Chapter 13.3 Will Contests

• Jurisdiction: Washington

§13.3 WILL CONTESTS

Will contests are purely statutory creations and are governed primarily by Chapter 11.24 RCW. Other applicable statutes include Chapters 11.20 and 11.96A (TEDRA) RCW. Pursuant to RCW 11.96A.030, will contests are "matters" under TEDRA. In re Estate of Kordon, 157 Wn.2d 206, 137 P.3d 16 (2006). The provisions of TEDRA do not supersede, but rather supplement, the provisions of Chapters 11.20 and 11.24 RCW. RCW 11.96A.080(2). When Chapters 11.24 and 11.96A RCW are silent, the civil rules of procedure govern. Kordon, 157 Wn.2d at 213.

Practice Tip: When there is a delay in granting letters testamentary or of administration, the court has the discretion to appoint a special administrator to collect and preserve the assets of the deceased. RCW 11.32.010.

(1) Procedural and prefiling considerations

The procedural and prefiling considerations applicable to will contests are discussed below.

[Page 13-26]

(a) Standing

Standing is a threshold issue. In re Estate of Becker, 177 Wn.2d 242, 298 P.3d 720 (2013). A person has standing if he or she is a "person interested," meaning one who has a direct, immediate, and legally ascertainable interest in the devolution of the testator's estate, which would be impaired or defeated by the probate of the will or benefitted by the declaration that it is invalid. Estate of Becker, 177 Wn.2d at 244 (quoting In re Estate of O'Brien, 13 Wn.2d 581, 583, 126 P.2d 47 (1942). Interested parties include intestate heirs, as well as beneficiaries under a prior will, who would be entitled to a lesser amount or no amount under the will being contested. Estate of O'Brien, 13 Wn.2d at 591. The right to contest is assignable, and if not assigned, it survives to heirs of an interested party, so any person who acquires a direct pecuniary interest in the will during the limitations period has the requisite standing. Ingersoll v. Gourley, 72 Wash. 462, 472, 130 P. 743 (1913).

When a will is contested, the personal representative has a duty to take all legitimate steps to uphold the testamentary instrument. In re Estate of Klein, 28 Wn.2d 456, 474-75, 183 P.2d 518 (1947); Estate of Kvande v. Olsen, 74 Wn.App. 65, 70-72, 871 P.2d 669, review denied, 124 Wn.2d 1021 (1994); In re Estate of Watlack, 88 Wn.App. 603, 612, 945 P.2d 1154 (1997). However, the personal representative or executor under a will not yet admitted to probate lacks standing to challenge a rejection of that will to probate, because the prospective executor's fees are viewed as compensation for services rather than as a direct part of the decedent's estate. In re Estate of Finch, 172 Wn.App. 156, 163, 294 P.3d 1 (2012) (quoting O'Brien, 13 Wn.2d at 591); In re Estate of Romano, 40 Wn.2d 796, 808, 246 P.2d 501 (1952).

A petitioner under RCW 11.24.010 must not have already had his or her rights adjudicated in prior proceedings. In re Estate of Black, 153 Wn.2d 152, 171, 102 P.3d 796 (2004). A will contest under RCW 11.24.010 may be denied, even if the petitioner did not appear before the court previously, if that individual's interests were identical to the original petitioner's interests and were thus represented in the initial proceeding. In re Estate of Rynning, 1 Wn.App. 565, 569, 462 P.2d 952 (1969).

(b) Statute of limitations

A will contest must be brought within four months of the probate or rejection of a will. RCW 11.24.010; In re Estate of Young, 23 Wn.App. 761, 763, 598 P.2d 7 (1979). If no contest is brought within the four-month statutory period, the probate or rejection of such will

[Page 13-27]

is binding and final. RCW 11.24.010. This statute of limitations is strictly enforced.

The personal representative must provide written notice of his or her appointment and the pendency of probate, either personally or by mail, to each heir, legatee, and devisee of the estate and each beneficiary or transferee of a nonprobate asset of the decedent whose names and addresses are known to the personal representative, within 20 days of appointment. RCW 11.28.237(1). The limitations period is not tolled until the interested parties actually receive notice, if given. However, if notice is never provided, then heirs may appear and reopen an estate that was closed years earlier. See In re Estate of Little, 127 Wn.App. 915, 920, 113 P.3d 505 (2005) (failure to provide notice to reasonably ascertainable heirs renders decree of distribution void). This is the only exception to the strict enforcement of the four-month statute of limitations.

