In Re The Estate Of Constance E. Little Roxanne Trees, Res. v. Renae Roberson, App. , 444 P.3d 23 ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Estate of ) No. 78082-4-I
CONSTANCE ELAINE LITTLE, )
) DIVISION ONE
Deceased.
ROXANNE L. TREES, Individually and )
as the Personal Representative of the )
Estate of Constance Little,
) PUBLISHED OPINION
Respondent,
v.
RENAE K. ROBERSON,
Appellant. ) FILED: June 24, 2019
SCHINDLER, J. — A separate document in existence at the time a will is executed
may qualify both for incorporation by reference under RCW 11 .12.255 as to distribution
of the estate and as a “gift list” for tangible personal property under RCW 11 .12.260.
The terms of the will of Constance Elaine Little and the undisputed record establish the
intent of Little to incorporate by reference a separate document that directs distribution
of the estate and tangible personal property. We affirm the superior court order.
The Last Will and Testament of Constance E. Little
The facts are undisputed. Renae Roberson and Roxanne Trees are the adult
daughters of Constance Elaine Little and Royal Little. Royal Little died in 2008.
No. 78082-4-1/2
On July 20, 2011, Constance executed her will that incorporated by reference a
separate gift list. The July 20, 2011 “Last Will and Testament of Constance E. Little”
states, in pertinent part:
KNOW ALL MEN BY THESE PRESENTS: That I, CONSTANCE
E. LITTLE, a/k/a CONNIE E. LITTLE, a resident of the State of
Washington, of legal age, declare this to be my last Will and hereby
revoke all former Wills and Codicils by me made.
FIRST: I declare that I am a widow and that I have two children,
namely; ROXANNE LAREE TREES, whose birth date is September 6,
1945, and RENAE KAY ROBERSON, whose birth date is November 30,
1946.
SECOND: I do hereby state that it is my intent to prepare a gift
list separate from this Will for the purpose of disposition of tangible
personal property, mementos and family heirlooms pursuant to RCW
11.12.260. .
THIRD: Except as provided in the list described in Paragraph
SECOND above . after the payment of all just claims against my
. . ,
Estate, I make the following special bequests:
A. Unto my sister, JUDITH LAREE FJELLMAN, born June 26,
1943, I hereby give, devise and bequeath ONE PERCENT
(1 %) of the residue of my estate. .
B. All of the rest, residue and remainder of my property I give,
devise and bequeath equally unto my children, ROXANNE
LAREE TREES and RENAE KAY ROBERSON, share and
share alike .
FOURTH: I hereby nominate and appoint my daughter,
ROXANNE L. TREES, as Personal Representative of my Estate, to serve
without bond and I direct that this Will be probated as a nonintervention
Will. I further authorize and direct said Personal Representative to sell,
mortgage, lease or convey or otherwise deal with the property of my
Estate in the same manner as I could do were I then living and whether or
not it be necessary to do so in order to pay claims against my Estate or
expenses of administration.
Little also executed the “Gift List” on July 20, 2011. Little’s handwritten note on
the Gift List states, “Attach to my will at Yakima County Court House.” The Gift List
expressly provides, “I do hereby state that this is a separate gift list that accompanies
my last will and testament dated July 20, 2011 .“ Little unequivocally directs “my
Executor, Roxanne Trees,” to “first reduce Renae Kay Roberson’s half of my estate
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No. 78082-4-1/3
using the bolded amount values listed below and for the reasons provided in I, II, Ill, and
thence to distribute the remaining items in the order listed.” Sections I, II, and Ill of the
Gift List state:
I. Since Renae Roberson has already received or taken these items, I
wish to acknowledge the following reduction from her 1/2 portion
designated in my estate, and add it to Roxanne Trees Portion, in the
following amounts:
1. My husband, Royal’s Diamond Ring Renae received in Spring
-
2011 ($6000 Deduct 1/2 value @ $3000)
- -
2. My husband, Royal’s Chevy vehicle signed over to Renae in Fall
2008, then sold by her ($27,000 Deduct 1/2 value @ $13,500)
-
II. Renae Roberson has taken charge of these items without
complete permission by me and/or through documentation to me of
their current whereabouts and dispensation, as of this date. I wish to
acknowledge the following reductions from her 1/2 portion of my
estate and accountability measures of re-instatement. Within (15)
fifteen business days after the reading of this will, if Renae Roberson has
not satisfactorily acknowledged return, replacement, the whereabouts, or
accountability of these items of my estate that she handled, prior to my
death, I direct my executor to reduce Renae’s portion of my estate
proportionally and accordingly, using the itemized reductions. . Bolded
. .
reductions include the following items and transactions:
1. My husband, Royal Little’s gun collection given to Renae for
safekeeping 2005-2008, and not accounted for since then ($6000).
