(dissenting) — I dissent, but with great respect since I can easily see how the majority arrived at its conclusion. But the object of this judicial exercise both in the trial court and here is, or at least should be, to ascertain and give effect to the intentions of Walter and Alys Lasz. Higgins v. Stafford, 123 Wn.2d 160, 165, 866 P.2d 31 (1994). To glean that intent, we must examine the wording of the written agreements viewed as a whole in light of all the surrounding circumstances, including the subject matter and subsequent conduct of the parties. In re Estate of Brown, 29 Wn.2d 20, 28, 185 P.2d 125 (1947). When the documents here are so viewed, I conclude that a jury might find that Walter and Alys Lasz intended to abandon a community property agreement executed over 30 years earlier. In other words, there is a question of fact here. Summary judgment was, therefore, erroneous.
Walter and Alys Lasz drafted three separate sets of reciprocal wills devising specific tracts of farm property to specific beneficiaries. The effect of enforcing a 1962 community property agreement is to thwart the intentions manifested for the distribution of this farm property.
This result is, for me, even more compelling in this post-Berg v. Hudesman era. Berg v. Hudesman, 115 Wn.2d 657, 801 P.2d 222 (1990). Berg ushered in an era in which the court’s focus could truly be on the intention of the parties to an agreement or its subsequent revocation, rather than the formalistic, so-called “plain meaning” of written documents. Id. at 663 (“ ‘The cardinal rule with which all interpretation begins is that its purpose is to ascertain the intention of the parties.’ ”) (quoting Arthur L. Corbin, The Interpretation of Words and the Parol Evidence Rule, 50 Cornell L. Quar. 161, 162 (1965)); In re Estates of Wahl, 99 Wn.2d 828, 830-31, 664 P.2d 1250 (1983); In re *408Estate of Curry, 98 Wn. App. 107, 113, 988 P.2d 505 (1999). And, just as importantly, the intent (here, the intent to rescind the earlier community property agreement) need not be clearly stated. Higgins, 123 Wn.2d at 168.
The principles guiding review of this appeal are set out in Higgins. The alteration, amendment, and revocation provisions of the community property agreement statute (RCW 26.16.120) are not interpreted narrowly. Higgins, 123 Wn.2d at 165. Mutual intent to rescind a community property agreement must be demonstrated. Id. at 168. But that intent need not be expressly stated. While unilateral acts inconsistent with the agreement are not enough, mutual acts having the effect of rescinding the agreement are sufficient. Id.
The question for me, then, is whether we can say as a matter of law, looking at all of the facts and circumstances surrounding these transactions, that Walter and Alys Lasz did not intend to mutually revoke this over-30-year-old community property agreement. To state the question is to answer it. Of course, they did. There would be no reason to make bequests of specifically described property otherwise. In fact, the wills would have been unnecessary.
Alys Lasz, Theodore Odell, and Ronald Odell (hereafter Odells) rely heavily on the holding in Higgins for the proposition that the wills here do not revoke the earlier community property agreement, as the wills did in Higgins. I do not read Higgins so broadly. The holding in Higgins was that the showing there was sufficient as a matter of law. Higgins, 123 Wn.2d at 169. Again, the showing here may not be so overwhelming, but that just means it raises a question of fact.
Conduct alone may be enough to draw a fair inference that the parties intended to revoke the community property agreement:
In the absence of words, there must be conduct, or if there be both words and conduct, such words and conduct together must provide sufficient evidence from which a fair inference of their intention may be ascertained.
*409In re Estate of Lyman, 7 Wn. App. 945, 949, 503 P.2d 1127 (1972), aff’d, 82 Wn.2d 693, 512 P.2d 1093 (1973).
In Lyman, the court refused to conclude that a will revoked a community property agreement. Id. at 951-52. But there the court refused because a subsequent will by the husband did not manifest a mutual intent to abandon the community property agreement. It was a mere unilateral attempt at best:
The court expressly found that the execution by her husband of the September 18,1970 will was not only without the benefit of legal counsel, but it was also without “the knowledge of his wife.”
Id.
Again, what we are trying to do here is ascertain and give effect to the intentions of Walter and Alys Lasz at the time they drafted these three reciprocal wills. The wills here certainly accommodate the earlier community property agreement. But by simply concluding, legally as opposed to equitably, that the wills accommodate the old community property agreement, we do not do this.
A community property agreement is a contract and must be considered as such. Higgins, 123 Wn.2d at 165. But wills, trusts, and the probate of estates involve the superior court’s equitable powers. See generally Ellis v. Schwank, 37 Wn.2d 286, 290, 223 P.2d 448 (1950); Tucker v. Brown, 20 Wn.2d 740, 804-05, 150 P.2d 604 (1944); In re Estate of Krause, 173 Wash. 1, 8-10, 21 P.2d 268 (1933); Bayer v. Bayer, 83 Wash. 430, 440, 145 P. 433 (1915).
The evidence here may not be so conclusive as to require summary judgment in favor of Lois Stranberg and Leonard Lasz (hereafter Stranbergs). But they have at least raised a genuine issue of material fact as to the intent of Walter and Alys Lasz when these wills were drafted. CR 56(c); Bowles v. Dep’t of Ret. Sys., 121 Wn.2d 52, 62, 847 P.2d 440 (1993). The burden was on the moving party — the Odells — to demonstrate that there was no genuine dispute as to any *410material fact. City of Lakewood v. Pierce County, 144 Wn.2d 118, 125, 30 P.3d 446 (2001).
Again, I concede that it is technically possible to read these wills to accommodate the community property agreement. But that is not, or at least should not be, our focus. Our job, again, is to ascertain and give effect to the testator’s intent. And, for me, it is clear that the intent of the wills was to revoke the 30-year-old community property agreement and to distribute the property so that the family farm remained in Mr. Lasz’s family. There simply would be no other reason to draft three separate reciprocal wills spelling out in some detail the plans to keep the farm in Mr. Lasz’s family.
Between the two polar opposites of summary judgment in favor of the Odells and summary judgment in favor of the Stranbergs lies an arena of factual nuances and questions about what was intended.
Do the wills conflict with the earlier community property agreement? Arguably they do not. Can they be read together with the earlier community property agreement? Perhaps. But does this then conclusively suggest — as a matter of law — that these parties did not intend to revoke this earlier agreement? Not according to the lawyer who drafted the reciprocal wills. He did not even know about the earlier community property agreement. Clerk’s Papers at 175-76.
In sum, “[a]s long as a mutual intent to abandon or rescind a prior community property agreement is adequately established, mutual wills can control over a prior community property agreement.” Higgins, 123 Wn.2d at 172. And, as a necessary corollary, that is a question of fact, not a question of law. I would reverse the trial judge’s decision to summarily dismiss the Stranbergs’ suit and remand this case for trial on the dispositive disputed material fact — intent.