Chapter 13.4 Challenges and Disputes That Do Not Constitute Will Contests
| Jurisdiction | Washington |
A party can challenge the effectiveness and operation of a particular will or a bequest in a will, or be involved in a dispute with a fiduciary (personal representative or trustee) or with any other beneficiary, for any number of reasons that would not constitute a "contest of the will" pursuant to RCW 11.24.010. Some of these challenges or disputes can be based on events occurring after the execution of a will, which may result in a revocation (or partial revocation) of the will, including (1) destruction by the testator or destruction at his or her direction, (2) a subsequent marriage or divorce, (3) the birth or adoption of children who are not named or provided for in the will, or (4) ademption of a specific legacy provided for in a will. In re Estate of Gherra, 44 Wn.2d 277, 286, 267 P.2d 91 (1954) (holding that petition for award in lieu of homestead by widow, based on her claim that husband's will had been revoked by operation of law as a result of his marriage to her after execution of his will, was not a "will contest" that must be brought within the "will contest" deadline). The Supreme Court in Estate of Gherra identified several other circumstances that could render a will "inoperative in whole or in part" that may be "brought to the attention of the probate court and established as facts at any time before the decree of distribution is actually entered." Id.
Other challenges that can be made, regardless of whether the events occur prior to or after the will was executed, include claims that the provisions of the will are contrary to an enforceable contract, that the property subject to the will belongs to the challenger and not the testator, or that a beneficiary named in the will is a "slayer" or an "abuser" within the meaning of Chapter 11.84 RCW. See, e.g., Kellar v. Estate of Kellar, 172 Wn.App. 652, 291 P.3d 906 (2012) (holding that a challenge to the validity of a prenuptial agreement was not a challenge
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to the will, even if it would significantly change the assets in the estate subject to distribution under the will).
Finally, other disputes that are not will contests can arise in the context of requests for family allowance, homestead or support claims, requests to remove a personal representative, or objections to specific acts of the personal representative in the course of administration, such as sales of property or division of tangible personal property amongst family members. See, e.g., Boettcher v. Busse, 45 Wn.2d 579, 277 P.2d 368 (1954) (holding that a beneficiary's act of filing a creditor's claim against the estate was not an act that would invoke the will's no-contest clause). In addition, parties may seek to defeat or modify charitable gifts using the doctrines of cy pres or equitable deviation.
(1) Later-dated will
When a testator has made more than one will, the most recent will is the one that must be given effect as the final expression of the testator's desires. "The offer of [a] later will does not constitute a contest of a prior will, within the meaning of our probate code. ... A court of probate has inherent authority at any time, while an estate is still open, to admit to probate a later will than that theretofore probated." In re Estate of Campbell, 46 Wn.2d 292, 295, 280 P.2d 686 (1955); In re Estate of Stein, 78 Wn.App. 251, 258, 896 P.2d 740 (1995), review denied, 128 Wn.2d 1014 (1996).
In Estate of Stein, the court rejected a claim that the proponent of a later will waited too long to offer the will for probate, relying on RCW 11.28.330 and .340. 78 Wn.App. at 258. Taken together, RCW 11.28.330 and .340 provide that, within 30 days of an adjudication of testacy, the person obtaining the adjudication must serve or mail a copy of the order adjudicating testacy and a copy of the will, informing the recipient that unless a contest is filed or a later will offered within four months, the order of testacy shall be the equivalent of the entry of a final decree of distribution. Because no notice of adjudication of testacy was properly served, the court in Estate of Stein held that the four-month limitations period for offering a later will was never triggered. 78 Wn.App. at 258. The Estate of Stein court noted that its result was consistent with Washington law because
determination of the decedent's wishes is the overriding factor in Washington probate proceedings. ... "[C]ourts go to the utmost possible length to carry into effect the testator's wishes, provided always that he has given them lawful expression. It is not only the testator's will which must be given effect, but it is his last will which must prevail. Where
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possible, the last will of a competent testator will be upheld, and courts will not, by technical rules of statutory or other legal construction, defeat the right of the testator to have effect given to the latest expression of his testamentary wishes."
