In Re The Matter Of The Estate Of Edward William Coaker ( 2016 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
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IN RE THE ESTATE OF EDWARD ) No. 74873-4-1
COAKER, ; vc-
WILLIAM P. COAKER,
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Appellant, CI*
r
DIVISION ONE
v.
MICHAEL E. COAKER, i UNPUBLISHED OPINION
Respondent. ) FILED: December 19, 2016
Spearman, J. —William Coaker (Bill), the son of decedent Edward William
Coaker (Ed), filed a will contest action disputing the validity of Ed's will. The trial
court found that Bill did not provide timely personal service of the will contest on
the personal representative of Ed's estate and dismissed his claim on summary
judgment. Because we agree that Bill did not comply with the strict statutory
requirements for commencing a will contest, and there is no basis to toll the
statute of limitations for filing such a claim, we affirm.
FACTS
The decedent, Ed, was born on November 28, 1944. He married Patricia
Coaker. They divorced in 1980, but quickly remarried. They divorced again in
1985, but continued to live together. Ed and Patricia had two sons, Michael and
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Bill. Bill was a poor student, receiving low grades and some supplemental or
special education services. But he progressed in school each year before
dropping out in his junior year. Bill attests that he is mentally disabled and has a
limited ability to read. He qualifies for Supplemental Security Income based on
disability. Medical records note that Bill has "deficient language, is forgetful, has
poor insight, has poor attention span and concentration." Clerk's Papers (CP) at
194.
The parties present conflicting evidence about Bill's relationship to his
family. The personal representative (PR) presented evidence that for the last 28
years, Bill had limited contact with his family, visiting occasionally for a day or so
and then having no contact for years. Ed and Patricia raised Bill's three children
from a very young age. Those children saw Bill only occasionally and do not
have a relationship with him as adults. The PR also provided evidence that
nobody in the family knew Bill's location when Ed died. By contrast, Bill
presented evidence that he and Ed were close and worked together on
construction jobs.
Ed died on November 28, 2013. On September 3, 2014, Michael
submitted for probate, a will executed by Ed on July 24, 2013. The will named
Michael as PR and listed specific property passing to Michael and one of Bill's
children, Shawn. The will provided that the residue of the estate would pass to
Patricia and Michael. It left Bill five dollars.
The court appointed Michael as PR. Shawn and Patricia were notified by
mail of the PR appointment and pendency of probate. Michael's counsel
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conducted an internet search for Bill, but was not able to find an address for him
in Washington or in any other state. With no address for him, Michael did not mail
Bill the notice of probate. However, Michael published a notice to creditors in the
Snohomish County Tribune from September 10-24, 2014.
On February 13, 2015, a newly discovered will was admitted to probate.
This subsequent will was executed by Ed on or about August 26, 2013, about a
month after the prior will. It again named Michael as PR, but left the bulk of the
estate to Patricia. In the new will, both Michael and Bill were left five dollars.
By March 20, 2015, Bill knew that his father had died and that probate was
pending. On June 11, 2015, Bill filed a pro se "Creditor's Claim" for fifty percent
of Ed's estate, alleging, "Dad's signature is forged on both wills." CP at 300; 403.
Bill twice noted the matter for hearing and mailed a copy to Michael's attorney.
Bill did not confirm the hearing, so it was struck. On June 25, 2015, Bill filed a pro
se motion and declaration to remove the PR and contest the will. He also alleged
that the PR improperly served documents. He noted this motion and another
nearly identical motion three different times, but the court ultimately struck them.
On July 10, 2015, Michael mailed Bill a notice of appointment and pendency of
probate.
On October 26, 2015, counsel appeared for Bill. On November 18, 2015,
Michael filed a "Notice of Rejection of Creditor's Claim" that rejected Bill's June
11, 2015 claim. On November 30, 2015, Bill filed a petition pursuant to the Trust
and Estate Dispute Resolution Act (TEDRA) seeking to contest the will, remove
Michael as personal representative, obtain an accounting of the Estate, restrain
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transfer of Estate property, appoint an alternative personal representative, admit
to probate the intestate estate of Ed, and compel mediation of the estate. The PR
was personally served with the petition on December 2, 2015. On December 17,
2015, Bill filed a motion seeking the same relief. The court consolidated the
probate action and Bill's TEDRA action under the probate cause number.
Michael brought a motion for summary judgment seeking dismissal of the
will contest on the ground that it was untimely. On February 12, 2016, the trial
court granted Michael's motion for summary judgment, dismissing Bill's will
contest and awarding attorney fees to Michael. Bill appeals.
