FILED OCTOBER 28, 2021 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
In the Matter of the Estate of ) ) No. 37733-4-III MARGARET D. HILL ) ) Deceased. ) UNPUBLISHED OPINION
STAAB, J. — On July 6, 1963, Margaret and Silvester1 Hill married, blending their
two families. In 2003, they executed reciprocal wills leaving everything to each other
with the alternate residual divided equally among their collective five children. After
Silvester’s death, Margaret revised her will to essentially disinherit her stepson Martin
Hill and reduce the gift to her son Billy Hill. After Margaret’s death, Martin2 challenged
her last will as void, claiming that the reciprocal wills were mutual wills and thereby
irrevocable. The trial court granted the Estate’s motion for summary judgment, holding
that Martin’s evidence failed to raise a genuine issue as to whether the spouses intended
to enter into an agreement to create mutual wills. Martin appeals.
1 Silvester’s name has different spellings throughout the record. We adopt the spelling used in his marriage certificate. 2 Because several of the family members have the same last name, we refer to them using their first name. No disrespect is intended. No. 37733-4-III In re Estate of Hill
We affirm the trial court’s summary judgment in favor of the Estate. Because the
wills were reciprocal and not mutual, Margaret was free to change the terms of her will at
any time.
FACTS
Because this case was decided on summary judgment, we consider the following
facts in a light most favorable to Martin as the non-moving party. Margaret Hill and
Silvester Hill married in 1963, blending their families from prior marriages to include
Margaret’s three biological children Debra Delong, Jerry Smith, and Larry Smith, and
Silvester’s biological son Martin Hill. The couple had one child together, Billy Hill.
In 1974, Margaret and Silvester executed and recorded a standard three-prong
community property agreement (CPA). The CPA provided that all property of either
spouse was immediately declared to be community property. Upon the death of either
spouse, title to all community property would immediately vest in fee simple in the
surviving spouse. The CPA was recorded with the Okanogan County Auditor. There is
no evidence that the CPA was explicitly revoked in writing.
Prior to his marriage to Margaret, Silvester owned three pieces of real property
deeded in his name alone. Shortly after recording the CPA, Silvester executed and
recorded deeds adding Margaret’s name to two of these parcels. Title to the third parcel
remained in Silvester’s name.
2 No. 37733-4-III In re Estate of Hill
During their marriage, Silvester unilaterally executed and modified his own will at
least two times, once in 1984 and again in 1993. In 2003, attorney James R. Thomas
drafted new wills for both Silvester and Margaret. All of Silvester’s prior wills were
revoked when he executed his final will in 2003. The 2003 wills were identical in
content, with the only distinction being the named spouse/testator/testatrix. The identical
wills named each other as primary executor with Jerry Smith, Margaret’s son, the first
alternative and Billy Hill, the couples’ son, as a second alternative executor. The residue
of the estate was bequeathed entirely to the surviving spouse. In the event of no
surviving spouse, the alternate residue disposition provided that the estate would be
divided equally among the five children, with specific instructions for distribution. The
2003 wills do not mention or revoke the previously executed community property
agreement.
Silvester died on May 26, 2004, after 41 years of marriage to Margaret. Margaret
did not probate Silvester’s will but instead used his death certificate to transfer the real
estate into her name. Nearly three years later, in 2007, Margaret executed a new will,
revoking her 2003 will. The new will named Jerry and Larry co-personal representatives.
Other than personal property specifically disposed of the 2007 will left Martin $200.00
and nothing else. Margaret bequeathed Billy $20,000.00 while acknowledging that he
had already received 27 acres of land from Silvester and herself. She left Debra
$20,000.00. All remaining real property was split between Jerry and Larry with the
3 No. 37733-4-III In re Estate of Hill
condition that the two parcels of land be sold if necessary to make her cash distributions
to the other children.
After Margaret died in 2019, her 2007 will was admitted into probate and her son,
Jerry, was appointed estate administrator. Martin filed a petition to contest Margaret’s
2007 will alleging that the 2007 will was invalid because the 2003 wills were irrevocable
mutual wills. The estate filed for summary judgment, asserting there was no evidence of
an agreement to draft mutual wills.
Martin responded to the motion for summary judgment by submitting extrinsic
evidence in an attempt to demonstrate that the 2003 wills were mutual wills. Both Martin
and his half-brother Billy submitted declarations. In his declaration, Martin asserted his
“understanding” of the contents of the 2003 wills was that when Margaret died the estate
would be distributed “to all five children.” CP at 110-111. Billy asserted that Silvester
told him that “the new [2003] wills would vest all property, both Silvester’s separate
property and his and Margaret’s joint property together and that it would be split between
the five children.” CP at 123. Billy also claims that Silvester told him that Margaret
wanted Larry and Jerry to be the executors but that Silvester did not, “so they
compromised, each choosing one.” Id. Billy indicates that he “understood” that Silvester
agreed to include his separate property in the 2003 will and that Margaret agreed that
their community property would be split between all five children. Id.