2. Government Bonds for Royal Little/Constance E. Little totaling (up
to $60,000) which were misplaced or lost by me and recovery
actions were instituted and taken by Renae in July 2011 per the
managers at the Yakima Valley Credit Union, Yakima, WA where I
cashed other bonds.
3. My personal collection of coins in blue/green collection folders,
including: (i.e. pennies, dimes, nickels, or quarters) which Renae
took without permission or for safekeeping, and were noted as
missing in early September 2011 ($5000).
Ill. Renae acquired these documented funds from me for her own
purposes over time, and I wish to acknowledge these as reductions
from her 1/2 portion of my estate.
Personal funds and loans made to Renae by me include: $3000 (in 2010)
and $12,000 @ $500 per month (during 2010-2011) to payoff Renae’s
personal loan of $55,000 to Margie Buchholz. (Total: $15,000).[1]
1 Emphasis in original; boldface in original.
3
No. 78082-4-114
The Gift List also states that “$10,000 shall be deducted first, and provided to
each of my grandchildren, Ryan Trees and Stacey Fataua,” and “$500 each to the
Meridian School Foundation (Bellingham, WA); YCTV,[2] and Parker Youth Foundation,
(Yakima, WA).” The Gift List directs distribution of “tangible personal property,
mementos and family heirlooms pursuant to ROW 11.12.260” as follows:
Identified Historical items to the Yakima Valley Agriculture Museum, Union
Gap, WA; to Perry Institute, Yakima, WA; to the Yakima Valley Museum,
Yakima, WA[.]
Identified Historical items to the Meridian School Foundation, Bellingham,
WA[.]
Renae Roberson, my camera equipment and videos, her paintings and
items given by her will be returned to her.
Roxanne Trees, all books, costumes, jewelry and coin collections, Indian
items and items given by her will be returned to her.
Ryan Trees, his Grandfather Royal’s car tools and Great Grandfather
Merrel’s tools and the red trailer or its equal value.
All mementos and items of family history (Little, Fjellman families) and all
those I possess, including all photos, videos, documents, family movies,
scrapbooks, letters and genealogy items will all be returned to Roxanne
Trees for safekeeping.(3]
On August 4, 2011, Little executed a new will. The August 4, 2011 will directs
distribution of $10,000 to each of her two grandchildren and $104,000 to Trees, “all to
be her sole and separate estate per stirpes.” The will states the “residue and
remainder” of the estate is bequeathed 1 percent to her sister and 48.5 percent to each
of her two daughters, Roxanne Trees and Renae Roberson.
2 Yakima Community Television.
~ The record does not show whether Little filed the Gift List at the Yakima County Courthouse.
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No. 78082-4-1/5
on September 16, 2011, Little revoked the August 4, 2011 will and reinstated the
July 20, 2011 will:
Re: LAST WILL AND TESTAMENT
To whom it may concern:
I Constance F. Little have revoked and withdrawn this will and any
attached codicils.
I intend that my only valid last will and testament dated July 20, 2011 is to
be effective immediately upon my death and be in place from this day
forward. It was prepared and reviewed with me by my own personal
attorney, Kevin Kirkevold, Yakima, WA and was properly witnessed,
notarized, and filed in Yakima County on July 20, 2011.
Little executed another “Gift List” on September 16, 2011. Except for the absence of
the handwritten note, the Gift List is identical to the one she signed on July 20, 2011.
Probate
Little died on February 4, 2013. On February 15, Trees filed a “Notice of
Appointment and Pendency of Probate Proceedings.” Trees filed a petition for an order
to admit the will to probate and appoint her as the personal representative. Trees
submitted the original July 20, 2011 Last Will and Testament of Constance E. Little; the
affidavits of witnesses to the execution of the will; the August 4, 2011 will; and the
September 16, 2011 revocation of the August 4, 2011 will. The court admitted the July
20, 2011 will to probate and entered an order of solvency.