DISCUSSION
The appellate court reviews a summary judgment order de novo, engaging
in the same inquiry as the superior court. Lvbbert v. Grant County, 141 Wn.2d
29, 34, 1 P.3d 1124 (2000). We view the facts and all reasonable inferences
therefrom in the light mostfavorable to the nonmoving party. \± at 34. A court
may grant summary judgment if the pleadings, affidavits, and depositions
establish that there is no genuine issue as to any material fact and the moving
party is entitled to judgment as a matter of law. Ruff v. County of King. 125
Wn.2d 697, 703, 887 P.2d 886 (1995).
Bill argues that the trial court erred by dismissing his will contest on
summary judgment. His assignments of error numbers seven through twelve are
iterations ofthis argument. Bill contends that he substantially complied with the
procedures for commencing a will contest and TEDRA action. The PR argues
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that Bill's will contest was properly dismissed because Bill failed to comply with
the strict requirement to personally serve the will contest on the PR.
After a will is filed for probate, there is a four month statute of limitations
for initiating a will contest. To toll the limitations period,
a contest is deemed commenced when a petition is filed with the
court and not when served upon the personal representative. The
petitioner shall personally serve the personal representative within
ninety days after the date of filing the petition. If, following filing,
service is not so made, the action is deemed to not have been
commenced for purposes of tolling the statute of limitations.
If no person files and serves a petition within the time under
this section, the probate or rejection of such will shall be binding
and final.
RCW 11.24.010. "Washington courts have always strictly enforced the
requirements for commencing will contest actions, . . ." Miles v. Jepsen, 184
Wn.2d 376, 381, 358 P.3d 403 (2015). In Jepsen, a will contest was time-barred
because the petitioner emailed the will contest petition to the PR's attorney rather
than personally serving the PR. \± at 381. In this case, Ed's subsequent will was
admitted to probate on February 13, 2015. Bill filed a creditor's claim on June 11,
2015, two days before the end of the four-month limitations period. Bill mailed
multiple calendar notes for multiple creditor's claims to the PR's attorneys in June
and July. But he did not personally serve the PR within ninety days offiling, as
required by RCW 11.24.010.1 Under Jepsen, Bill must strictly comply with RCW
11.24.010 to commence a will contest. Mailing notice of a will contest to the PR's
attorney does not comply with RCW 11.24.010. Because the PR was never
1The first time that Bill personally served the PR was on December 2, 2015, well pastthe
ninety day deadline.
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personally served with the will contest petition, the probate of Ed's will is binding
and final.
Bill makes numerous arguments why the statute of limitations should be
tolled, making his will contest timely. First, Bill contends that the PR's failure to
provide notice of probate tolls the limitations period. The PR must provide notice
of probate to heirs and beneficiaries "whose names and addresses are known to
him .. .." RCW 11.28.237. Notice may be served personally or by mail. jd. The
PR must "'make an earnest effort in the course of his trust to determine who
would be lawfully entitled to the estate.'" In re Estate of Little, 127 Wn. App. 915,
923, 113 P.3d 505 (2005) (quoting Hesthaaen v. Harbv, 78 Wn.2d 934, 941, 481
P.2d 438 (1971). Just as a PR must exercise due diligence to identify heirs, a PR
must also diligently try to find and provide notice to those heirs.
The PR presented evidence that he did not know Bill's location and that an
internet search for Bill did not uncover a current address for him. Bill submits
sworn testimony that the PR knew Bill's phone number and that, for a fee, his
address could have been found through an internet background check. Viewing
the evidence in the light most favorable to Bill, and assuming the veracity of Bill's
evidence, there is at least an issue of fact about whether the PR exercised due
diligence to provide notice because he knew, but did not call, Bill's phone
number.
But even assuming that the PR failed to exercise due diligence in
providing Bill notice of the probate proceedings, Bill is not entitled to the relief he
seeks: tolling the statute of limitations for his will contest. "[T]he will contestant's
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time period in which to act is tied to the date the will is admitted to probate,
regardless of when the contestant receives notice." In re Estate of Toth, 138
Wn.2d 650, 654, 981 P.2d 439, 442 (1999). But if no notice is provided, the
statute of limitations for will contests is tolled. Hesthaqen, 78 Wn.2d 934; In re
Estate of Walker, 10 Wn. App. 925, 521 P.2d 43 (1974). Once a will contest is
filed, the petitioner has ninety days to perfect the action by personal service on
the PR. RCW 11.24.010. Here, the PR's deficient notice tolled the limitations
period for Bill to commence the will contest. Bill filed the will contest on June 11,
2015 but did not personally serve the PR until December 2, 2015, well beyond
the ninety day period. Even if the PR failed to diligently attempt to give notice to
Bill, thatfact is immaterial to Bill's failure to timely perfect his will contest.2 In light
of the strict enforcement of the requirements necessary to commence a will
contest, Bill's argument that the statute of limitations should be tolled on this
ground is without merit.
Bill makes several additional arguments for tolling the limitations period.
First, he argues that the PR waived the statute of limitations defense. Bill
contendsthat the personal service of a will contest establishes personal
jurisdiction, and that the PR waived this defense by not asserting it in the claim
2 Even ifwe were to conclude that the statute of limitations was tolled because the PR did
not provide notice to Bill within twenty days of the appointment as required by RCW 11.28.237,
we would reach the same result. Any defect in providing Bill with timely notice was cured when
the PR gave Bill notice on July 10, 2015. See In re Estate of Walker. 10 Wn. App. at932. Even if
Bill is afforded a new four month limitations period subsequent to receiving notice, itwould be of
no help to him. The deadline for filing a petition contesting the will would have been November
10. Bill did not file his second petition until November 30, 2015. And even if we were to assume
his first petition was effective, following notice on July 10, Bill did not effect personal service on
the PR until December 2, 2015, well beyond the ninety days permitted between filing and service.
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rejection. This argument fails because the personal service requirement in RCW
11.24.010 is necessary to commence a will contest, but not to establish personal
jurisdiction. Jepsen. 184 Wn.2d 376. The PR does not waive compliance with
statutory requirements for commencing a will contest by responding to the
petition. Jepsen, 184 Wn.2d at 382 n.7. Accordingly, we reject Bill's waiver
argument.
Bill also argues that the statute of limitations should be tolled because the
PR breached his fiduciary duties. He contends that RCW 11.96A.070 provides
longer statutes of limitation for actions for breach of fiduciary duty. The PR
argues that a breach of fiduciary duty claim under RCW 11.96A.070 does not toll
the limitations period for will contests established by RCW 11.24.010. We agree.
Because Bill filed a will contest claim, not an action for breach of fiduciary duty,
the statute of limitations in RCW 11.96A.070 is inapplicable to this matter.
Next, Bill argues that even if he did not comply with the procedures for
commencing a will contest, the statute of limitations to perfect his will contest
claim should be tolled under RCW 4.16.190 for the period of his disability or
incapacity. RCW 4.16.190 tolls a statute of limitations for a person who cannot
understand the nature of the proceedings for the duration of his or her
incompetence. Bill's argument fails because will contests are not an action under
Chapter 4.16 RCW. The statute of limitations for a will contest is governed by
Chapter 11.24 RCW, which does not include a provision for tolling the statute
based on disability.
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No. 74873-4-1/9
In a related argument, Bill contends that the statute of limitations should
be tolled as a disability accommodation until he could obtain counsel or be
appointed counsel. He argues that under the Washington Constitution, the
Americans with Disabilities Act, (ADA), 42 U.S.C. § 12101 et seq., the
Washington Law Against Discrimination, chapter RCW 69.40 RCW (WLAD), and
GR 33, principles of due process and access to the courts require tolling for
disability. But Bill cites no authority in support of these arguments and we have
found none.3
The will contest statute does not provide for tolling based on disability or
equity and "[t]his court has strictly enforced the statutory period for filing will
contest petitions." In re Toth, 138 Wn.2d 656. "[Fjactual inequities do notjustify
circumventing a clear rule articulated by the Legislature." jd. at 657. This is
consistent with Washington's "long-standing public policy of promoting the
prompt and efficient resolution of matters involving trusts and estates." RCW
11.96A.070 (3). In 1917, the Legislature expressly repealed a provision that
tolled the limitations period for will contests for persons "of unsound mind." Laws
of 1917, ch. 156, § 15. Because the legislature has concluded that the limitations
period for will contests cannot be tolled for disability, we are not at liberty to
3 Bill's reliance on Tennessee v. Lane. 541 U.S. 509, 124 S. Ct 1978, 158 L. Ed. 2d 820(2004) and Bullock v. Superior Court. 84 Wn.2d 101, 524 P.2d 385 (1974) is misplaced because
the cases are wholly unrelated to the issue at hand. Lane concerned whether enactment ofthe
ADA was a constitutionally valid exercise of Congress' enforcement power under the Fourteenth
Amendment to the U.S. Constitution. In Bullock, petitioners in divorce proceedings challenged
conditions the trial court placed upon their ability to proceed in forma pauperis. The court held
that the trial courtcould impose such conditions as itdeemed necessary except as they might
unduly burden petitioners' right ofaccess to the judicial system. Bill fails to explain how either
case is applicable to whether we may toll the statute oflimitations when the legislature has
expressed its disapproval of tolling on the very ground advocated for here.
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conclude that it may be tolled as a reasonable accommodation of a disability. We
decline to rewrite the statute to include tolling for reason of a disability where the
legislature expressly rejected it.
Bill makes several additional assignments of error that relate to tolling.
First, he argues that "[t]he trial court erred in failing to address Bill's oral and
written request for reasonable accommodations of his mental disability and
illiteracy." Brief of Appellant at 8. As explained above, Bill's requested
accommodation (tolling the statute of limitations) is not available as a matter of
law.
Second, Bill contends that "[t]he trial court erred when it failed to make
inquiry as to Bill's allegations of disability per the Americans with Disabilities Act
("ADA") and GR 33." Brief of Appellant at 8-9. With respect to this assignment of
error, the record is insufficient for us to determine whether and what inquiry was
made into Bill's disability because he failed to provide a verbatim report of
proceedings.4 And even if the trial court failed to make an inquiry under GR 33 or
the ADA, Bill is not entitled to tolling ofthe statute of limitations. The record
shows that Bill obtained counsel by October26, 2013. With representation by
counsel, Bill could have filed a timely will contest petition by November 10, 2015.
He did not do so.
Third, Bill contends that "[t]he trial court erred when it dismissed and failed
to makefindings regarding Bill's disability." Br. ofAppellant at 9. However,
4In his declaration, Bill attests to his colloquy with the court about his disability at the July
31, 2015 hearing. It does not reflect that he made a request to the court for accommodation as
required by GR 33.
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summary judgment is reviewed de novo on appeal so findings are "merely
superfluous and of no prejudice" to Bill. Gates v. Port of Kalama, 152 Wn. App.
82, 87 n. 6, 215 P.3d 983 (2009), quoting State ex rel. Carroll v. Simmons, 61
Wn.2d 146, 149, 377 P.2d 421 (1962).
Fourth, Bill argues that "[t]he trial court erred when it failed to continue the
matter for further court inquiry based on Bill's request for reasonable disability
accommodation in writing per GR 33." Brief of Appellant at 9. Bill does not cite to,
and we cannot find, evidence in the record that Bill requested a continuance.5
Bill's sixth assignment of error is that "[t]he trial court erred when it failed
to appoint a GAL . .. ." Br. of Appellant at 9. Prior to the entry of the order on
summary judgment, Bill filed a motion for appointment of Guardian ad Litem
(GAL). Bill assigns error to the trial court's failure to appoint a GAL to represent
him in these proceedings. However, the trial court's order on summary judgment
does not make findings or orders regarding the petition for appointment of a GAL.
Thus, we conclude that this issue is not properly before the court.
We conclude that Bill failed to properly commence his will contest claim
within the limitations period because he failed to personally serve the PR with a
will contest petition within the time allowed by statute. The trial court did not err
when it granted the PR's motion for summary judgment and dismissed his claim.
5In Bill's fifth assignment of error, he contends "[t]he trial court erred when it failed to
exercise discretion amounting to an abuse of discretion." Br. ofAppellant at 9. But because he
does not support this claim oferror with either argument or authority, we decline to consider it. "A
party abandons assignments oferror to findings of fact if it fails to argue them in its brief." Valley
View Indus. Park v. City of Redmond. 107 Wn.2d 621, 630, 733 P.2d 182 (1987) (citing Seattle
Sch. Dist. 1 v. State. 90 Wn.2d 476, 585 P.2d 71 (1978)).
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Attorney Fees
The PR requests reasonable attorney fees on appeal under RCW
11.24.050 and 11.96A.150. If a will is sustained in a will contest, "the court may
assess the costs against the contestant, including, unless it appears that the
contestant acted with probable cause and in good faith, such reasonable
attorney's fees as the court may deem proper." RCW 11.24.050. In a TEDRA
action, the court may order attorney fees "in such amount and in such manner as
the court determines to be equitable." RCW 11.96A.150. Weighing the equities in
this case, we do not conclude that an award of attorney fees is warranted and
accordingly, decline the PR's request.
Affirm.
jP&