Burroughs v. Estate of Burroughs (In re Estate of Burroughs)

Decision Date01 February 2021
Docket NumberNo. 79737-9-I,C/w No. 80930-0-I,C/w No. 80757-9-I,79737-9-I
PartiesIn the Matter of the Estate of JOSEPH P. BURROUGHS, Deceased. SAMUEL PATRICK BURROUGHS, Appellant/Cross Respondent, v. ESTATE OF JOSEPH BURROUGHS; and JENNIFER GORDON, as Personal Representative of the Estate of Joseph Burroughs, Respondents/Cross Appellants, DAVID BOWERS, STAN BOWERS, CURT BOWERS, and CYNTHIA BOWERS, Defendants.
CourtWashington Court of Appeals


BOWMAN, J.Samuel Burroughs contested probate of his father's will under both the Trust and Estate Dispute Resolution Act (TEDRA), chapter 11.96A RCW, and the will contest statutes, chapter 11.24 RCW, alleging that his father had revoked the will. The trial court admitted the will to probate and dismissed Burroughs' will contest under TEDRA. A different trial judge granted summary judgment on Burroughs' chapter 11.24 RCW will contest. The personal representative (PR) of the estate appeals the summary judgment order, asserting that Burroughs' chapter 11.24 RCW will contest was time barred and precluded as res judicata. The PR also argues that the court erred in admitting evidence barred by the attorney-client privilege, insufficient evidence supports the court's determination that the deceased revoked his will, and the court erred by removing the PR pending appellate review. We affirm the court's order granting summary judgment in favor of Burroughs, but remand to vacate the order removing the PR and to appoint a successor PR.


Joseph Burroughs executed a "Last Will and Testament" (Will) on April 6, 2011. He left $50,000 to his only child, Samuel Burroughs, and the residual of the estate to his wife, Cynthia Marie Burroughs. Joseph1 appointed Cynthia as the PR of his estate and Cynthia's sister, Jennifer Gordon, as an alternate PR. The Will provided that if Cynthia predeceased Joseph, equal shares of "all property that would otherwise go to her" went to Samuel and Cynthia's four siblings, Gordon, David Bowers, Stan Bowers, and Curt Bowers.

Joseph and Cynthia divorced in January 2015. Despite the dissolution, Cynthia kept the original 2011 Will.

On May 17, 2018, Joseph met with attorney Nancy Ivarinen to prepare a new Will. Joseph told Ivarinen that he wanted to revoke his 2011 Will and leave his entire estate to Samuel. He also appointed Samuel as the PR of his estate.2Ivarinen prepared a new Will and mailed a copy to Joseph. On June 12, 2018, Joseph called Ivarinen's office and approved the draft of the new Will. He scheduled an appointment for June 15, 2018 to execute the new Will. Joseph died on June 15, 2018, before he could sign the new Will.

After Joseph died, Samuel found a signed draft of the 2018 Will while cleaning his father's house. Samuel also found a document, signed by Joseph on April 6, 2015, designating Samuel as the primary beneficiary for Joseph's AssetMark Trust Company IRA.3

On July 20, 2018, Ivarinen filed a "Petition for Letters of Administration," informing the court that Joseph's estate should pass intestate because Joseph revoked his 2011 Will on May 17, 2018. The court agreed and appointed Samuel as the PR of Joseph's estate.

On September 18, 2018, Gordon filed a "Petition for Probate of Testate Estate," asking the court to admit Joseph's 2011 Will to probate and appoint her as PR of Joseph's estate.4 Gordon argued that the court should admit the 2011 Will to probate because "no admissible evidence of will revocation is before this court." The court scheduled a probate hearing for October 5, 2018.

The day of the probate hearing, Samuel filed a TEDRA petition, requesting a hearing to determine whether Joseph revoked his 2011 Will and asking the court to declare Joseph's AssetMark IRA a nonprobate asset to which Samuel is entitled as the designated beneficiary.

Samuel also filed a declaration from Ivarinen. In the October 1, 2018 declaration, Ivarinen said that Samuel's attorney advised her that "the PR . . . has waived Joseph Patrick Burroughs' attorney-client privilege." Ivarinen explained that Joseph retained her "to assist him in preparing a new Last Will" and that she prepared the new Will as he instructed. She said Joseph "made it clear to me that he wanted his son, Samuel Patrick Burroughs, to get all his estate upon his death." Ivarinen attached a copy of an unsigned draft of the new Will to her declaration.

