IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In re the Estate of No. 81774-4-I
Charles Arthur Boswell, Jr.,
DIVISION ONE
Deceased.
UNPUBLISHED OPINION
PATRICIA ANN BOSTWICK,
Appellant/
Cross-Respondent,
v.
DIANA BRAZIER, Personal
Representative for the Estate of
Charles Arthur Boswell, Jr.,
Respondent/
Cross-Appellant.
SMITH, J. — Charles Arthur Boswell, Jr., filed a will leaving his estate to
Diana Brazier and disinheriting his daughter, Patricia Bostwick. Bostwick filed a
petition contesting the validity of the will and made one failed attempt to serve
Brazier. After 90 days had passed without service of the petition, Brazier moved
to dismiss the will contest petition. The commissioner granted the motion and
awarded attorney fees and the superior court denied a motion to revise the order.
Bostwick appeals the dismissal and Brazier cross-appeals the commissioner’s
determination of reasonable attorney fees. Because Bostwick failed to comply
with the plain language of the statute, we affirm the dismissal of her petition.
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 81774-4-I/2
However, we remand for entry of findings of fact and conclusions of law
supporting the award of attorney fees.
FACTS
In August 2019, Charles Arthur Boswell, Jr., executed his last will and
testament, which disinherited his daughter Patricia Bostwick and left his estate to
Diana Brazier. The will also appointed Brazier as the personal representative of
his will and included a no contest provision, which directed that any contesting
party should “[b]ear all reasonable allowances for fees” incurred by the estate if
the estate prevailed. Boswell had previously executed a will leaving his estate to
Bostwick in March 2017 and had executed a will disinheriting Bostwick in
January 2018.
Boswell died on October 1, 2019. His will was admitted to probate and
Brazier was confirmed as the personal representative the next day. On
October 3, Brazier mailed a notice of appointment of personal representative,
which included Brazier’s home address, to Bostwick. Bostwick later
acknowledged that she had received this notice.
On November 4, 2019, Bostwick’s attorney sent a letter to Brazier’s
attorney notifying her that Bostwick would be filing a petition contesting the will’s
validity, with the petition attached. On January 4, 2020, Bostwick and Brazier
met in person and Brazier told Bostwick that her attorney had given her a copy of
the petition and had advised her to settle the will contest.
Bostwick did not actually file the petition contesting the will in the court
until January 24, 2020. This meant Bostwick was required to personally serve
2
No. 81774-4-I/3
Brazier by April 23, 90 days after filing the petition. 1 On March 2, Brazier’s
attorney replied to a request from Bostwick’s attorney, stating that he did not
have authority to accept service of the will contest petition on Brazier’s behalf.
Brazier’s attorney also scheduled a deposition of Bostwick for March 16.
Bostwick, assuming that Brazier would attend, hired a process server to serve
Brazier at Bostwick’s deposition. Brazier did not attend the deposition and
therefore was not served.
The next day, on March 17, Bostwick’s attorney was apparently diagnosed
with COVID-19 and directed to quarantine until April 7. On March 23, 2020,
Governor Jay Inslee ordered all Washington residents to stay home except for
“essential activities.” 2 Bostwick made no further attempts to serve Brazier with
the petition.
On May 22, Brazier filed her response in opposition to the will contest
petition and moved to dismiss the petition because Bostwick had not served
Brazier within 90 days of filing the petition, as required by RCW 11.24.010. The
commissioner granted the motion and dismissed the petition on the basis that
personal service is “a necessary requirement in order to challenge the validity of
a will.” Bostwick moved to revise the order, arguing that the emergent fact of the
COVID-19 pandemic required equitable tolling of the time limit for service. The
superior court denied the motion for revision.
1RCW 11.24.010.
2Proclamation of Governor Jay Inslee, No. 20-25, at 3 (Wash. Mar. 23,
2020), https://www.governor.wa.gov/sites/default/files/proclamations/20-
25%20Coronovirus%20Stay%20Safe-
Stay%20Healthy%20%28tmp%29%20%28002%29.pdf.