4 No. 37733-4-III In re Estate of Hill
Billy’s declaration also describes his conversation with Silvester shortly before
Silvester passed away. During this discussion, Billy claims Silvester was distraught and
said “‘they,’ who [Billy] took to mean Margaret and Larry, had talked [Silvester] into
‘signing something [he] shouldn’t have signed.’” Clerk’s Papers (CP) at 125. Billy also
claims that Silvester told him that Silvester intended for all the property to be split
between the five children and that “he was concerned that after his death this would not
happen and that he wanted it very clear what his desire was with regards to his and
Margaret’s property.” Id. Billy claims that Silvester told him that “he did not want Larry
to come into exclusive possession of the ‘fields, house, and waterfront property.’” Id.
Billy speculates that Silvester “clearly understood that by executing the 2003 Will that
this would cause his desired benefits to be in place, even if he died before Margaret.” Id.
During the summary judgment hearing, Martin attempted to admit a file note
allegedly written by Thomas Benner, the drafter of Silvester’s 1993 will. The note
indicated that Mr. Benner spent considerable time in 1993 advising Silvester of
community and separate property issues, and noted that Silvester understood the
concepts. While the note suggests that Benner was aware of Silvester’s real estate
holdings, there is no mention of the community property agreement. The note was
unsworn and the trial court excluded it as unsworn hearsay. Attorney James Thomas, the
drafter of the 2003 wills, died in March 2013 and was thus unable to testify regarding the
intentions of either spousal decedent in 2003.
5 No. 37733-4-III In re Estate of Hill
The trial court granted summary judgment in favor of the estate. The court noted
there was no evidence of Margaret’s intent to enter into a contract to create mutual wills.
The trial court found the 2003 wills were reciprocal and Martin’s evidence failed to meet
the “high probability” burden of proving an agreement to draft mutual wills.
Martin appeals.
ANALYSIS
On appeal, Martin raises a somewhat circular argument. He claims that the 2003
wills were mutual wills that effectively revoked the 1974 community property agreement.
If the CPA was revoked, Margaret could not take title to real property under the CPA, but
instead was required to probate Silvester’s estate under the 2003 will. By probating
Silvester’s estate, Margaret could be said to have accepted the benefits of the mutual will
and would thereby be precluded from changing her will.
This circle of logic breaks down however, because there is no evidence that the
spouses, particularly Margaret, manifested a mutual intent to enter into a contract to
create mutual wills. While the parties disagree about the admissibility of most of
Martin’s proposed evidence, we find Martin’s evidence insufficient to overcome his
burden on summary judgment and therefore do not address the admissibility issue.
Moreover, because we affirm the trial court’s judgment, holding that the wills were
reciprocal and not mutual, we do not need to decide whether the parties’ earlier
community property agreement was rescinded. Whether Margaret obtained title to
6 No. 37733-4-III In re Estate of Hill
property by way of the CPA or Silvester’s 2003 will, she was not prohibited from
changing the testamentary disposition of her own will.
A. STANDARD OF REVIEW
A trial court’s order granting summary judgment is reviewed de novo. Higgins v.
Stafford, 123 Wn.2d 160, 168, 866 P.2d 31 (1994). Summary judgment is appropriate if
the record and all reasonable inferences drawn in favor of the non-moving party
demonstrate the absence of any genuine issues of material fact, that a reasonable fact
finder could only reach one conclusion, and the moving party is entitled to judgment as a
matter of law. CR 56(c); Higgins, 123 Wn.2d at 168-69. If the moving party meets the
initial burden of showing the absence of an issue of material fact, the burden shifts to the
non-moving party to make a showing sufficient to establish the elements of their case at
trial. Kitsap Bank v. Denley, 177 Wn. App. 559, 568-69, 312 P.3d 711 (2013). A
material fact is one on which the outcome of the litigation depends in whole or in part.
Id. If the non-moving party fails to provide proof of an essential element of their case,
then all other facts are rendered immaterial, and the motion should be granted. Id.
