In Re The Estate Of Richard D. Kolesar

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE
In the Matter of the Estate of:
No. 83919-5-I
RICHARD D. KOLESAR,
PUBLISHED OPINION
Deceased.

DWYER, J. — The trial court in this matter took the unusual approach of

issuing three separate orders all purporting to admit Richard Kolesar’s will to

probate. We are today required to determine which of those orders is controlling

for the purpose of establishing the time period in which a will contest may be

initiated. We hold that the trial court’s order of July 9, 2020 is controlling, as it

was the final such order entered. Hence, the deVry family’s will contest claim

was timely asserted and improperly dismissed. We accordingly reverse the

dismissal of the will contest claim and remand the matter for further proceedings

consistent with this opinion.

The deVry family1 (hereinafter Petitioners) also challenges the trial court’s

dismissal of their claim for declaratory relief against Joseph Marsh. With regard

to that claim, we hold that the Petitioners failed to present evidence that Marsh

1 The deVry family consists of Scott deVry, Mary Anne deVry, Andrea Cantu, Roberto

Cantu, Andrew deVry, Nicole deVry, and Corrine deVry.
No. 83919-5-I/2

engaged in financial exploitation of Richard Kolesar. Accordingly, we affirm the

trial court’s dismissal of that claim.

I

Richard Kolesar died on December 15, 2019. Richard2 was married to

Marilyn until the time of her death. The couple had no children. Throughout their

lives, Richard and Marilyn maintained relationships with friends and extended

family, including the children and grandchildren of Marilyn’s cousin Betty deVry.

On May 2, 2011, Richard executed a last will and testament. Richard’s

2011 will placed the bulk of his estate into a trust for Marilyn. The will made cash

bequests to three nonprofit entities and left the residuary of his estate to Marilyn.

It also provided that if Marilyn predeceased Richard, Richard’s brother Donald3

would inherit a sum of $50,000 and the residuary would pass in equal shares to

Mary Anne deVry, Scott deVry, and Richard’s niece Valerie Kolesar. If Valerie,

Mary Anne, or Scott predeceased Richard, their portion of the estate would pass

to Andrew deVry, Andrea Cantu, and Corrine deVry.

Marilyn died in 2012. On February 26, 2014, Richard’s doctor diagnosed

him with hallucinations and adjustment disorder with depressed mood, and

observed that he was exhibiting early signs of psychosis. Richard was admitted

to the Benevolent Adult Family Home (BAFH) in Kirkland, Washington three days

later. BAFH is owned and operated by Reynold Quedado.

Shortly after his admission, Richard changed his power of attorney

2 Due to the number of persons with the same last name, we refer to the Kolesars and

deVrys by their first names to avoid confusion. No disrespect is intended.
3 Donald also predeceased Richard.

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designation, removing Mary Anne and appointing Valerie to act as his attorney-

in-fact. On July 30, 2014, Richard executed a new last will and testament,

revoking the 2011 will. Richard’s 2014 will made cash bequests to the same

nonprofit entities and devised a sum of $25,000 to Scott and Mary Anne deVry,

to be divided between them. The residuary of Richard’s estate was to be divided

as follows:

• 2 percent to Andrew deVry
• 2 percent to Andrea Cantu
• 2 percent to Corrine deVry
• 20 percent to Joseph Marsh
• 34 percent to Valerie Kolesar
• 40 percent to Reynold Quedado

Valerie was nominated to act as personal representative of the estate.

Respondent Joseph Marsh is the son of John and Betty Marsh, longtime

friends of Richard and Marilyn. Richard met John shortly after World War II,

when they both attended the University of Washington engineering school.

Richard and Marilyn remained good friends with John and Betty for their entire

lives. Richard thus knew Joseph since his birth.

Joseph Marsh4 had acted as Richard and Marilyn’s broker-dealer since

1982. Marsh spoke to both Richard and Marilyn approximately once per month

and Marsh would typically take them to lunch after their annual review. Marsh

also visited Richard every year on his birthday (July 27) after Marilyn’s death. As

a broker-dealer, Marsh’s duty was to make investment transactions with Richard

and Marilyn’s funds after consulting with them and obtaining their approval.

4 Joseph Marsh will hereinafter be referred to by his surname.

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Richard’s 2014 will identifies Marsh as “my friend and financial advisor.”

On May 5, 2020, the trial court issued an order admitting to probate the

“Last Will and Testament of Decedent Richard D. Kolsar,” dated July 30, 2014.

