I respectfully dissent. The majority opinion ignores the fact that the claimants all were named in Frank’s will and, thus, presumably had notice of the probate. The claimants simply did not know that there were rumors that Frank Magrini was their father, not their uncle. The majority also glosses over the paucity of competent evidence that the claimants are Frank Magrini’s children or that Rose knew of this possibility. But even assuming, for purposes of analysis, that the claimants could establish both paternity9 and Rose’s knowledge, the claimants have failed to make the necessary showing to open Frank Magrini’s estate. Thus, it is unnecessary to reach the constitutionality issue. Mount Vernon v. Weston, 68 Wn. App. 411, 414, 844 P.2d 438 (1992) (court will not reach constitutional issue if it can decide case on nonconstitutional grounds).
Fraud
CR 60(b) specifies the grounds, other than clerical mistakes, upon which a superior court may vacate a judgment.10 Farley v. Davis, 10 Wn.2d 62, 71, 116 P.2d 263, 155 A.L.R. 1302 (1941) (final adjudications are conclusive against all the world and “cannot be attacked or annulled in any collateral proceeding, except for fraud”). The case law generally requires a showing of fraud to reopen a closed estate although there is an exception for lack of jurisdic*437tion. CR 60(b)(4); see Hesthagen v. Harby, 78 Wn.2d 934, 944, 481 P.2d 438 (1971) (jurisdictional defects may provide grounds for vacating a probate decree). Also, under certain circumstances not shown here, the court may allow a collateral attack on an estate based upon a showing of wrongdoing that does not rise to the level of fraud. Hesthagen, 78 Wn.2d at 946.
We review the trial court’s decision denying the request to vacate a judgment for abuse of discretion. In re Marriage of Burkey, 36 Wn. App. 487, 489, 675 P.2d 619 (1984). A trial court abuses its discretion when it bases a discretionary action on untenable grounds or when its discretionary act is manifestly unreasonable. Prest v. American Bankers Life Assurance Co., 79 Wn. App. 93, 97, 900 P.2d 595 (1995).
The claimants’ petition to open Frank’s estate did not allege fraud. Instead they argue that “[t]here is no need to prove fraud or re-open the Frank Magrini estate” because they are seeking equitable relief in the form of a constructive trust and equitable lien.
Unjust Enrichment
The claimants base their equitable arguments on the theory that Rose was unjustly enriched by the receipt of proceeds from Frank’s estate, a theory that they contend comes within CR 60(b)(ll)’s catchall provision. See Lynch v. Deaconess Med. Ctr., 113 Wn.2d 162, 164-65, 776 P.2d 681 (1989). Specifically, the claimants argue that Rose and Frank’s attorney, the co-executors of the estate, breached their fiduciary duty by not providing the claimants with notice of the probate proceedings and not advising them of the rumors that Frank Magrini may have been their father.
The premise of the claimants’ equitable relief argument is that because of the lack of notice, the trial court lacked jurisdiction over the estate. See Hesthagen, 78 Wn.2d at 946 (constructive trust against heirs where administrator failed to notify court of other heirs; “purposeful wrongdoing is substantially irrelevant”). This argument should fail because the executors should not have a duty to give *438potential heirs formal notice of the probate under the circumstances here.
The Hesthagen decision is central to the claimants’ argument that they may collaterally attack a closed estate upon a showing of lack of notice and breach of a fiduciary duty. But the facts in the record here are significantly different from those in Hesthagen.
The Hesthagen appellants, heirs to an intestate estate, did not receive notice of the estate probate. They learned of the estate proceedings about three years after the estate was distributed. Following further investigation, they brought an action collaterally attacking the final distribution and seeking judgment against the estate administrator and the distributees.11
In Hesthagen, the identity and location of the appellant heirs was easily ascertainable. 78 Wn.2d at 943. But, according to the Hesthagen court, the administrator had totally abdicated his responsibility “to ascertain the identity and whereabouts of all of the heirs” and to provide them with notice of the probate proceedings, thereby violating his fiduciary duty “to exercise the utmost good faith and to utilize the skill, judgment, and diligence which would be employed by the ordinarily cautious and prudent person in the management of his own trust affairs.” 78 Wn.2d at 942-43.
