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In re Estate of Evans

Court of Appeals of Washington, Division 1

May 27, 2014

In the Matter of the Estate of Calvin H. Evans, Sr. Sharon Eaden et al., Respondents,
The Estate of Calvin H. Evans, Sr., Appellant, Lindsay Evans et al., Respondents

Oral Argument April 21, 2014.

Page 756

Appeal from Snohomish Superior Court. Docket No: 11-4-00565-3. Date filed: 03/12/2013. Judge signing: Honorable Thomas J Wynne.

Douglas W. Elston (of Law Offices of Douglas W. Elston ), for appellant.

Lorna S. Corrigan (of Newton Kight LLP ), for respondents Sharon Eaden et al.

Brian C. Dale (of Deno Millikan Law Firm PLLC ), for respondents Lindsay Evans et al.

AUTHOR: Marlin Appelwick, J. WE CONCUR: Linda Lau, J., J. Robert Leach, J.


Page 757

Appelwick, J.

[181 Wn.App. 439] ¶ 1 Washington's antilapse statute, RCW 11.12.110, applies when a beneficiary under a will is deemed to have predeceased the testator, because he or she financially abused the testator under chapter 11.84 RCW. In this case, the testator's intent did not overcome the presumed application of the antilapse statute. The trial court did not abuse its discretion in awarding attorney fees to both competing beneficiary groups and assessing those fees against the Estate. We affirm.


¶ 2 Calvin H. Evans Sr. (Cal Sr.) was born on March 8, 1933. At the time of his death, Cal Sr. was no longer married and had four children: Kenneth Evans, Vicki Sansing, Sharon Eaden, and Calvin H. Evans Jr. (Cal Jr.).[1]

¶ 3 Cal Sr. suffered from a medical condition called polycythemia, which results in a thickening of the blood. He had his first stroke related to the condition in 2000.

¶ 4 In 2003, Cal Sr. purchased a 40 acre ranch in Sultan, Washington. Soon after, he purchased another 70 acre parcel nearby. Cal Sr. requested that Cal Jr. and his family move to the ranch to help care for him. They did so in early 2005.

¶ 5 In March 2005, Cal Sr. was hospitalized for another stroke and was diagnosed with dementia secondary to the stroke. Cal Sr.'s health continued to decline over the course of the year. His teeth began falling out and he lost substantial weight. Cal Jr. observed forgetfulness and memory loss in his father.

¶ 6 While living on the Sultan ranch, Cal Jr. made several large purchases using his father's money. For instance, Cal Jr. used $20,000 of Cal Sr.'s money to purchase a dump truck. He borrowed another $75,000 from his father to [181 Wn.App. 440] make improvements to the ranch. He also spent $15,000 of his father's money to buy a park model mobile home.

¶ 7 On December 28, 2005, Sharon filed a guardianship petition in Snohomish County, alleging that Cal Sr. was incapacitated and needed a guardian. An order appointing a guardian ad litem was entered the same day. Cal Sr. did not want to be subject to a guardianship and was upset with Sharon for filing the petition.

¶ 8 Early in 2006, Cal Jr. and his wife prepared a will for Cal Sr. The will left Cal Sr.'s Sultan ranch and his Cessna airplane to Cal Jr. The will divided Cal Sr.'s remaining real properties equally between Vicki and Kenneth, but not Sharon. It left only $25,000 to Sharon. The residue of Cal Sr.'s estate was to be placed in trust. Every year on the anniversary of his death, the trustee was to disburse $10,000 to Cal Sr.'s children, excluding Sharon, and $5,000 to each of his grandchildren.

¶ 9 The will was witnessed and executed on March 7, 2006. Cal Sr.'s attorney, Charles Diesen, and Diesen's law partner, Carol Johnson, questioned Cal Sr. privately and believed he had testamentary capacity. The will named Diesen as personal representative of the " Estate."

¶ 10 Cal Sr. died on April 5, 2011. By that time, the only real property he still owned was the Sultan ranch. The rest had been sold to pay for his care.

¶ 11 On April 29, 2011, Cal Sr.'s will was filed with the trial court, along with a petition to admit the will to probate and appoint Diesen as personal representative of Cal Sr.'s Estate. The court did so on the same day following an ex parte proceeding.

¶ 12 On July 14, 2011, three of Cal Sr.'s children--Sharon, Kenneth, and Vicki (collectively Eaden)--filed a petition under the Trust and Estate Dispute Resolution Act (TEDRA), chapter 11.96A RCW. Eaden's petition challenged the validity of Cal Sr.'s will and sought a declaration of rights pursuant to RCW 11.84.020. Eaden argued that [181 Wn.App. 441] Cal Sr. lacked testamentary capacity at the time he made the will and was acting under fraudulent

Page 758

representations and undue influence from Cal Jr. Eaden also asserted that Cal Jr. was a financial abuser, because he participated in the willful and unlawful financial exploitation of his father, a vulnerable adult under RCW 74.34.020. Therefore, Eaden argued, Cal Jr. should be treated as predeceased under RCW 11.84.020 and the Estate should pass to Cal Sr.'s three other children.

¶ 13 On May 31, 2012, the trial court upheld the will, denying Eaden's request to declare Cal Sr.'s will invalid due to lack of testamentary capacity and undue influence by Cal Jr. However, the trial court held Cal Jr. to be an abuser under RCW 11.84.010(1), finding that he financially exploited Cal Sr. Therefore, the trial court deemed Cal Jr. to have predeceased Cal Sr. Cal Jr. was accordingly disinherited and ordered to " take nothing from the Estate by devise or legacy, or by laws of descent and distribution." The trial court entered extensive findings of fact and conclusions of law on the same day. That decision was not appealed.

¶ 14 On September 12, 2012, Eaden filed a second TEDRA petition requesting that the trial court not apply Washington's antilapse statute, RCW 11.12.110, in favor of Cal Jr.'s children--Lindsey Evans, Cory Evans, Jesse Evans, and Calvin Evans III. Eaden acknowledged that the antilapse statute would ordinarily apply when a beneficiary predeceases the testator but argued that applying it here would be contrary to Cal Sr.'s testamentary intent. Therefore, Eaden argued that any bequests made to Cal Jr. should pass to the residue of the Estate, rather than to Cal Jr.'s children.

¶ 15 On January 25, 2013, Cal Jr.'s children requested an award of attorney fees, against either Eaden or the Estate. On February 11, 2013, Eaden requested attorney fees under RCW 11.96A.150(1) for the second TEDRA petition. They asked that the fees be assessed against the Estate, because the litigation involved all beneficiaries to the Estate.

¶ 16 [181 Wn.App. 442] On March 12, 2013, the trial court denied Eaden's second TEDRA petition and held that the antilapse statute applied:

3. The slayer/abuser statute, RCW 11.84.020, is clear on its face and does not preclude the issue of the abuser inheriting under the anti-lapse statute;
4. The anti-lapse statute, RCW 11.12.110, is clear on its face and applies to circumstances of financial abuse in the same manner ...

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