The order appointed Valerie as personal representative of the estate. Richard’s

last name was incorrectly spelled “Kolsar” in both the case caption and on the

letters testamentary.

On July 2, 2020, the trial court entered an amended order probating the

will and confirming the personal representative. Richard’s name was spelled

correctly on this order. A second amended order was entered on July 9, 2020,

directing the clerk of court to reissue letters testamentary with Richard’s name

spelled correctly. Both the July 2 and July 9 orders state that the 2014 will was

“hereby admitted to probate,” with no reference to any prior order.

Valerie resigned as personal representative in September 2020.

Respondent Dominick Driano was named successor personal representative of

the estate.

On October 30, 2020, Petitioners filed a petition contesting the validity of

the 2014 will. Petitioners alleged that the 2014 will was “invalid because Richard

lacked testamentary capacity” and because Richard was “under undue influence

and control from [Quedado], [Marsh], and/or others.” Petitioners also requested

a declaration that Quedado and Marsh were “abusers” as defined by chapter

11.84 RCW and were therefore ineligible to inherit from Richard’s estate.

The personal representative filed a motion to dismiss the will contest as

untimely pursuant to RCW 11.24.010. The personal representative also asserted

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that only Scott and Mary Anne had standing to contest the will, as they were the

only members of the deVry family named as beneficiaries in Richard’s 2011 will.

Marsh and Quedado joined the motion. Marsh also separately filed a motion to

dismiss all claims against him. The trial court granted both motions.

Marsh then filed a motion requesting an award of attorney fees, which the

trial court denied. The personal representative also moved for an award of

attorney fees. The trial court granted this motion, awarding the personal

representative $23,782 in fees and costs, payable from the estate.

The two dismissal orders were designated as final judgments under CR

54(b) on April 4, 2022. Petitioners timely appealed.

II

Petitioners assert that the trial court erred by ruling that only Scott and

Mary Anne had standing to bring a will contest claim. This is so, they contend,

because the remaining Petitioners were named beneficiaries in Richard’s 2014

will. We disagree.

Interpretation of a probate statute is a question of law that we review de

novo. In re Est. of Jones, 152 Wn.2d 1, 8-9, 93 P.3d 147 (2004). RCW

11.24.010 permits “any person interested in any will” to contest the validity of the

probated will or to challenge the rejection of probate. A “‘person interested is one

who has a direct, immediate, and legally ascertained pecuniary interest in the

devolution of the testator’s estate, such as would be impaired or defeated by the

probate of the will or benefited by the declaration that it is invalid.’” In re

O’Brien’s Estate, 13 Wn.2d 581, 583, 126 P.2d 47 (1942) (internal quotation

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marks omitted) (quoting Petitt v. Morton, 28 Ohio App. 227, 235, 162 N.E. 627

(1928)). “In other words, the contestant must stand to lose directly in a financial

way if the will which he seeks to attack is permitted to stand.” O’Brien, 13 Wn.2d

at 583.

In contrast to Scott and Mary Anne, who would suffer a large financial loss

if the 2014 will is permitted to stand, the remaining Petitioners would not suffer

any loss. To the contrary, the remaining Petitioners would actually receive a

financial gain if the 2014 will stands, as none of them are named beneficiaries in

the 2011 will.5 A person who will lose his or her financial interest if the will is

invalidated does not have standing to contest the will. The trial court did not err.

III

Petitioners additionally assert that the trial court erred by dismissing their

will contest claim as untimely pursuant to RCW 11.24.010. This is so, they

assert, because the trial court’s July 9 order probating Richard’s will superseded

the May 5 order, thus establishing a different date on which the will was admitted

to probate. We agree.

A

The pertinent statute, RCW 11.24.010, states that a person who wishes to

file a will contest must do so “within four months immediately following the

probate or rejection thereof.” This limitation is strictly construed. In re Est. of

5 Although Andrew, Andrea, and Corrine were named as contingent beneficiaries in the

2011 will if both Scott and Mary Anne were deceased, this is not sufficient to confer standing
upon them while Scott and Mary Anne are alive. Cf. Jevne v. Pass, LLC, 3 Wn. App. 2d 561,
567, 416 P.3d 1257 (2018) (“possible contingent future interest” insufficient to confer standing in
HOA dispute).

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Toth, 138 Wn.2d 650, 656, 981 P.2d 439 (1999).