On February 15, 2013, the court appointed Trees as the personal representative
of the estate of Constance Elaine Little (the Estate) with nonintervention powers and
without bond.
On August 19, 2015, Trees filed the “First Interim Report and Accounting” for
February 4, 2013 through December 31, 2014 and a petition for “[r]eimbursement” of
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No. 78082-4-1/6
“[ajdvances by PR”4 to the Estate. Trees submitted copies of the Gift List that Little
executed on July 20, 2011 and on September 16, 2011 as “Exhibits E and F.” Trees
provided an “Attorney-in-Fact Accounting” of all the transactions made by Trees and
Little from September 2011 until Little’s death in February 2013. Trees requested the
court order Roberson to file an accounting. Trees asserts that absent an accounting
from Roberson, “it is premature to order any reductions” to her share of the Estate.
The July 20, 2011 separate writing was executed
contemporaneously with the Will dated July 20, 2011 and is
incorporated by reference in the Will per RCW 11.12.255.
However, it is premature to order any reductions to the distributive
share of Renae Roberson because the issue of “reduction” may be
addressed in her accounting.
Renae Roberson and Roxanne Trees both served as agents under
separate powers of attorney for their mother, Constance Little. Both
Renae Roberson and Roxanne Trees should file accountings.
Furthermore, the “Gift Lists” contain a provision that Renae Roberson
should account for her activities. See Exhibits E and F.
The First Interim Report states that as of December 31, 2014, the balance of the
Estate bank account was $70,281 .52, the Estate owned a two-thirds interest in the
residential property in Yakima, and the Federal Way property had been sold by court
order. The First Interim Report states the sale of the Federal Way property resulted in
net proceeds of $132,825.61. Trees sought court approval to sell the two-thirds interest
in the Yakima property. Trees notes she owns the other one-third interest and is
“readying the property for sale.” Trees requested approval of the Attorney-in-Fact
Accounting and issuance of an order requiring Roberson to “account for her activities
while serving as Agent and also for any other activities undertaken with respect to
assets held by Constance E. Little.”
~ Persona! representative.
6
No. 78082-4-1/7
The court scheduled a hearing for October 28, 2015. The court ordered
Roberson to appear and show cause why she had not prepared an accounting.
Roberson represented herself pro se. In response, Roberson filed an objection
to the First Interim Report. At the hearing on October 28, 2015, the superior court
commissioner approved the First Interim Report but reserved ruling on the request to
order Roberson to file an accounting.
Approximately two years later on November 30, 2017, Trees filed the “Final
Report, Accounting, and Petitions for Distribution of Assets and for Decree of
Distribution” (Final Report). The Final Report states Roberson filed three creditor claims
against the Estate: (1) A claim for funeral expenses, (2) a claim for house repairs in the
amount of $51 ,659.99, and (3) a claim for “services” in the amount of $7,500.00. The
report states Trees reimbursed Roberson for the funeral expenses but made only “a
partial payment” to Roberson of $20,000.00 for the house repairs because the “Estate
lacked liquidity,” and rejected the claim for “services.”
The Final Report identifies $133,478.29 in the Estate bank account and
$163,498.98 from the court-approved sale of the Yakima property. The Final Report
states Trees followed the directive for “reductions to the distributive share of Renae
Roberson and cash gifts to Ryan Trees, Stacey Fataua, Meridian School Foundation,
YCTV, and Parker Youth Foundation” and “disposition of certain tangible personal
property.”
Roberson contested the Final Report. Roberson asserted the Gift List did not
meet the statutory requirements for incorporation by reference under RCW 11.12.255
because it was not in existence “when the will [was] executed” and the will did not
identify the writing or “manifest the intent to incorporate the writing” into the will.
7
No. 78082-4-1/8
Roberson argued the Gift List was invalid because it “was never admitted to probate
with the Will” and the “monetary gifts are all void as a matter of law” because the
monetary gifts are not tangible personal property under ROW 11.12.260.
At the conclusion of the hearing on the Final Report and petition for decree of
distribution, a superior court commissioner entered the “Decree of Distribution.” The
Decree of Distribution states the actions of the personal representative “during this
accounting period were reasonable, necessary, and furthered the administration of the
Estate.” The commissioner concluded, “Said actions should be ratified, confirmed, and
approved.” The Decree of Distribution approves the Final Report and authorizes the
proposed distribution:
1. The Final Report is approved.
2. The Cash Accounting for the period from January 1, 2015 through
September 8, 2017 is approved.