3
No. 81774-4-I/4
Brazier moved for an award of attorney fees, requesting a little over
$25,000. The commissioner determined that the “hours expended by [Brazier’s]
counsel was not reasonable except for time reasonably necessary” to prepare
the motion to dismiss, which the court determined to be five hours. The
commissioner declined to award fees for the motion for revision on the basis that
the request was not properly before it, and found that Brazier’s deposition of
Bostwick was “unnecessary and unreasonably anticipatory.” The commissioner
awarded Brazier $1,750.00 in attorney fees. Bostwick appeals and Brazier
cross-appeals.
ANALYSIS
Bostwick contends that the commissioner erred by dismissing her petition
and awarding attorney fees to Brazier. Brazier contends that the court abused its
discretion in its valuation of reasonable attorney fees. We affirm the dismissal of
Bostwick’s petition because the plain language of the statute requires personal
service within 90 days to commence a will contest action. However, because the
order awarding attorney fees fails to explain the denial of the majority of the fees
in the attorney fee invoice, we remand for the commissioner to enter additional
findings.
Dismissal of Will Contest Petition
Bostwick contends that dismissing her petition was error on the grounds
that she “substantially complied” with the service requirements, that Brazier
waived the defense, and that the commissioner was required to equitably toll the
service period due to the pandemic. Because the plain language of the statute
4
No. 81774-4-I/5
and controlling precedent directly contradict Bostwick, and because she fails to
show that the pandemic actually prevented service, we disagree.
We review questions of statutory interpretation de novo. In re Estate of
Jepsen, 184 Wn.2d 376, 379, 358 P.3d 403 (2015). If a statute’s meaning is
plain on its face, we must give effect to that plain meaning. Dep’t of Ecology v.
Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002).
“Will contests are special statutory proceedings governed by ch. 11.24
RCW.” Jepsen, 184 Wn.2d at 380. RCW 11.24.010 provides that a will contest
petition must be filed within four months of the probate of the will. It further
provides:
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 (emphasis added).
In Jepsen, our Supreme Court applied this section and held that its
“unambiguous language requires no construction.” 184 Wn.2d at 380. In that
case, the testator’s son filed a will contest petition and e-mailed it to the personal
representative’s attorney. Jepsen, 184 Wn.2d at 378. The son never served the
personal representative and the personal representative never agreed to accept
e-mail service on her attorney. Jepsen, 184 Wn.2d at 378. Seven months later,
the personal representative moved to dismiss the petition for lack of service.
5
No. 81774-4-I/6
Jepsen, 184 Wn.2d at 378. The trial court denied the motion, holding that the
service requirement under RCW 11.24.010 went to personal jurisdiction and that
the personal representative had waived her objection on these grounds. Jepsen,
184 Wn.2d at 378. The personal representative appealed to this court and we
affirmed. Jepsen, 184 Wn.2d and 379. The Supreme Court then reversed us,
holding that under the plain language of RCW 11.24.010, personal service is a
statutory requirement to commence a will contest action and, therefore, to
prevent a will from becoming final. Jepsen, 184 Wn.2d at 380-81.
Here, as in Jepsen, Bostwick sent the petition to Brazier’s attorney but
does not dispute that she never personally served Brazier with the petition.
Therefore, under the plain language of the statute and binding Supreme Court
precedent, the probate of Boswell’s will is now binding and final.
Bostwick disagrees and contends that she substantially complied with the
service requirement. However, in Jepsen, the court explicitly rejected the
argument that simply notifying an attorney could achieve substantial compliance
under RCW 11.24.010, “where, as here, there is no express waiver of personal
service, no agreement for electronic service, . . . and no acceptance of service by
the [personal representative] anywhere in the record.” 184 Wn.2d at 380 n.4;
see also In re Estate of Sanai, No. 78121-9-I, slip op. at 7 (Wash. Ct. App. Apr.
29, 2019) (unpublished), https://www.courts.wa.gov/opinions/pdf/781219.pdf
(“The doctrine of substantial compliance is fundamentally inconsistent” with our
courts’ strict enforcement of the statutory requirements to contest a will). This is
the case here, and so we reject Bostwick’s contention.
6
No. 81774-4-I/7
Bostwick’s claim that Brazier waived service by acknowledging receipt of
the petition and engaging in discovery is similarly without merit. This was the
precise argument that we endorsed and the Supreme Court subsequently
rejected in Jepsen. 184 Wn.2d at 378-79. Furthermore, Brazier’s attorney
explicitly told Bostwick that he was not authorized to accept service on Brazier’s
behalf, and unlike Jepsen, Brazier asserted the defense in her answer to the
petition rather than months later. We therefore reject Bostwick’s waiver of
service argument.