As a general rule, court orders are subject to the same rules of

construction as statutes, contracts, and other legal writings. Soriano v. Dep’t of

Labor & Indus., 8 Wn. App. 2d 575, 583, 442 P.3d 269 (2019). Primary among

these rules is the maxim that there is no need to “look beyond the plain language

of the [writing] to consider extraneous matters where there is no ambiguity

presented by the words used.” State v. Castle, 156 Wn. App. 539, 545, 234 P.3d

260 (2010).

The July 9 order unambiguously states: “The established Will of Richard

D. Kolesar is hereby admitted to probate.” The plain language of this order

clearly indicates that the will was probated on the date of the order.

The personal representative argues that the trial court’s July 9 order was

not intended to alter the date of probate, but instead was meant solely to correct

the case caption in the May 5 order. However, the July 9 order does not state

anything to that effect. The July 9 order is not designated as an order nunc pro

tunc, which would have made the order retroactive. It does not state that the will

had been properly admitted to probate on an earlier date. The July 9 order does

not even mention the May 5 order.6

As the latest entered order, the July 9 order is controlling over all other

orders on the same subject. As such, the date that Richard Kolesar’s will was

6 At oral argument, counsel for the personal representative had no effective counter to

the suggestion that, were the court to adopt his argument, it would be necessary to review all
three of the court’s orders and determine from them which of the words in the July 9 order were
effective and which were surplusage. No authority was cited to support the announcement of
such an unusual duty.

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probated was July 9, 2020. The will contest claim filed on October 30, 2020 was

therefore timely.

B

Not to be deterred, the personal representative next asserts that the

statutory limitation period for asserting a will contest cannot be extended.7 In

advancing this argument, the personal representative misconstrues the nature of

the trial court’s July 9 order. The court’s order did not purport to extend the

limitation period imposed by RCW 11.24.010. Rather, the order established the

date on which the limitation period commenced. The personal representative’s

argument is, thus, unavailing.

C

The trial court erred by dismissing Scott and Mary Anne’s will contest

claim. Furthermore, Petitioners are correct that the personal representative

should not have been awarded fees because the basis for that award—the

dismissal of the will contest—was improper. We accordingly reverse the

dismissal of the will contest claim asserted by Scott and Mary Anne and direct

the trial court on remand to vacate its award of attorney fees to the personal

representative.

7 The personal representative incorrectly refers to RCW 11.24.010 as a statute of repose.

We recognize that this confusion arises from older case law that unartfully refers to RCW
11.24.010 using the word “repose.” However, as our current law defines the terms statute of
limitation and statute of repose, RCW 11.24.010 is plainly a statute of limitation. See Wash. State
Major League Baseball Stadium Pub. Facilities Dist. v. Huber, Hunt & Nichols-Kiewit Constr. Co.,
176 Wn.2d 502, 510-11, 296 P.3d 821 (2013).

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IV

Petitioners next assert that the trial court erred by dismissing their

declaratory judgment claim against Marsh, in which they requested that the court

deem Marsh a “financial abuser” pursuant to chapter 11.84 RCW.8 This is so,

they contend, because their burden to present clear, cogent, and convincing

evidence shifted to Marsh once they presented evidence of a fiduciary

relationship. We disagree.

A

We review orders on summary judgment de novo.9 Boyd v. Sunflower

Props., LLC, 197 Wn. App. 137, 142, 389 P.3d 626 (2016). In doing so, we

engage in the same inquiry as the trial court. Green v. Normandy Park Riviera

Section Cmty. Club, Inc., 137 Wn. App. 665, 681, 151 P.3d 1038 (2007).

Generally, all evidence and reasonable inferences therefrom must be construed

in favor of the nonmoving party. Boyd, 197 Wn. App. at 142. “However, when

reviewing a civil case in which the standard of proof is clear, cogent, and

convincing evidence, [we] ‘must view the evidence presented through the prism

of the substantive evidentiary burden.’” Woody v. Stapp, 146 Wn. App. 16, 22,

189 P.3d 807 (2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254,

106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). Thus, we must determine “whether,

viewing the evidence in the light most favorable to the nonmoving party, a

8 A person who is declared to be a “financial abuser” pursuant to chapter 11.84 RCW is

deemed to have predeceased the decedent and is therefore ineligible to inherit from the decedent’s
estate. RCW 11.84.010, .020, .030.
9 Although not styled as such, Marsh’s “Motion to Dismiss” was in effect a summary

judgment motion.