3. The actions of the PR during this accounting period are ratified,
confirmed, and approved.
4. The PR shall distribute the remaining net assets of the Estate as
provided for in the formula outlined in the Proposed Distribution
Worksheet of Cash attached as Exhibit D to the underlying Final
Report.
5. Any personal property that is not picked up by Renae Roberson within
30 days of the entry of this Decree of Distribution shall be deemed to
have been abandoned by Renae Roberson.
The commissioner entered findings of fact and conclusions of law. The Decree
of Distribution states the “total amount of the reductions to the distributive share of
Renae Roberson provide[dJ for in the Gift List is $122,000.” The findings of fact state
the “Gift List is specifically referenced and described at Articles Second and Third of the
Will.” The commissioner concluded the “Gift List is incorporated by reference in the Will
under ROW 11 .12.255”; the “provisions of the Gift List detail the testator’s reasons for
the reductions to Renae Roberson’s distributive share at Items I, II, and Ill”; and the
8
No. 78082-4-1/9
“Gift List manifests the testator’s inten[t] to equalize the advancements made to Renae
Roberson during the testator’s lifetime.” The commissioner concluded the Gift List also
“disposes of tangible personal property” under ROW 11.12.260.
Motion for Revision
Roberson filed a motion to revise the commissioner order approving the Decree
of Distribution. Roberson argued the Gift List was unenforceable because it was not
filed with the probate petition and did not meet the requirements of ROW 11 .12.255 or
ROW 11.12.260.
The superior court denied the motion for revision and affirmed the decision of the
commissioner to approve the Decree of Distribution. The court found there is “no
evidence of undue influence or wrongdoing.” The court concluded there is “no
requirement that the gift list be filed” with the will and Roberson had the will “or access
to it . . . for a few years and had an opportunity to address the issues in the gift list.”
The court entered the following findings:
The court agrees with the Oommissioner that ROW 11.12.255 is the
controlling statute.
The will referenced the gift list.
The gift list existed at the time the Will was signed.
The gift list was redated and mentioned again three months later.
It is clearly referenced in the Will.
Appeal of Superior Oourt Order
Roberson appeals the superior court order denying the motion to revise the
decision of the superior court commissioner to approve the Decree of Distribution.5
~ We hold a pro se litigant to the same standard as an attorney. In re Marriage of Olson, 69 Wn.
App. 621, 626, 850 P.2d 527 (1993). An appellant must provide “argument in support of the issues
presented for review, together with citations to legal authority and references to relevant parts of the
record.” RAP 1 0.3(a)(6); Holland v. City of Tacoma, 90 Wash. App. 533, 538, 954 P.2d 290 (1998).
“Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration.”
Holland, 90 Wash. App. at 538.
9
No. 78082-4-1110
The decision of a court commissioner is subject to revision by the superior court.
ROW 2.24.050.6 ROW 2.24.050 states, in pertinent part:
All of the acts and proceedings of court commissioners hereunder shall be
subject to revision by the superior court. Any party in interest may have
such revision upon demand made by written motion, filed with the clerk of
the superior court, within ten days after the entry of any order or judgment
of the court commissioner. Such revision shall be upon the records of the
case, and the findings of fact and conclusions of law entered by the court
commissioner.
On revision, the superior court reviews de novo the findings of fact and
conclusions of law of the commissioner based upon the evidence and issues presented
to the commissioner. State v. Ramer, 151 Wash. 2d 106, 113, 86 P.3d 132 (2004). The
superior court can adopt the decision of the commissioner “either expressly or by clear
implication from the record.” In re Dependency of B.S.S., 56 Wash. App. 169, 170, 782
P.2d 1100 (1989).
We review the superior court decision on appeal. Ramer, 151 Wash. 2d at 113.
Unchallenged findings of fact are verities on appeal. In re Estate of Jones, 152 Wash. 2d
1, 8, 93 P.3d 147 (2004). “An appellate court will uphold challenged findings of fact and
treat the findings as verities on appeal if the findings are supported by substantial
evidence.” Jones, 152 Wash. 2d at 8. Substantial evidence is ‘evidence that is sufficient
to persuade a rational, fair-minded person of the truth of the finding.” Jones, 152 Wash. 2d
at 8. An appellate court reviews conclusions of law de novo. Jones, 1 52 Wash. 2d at 8-9.