78 Wn.App. at 259 (quoting In re Elliott's Estate, 22 Wn.2d 334, 351, 156 P.2d 427 (1945) (internal quotation omitted)).
When there are multiple wills and none has been admitted to probate, and there are bases for challenges to each will, the court has discretion to try all claims in a single proceeding rather than admitting one will and requiring multiple proceedings to challenge the various wills. In re Estate of Black, 153 Wn.2d 152, 170-72, 102 P.3d 796 (2004). In Estate of Black, the Supreme Court commended the trial court for recognizing that there were problems regarding the decedent's competency, the authenticity of a "lost will," and the possibility of undue influence, but reversed the trial court's decision that it would first admit the will and reserve the adversarial issues for later proceedings, finding that decision to have been an abuse of discretion by the trial court. 153 Wn.2d at 172-73.
| Practice Tip: | When it is predictable that there will be a will contest, consider asking the trial court to consolidate all issues into the initial probate proceeding on admission of the will, with claims heard sequentially and all parties held to the appropriate burdens of proof, rather than admitting a questionable will and waiting for a will contest to be filed. |
(2) Lost will
The phrase "lost will" in this context does not refer to a will that was previously thought to be lost or destroyed, or whose existence was previously unknown, and which was then found. If a later-dated will has been "found," then its existence and validity is no longer in question as having been "lost" and need not be proven pursuant to RCW 11.20.070, the statute governing lost wills. RCW 11.20.070 provides:
(1) If a will has been lost or destroyed under circumstances such that the loss or destruction does not have the effect of revoking the will, the court may take proof of the execution and validity of the will and establish it, notice to all persons interested having been first given. The proof must be reduced to writing and signed by any witnesses who have testified as to the execution and validity, and must be filed with the clerk of the court.
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(2) The provisions of a lost or destroyed will must be proved by clear, cogent, and convincing evidence, consisting at least in part of a witness to either its contents or the authenticity of a copy of the will.
(3) When a lost or destroyed will is established under subsections (1) and (2) of this section, its provisions must be distinctly stated in the judgment establishing it, and the judgment must be recorded as wills are required to be recorded. A personal representative may be appointed by the court in the same manner as is herein provided with reference to original wills presented to the court for probate.
The common-law presumption was that a lost or destroyed will had been revoked by the testator. Although the legislature amended the standards for proving a lost will in 1994 by deleting the requirement that a lost will must have been in existence at the time of the testator's death to be valid, since then courts have affirmed that the 1994 amendment did not overrule the common-law presumption regarding revocation. In re Estate of Bowers, 132 Wn.App. 334, 343, 131 P.3d 916 (2006). Accordingly, even as amended, RCW 11.20.070 requires the proponent of a "lost will" to prove not only (1) both its execution and its contents by clear, cogent, and convincing evidence; but also (2) that the will had not been revoked by the testator. Id. at 343 ("As amended, the statute requires the proponent of a lost or destroyed will to prove it was not revoked.").
(3) Lapsed gifts and survivorship requirements
The antilapse statute, RCW 11.12.110, reflects a legislative determination that, as a matter of public policy, when a testator fails to provide for an alternative disposition in the event a named beneficiary who is issue of the testator's grandparent dies before the testator, lineal descendants of the predeceased beneficiary take his or her share. In re Estate of Evans, 181 Wn.App. 436, 326 P.3d 755 (2014). Issue of grandparents includes children of the decedent and also the decedent's siblings, parents, aunts, uncles, first cousins (and descendants), nieces, and nephews. RCW 11.12.110 does not include spouses or the families of spouses. Accordingly, a bequest to a spouse who predeceased the testator would not be preserved for the spouse's children by the antilapse statute, because the spouse is not issue of the grandparent. Cf. In re Sims's Estate, 39 Wn.2d 288, 235 P.2d 204 (1951) (former statute expressly denied protection to spouses).
Notwithstanding the antilapse statute, if the testator has provided an alternative disposition, that disposition will govern. Also, if the gift is specifically conditioned on the beneficiary's surviving the testator,
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and the beneficiary does not survive, then...
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