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rational trier of fact could find that the nonmoving party supported his or her claim

with clear, cogent, and convincing evidence.” Woody, 146 Wn. App. at 22.

B

We first clarify the elements of Petitioners’ declaratory judgment claim

against Marsh.10 To succeed on their claim requesting that the trial court declare

Marsh to be a “financial abuser,” Petitioners must demonstrate by “clear, cogent,

and convincing evidence that [the] person participated in conduct constituting

financial exploitation against the decedent” and that

(a) The decedent was a vulnerable adult at the time the
alleged financial exploitation took place; and
(b) The conduct constituting financial exploitation was willful
action or willful inaction causing injury to the property of the
vulnerable adult.

RCW 11.84.150(2); .160(1). “Financial exploitation” is defined as

(a) The use of deception, intimidation, or undue influence by
a person or entity in a position of trust and confidence with a
vulnerable adult to obtain or use the property, income, resources,
or trust funds of the vulnerable adult for the benefit of a person or
entity other than the vulnerable adult;
(b) The breach of a fiduciary duty, including, but not limited
to, the misuse of a power of attorney, trust, or a guardianship
appointment, that results in the unauthorized appropriation, sale, or
transfer of the property, income, resources, or trust funds of the

10 On July 9, 2021, the trial court issued two orders. In one, the trial court ordered that
“[t]he Petitioners’ will contest claims are dismissed as barred by the statute of repose contained in
RCW 11.24.010.” In the other, the trial court ordered “that Petitioners’ claims against Joseph
Marsh are dismissed with prejudice.”
The Petitioners’ complaint asserts only two causes of action: a will contest and a request
for declaratory judgment. The will contest, as an in rem cause of action, is not a “claim against”
Marsh. See In re Est. of Black, 116 Wn. App. 492, 499, 66 P.3d 678 (2003). Accordingly, the
only claim “against Joseph Marsh” dismissed by the trial court’s order was the claim requesting
the trial court to declare that Marsh was a “financial abuser” pursuant to chapter 11.84 RCW.

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vulnerable adult for the benefit of a person or entity other than the
vulnerable adult; or
(c) Obtaining or using a vulnerable adult’s property, income,
resources, or trust funds without lawful authority, by a person or
entity who knows or clearly should know that the vulnerable adult
lacks the capacity to consent to the release or use of his or her
property, income, resources, or trust funds.

RCW 74.34.020(7).

Petitioners’ complaint alleges that Marsh was a financial abuser because

he “exercis[ed] undue influence and control over Richard to persuade him to

execute a new will.” Petitioners’ claim thus invokes subsection (7)(a) of RCW

74.34.020. However, Petitioners did not allege that Marsh engaged in any

deception or intimidation. Thus, their claim of financial exploitation rests on the

allegation of undue influence.

In summation, Petitioners’ declaratory judgment claim, as pleaded,

requires Petitioners to prove the following: (1) Richard was a vulnerable adult at

the time the alleged financial exploitation took place; (2) Marsh was in a position

of trust and confidence with Richard; (3) Marsh exercised undue influence; (4)

Marsh did so in order to obtain or use Richard’s property, income, resources, or

trust funds; (5) Marsh’s actions were willful; and (6) Marsh caused injury to

Richard’s property. Both parties focused their briefing to the trial court and to us

on appeal on the second and third elements of the claim. We shall do the same

here.

C

Petitioners assert that because Marsh was in a fiduciary relationship with

Richard, they are entitled to a presumption that Marsh exercised undue

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influence, i.e., that the burden shifted to Marsh to disprove the third element of

their declaratory judgment claim. Marsh contends that Petitioners are not entitled

to the presumption of undue influence because Marsh was not in a fiduciary

relationship with Richard and, even if he were, a fiduciary relationship alone is

not sufficient to invoke the presumption. We need not decide whether Petitioners

presented evidence that Marsh was in a fiduciary relationship with Richard, as a

fiduciary relationship alone does not entitle Petitioners to invoke the presumption

and relieve them of their burden of proof.11

RCW 74.34.020(7)(a) does not define the term “undue influence.”

However, “undue influence” is a term of art that has long been utilized in the

common law. “[W]hen ‘the legislature uses a term well known to the common

law, it is presumed that the legislature intended it to mean what it was

understood to mean at common law.’” Schwartz v. King County, 200 Wn.2d 231,

239-40, 516 P.3d 360 (2022) (quoting State v. Dixon, 78 Wn.2d 796, 804, 479

P.2d 931 (1971)). Thus, common law cases concerning undue influence are

pertinent to our decision herein.