RCW 11.12.255 and ROW 11.12.260
Roberson contends the court erred in denying the motion to revise the
commissioner decision to approve the Decree of Distribution. Roberson asserts the Gift
6 See also WASH. CONST. art. IV, § 23.
10
No. 780 82-4-Ill 1
List does not meet the requirements of either ROW 11.12.255 or ROW 11.12.260 and is
unenforceable.
We review a decree of distribution to ensure it is in accord with the intent of the
testator’s will and applicable law. In re Estate of Wegley, 65 Wash. 2d 689, 695, 399 P.2d
326 (1965). The interpretation of a will is a question of law that we review de novo. In
re Estate of Curry, 98 Wash. App. 107, 112-13, 988 P.2d 505 (1999). The paramount duty
of the court is to give effect to the testator’s intent when the will was executed. In re
Estate of Bergau, 103 Wash. 2d 431, 435, 693 P.2d 703 (1985); In re Estate of Price, 73
Wash. App. 745, 754, 871 P.2d 1079 (1994). If possible, the court must determine the
testators intent from the language of the will as a whole. Bergau, 103 Wash. 2d at 435.
Specific provisions must be construed in the context of the entire will. In re Estate of
Riemcke, 80 Wash. 2d 722, 728, 497 P.2d 1319 (1972); Curry, 98 Wash. App. at 113. The
court must consider the will in its entirety. In re Estate of MelI, 105 Wash. 2d 518, 524, 716
P.2d 836 (1986).
Statutory interpretation is a question of law that we review de novo. Jones, 152
Wash. 2d at 8-9; Dept of Ecology v. Campbell & Gwinn, LLC, 146 Wash. 2d 1, 9, 43 P.3d 4
(2002). We look to the plain meaning of the statute as the expression of legislative
intent. Bostain v. Food Express, Inc., 159 Wash. 2d 700, 708, 153 P.3d 846 (2007). We
discern plain meaning from the plain language of the statute, “considering the text of the
provision in question, the context of the statute in which the provision is found, related
provisions, amendments to the provision, and the statutory scheme as a whole.”
Columbia Riverkeeperv. Port of Vancouver USA, 188 Wash. 2d 421, 432, 395 P.3d 1031
(2017). If the plain language of the statute is subject to only one interpretation, the
inquiry ends. Lake v. Woodcreek Homeowners Ass’n, 169 Wash. 2d 516, 526, 243 P.3d
11
 No. 78082-4-1/12
1283 (2010). Statutes relating to the same subject are construed together and in
ascertaining legislative intent, the court harmonizes and reads the statues together as
constituting a unified whole. In re Estate of Black, 153 Wash. 2d 152, 164, 102 P.3d 796
(2004).
ROW 11.12.255 states a will may incorporate by reference a writing that is in
existence when the will is executed. ROW 11.12.255 states:
A will may incorporate by reference any writing in existence when the will
is executed if the will manifests the testator’s intent to incorporate the
writing and describes the writing sufficiently to permit its identification. In
the case of any inconsistency between the writing and the will, the will
controls.
Roberson argues the Gift List was not in existence when Little executed the will
and the will does not manifest Little’s intent to incorporate the Gift List by reference.
The record does not support her argument. The undisputed record establishes the Gift
List was in existence when Little executed the will on July 20, 2011 and reinstated the
will on September 16, 2011. The uncontroverted record establishes Little executed the
same Gift List when she executed her will first on July 20, 2011 and again on
September 16, 2011 when she revoked the August 4, 2011 will and reinstated the July
20, 2011 will.
Roberson contends the will does not manifest an intent to incorporate the Gift
List because the will does not “mention cash gifts” or reductions to Roberson’s “share of
the estate.”
The plain and unambiguous language of ROW 11.12.255 unequivocally states,
“A will may incorporate by reference any writing in existence when the will is executed if
the will itself manifests the testator’s intent to incorporate the writing.” “Washington
courts have consistently interpreted the word ‘any’ to mean every’ and ‘all.’ “ Stahl v.
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No. 78082-4-1/13
Delicor of Puqet Sound, Inc., 148 Wash. 2d 876, 884-85, 64 P.3d 10 (2003). The Gift List
is a writing that the will incorporates by reference.