RCW 11.28.237 does not require the personal representative to give notice of the right to contest the will, only notice of appointment and the pendency of probate. If no personal representative is appointed to administer the estate, the person obtaining the adjudication of testacy or intestacy must, within 30 days, personally serve or mail a copy of the adjudication to each heir, legatee, and devisee. RCW 11.28.330. The notice must state the name and address of the applicant, RCW 11.28.330(1), and the date of the order adjudicating that the decedent died intestate or testate, whichever is the case, RCW 11.28.330(2). If the decedent died testate, a copy of the will must be enclosed with the notice and, unlike the requirements of RCW 11.28.237, notice under RCW 11.28.330 must specifically state that the adjudication of testacy will become final and conclusive for all legal intents and purposes unless a will contest is properly commenced within four months of the date of adjudication of testacy. RCW 11.28.330(3). Similarly, RCW 11.28.330(4) provides that the notice of adjudication of intestacy and heirship must contain the prescribed information and provide notice that the adjudication will become final unless a petition seeking admission of a will or contesting the adjudication of heirship is filed within four months of the adjudication.

Caveat: The four-month time period to contest a will under RCW 11.24.010 is not extended under CR 6(e), even if the interested parties receive notice of the will's admission to probate by mail. In re Estate of Toth, 138 Wn.2d 650, 655-57, 981 P.2d 439 (1999).

[Page 13-28]

RCW 11.24.020 requires the contestant of the will or of the court's rejection of the probate to give notice to the personal representative or administrator as provided in RCW 11.96A.100. Form notice, also called a citation, is the "counterpart of a summons in ordinary civil proceedings" and is the "method for bringing all adverse parties before the court." In re Estate of Alsup, 181 Wn.App. 856, 868, 327 P.3d 1266 (2014).

For purposes of tolling the statute of limitations, the petition is commenced by filing the petition and not by service on the personal representative. In re Estate of Jepsen, 184 Wn.2d 376, 380, 358 P.3d 403 (2015). The contestant must serve the personal representative within 90 days of filing the petition. RCW 11.24.010. If, following filing, the personal representative is not served within 90 days, the action is deemed not to have been commenced for purposes of tolling the statute of limitations. Id. The service requirement is absolute, and courts have consistently held that untimely service is a "total failure to comply" with a statute of limitations and cannot be substantial compliance. Estate of Kordon, 157 Wn.2d at 213; see also In re Estate of Coaker, 197 Wn.App. 1014, No. 74873-4-I, 2016 WL 7470071 (Dec. 19, 2016) (unpublished) (will contest statute does not provide for tolling based on disability or equity; noting 1917 legislative repeal of provision tolling limitations period for will contests for persons "of unsound mind"); In re Estate of Tuttle, 189 Wn.App. 1029, No. 45917-5-II, 2015 WL 4760548 (Aug. 11, 2015) (unpublished) (actual notice is insufficient to confer jurisdiction on the trial court); In re Estate of Hallmeyer, 160 Wn.App. 1002, No. 39938-5-II, 2011 WL 444193 (Feb. 8, 2011) (unpublished).

(c) Burdens of proof and presumptions

Once admitted to probate, a will is presumed valid. RCW 11.24.030; In re Estate of Haviland, 162 Wn.App. 548, 557, 255 P.3d 854 (2011); In re Estate of Jolly, 3 Wn.2d 615, 623,101 P.2d 995 (1940). The burden of proving the invalidity of the will, if admitted to probate, or the validity of the will, if rejected by the court, rests upon the person contesting the probate or rejection of the will. RCW 11.24.030; In re Estate of Melter, 167 Wn.App. 285, 288, 273 P.3d 991 (2012); In re Estate of De Lion, 28 Wn.2d 649, 660, 183 P.2d 995 (1947).

Moreover, when a will is rational on its face and legal in form, it will be presumed that the testator had testamentary capacity. Dean v. Jordan, 194 Wash. 661, 668, 79 P.2d 331 (1938); In re Estate of Nelson, 85 Wn.2d 602, 606, 537 P.2d 765 (1975); In re Estate of Meagher, 60 Wn.2d 691, 692, 375 P.2d 148 (1962); Pond's Estate v. Faust, 95 Wash. 346, 347,

[Page 13-29]

163 P. 753 (1917) ("Courts will presume sanity until that presumption is overthrown by competent and reliable evidence to the contrary.")

Comment: When an agent claims that the principal made an inter vivos gift to him or her, the courts do not look to a "presumption of testamentary capacity," which refers to the mental capacity to make a valid will. In re Estates of Palmer, 145 Wn.App. 249, 261, 187 P.3d 758 (2008). Instead, the common law of gifts applies. Id. To prove the validity of an inter vivos gift, the agent must first prove by clear, cogent, and convincing evidence that the transaction was indeed a gift and, when the parties were in a confidential relationship, the agent must also prove by the same standard that he or she did not unduly influence the principal. Id.

The contestant must prove the validity or invalidity of the will's execution and contents by clear, cogent, and convincing evidence. Estate of Black, 153 Wn.2d at 161-63; Estate of Melter, 167 Wn.App. at 288 ("The clear, cogent...