The Restatement (Second) of Contracts § 177 (Am. Law Inst. 1981)

defines “undue influence” as “unfair persuasion of a party who is under the

domination of the person exercising the persuasion or who by virtue of the

relation between them is justified in assuming that that person will not act in a

11 On September 21, 2022, Marsh filed a motion to supplement the record with the results

of the Financial Industry Regulatory Authority (FINRA) investigation into Marsh’s receipt of a
bequest from a nonfamily member. A commissioner of this court referred Marsh’s motion to this
panel. Because these documents do not satisfy the strict criteria set forth in RAP 9.11, we deny
the motion.

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manner inconsistent with his welfare.” This section of the Restatement has been

adopted as the law in Washington. In re Infant Child Perry, 31 Wn. App. 268,

272-73, 641 P.2d 178 (1982). As the comments to the Restatement indicate, a

party claiming that a contract is voidable due to undue influence must prove not

only a qualifying relationship, but also that the contract was induced by unfair

persuasion. RESTATEMENT § 177, cmt. b. In other words, under the Restatement,

proof of a fiduciary or confidential relationship does not in and of itself constitute

proof of undue influence.

Washington cases discussing the presumption of undue influence are in

accord. In In re Estates of Jones, 170 Wn. App. 594, 600-01, 287 P.3d 610

(2012), two sisters filed a TEDRA12 claim against two brothers for the rescission

of a real estate agreement entered into by their mother three years prior to her

death. The sisters asserted that because the brothers had a confidential

relationship with their mother, they were entitled to a presumption of undue

influence and, therefore, the burden of proof shifted to the brothers to prove that

the transaction was not the result of undue influence. Jones, 170 Wn. App. at

601. After both parties moved for summary judgment, the trial court granted

summary judgment to the brothers on the basis that there was no evidence of

undue influence. Jones, 170 Wn. App. at 602.

The appellate court affirmed the trial court’s decision. In so doing, the court

held:

12 Trust and Estate Dispute Resolution Act, chapter 11.96A RCW.

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An undue influence claim must include more than merely the
presumption that can arise from a confidential relationship. In cases
where a confidential relationship resulted in undue influence, there
typically is evidence of some type of loss resulting from that
relationship. In other words, there must be something more than
the relationship. Here, there was not. A focus on simply what was
given up, without consideration of what was received, is not
sufficient to establish that an unfair transaction occurred. In the
absence of an unbalanced transaction, there has to be some
additional evidence of influence beyond the confidential
relationship.

Jones, 170 Wn. App. at 609-10 (emphasis added) (citations and footnote

omitted). Because the sisters had relied solely on the existence of a confidential

relationship and presented no other evidence of undue influence by the brothers

or of loss to the mother, the court concluded that summary judgment was proper.

Jones, 170 Wn. App. at 610.

That a fiduciary or confidential relationship is not sufficient in and of itself

to raise a presumption of undue influence was reaffirmed in Kitsap Bank v.

Denley, 177 Wn. App. 559, 312 P.3d 711 (2013). The administrator of the

decedent’s estate therein alleged that a beneficiary designation on a payable-on-

death (POD) bank account was the product of the undue influence of a bank

teller. The beneficiary moved to dismiss the claim on summary judgment,

asserting that the estate had not presented sufficient evidence to demonstrate

undue influence.13 Denley, 177 Wn. App. at 566-67. The trial court granted the

motion. Denley, 177 Wn. App. at 567.

13 We do not mean to suggest that undue influence exists as a free-standing cause of

action. Rather, undue influence is a legal principle that sounds in contract law, upon which a
court may void a transfer of property, be it through a will, beneficiary designation, contract, or gift.

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We affirmed the trial court’s order. In so doing, we began with the

principle that on summary judgment, “the party bearing the burden to prove the

undue influence claim at trial must present sufficient evidence to make it highly

probable that the undue influence claim will prevail at trial.” Denley, 177 Wn.

App. at 569. Following the Restatement, we held that “[a] presumption of undue

influence requires, at a minimum, that the party attempting to prove undue

influence shows the existence of a confidential or fiduciary relationship, the

beneficiary participated in the transaction, and the beneficiary received a

disproportionate or unnaturally large portion of the estate.” Denley, 177 Wn.