The language of the will unambiguously manifests the intent of Little to
incorporate the Gift List by reference and direct distribution of the Estate and monetary
gifts. The will expressly references the Gift List in “Paragraph Second.” Paragraph
Second states Little intends to prepare the Gift List “separate from this Will for the
purpose of disposition of tangible personal property, mementos and family heirlooms
pursuant to RCW 11.12.260.” In “Paragraph Third,” the will states, “Except as provided
in the list described in Paragraph SECOND above,” Little directs the executor to make
the deductions and distribute the money gifts and personal property “as provided in the
list” before distributing the remainder of the Estate. See Woodard v. Gramlow, 123 Wn.
App. 522, 526-29, 95 P.3d 1244 (2004) (a separate writing directing the proceeds from
a life insurance policy into a testamentary trust was incorporated under RCW
11.12.255).
Baarslaq v. Hawkins, 12 Wash. App. 756, 531 P.2d 1283 (1975), is distinguishable.
In Baarslaq, the will stated the testator gives “‘the bulk of my property’ “to “seven
named ‘devisees-trustees’ in an ‘unlimited trust’ “to be “used ‘for certain purposes
which are dear to my heart, and which are known to my Executor and the devisees
trustees hereinafter named, in accordance with oral and written directions that I have
given to them’ “as” ‘[gjuidelines.’ “ Baarslaq, 12 Wash. App. at 757-58. Because the will
did “not refer to the handwritten guidelines by name” or date, we concluded the will did
not sufficiently identify the handwritten guidelines as “a writing intended by the testator
to be incorporated by reference into his will” under RCW 11.12.255. Baarslaq, 12 Wn.
App. at 762-63. We held the vague reference in the will to ‘written and oral
“
13
No. 78082-4-1/14
instructions’ “was “insufficient to incorporate by reference the handwritten guidelines.”
Baarslag, 12 Wash. App. at 762. “‘[Tjhe will must refer to the instrument to be
incorporated and must describe it with sufficient certainty that it may be identified and
distinguished from other similar documents.’” Baarslag, 12 Wash. App. at 761-62
(quoting 2 PAGE ON WILLS: THE LAW OF WILLS § 19.23 (3d ed. 1960)). “‘The description
in the will must be in language which is so clear and unambiguous that the identity of
the documents is readily established.’” Baarsj~~g, 12 Wash. App. at 761-62~ (quoting 2
PAGE ON WILLS § 19.23). Here, unlike in Baarslag, the will clearly and unambiguously
identifies and incorporates by reference the Gift List that specifically directs distribution
of the Estate, monetary gifts, and tangible personal property.
Roberson asserts the Gift List is not incorporated by reference under RCW
11 .12.255 because the will cites only ROW 11.12.260 and ROW 11.12.260(4) prohibits
the “monetary gifts and the reduction scheme.”
ROW 11.12.260 governs the requirements for a separate writing that directs the
disposition of “tangible personal property.” ROW 11 .12.260(1) states:
A will or a trust of which the decedent is a grantor and which by its terms
becomes irrevocable upon or before the grantor’s death may refer to a
writing that directs disposition of tangible personal property not otherwise
specifically disposed of by the will or trust other than property used
primarily in trade or business. Such a writing shall not be effective unless:
(a) An unrevoked will or trust refers to the writing, (b) the writing is either
in the handwriting of, or signed by, the testator or grantor, and (c) the
writing describes the items and the recipients of the property with
reasonable certainty.
Unlike the requirements of ROW 11.12.255, under ROW 11.12.260(2), “The
writing may be written or signed before or after the execution of the will or trust and
need not have significance apart from its effect upon the dispositions of property made
~ Emphasis omitted.
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No. 78082-4-1/15
by the will or trust.” RCW 11 .12.260(2) states that a “writing that meets the
requirements of this section shall be given effect as if it were actually contained in the
will.”
RCW 11.12.260(4) defines “tangible personal property” as “articles of personal or
household use or ornament,” such as “furniture, furnishings, automobiles, boats,
airplanes, and jewelry, as well as precious metals in any tangible form, for example,
bullion or coins.” RCW 11.12.260(4) states that tangible personal property excludes
“intangible property,” including “money that is a normal currency or normal legal
tender.”8
Under these particular facts, the conclusion that the Gift List meets the
requirements of ROW 11.12.255 and controls distribution of the Estate and money does
not conflict with the disposition of tangible personal property under ROW 11 .12.260.
