), which was shortly before the 2014 will was executed; • Richard’s 2011 will that did not mention Marsh at all; • Richard’s 2014 will that left 20 percent of the residual of his estate to Marsh; and • Medical records indicating that in February 2014, Richard was experiencing hallucinations.
This evidence is not sufficient for Petitioners to shift the burden of disproving their
claim to Marsh. Significantly, Petitioners presented no evidence that Marsh
participated in making himself a beneficiary. To the contrary, Marsh presented
evidence that he was unaware of the contents of Richard’s will until the time of
his death. As in Denley, Petitioners cannot successfully rely on a presumption in
the face of actual evidence.14
Nor did petitioners present any evidence of Richard’s mental faculties in
July 2014, the time at which the will was executed.15 Most importantly,
Petitioners presented no evidence that Richard was harmed in any way by his
relationship with Marsh. At most, Petitioners have only presented evidence of
harm to Richard’s beneficiaries. However, a claim of financial exploitation
requires injury to the vulnerable adult himself, not to his estate. RCW
11.84.160(1)(a).
14 Petitioners argued to the trial court that Marsh’s motion should have been continued so
that Petitioners could take Marsh’s deposition. They do not raise this argument on appeal. 15 Indeed, evidence was presented that, in August 2014, Richard’s doctor deemed him
mentally capable to make legal, financial, and medical decisions.
18 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83919-5-I/19
Furthermore, as Marsh points out, the fiduciary relationship that
Petitioners allege to have existed was not related to the bequest in Richard’s will.
Here, Petitioners allege that Marsh’s fiduciary relationship arose out of his role as
Richard’s broker-dealer. Richard’s brokerage account had its own beneficiary
designation. There is no evidence in the record establishing who the
beneficiaries of that account are.
The decision in McCutcheon v. Brownfield, 2 Wn. App. 348, 467 P.2d 868
(1970), upon which Petitioners rely, is inapposite and, thus, does not compel a
contrary result. McCutcheon concerned the revocation of an inter vivos gift given
by a mother to her daughter. 2 Wn. App. at 349. As has long been the law in
this state, inter vivos gift transfers are subject to greater scrutiny than
testamentary transfers of property. Meyer v. Campion, 120 Wash. 457, 470, 207
P. 670 (1922). Under the common law of gifts, the burden is on the recipient to
prove by clear and convincing evidence that the transfer was indeed a gift. In re
Ests. of Palmer, 145 Wn. App. 249, 261, 187 P.3d 758 (2008). Thus, unlike
testamentary transfers and contracts, which are presumed to be valid until
proven otherwise, transfers of inter vivos gifts are presumed to be invalid until
proven otherwise. Palmer, 145 Wn. App. at 261. When the recipient is in a
confidential or fiduciary relationship with the giver, an additional presumption of
undue influence applies, and the recipient must also rebut this presumption by
clear and convincing evidence. Palmer, 145 Wn. App. at 261.
Petitioners have not alleged and did not present any evidence that Marsh
was the recipient of an inter vivos gift from Richard. As such, the law concerning
19 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83919-5-I/20
inter vivos gifts, including McCutcheon’s discussion of the issue, has no
application in this case.
Here, the Petitioners made no effort to present evidence beyond the
alleged fiduciary relationship between Marsh and Richard. Thus, even had
Petitioners presented evidence of a fiduciary relationship, there is no evidence to
support a claim that Marsh engaged in “financial exploitation” of Richard, as
defined by statute. The trial court did not err by dismissing Petitioners’
declaratory judgment claim against Marsh.
V
Petitioners, the personal representative, and Marsh all request an award
of attorney fees pursuant to RCW 11.96A.150. This statute permits us to award
fees to any party in a TEDRA action as we deem equitable. RCW
11.96A.150(1). It is not a requirement that a party substantially prevail to be
awarded fees. In re Est. of Mower, 193 Wn. App. 706, 728, 374 P.3d 180 (2016).
Nonetheless, “[t]he touchstone of an award of attorney fees from the estate is
whether the litigation resulted in a substantial benefit to the estate.” In re Est. of
Black, 116 Wn. App. 476, 490, 66 P.3d 670 (2003), aff’d, 153 Wn.2d 152, 102
P.3d 796 (2004).
At this time, there has been no demonstrated benefit to the estate or to
any party. This is true even as to Marsh, as he still may inherit nothing should
Scott and Mary Anne succeed in invalidating the 2014 will. We exercise our
discretion to direct the trial court to determine whether an award of fees
(including fees for this appeal) is warranted as to any party when it issues its
20 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83919-5-I/21
ultimate resolution on the merits.
The personal representative additionally requests an award of fees
pursuant to RCW 11.48.050. This statute states that the personal representative
“shall be allowed all necessary expenses in the care, management, and
settlement of the estate.” For the personal representative to be awarded fees
pursuant to this statute, there must be evidence that the personal representative
performed their duties in good faith. In re Est. of Shaughnessy, 104 Wn.2d 89,
95, 702 P.2d 132 (1985). As this court does not find facts, we leave this
determination to the trial court.
Affirmed in part, reversed in part.
WE CONCUR: