(dissenting) — The majority states two issues: (1) whether the probate proceedings had any effect at all in light of the existence of a community property agreement, and (2) if the probate proceeding was jurisdic-tionally justified, whether it had the effect of "cutting off" any rights under the community property agreement either because its effects cannot be challenged as res judicata or because the surviving spouse's actions constituted an election of the will by the surviving spouse.
Thus the majority acknowledges that res judicata or election are applicable only if the probate, in the words of the majority, was jurisdictionally justified.
Let us analyze the reasons which the majority seemingly relies upon to conclude that "the existence of a community property agreement does not necessarily prevent probate of the estate of the spouse dying first."
The majority maintains: "There is no general impediment to the probate of a decedent's estate that consists solely of community property subject to a community property agreement." That is the question, not the answer.
The majority asserts: "The community property agreement imposes no limitation on the disposition of the property by the surviving spouse after the death." That is irrelevant to resolution of the inquiry. The question being examined by the majority is whether the probate was juris-dictionally justified. Power of disposition after death scarcely bears on jurisdiction. If the point is of any consequence, it strongly suggests that the property has vested entirely in the surviving spouse.
Next the majority reasons that the right to probate the deceased spouse's estate is implied by the proviso of RCW *13626.16.120. Significantly the majority does not quote the entire proviso. It reads:
Provided, however, That such agreement shall not derogate from the right of creditors, nor be construed to curtail the powers of the superior court to set aside or cancel such agreement for fraud or under some other recognized head of equity jurisdiction, at the suit of either party.
(Italics mine.) It is the italicized portion omitted by the majority. The court's right to set aside such agreement in a lawsuit is scant authority on the issue of conflict between a will and the agreement, particularly when the agreement is entirely unknown to the court. Certainly such potential remedy does not provide probate jurisdiction. It is legally without relevance and factually of no consequence under the facts.
Next the majority supports its conclusion by the assertion that
the possibility of administration is explicitly acknowledged in RCW 11.02.070:
The whole of the community property shall be subject to probate administration for all purposes of this title
This reasoning is flawed for three reasons.
First, it is a necessary premise of that statute that it is applicable to probates over which the probate court has jurisdiction. To reason otherwise begs the question at issue.
Second, the statute merely codifies the decisional law that the entire community estate, if probated, is subject to community liabilities in the probate. In re Estate of Schoenfeld, 56 Wn.2d 197, 351 P.2d 935 (1960); see Washington Probate Practice and Procedure, Commentary at 10 (J. Steincipher ed. Supp. 1971). That commentary explains that this section was enacted for purposes of clarification and recites the prevailing rule that all of the community property is subject to probate for the purposes of collecting assets and discharging community debts and other obligations. It has nothing to do with initial jurisdiction.
*137Third, the majority's analysis ignores and nullifies the positive declaration of RCW 26.16.120 that nothing in Title 26 or in any other law of this state shall prevent the husband and wife from entering into a community property agreement concerning the disposition of the whole of the community property to take effect upon the death of either. More of this later.
The above leaves only one point by which the majority justifies its conclusion. The whole of the majority's rationale is:
The cases cited by plaintiff to support this contention [presumably the contention that there is no property for the probate proceeding to operate upon because the community property agreement vests all title in the surviving spouse at death] involved procedural jurisdictional defects. In addition, the decedents in those cases had no claim to title in the property purportedly passed in their estates.
Two cases are cited, Mezere v. Flory, 26 Wn.2d 274, 173 P.2d 776 (1946) and Parr v. Davison, 146 Wash. 354, 262 P. 959 (1928). I agree with the majority that these cases do not control, but will discuss them later to show that they do not support the majority's result.
Before examining the facts, it is necessary to ascertain the nature, purpose and effect of a community property agreement. The statute provides that it takes effect upon the death of either husband or wife. RCW 26.16.120.
The cases clearly implement this statutory directive.
[S]uch enforcible contracts are not wills and are not governed by the laws relating to wills. They are completely executed when one of the parties to the recorded contract dies. Title to the community property, thereupon, vests as the sole and separate property of the survivor.
In re Estate of Wittman, 58 Wn.2d 841, 843, 365 P.2d 17 (1961). In re Estate of Brown, 29 Wn.2d 20, 185 P.2d 125 (1947).
Unless such a recorded contract is rescinded by the parties, it constitutes a conveyance by the decedent to a surviving spouse. The property covered by it cannot be *138devised or bequeathed by will by either spouse while it remains in effect.
In re Estate of Wittman, supra at 843-44.
"As a dispositive instrument, the agreement takes effect at death . . . and prevails against the will of the decedent." Cross, The Community Property Law in Washington, 49 Wash. L. Rev. 730, 799 (1974).
The purpose of the agreement, when in statutory form, is to take advantage of the statute and vest title in fee simple in the survivor upon the death of either. Bartlett v. Bartlett, 183 Wash. 278, 282, 48 P.2d 560 (1935); In re Estate of Brown, supra.
One can and must conclude that the statute and cases unequivocally declare that the community property agreement prevails against an inconsistent will. Indeed, the author of the majority, writing for the Court of Appeals, has held that wills are necessarily subject to the obligations of a previously executed agreement and that a will could be probated only to the extent that the will was consistent with the community property agreement. In re Estate of Lyman, 7 Wn. App. 945, 952, 503 P.2d 1127 (1972). This court affirmed and adopted that decision in its entirety. In re Estate of Lyman, 82 Wn.2d 693, 512 P.2d 1093 (1973). In this case the wills were executed prior to the community property agreement; only that fact distinguished it from the Lyman case. But in fact a stronger case can be made for permitting the will to prevail if if is executed after the agreement. Yet a subsequent will has uniformly been turned away in favor of the community property agreement.
The extent to which the majority's holding frustrates the intent and purpose of the husband and wife in this case is established by the testimony of the surviving husband. Remember that these folks owned this property outright, accumulated over a lifetime. The husband had acquired his limited education, in a formal sense, during six "terms" of schooling. The farmlands were substantial in acreage, but *139modest in producing income. The husband was asked why they signed the community property agreement. He replied:
Well, the reason we changed the deal there is we thought it was a lot better for whoever passed away first that the property go to the other one. Then they could divide it whatever way they wanted to divide it.
He then acknowledged that he was aware that he already had a will. Asked if they signed it to save taxes, he stated:
No, we didn't do it for tax purposes. That's very wrong. We did it because we thought it was a nicer way to divide the property, and the one that had the property then could divide it as they see fit to, and we thought that was nicer than it was to give it away the other way.
Again, the husband:
Well, I think I explained that to you. The reason that we had this survivorship agreement in place of the will was that the one that was left had the say of the whole business. They could give it to whoever they wanted to. We thought it would be better than to give it the other way.
Can there be any doubt that the parties knew exactly what they were doing? Can there be any doubt that they knew of their prior wills and intended to change the results of those wills? Can there be any doubt that the scheme of disposition via survivorship far outweighed any tax savings which would accrue only upon the second death? Finally, can there be any doubt that the majority's result frustrates their clear intent?
Admittedly the agreement was a valid contract at the time of the wife's death. What was the effect at that point? From the exact and positive language of the statute, and our adhering interpretations, the agreement then took effect and " [tjitle to the community property, thereupon, vests as the sole and separate property of the survivor." In re Estate of Wittman, supra at 843; RCW 26.16.120. Those assets subject to the agreement did not constitute assets over which the probate court had jurisdiction.
It is manifest from a reading of our probate act that property of some kind and value belonging to the estate *140of the deceased person is essential to the appointment of an administrator of his estate. . . .
. . . Such also is the weight of authority generally.
In re Estate of Dickerson, 51 Nev. 69, 74-76, 268 P. 769, 770 (1928).
The existence of property belonging to the decedent is another important prerequisite to the probate court's jurisdiction to administer his estate. This jurisdictional fact must be shown, for if the decedent left no property, there is no estate that can be administered.
24 Cal. Jur. 3d Decedents' Estates § 119, p. 227. See In re Estate of Patrick, 195 Wash. 105, 79 P.2d 969 (1938).
We can draw an authoritative analogy to the survivorship characteristic of joint tenancy. It is uniformly held that such incident passes the property by operation of law and is not part of the decedent's estate. In re Estate & Guardianship of Wood, 193 Cal. App. 2d 260, 14 Cal. Rptr. 147 (1969) ("is not subject to administration in the decedent's estate"); In re Estate of Roehlke, 231 N.W.2d 26 (Iowa 1975); In re Smith, 361 Mass. 733, 737, 282 N.E.2d 412, 415 (1972) ("does not constitute a part of the decedent's estate"); McPherson v. Minier, 179 Neb. 212, 137 N.W.2d 719 (1965).
The dilemma in this case stems from the husband's actions in probating the inconsistent will of his deceased wife. The finding of the trial court that the husband never appeared in court and that the community property agreement was never revealed to the probate court is not challenged. The court also made the following unchallenged finding:
Neither Mr. Norris nor his son, Henry, had a full understanding at this time of the implication of the Community Property Agreement, the life estate will and taxes involved in the first estate (Irene's) and that there would be tax savings with the will only on the second estate (E. A. Norris').'1
*141While error is assigned to the finding that "Plaintiff [husband] and Irene Norris signed the Community Property Agreement with knowledge of what they were doing," the testimony quoted earlier obviously constituted substantial evidence to support this finding. No error is assigned to the finding that the husband did not have a full understanding (of the probate matter) and left a great deal up to his attorney.
The court found:
The plaintiff [surviving husband] had no realization of the consequences of the probate and plaintiff thought he owned all interest in the property, pursuant to the Community Property Agreement.
Error is assigned.
The attorney explained to the surviving husband that if they used the community property agreement, it would be necessary to make lifetime gifts to reduce the size of the estate passing upon the husband's death. In fact such gifts were made.
The attorney testified that the husband decided to "go on the will," but the husband testified as follows:
Q. Do you recall making a decision on the will or the community property agreement?
A. Well, I think that I told [the attorney] that's the way we want it and that—
Q. Which way, sir?
A. The community property, have it settled on the community property and then the one that was left could take care of it however they liked to. . . .
Further, the husband testified:
Q. Now, can you explain to me how it came about that [the attorney] probated Irene's will?
A. Well, I don't know. You know, I kind of left it up to Ed [the attorney]. I thought he'd do the right thing for me and, you know, I probably didn't watch that thing as close as if it would have been a stranger. So that's how the thing kind of worked out, but I didn't think I was signing away the right to my land or anything like that. . . .
*142Q. Did you talk about taxes at all, that you can recall?
A. Well, the only thing, as I remember, Eddie [the attorney] said that if we made it out on the will, it would save a lot of taxes, but I didn't know that I was doing away with the right of survivorship when I was letting him do it. . . .
The attorney never gave a written explanation of the reason for the probate. Indeed, he took the position that the community property agreement was void from its inception.
In the face of this substantial evidence that the surviving husband obviously did not understand the effect of probate and that he consistently intended to claim his contractual right of survivorship, the majority holds, despite a directly contradicting finding of fact, that the husband was bound, as a matter of law, by the actions of his attorney and the probate court. He was never present in that court. It is apparent that the husband thought the whole proceeding was only to save taxes; that he never intended to disclaim his right of survivorship under the agreement.
If in fact the survivor has this right of disclaimer, the majority fails to explain why it was necessary for the legislature, 3 years after this probate was started, to enact a specific right of disclaimer. RCW 11.86.020.
The majority cites Mezere v. Flory, 26 Wn.2d 274, 173 P.2d 776 (1946) and Parr v. Davison, 146 Wash. 354, 262 P. 959 (1928). Those cases merely prove that when the decedent had no title to the realty, it could not be created by a decree of the probate court. That destroys reliance upon In re Estate of Ostlund, 57 Wash. 359, 106 P. 1116 (1910).
No matter what label is affixed to the analysis of the majority, it still spells waiver.
It should be remembered that waiver is an equitable doctrine. Its purpose is to facilitate the doing of equity ... it is still necessary to show that the party who it is claimed has waived a right, did so intentionally and with full knowledge of his rights. In Vienneau v. Goede, 50 Wn.2d 39, 309 P.2d 376 (1957), we held that the question whether there was an intent to waive is one of fact.
*143(Italics mine.) Weitzman v. Bergstrom, 75 Wn.2d 693, 699, 453 P.2d 860 (1969). The existence of the intent to waive must be made clearly to appear. O'Connor v. Tesdale, 34 Wn.2d 259, 263, 209 P.2d 274 (1949).
The testimony quoted as well as that referred to falls far short of an intentional relinquishment of a known right shown by clear evidence. The majority is content to ascribe to this relatively uneducated man these high standards of intent and knowledge as a matter of law. I am not so willing in order to thwart the lucid explanations of the actual intent of the parties when dealing with their own property; neither was the trial court, and it made such a finding. I would not ignore it.
I dissent.
Reconsideration denied February 26, 1981.