Ohapter 11.12 ROW governs execution and interpretation of a will. The
undisputed record establishes the Gift list complies with ROW 11.12.255. The Gift List
was in existence at the time Little executed the will and the will clearly identifies the Gift
List, and the will manifests Little’s intent to incorporate the writing and direct distribution
of the Estate and money. The Gift List also meets the requirements of ROW 11.12.260.
ROW 11 .12.260 states a will “may direct disposition of tangible personal property” in a
separate writing “written or signed before or after the execution of the will or trust.” The
Gift List is a separate writing that directs disposition of tangible personal property. The
court did not err in concluding ROW 11 .12.255 controls disposition of the Estate and
money and meets the requirements of ROW 11.12.260 for purposes of disposition of
tangible personal property.
~ Roberson does not dispute the distribution of tangible personal property under the Gift List.
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No. 78082-4-1/16
Roberson also claims the Gift List is inconsistent with the will because the Gift
List reduces her share from “approximately $98,000 to $7,000.” The reductions in the
Gift List are not inconsistent with the will. The will explicitly directs the executor to
implement the directions in the Gift List before distributing the remainder of Little’s
Estate.
Probate Petition
Roberson contends Washington law required the personal representative to file
the Gift List with the petition to admit the will to probate. We review questions of law de
novo. Jones, 152 Wash. 2d at 8-9.
Roberson cites ROW 11.28.237(1) to argue the Gift List “should have been given
to the heirs with the Will as part of the Will.” ROW 11 .28.237(1) does not support her
argument. ROW 11 .28.237(1) provides that “[w]ithin twenty days after appointment, the
personal representative of the estate of a decedent shall cause written notice of his or
her appointment and the pendency of said probate proceedings.”
ROW 11.20.010 governs admission ofa will to probate. ROW 11.20.010
provides, in pertinent part, “Any person having the custody or control of any will shall,
within thirty days after he or she shall have received knowledge of the death of the
testator, deliver said will to the court having jurisdiction or to the person named in the
will as executor.” Here, the personal representative complied with the statute by filing a
petition to admit Little’s will to probate eleven days after Little died. The court did not err
in concluding Washington law does not require the personal representative to file a
separate writing when the will is admitted to probate.
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No. 78082-4-1/17
Due Process
Roberson contends admission of the Gift List violated her right to due process
because she was not able to “contest the separate writing as part of the Will.” The
record does not support her argument.
As a general rule, the probate of a will is a “non-adversary proceeding, and a
hostile party waits until the will is admitted to probate to contest the will under RCW
11 .24.010.” Black, 153 Wash. 2d at 170. But where, as here, a party challenges the will
and disposition of the estate, the court can address the contest. Black, 153 Wash. 2d at
170. The failure to give due notice to heirs is a denial of procedural due process. In re
Estate of Little, 127 Wash. App. 915, 921, 113 P.3d 505 (2005). “ ‘The fundamental
requirement of due process is the opportunity to be heard at a meaningful time and in a
meaningful manner.’” Aiken v. Aiken, 187 Wash. 2d 491, 501, 387 P.3d 680 (2017)~
(quoting Matthews v. Eldridqe, 424 U.S. 319, 333, 96 5. Ct. 893, 47 L. Ed. 2d 18
(1976)).
The record shows Roberson knew about and challenged the Gift List and
distribution of the Estate. Roberson received actual notice of the Gift List when Trees
filed the First Interim Report and Accounting on August 19, 2015. In opposition to the
Final Report and petition for decree of distribution, Roberson argued the Gift List did not
meet the requirements of RCW 11.12.255 or RCW 11.12.260 and was unenforceable.
Roberson challenged the Gift List at the show cause hearing in October 2015, at the
hearing on the Final Report and petition for decree of distribution in December 2017,
and at the hearing on the motion for revision.
~ Internal quotation marks omitted.
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No. 78082-4-1/18
Attorney Fees
The Estate seeks reasonable attorney fees under the Trust and Estate Dispute
Resolution Act, chapter 11 .96A RCW. Under RCW 11 .96A. 150(1), an appellate court
may, in its discretion, order attorney fees to be awarded to any party from any other
party “in such amount and in such manner as the court determines to be equitable.” We
decline the request for fees on appeal.
We affirm the superior court order denying the motion to revise the commissioner
order approving the Decree of Distribution for the Estate of Little.
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WE CONCUR: - /
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