B. RECIPROCAL AND MUTUAL WILLS
“Mutual wills are two wills that are ‘executed pursuant to an agreement between
two individuals as to the manner of the ultimate disposition of their property after both
are deceased.’” Portmann v. Herard, 2 Wn. App. 2d 452, 461, 409 P.3d 1199 (2018)
(quoting Newell v. Ayers, 23 Wn. App. 767, 769, 598 P.2d 3 (1979)). “The legal effect of
7 No. 37733-4-III In re Estate of Hill
mutual wills is that when one of the individuals dies and the survivor accepts the benefits
conferred by the deceased’s [mutual] will, the survivor is bound to dispose of his or her
property as previously agreed.” Id. (citing Newell, 23 Wn. App. at 769). When the
benefits of a mutual will are accepted, the agreement becomes irrevocable, and the
second mutual will cannot be changed. Id. These fixed obligations will be specifically
enforced. In re the Estate of Richardson, 11 Wn. App. 758, 760-61, 525 P.2d 816 (1974).
“Reciprocal wills” on the other hand, are similar or identical wills without an
agreement to restrict the other from changing his or her will at a future date. Auger v.
Shideler, 23 Wn.2d 505, 509, 161 P.2d 200 (1945).
In this case, Martin argues that the 2003 wills signed by Silvester and Margaret
were mutual wills, not simply reciprocal wills. Whether the parties entered into a
contract to devise is a question of fact. Newell, 23 Wn. App. at 769-70. An agreement to
execute mutual wills is usually expressed within the will itself. See Id. at 770. Martin
acknowledges that the 2003 wills do not provide express provisions for mutual wills.
This is not necessarily fatal, but proof of an oral contract to devise requires the
production of “very strong” substantial evidence that manifests the existence of the
contract to devise to a high probability as fact. Cook v. Cook, 80 Wn.2d 642, 644-47, 497
P.2d 584 (1972). Oral contracts to devise are not favored despite being occasionally
recognized in equity. Portmann, 2 Wn. App. 2d at 462. Since Martin’s burden of proof
at trial is akin to a burden of clear, cogent and convincing evidence, we incorporate this
8 No. 37733-4-III In re Estate of Hill
standard on summary judgment. Id. at 462-63. As the non-moving party, Martin must
present significant evidence to demonstrate a high probability that his claim will prevail
at trial. Id. He may not rely on speculation or mere conclusory claims that facts are
contrary. Meyer v. Univ. of Wash., 105 Wn.2d 847, 852, 719 P.2d 98 (1986).
To establish an oral contract to devise, Martin must produce substantial evidence
to raise an issue of material fact on three elements: (1) mutual intent to create a contract
to devise and recognition of formation, (2) performance of the contract terms as
consideration, and (3) reliance on the agreement. Cook, 80 Wn.2d at 645-47 (citing
Jennings v. D’Hooghe, 25 Wn.2d 702, 706, 172 P.2d 189 (1946)). Conjecture and
statements of intention alone do not necessarily support the existence of an express
contract to devise. Id. at 644-45. Additionally, intentions to devise do not necessarily
support the formation or existence of intentions to contract to devise. Id. at 648.
In this case, Martin argues there is significant evidence of an oral contract to
create mutual wills. First, he contends that the provisions of the 2003 wills infer an
agreement to create mutual wills. He points out that the 2003 wills were identical in most
respects, drafted by the same attorney and signed on the same date. While these
circumstances clearly demonstrate reciprocal wills, it does not follow that they evince
mutual wills. “[R]eciprocal wills, although executed simultaneously, do not in
themselves constitute evidence of a contract to execute [mutual] wills and keep them in
effect.” Dahlgren v. Blomeen, 49 Wn.2d 47, 50, 298 P.2d 479 (1956).
9 No. 37733-4-III In re Estate of Hill
Martin also points to concessions allegedly made by Margaret and Silvester as
evidence of a specifically negotiated agreement to create mutual wills. He cites Auger in
support of this argument. In Auger, the attorney who drafted the decedents’ wills
testified that the decedents were clear on their intent to create mutual wills despite the
lack of such recitals in the documents. Auger, 23 Wn.2d at 510. Specifically, the
attorney testified that the wife was adamant that the grandchildren of her deceased son
receive his proportionate share of inheritance and would not sign the will without this
provision. In addition, the wills devised life estates to the other spouse contingent upon
remaining unmarried. Although the wills did not specifically identify an agreement to
create mutual wills, the attorney’s testimony of their clear intent to do so was sufficient to
overcome the presumption disfavoring parol evidence of a contract to devise. The court
found that the mutual promises constituted the consideration for the agreement.
In this case, Martin argues that concessions made by Silvester and Margaret in
their 2003 wills provide consideration for an agreement to create mutual wills.3 But
consideration is irrelevant if there is no evidence of their mutually-manifested intentions
to create non-revocable wills. See Portmann, 2 Wn. App. 2d at 467 (evidence
3 At the motion on summary judgment, Martin produced a file note from the attorney who drafted Silvester’s 1993 will. The note is ambiguous and irrelevant. While it indicates that the attorney discussed concepts of separate and community property with Silvester, it does not acknowledge the community property agreement. Nor does the note have any relevance to Silvester’s intentions ten years later when he drafted a new will. Since we find the note unpersuasive, we need not answer the Estate’s hearsay objection.