The Hesthagen court noted that an administrator’s failure to notify all heirs constituted a jurisdictional defect and that a probate decree entered under such circumstances was void. 78 Wn.2d at 944. Because the appellants did not seek to reopen the probate, but instead sought judgment for their share of the estate from the defendants, the Hesthagen court imposed a constructive trust on the assets that had been wrongfully distributed to the heirs who had received notice of the probate proceedings. 78 Wn.2d at 945-46.
*439A primary obligation of the administrator of the intestate estate in Hesthagen was to determine, locate, and notify statutory heirs. 78 Wn.2d at 941. By contrast, here, the decedent left a will naming those individuals to whom he wished to leave his estate. See In re Estate of Meagher, 60 Wn.2d 691, 375 P.2d 148 (1962) (right to dispose of property by will is valuable right assured by law and protected by statute). Thus, the executors’ duty was to give effect to the lawful intent of the testator and to take all legitimate steps to uphold the will. RCW 11.12.230; In re Estate of Campbell, 87 Wn. App. 506, 942 P.2d 1008 (1997); In re Estate of Riley, 78 Wn.2d 623, 479 P.2d 1, 48 A.L.R.3d 902 (1970). Further, in construing the will, there was no presumption favoring rights created by descent and distribution statutes as opposed to the statutory right to make a voluntary distribution of one’s estate. Hunt v. Phillips, 34 Wash. 362, 75 P. 970 (1904).
The majority would require executors to assume the additional burden of locating any possible illegitimate children and notifying them both of the probate and of the rumors that they may be the deceased’s illegitimate children. A widow/executrix who fails to do so faces forfeiture of the estate assets if and when the children discover and establish their paternity. And the majority would apply this rule even where the decedent named the illegitimate children in his will, but labeled them as nieces and nephews rather than as children.12
Neither Hesthagen nor any other authority cited by the *440claimants places this onerous responsibility on the executors of an estate. The court stated in Hesthagen that the relevant law required a personal representative to make an earnest effort to determine who would be lawfully entitled to the estate. Hesthagen, 78 Wn.2d at 941. In Hesthagen, the claimants qualified as heirs. Thus, they were entitled to notice of the probate proceedings. 78 Wn. App. at 942. Even assuming here that the co-executors were aware of or by due diligence could have learned of the claimants’ possible status as Frank’s biological children, the co-executors properly could have concluded that former RCW 11.04.080 excluded the claimants as pretermitted heirs. State v. Blank, 131 Wn.2d 230, 235, 930 P.2d 1213 (1997) (legislative acts presumed to be constitutional).
While the majority agrees that Rose had a right to rely on former RCW 11.04.080, it holds that Rose had a duty to give notice to “all possible heirs.” Under the majority’s analysis, these possible heirs included individuals who could not qualify as statutory heirs. Somewhat inexplicably, the majority holds that while Rose had a right to rely on former RCW 11.04.080 and its constitutionality in determining the statutory heirs entitled to notice of the probate proceedings, such reliance would violate due process if it did not include notification to those who did not qualify as heirs under that statute.
Nor have the claimants presented equitable factors that would compel the extraordinary equitable relief they request. The will of Frank Magrini clearly indicates his intention to disclaim any paternal relationship. The claimants are all named and provided for as “nieces and nephews.” An award of an intestate share to the claimants as pretermitted heirs would be inconsistent with the testator’s intent as expressed in the will. And there is no evidence that either co-executor was hiding facts in an effort to deprive the claimants of a portion of the estate. Consequently, the facts here are in contrast tp those in Francon v. Cox, 38 Wn.2d 530, 231 P.2d 265 (1951), a case on which the majority relies in holding that Rose had a duty to give the claimants probate notice.
*441In Francon, the decedent’s widow neglected to notify the appellant, decedent’s daughter by a previous marriage, of the probate of his estate. The widow decided appellant was not her husband’s daughter even though the decedent once introduced her as such and, during that same meeting, referred to appellant’s child as his granddaughter. It was after reciting these facts that the court found a failure to give the required notice and extrinsic fraud. By contrast, the only evidence of Rose’s knowledge is an ambiguous statement that she made 30 years after her husband’s death as she lay on her deathbed going “in and out of consciousness.” The fact that this case concerns neither statutory heirs nor extrinsic fraud renders Francon of limited precedential value.
