Portmann appeals the trial court's order granting summary
judgment in favor of Sally Herard, acting as personal
representative of the estate of Donald Cross, in his Trust
and Estate Dispute Resolution Act (TEDRA) action. Portmann
initiated the TEDRA action to specifically enforce the
distribution of the remainder of the estate in Cross's
1998 will and to invalidate inconsistent portions of
Cross's 2010 will.
issue in this case is whether Cross and his life partner Glen
Morse agreed to execute "mutual wills" in 1998 that
became irrevocable after Morse's death in 2000. Portmann,
the son of Morse's niece and a beneficiary under
Cross's 1998 will, claims that Cross and Morse had an
oral agreement to execute mutual wills. Herard claims that
there was no agreement to execute mutual wills and that Cross
was free to change his will after Morse's death. The
trial court struck portions of a declaration made by Eric
Pickle, the husband of Cross's niece, about statements
Cross and Morse made to him. The court then ruled that
Portmann had failed to create a genuine question of material
fact regarding the existence of an oral agreement between
Cross and Morse to execute mutual wills.
that (1) the trial court did not err in striking as hearsay
the portion of Pickle's declaration stating that Cross
and Morse had told him that they had agreed to bequeath half
of the survivor's remainder estate to the other's
family members, to the extent that the declaration was
offered to establish the existence of an agreement to execute
mutual wills; and (2) the trial court did not err in granting
summary judgment because the evidence Portmann submitted did
not create an issue of material fact on whether Cross and
Morse entered into an agreement to execute mutual wills.
we affirm the trial court's order granting summary
judgment. We also exercise our discretion under RCW 11.96A.
150 to award attorney fees on appeal to Herard.
and Morse were domestic partners beginning in the 1960s, and
owned multiple properties together. They executed separate
wills with the assistance of attorney Gaylerd Masters in both
1992 and 1995. The wills had similar provisions and generally
provided that upon the death of the testator, the remainder
of the estate would pass to the surviving partner. The wills
also provided that upon the survivor's death, the
remainder of the survivor's estate would be divided
between Cross's family members and Morse's family
January 1998, Cross executed a revised will that Masters
drafted. The will provided that if Morse predeceased Cross,
certain specific distributions would be made and the reminder
of the estate would be distributed one-fourth to Cross's
sister Herard, one-fourth to Cross's sister Donna Waiter,
and one-half equally among Morse's sister Minnie
Campbell, Campbell's daughter Darlene Portmann, and
Portmann's sons Eric and Frank.
same day that Cross executed his revised will, Masters also
had drafted a revised will for Morse. But Morse wanted to
think more about the beneficiaries of his will, and so he did
not execute a revised will at that time.
September 1998, Morse executed a revised will that Masters
again drafted. This will was different than the draft will
Masters had prepared in January 1998. The will made specific
bequests to Campbell, Darlene, Eric and Frank, and left the
remainder of the estate to Cross. If Cross predeceased Morse,
the will provided a specific bequest of paintings and
sculptures and that the remainder would be divided one-half
equally among Campbell, Darlene, Eric and Frank, and one-half
equally between Herard and Waiter.
Death and Cross's Revised Wills
died in 2000. His property was distributed according to the
bequests in his 1998 will, under which Cross received the
remainder of the estate after the specific distributions.
executed revised wills in 2002 and 2005, each reducing the
size of the bequests to Morse's family. In October 2010,
Cross executed another revised will that left his entire
estate to Herard, with no bequests to any of Morse's
family members. Masters drafted all of these wills.
died in 2015, and his October 2010 will was admitted to
filed a TEDRA petition against Herard, as the personal
representative of Cross's estate, to specifically enforce
Cross's 1998 will. Portmann alleged that Cross and Morse
agreed with each other that if one predeceased the other, the
survivor would divide the remainder of the survivor's
estate between their two families, and that their 1998 wills
were an expression of this agreement. Portmann claimed that
the 1998 wills were mutual wills that could not be
unilaterally revoked. He sought an order directing Herard to
distribute Cross's estate in accordance with the 1998
moved for summary judgment. In support of her motion, Herard
presented a declaration by Masters. Masters stated that he
discussed the concept of mutual wills with Cross and Morse.
He also stated that if Cross and Morse had told him that they
wanted a mutual will, he would have included language to that
effect in the wills and would not have agreed to draft
revised wills for Cross after Morse's death.
After updating their wills several times and hearing their
different intentions each time, I am absolutely sure that
they did not intend to prepare mutual wills. They were very
adamant and it was important to each of them to be free to do
as they pleased with their resources - especially after one
of them passed away. Neither of them made any statements that
they wanted mutual wills or wanted to enter into a contract
not to change their wills.
Clerk's Papers (CP) at 112. Masters concluded that
"I am sure that Mr. Morse and Mr. Cross never had any
intent to lock each other into mutual wills." CP at 113.
response, Portmann submitted several declarations, including
a declaration by Pickle, the husband of Waiter's daughter
Sherrie (Cross's niece). Pickle stated that he and his
wife were close to Cross and Morse, and that Pickle had
reviewed Cross's 1998 will. Pickle stated:
In subsequent conversations, [Cross] and [Morse] emphasized
to Sherrie and me the fundamental feature of their agreement
in their plan: half of the survivor's estate going to the
other's family members. Both men told us that this was
254. Pickle concluded that ever since Cross made a new will
in January 1998,
[I]t has always been clear in my mind that [Cross] and
[Morse] had a well-thought-out end-of-life plan. Each partner
would leave his estate to the other, and the survivor would
be free to use the money and property as he wished. Upon the
survivor's death, the remainder of the estate would be
divided in half, ...