App. at 578. We then analyzed each of these factors as it pertained to the case

at hand.

As to the first factor, we held that it was not enough simply for some sort

of fiduciary relationship to exist. As we noted, “an undue influence claim arises

when ‘the result was produced by means that seriously impaired the free and

competent exercise of judgment.’” Denley, 177 Wn. App. at 574 (quoting Jones,

170 Wn. App. at 607) (internal quotation marks omitted). Accordingly, “the

fiduciary relationship must exist in relation to the asset which is the subject of the

undue influence claim.” Denley, 177 Wn. App. at 574. In that case, there was no

evidence of a fiduciary or confidential relationship at all, much less with respect

to the POD account.

As to the second factor, we clarified that in order to demonstrate that the

beneficiary actively participated in the transaction, the challenger must present

evidence that the beneficiary actively dictated the terms of the transaction, rather

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than being an observer or minor participant. Denley, 177 Wn. App. at 577. The

only evidence presented in Denley, however, was that the beneficiary had

delivered a $400,000 check to the bank along with an envelope containing

deposit slips, signature cards, and POD designations for three other accounts.

177 Wn. App. at 577. Uncontested evidence also demonstrated that the

beneficiary was unaware that she had been designated as the beneficiary of the

POD account. Denley, 177 Wn. App. at 577. We held that on these facts, “no

rational trier of fact could find clear, cogent, and convincing evidence establishing

that [the beneficiary] participated in the transaction.” Denley, 177 Wn. App. at

577.

We additionally noted that the third factor could not be analyzed because

there was no evidence presented as to the size of the decedent’s estate.

Denley, 177 Wn. App. at 578. Because the Estate had not presented evidence

establishing any of the three factors that could raise a presumption of undue

influence, we held that summary judgment was appropriately granted.

We finally held that even if there had been sufficient evidence to raise the

presumption of undue influence, that presumption was not sufficient to defeat the

bank teller’s motion for summary judgment. Denley, 177 Wn. App. at 578.

“Where a party is unable to present evidence of more than a confidential

relationship, or where the presumption of undue influence is effectively rebutted

by additional evidence, the presumption of undue influence is not sufficient to

defeat a motion for summary judgment.” Denley, 177 Wn. App. at 579. This is

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so because “‘[p]resumptions must give way in light of evidence.’” Denley, 177

Wn. App. at 579 (quoting Jones, 170 Wn. App. at 611).

As these cases make clear, under the common law, the existence of a

fiduciary or confidential relationship does not, by itself, create a presumption of

undue influence. The party challenging the transaction cannot rely solely on an

alleged fiduciary or confidential relationship to defeat a motion for summary

judgment.

We acknowledge that Petitioners’ declaratory judgment claim is based in

statute, not in the common law. However, we presume that the legislature’s use

of the term “undue influence” while defining “financial exploitation” was an

intentional invocation of the common law concerning that term. See Schwartz,

200 Wn.2d at 239-40. Accordingly, Petitioners could not dispense with their

burden of proof simply by presenting evidence that Marsh was in a fiduciary

relationship with Richard. A claim of financial abuse also requires evidence that

the defendant participated in the transaction and that any undue influence

asserted resulted in the vulnerable adult’s loss of property.

Petitioners’ briefing to this court, as well as their response to Marsh’s

motion in the trial court, demonstrate that they rely solely on their allegation that

Marsh was in a fiduciary relationship with Richard as evidence of undue

influence. Indeed, Petitioners repeatedly emphasize Marsh’s burden to disprove

their claims, rather than their own burden to present evidence when faced with a

dispositive motion.

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Here, the only evidence presented by Petitioners beyond the alleged

fiduciary relationship between Marsh and Richard was:

• A declaration from Marsh stating that he visited Richard
every year on his birthday (July 27), which was shortly
before the 2014 will was executed;
• Richard’s 2011 will that did not mention Marsh at all;
• Richard’s 2014 will that left 20 percent of the residual of his
estate to Marsh; and
• Medical records indicating that in February 2014, Richard
was experiencing hallucinations.