Finally, Bostwick claims that Brazier’s awareness of and engagement in
the case, combined with the unprecedented context of the COVID-19 pandemic,
required the court to equitably toll the 90-day period to effectuate service. Even
assuming that this time period may be subject to equitable tolling, 3 we disagree
that tolling would be appropriate here. “Equitable tolling is permitted where there
is evidence of bad faith, deception, or false assurances by the defendant and the
exercise of diligence by the plaintiff.” Thompson v. Wilson, 142 Wn. App. 803,
814, 175 P.3d 1149 (2008). Neither element is met here.
First, Bostwick failed to establish that she exercised diligence: her attorney
told the commissioner that his three week quarantine in the middle of the 90-day
service period was not an excuse. He instead alluded simply to his absence
from the office and a workload backlog as his reason for failing to arrange
3 Where a statutory time limit is a jurisdictional requirement, equitable
tolling is precluded. In re Pers. Restraint of Bonds, 165 Wn.2d 135, 140, 196
P.3d 672 (2008). In Jepsen, the Supreme Court declined to address whether the
time limit in RCW 11.24.010 is jurisdictional. 184 Wn.2d 376, 381 n.5.
7
No. 81774-4-I/8
service. While Bostwick discussed the general emergency situation presented
by COVID at length, she did not allege any specific facts to show that, for
instance, she had difficulty hiring a process server or that she renewed her
request for Brazier’s attorney to accept service after the pandemic intensified.
She also does not explain why she did not hire a process server to go to
Brazier’s home in the two months between the time she filed the petition and the
time the Governor’s stay home order went into effect. She therefore does not
establish that she acted diligently. Furthermore, there is no evidence of bad faith
or deception on Brazier’s part. 4 The correspondence between Brazier’s and
Bostwick’s attorneys establishes that they were both aware that Bostwick was
required to serve Brazier, that Bostwick had not yet done so, and that notification
to Brazier’s attorney was insufficient. Given this mutual understanding, Brazier’s
participation in discovery was not misleading or in bad faith. Because neither
element for equitable tolling is met, we hold that the court correctly dismissed
Bostwick’s petition.
Award of Attorney Fees
Bostwick challenges the commissioner’s award of attorney fees on the
grounds that Brazier’s motion to dismiss should not have been granted. Brazier
challenges the reasonableness of the award and requests attorney fees on
4 Our Supreme Court recently adopted the federal standard for equitable
tolling in the context of personal restraint petitions, requiring a showing that “an
extraordinary circumstance prevented a timely filing,” rather than being limited to
“bad faith, deception, or false assurances.” In re Pers. Restraint of Fowler, 197
Wn.2d 46, 54, 479 P.3d 1164 (2021). If this standard applies to will contest
actions and encompasses the facts at issue here, equitable tolling is still not
appropriate because of the lack of diligence on Bostwick’s part.
8
No. 81774-4-I/9
appeal. Because the commissioner correctly dismissed Bostwick’s petition, it did
not err by awarding Brazier attorney fees. However, we remand for the
commissioner to explain the basis for its attorney fee award. We also award
Brazier her reasonable attorney fees on appeal.
1. Determination of Reasonable Attorney Fees
Brazier contends that the commissioner abused its discretion by awarding
only a small portion of Brazier’s attorney fees.
RCW 11.24.050 permits an award of fees against the contestant in cases
where the will is sustained, “unless it appears that the contestant acted with
probable cause and in good faith.” RCW 11.96A.150 provides for an award of
fees “to any party,” “in such amount and in such manner as the court determines
to be equitable.” It also specifies that “[t]his section applies to all proceedings . . .
involving . . .decedent’s estates” and “shall not be construed as being limited
by . . . [RCW] 11.24.050.” RCW 11.96A.150(2). We review an award of attorney
fees under these sections for abuse of discretion. In re Estate of Mower, 193
Wn. App. 706, 727, 374 P.3d 180 (2016); In re Estate of Bussler, 160 Wn. App.