10 No. 37733-4-III In re Estate of Hill
demonstrating consideration for an agreement to execute mutual wills did not
demonstrate intent to enter into such an agreement). Demonstrating that each spouse
made concessions is not evidence that Margaret manifested an intent to create mutual
wills, much less evidence that makes it “highly probable” that such a fact could be proved
at trial. See Kitsap, 177 Wn. App. at 569-70.
Martin also suggests that if the wills were merely reciprocal, and failed to rescind
the CPA, then the wills were essentially useless because there would not be a residual
estate to transfer. However, as pointed out by the Estate, this argument fails to recognize
the alternate residual bequest clause that would become effective when the second spouse
died. See Portmann, 2 Wn. App. 2d at 466-67 (alternate residual clauses in reciprocal
wills were not evidence of testator’s intention to enter into an agreement to execute
mutual wills).
Martin also contends that the circumstances surrounding the execution of the 2003
wills are further evidence of Silvester and Margaret’s intentions to create mutual wills.
After executing a community property agreement in 1974, Martin points out that
Silvester retitled two parcels of land as community property while retaining sole title to a
third parcel. In 1984 and again in 1993, Silvester unilaterally executed wills that
contradicted the community property agreement by devising this property to his sons.
The provisions of his 2003 will were significantly different from Silvester’s prior wills,
and Martin argues that both spouses made concessions on property for their natural-born
11 No. 37733-4-III In re Estate of Hill
children so that the total estate would be divided equally among the five children. He
also points to evidence suggesting that Silvester and Margaret negotiated the executors
for each will and eventually compromised on the surviving spouse, then Margaret’s son,
Jerry Smith, and then Billy Hill. Martin contends that Silvester would not have signed
the 2003 will without the compromise on named executors.4 Silvester allegedly told
Billy that the 2003 wills would combine all of the property and then divide it equally
among the five children.
This evidence is insufficient to overcome the presumption of reciprocal wills and
demonstrate a parol agreement to devise mutual wills. Indeed, even Martin’s evidence
calls into question Silvester’s understanding and intentions. In his declaration for
summary judgment, Billy testifies that he heard Silvester expressing doubt on his
deathbed about being talked into “signing something [he] shouldn’t have signed.” CP at
125. This statement, if true, suggests that Silvester knew and understood that the wills
were revocable. Silvester’s statement seems to indicate that Silvester was distressed
because he did not believe the wills would accomplish his goal. Even assuming that the
evidence suggests that Silvester intended to create identical wills, it does not demonstrate
the intention by both spouses to enter into an agreement to devise mutual wills. In other
4 Martin cites a declaration from Billy Hill in support of this claim. While Billy Hill’s declaration claims that Silvester discussed the alleged compromise on naming executors, there is nothing in the declaration or the record to support the assertion that Silvester would not have signed the will without this compromise.
12 No. 37733-4-III In re Estate of Hill
words, there is no evidence of Margaret’s intentions, and Silvester’s intentions do not
provide evidence of an agreement between Silvester and Margaret.
At best, the evidence presented by Martin demonstrates that in 2003 Margaret and
Silvester intended to create identical wills. The evidence fails to raise a material issue of
fact, under the heightened standard of review, as to whether there was an agreement to
create mutual wills. The wills were reciprocal but there is no evidence that they were
mutual. Thus, Margaret was free to change the terms of her own will at any time. Where
the wills are merely reciprocal, they do not undermine the community property
agreement, rendering it unnecessary for this court to address the validity of that
document.
C. ISSUE 2: ATTORNEY FEES
The Estate requests attorney fees, contending that Martin’s appeal is frivolous.
Generally, TEDRA5 provision at RCW 11.96A.150(1) states that an appellate court, in its
discretion, may award attorney fees to any party “in such amount and in such manner as
the court determines to be equitable” based on “any and all factors that it deems to be
relevant and appropriate.” This statute gives an appellate court broad discretion
regarding the award of attorney fees in relation to the resolution of trust and estate
disputes. In re Estate of Mower, 193 Wn. App. 706, 727, 374 P.3d 180 (2016). We
exercise our discretion and decline to award fees to the estate.
13 No. 37733-4-III In re Estate of Hill
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
_________________________________ Staab, J.
WE CONCUR:
_________________________________ Fearing, J.
_________________________________ Siddoway, A.C.J.
5 Trust and Estate Dispute Resolution Act, ch. 11.96A RCW.