This evidence is not sufficient for Petitioners to shift the burden of disproving their

claim to Marsh. Significantly, Petitioners presented no evidence that Marsh

participated in making himself a beneficiary. To the contrary, Marsh presented

evidence that he was unaware of the contents of Richard’s will until the time of

his death. As in Denley, Petitioners cannot successfully rely on a presumption in

the face of actual evidence.14

Nor did petitioners present any evidence of Richard’s mental faculties in

July 2014, the time at which the will was executed.15 Most importantly,

Petitioners presented no evidence that Richard was harmed in any way by his

relationship with Marsh. At most, Petitioners have only presented evidence of

harm to Richard’s beneficiaries. However, a claim of financial exploitation

requires injury to the vulnerable adult himself, not to his estate. RCW

11.84.160(1)(a).

14 Petitioners argued to the trial court that Marsh’s motion should have been continued so

that Petitioners could take Marsh’s deposition. They do not raise this argument on appeal.
15 Indeed, evidence was presented that, in August 2014, Richard’s doctor deemed him

mentally capable to make legal, financial, and medical decisions.

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Furthermore, as Marsh points out, the fiduciary relationship that

Petitioners allege to have existed was not related to the bequest in Richard’s will.

Here, Petitioners allege that Marsh’s fiduciary relationship arose out of his role as

Richard’s broker-dealer. Richard’s brokerage account had its own beneficiary

designation. There is no evidence in the record establishing who the

beneficiaries of that account are.

The decision in McCutcheon v. Brownfield, 2 Wn. App. 348, 467 P.2d 868

(1970), upon which Petitioners rely, is inapposite and, thus, does not compel a

contrary result. McCutcheon concerned the revocation of an inter vivos gift given

by a mother to her daughter. 2 Wn. App. at 349. As has long been the law in

this state, inter vivos gift transfers are subject to greater scrutiny than

testamentary transfers of property. Meyer v. Campion, 120 Wash. 457, 470, 207

P. 670 (1922). Under the common law of gifts, the burden is on the recipient to

prove by clear and convincing evidence that the transfer was indeed a gift. In re

Ests. of Palmer, 145 Wn. App. 249, 261, 187 P.3d 758 (2008). Thus, unlike

testamentary transfers and contracts, which are presumed to be valid until

proven otherwise, transfers of inter vivos gifts are presumed to be invalid until

proven otherwise. Palmer, 145 Wn. App. at 261. When the recipient is in a

confidential or fiduciary relationship with the giver, an additional presumption of

undue influence applies, and the recipient must also rebut this presumption by

clear and convincing evidence. Palmer, 145 Wn. App. at 261.

Petitioners have not alleged and did not present any evidence that Marsh

was the recipient of an inter vivos gift from Richard. As such, the law concerning

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inter vivos gifts, including McCutcheon’s discussion of the issue, has no

application in this case.

Here, the Petitioners made no effort to present evidence beyond the

alleged fiduciary relationship between Marsh and Richard. Thus, even had

Petitioners presented evidence of a fiduciary relationship, there is no evidence to

support a claim that Marsh engaged in “financial exploitation” of Richard, as

defined by statute. The trial court did not err by dismissing Petitioners’

declaratory judgment claim against Marsh.

V

Petitioners, the personal representative, and Marsh all request an award

of attorney fees pursuant to RCW 11.96A.150. This statute permits us to award

fees to any party in a TEDRA action as we deem equitable. RCW

11.96A.150(1). It is not a requirement that a party substantially prevail to be

awarded fees. In re Est. of Mower, 193 Wn. App. 706, 728, 374 P.3d 180 (2016).

Nonetheless, “[t]he touchstone of an award of attorney fees from the estate is

whether the litigation resulted in a substantial benefit to the estate.” In re Est. of

Black, 116 Wn. App. 476, 490, 66 P.3d 670 (2003), aff’d, 153 Wn.2d 152, 102

P.3d 796 (2004).

At this time, there has been no demonstrated benefit to the estate or to

any party. This is true even as to Marsh, as he still may inherit nothing should

Scott and Mary Anne succeed in invalidating the 2014 will. We exercise our

discretion to direct the trial court to determine whether an award of fees

(including fees for this appeal) is warranted as to any party when it issues its

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ultimate resolution on the merits.

The personal representative additionally requests an award of fees

pursuant to RCW 11.48.050. This statute states that the personal representative

“shall be allowed all necessary expenses in the care, management, and

settlement of the estate.” For the personal representative to be awarded fees

pursuant to this statute, there must be evidence that the personal representative

performed their duties in good faith. In re Est. of Shaughnessy, 104 Wn.2d 89,

95, 702 P.2d 132 (1985). As this court does not find facts, we leave this

determination to the trial court.

Affirmed in part, reversed in part.

WE CONCUR:

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