None of the foregoing is meant to minimize the duty of an executor to give proper notice to any statutory heirs of whom the executor is aware, whether named in the will or not. To knowingly fail to do so would be fraud. See Stevens v. Torregano, 13 Cal. Rptr. 604, 192 Cal. App. 2d 105 (1961) (if executor knows of heir and withholds that information from the court, his doing so is extrinsic fraud, justifying a suit in equity by that heir to impose a constructive trust).
Here, as the majority states, the co-executors were entitled to rely on former RCW 11.04.080. Because there is no evidence the co-executors breached their fiduciary duty to the claimants, there is no basis to find that the probate court lacked jurisdiction. Absent a showing of either fraud or a violation of a fiduciary duty, the trial court did not err in dismissing the action to reopen Frank’s estate. For the same reasons, the trial court did not err in dismissing the action seeking to impose a constructive trust on the proceeds of Frank Magrini’s estate now in the possession of Rose Magrini’s estate.
Further, the claimants failed to present evidence sufficient to raise an issue of material fact as to their parentage and thereby overcome the estate’s motion for summary judgment. The claimants sought a continuance to gather more information and now contend that the trial court violated CR 56(f) by granting summary judgment without *442giving them an opportunity to conduct discovery.13 But the claimants failed to provide a record of the summary judgment proceedings showing that they brought their objections to the attention of the trial court.14 Without such a record, we properly should assume that the children are raising this issue for the first time on review, too late for appellate review. RAP 2.5(a); see also State v. Gentry, 125 Wn.2d 570, 616, 888 P.2d 1105, cert. denied, 516 U.S. 843 (1995) (issue involving compliance with procedural rule may not be raised for first time on appeal).
Because claimants have failed to show that Rose was unjustly enriched by her receipt of the proceeds from her husband’s estate or even that they are Frank Magrini’s children, I would find that the trial court did not abuse its discretion in denying the motion to vacate.
Reconsideration denied February 12, 1999.
Review granted at 138 Wn.2d 1001 (1999).
See ER 804(b)(4) (statements concerning declarant’s family history not excluded by hearsay rule if declarant is unavailable as a witness).
Superior courts hearing probate and trust proceedings are to apply the civil rules of practice. ROW 11.96.130. CR 60(b)(4) authorizes the court to vacate a judgment procured through fraud, misrepresentation or other misconduct by an adverse party. The moving party must establish, by clear and convincing evidence, the adverse party’s misconduct. Lindgren v. Lindgren, 58 Wn. App. 588, 596, 794 P.2d 526 (1990).
Generally, RCW 11.96.100 requires executors to personally serve or mail notice of probate proceedings to all persons having an interest in the estate within 20 days of the hearing date.
A premise of the claimants’ case is that Frank and Rose were aware that the claimants were Frank’s children. That premise makes this case distinguishable from In re Estate of Marshall, 27 Wn. App. 895, 621 P.2d 187 (1980), cited by the majority in footnote 7. At the time the testatrix in Marshall executed her will, she “could not recall whether she had adopted” her adult niece. 27 Wn. App. at 899. In ruling for the niece, the Marshall court considered the failure of the testatrix’s memory, stating, “it is unclear whether she [the testatrix] would have disinherited her niece if she had remembered that the niece had been adopted.” 27 Wn. App. at 900. The Marshall court then stated, “Under these circumstances the naming of Joann Gaidosh [the claimant] as a niece cannot be interpreted as an intentional disinheritance.” 27 Wn. App. at 900 (emphasis added). Marshall, with its unique circumstances, does not necessarily control the claimants’ statutory status here as pretermitted children.
CR 56(f) provides: “Should it appear from the affidavits of a party opposing the motion that he cannot, for reasons stated, present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.”
In their reply brief, the children contend that their request for appointment of a administrator de bonis non was, in effect, a request for more discovery time. Even if this filing constituted a request for more time, the children waived this objection if they failed to bring it to the court’s attention during the summary judgment hearing.