449, 470, 247 P.3d 821 (2011). “A trial court abuses its discretion if its decision
is manifestly unreasonable or based on untenable grounds or untenable
reasons.” In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362
(1997).
A court considers equitable factors when awarding attorney fees under
RCW 11.96A.150. “Where the primary considerations for the fee award are
equitable, courts are not required to apply the lodestar method to determine an
9
No. 81774-4-I/10
award of fees.” In re Guardianship of Decker, 188 Wn. App. 429, 447, 353 P.3d
669 (2015). However, the court must still enter findings of fact and conclusions
of law to support its fee award. In re Joanne K. Blankenship Survivor’s Tr., __
Wn. App. 2d __, 493 P.3d 751, 762 (2021); Mahler v. Szucs, 135 Wn. 2d 398,
435, 957 P.2d 632 (1998) (implied overruling on other grounds recognized in
Matsyuk v. State Farm Fire & Cas. Co., 173 Wn.2d 643, 272 P.3d 802 (2012)).
“The findings must show how the court resolved disputed issues of fact and the
conclusions must explain the court’s analysis.” Berryman v. Metcalf, 177 Wn.
App. 644, 658, 312 P.3d 745 (2013). “Washington courts have repeatedly held
that the absence of an adequate record upon which to review a fee award will
result in a remand of the award to the trial court to develop such a record.”
Mahler, 135 Wn.2d at 435; see also Brand v. Dep’t of Labor & Indus., 139 Wn.2d
659, 665, 989 P.2d 1111 (1999) (“This court has overturned attorney fees awards
when it has disapproved of the basis or method used by the trial court, or when
the record fails to state a basis supporting the award.”)
Brazier claims the court abused its discretion by denying fees for the
majority of time spent on the case. She first challenges the commissioner’s
finding that her deposition of Bostwick was “unnecessary and unreasonably
anticipatory because it occurred at a time prior to the occurrence of personal
service of the will-contest petition.” We conclude that the commissioner did not
abuse its discretion in declining to award fees for the deposition on this basis.
The commissioner’s finding shows how it resolved this issue. Although
Bostwick’s deposition was arguably useful to Brazier because Bostwick admitted
10
No. 81774-4-I/11
she had received Brazier’s address, this admission was not necessary to dismiss
the petition for lack of service. The commissioner’s finding is therefore not
manifestly unreasonable.
Brazier next challenges the commissioner’s finding that the time
“expended by [Brazier’s] counsel was not reasonable except for time reasonably
necessary to prepare [Brazier’s] motion to dismiss, which the [commissioner]
finds is five hours.” 5 We agree that this finding is inadequate. Brazier points to
time expended by her counsel communicating with Brazier about the status of
the case, preparing to defend the petition, and preparing the motion for fees.
With the exception of time spent on the deposition, the commissioner’s order
does not make clear whether it found counsel unreasonably spent time engaging
in these activities, whether it was inequitable to award fees for this time, or
whether it failed to considered the time spent for these purposes. Indeed, the
commissioner did not mention time spent communicating with Brazier or time
spent on the motion for fees at all. In the absence of such a record, we remand
for the court to elaborate on its findings. Blankenship, 493 P.3d at 762 (“[W]ith
no indication of the factors the trial court weighed to reach its conclusion, we
cannot review the fees and costs awarded, and we remand for entry of findings
of fact and conclusions of law supporting the award.”).
5 This finding was based on the commissioner’s oral instructions to
counsel that the “order will reflect that the motion for fees is denied except the
Court finds that five hours would have been appropriate time to grant for a motion
to dismiss for failure to serve.”
11
No. 81774-4-I/12
2. Attorney Fees on Appeal
Brazier requests attorney fees on appeal. Under RAP 18.1(a), a party is
entitled to attorney fees on appeal if a statute authorizes the award.
RCW 11.96A.150 gives an appellate court discretion to award attorney fees and
costs. Bostwick challenged Brazier’s fee request at the trial court on the basis
that Brazier’s motion to dismiss was a straightforward issue based on clear law
and binding precedent, but then proceeded to appeal that very issue. Brazier
prevails on appeal and we award her reasonable attorney fees.
We affirm in part but remand for the trial court to enter additional findings
and conclusions supporting its attorney fee award.
WE CONCUR:
12