At the October 5 probate hearing, Samuel argued that the court should set a fact-finding hearing to determine whether Joseph revoked his 2011 Will. The court did not set a hearing. Instead, it concluded that Joseph's 2011 Will "meets all of the requisites to establish the validity of a will under RCW 11.12.020" and that "Samuel has failed [to] establish by clear, cogent and convincing evidence that the Will had been revoked." The court admitted the 2011 Will to probate. It also revoked the letters of administration previously issued to Samuel and appointed Gordon as the successor PR with nonintervention powers.

Samuel filed a motion for reconsideration of the court's October 5 order admitting the 2011 Will to probate, revoking the letters of administration to Samuel, and appointing Gordon as PR of Joseph's estate. In support of the motion, Samuel filed a second declaration from Ivarinen. In that declaration, Ivarinen explained that Joseph gave her a copy of his 2011 Will at their May 2018 meeting. She said Joseph instructed her to revoke the 2011 Will, so she "wrote on the copy of the old Will, 'revoked' and placed [her] initials next torevoked." Ivarinen attached the described copy of the 2011 Will with the "revoked" notation to her second declaration.

Ivarinen's paralegal Chellie Anderson also filed a declaration stating that she was present at the May 2018 meeting between Ivarinen and Joseph. Anderson said that she later had a telephone conversation with Joseph in June and he told her that the draft of the 2018 Will "was consistent with his instructions and intentions." Both Ivarinen and Anderson said they believed Joseph was competent to make and revoke his Will.

Gordon on behalf of the Estate of Joseph P. Burroughs (collectively the Estate) moved to strike the second declaration of Ivarinen "based on attorney-client privilege." It argued that Joseph's instructions to Ivarinen are privileged because Gordon is now the PR of Joseph's estate, and she "has not granted any permission or authority to Ms. Ivarinen to disclose any such communications between Decedent and herself and has continued to assert the privilege." The Estate also moved to dismiss Samuel's TEDRA petition as barred by res judicata because he sought to relitigate issues determined at the probate hearing.5 The court scheduled a hearing for November 9, 2018 to address Samuel's motion for reconsideration, the Estate's motion to strike Ivarinen's second declaration, and the Estate's motion to dismiss Samuel's TEDRA petition.

On October 15, 2018, Samuel filed a "Petition for Will Contest" under chapter 11.24 RCW, alleging that Joseph directed Ivarinen to revoke the 2011 Will during their May 17, 2018 meeting; and that "[i]n May and June of 2018, it was the clear intention, of decedent, by signing a new will and by revocation of the 2011 Will, to leave his entire estate to his son." Samuel asked the court to administer the Estate as though Joseph died intestate.

At the November 9 hearing, Samuel asked the court to reconsider its "finding on the will contest before [the will has] even been filed." The trial court consolidated Gordon's probate petition and Samuel's TEDRA petition and continued the matters.

In January 2019, the Estate filed another motion to dismiss Samuel's TEDRA claim and requested that the court award it the funds in Joseph's AssetMark IRA as well. The Estate again argued that the court should bar Samuel's TEDRA challenge as res judicata. In February 2019, the Estate also moved to dismiss Samuel's chapter 11.24 RCW will contest, arguing it was both time barred and foreclosed as res judicata.

On February 1 and February 22, 2019, the court held hearings on Samuel's motion to reconsider its October 5, 2018 order admitting the 2011 Will to probate. The court also considered the Estate's motions to dismiss. Samuel argued that the court should reconsider its order given the additional evidence that Ivarinen revoked the 2011 Will at Joseph's direction by writing "revoked" on a copy of the document. The court disagreed and stated:

The statute says if you're going to revoke it in the — by somebody other than the testator is going to revoke the will, it must be done inthe presence of the testator, and Ms. Ivarinen's declarations never say she was there — that he was there when she did that.

Samuel then explained that "our evidence and responses were stopped by a claim of attorney/client privilege, . . . so we're not able to talk to Ivarinen and get any subsequent declarations and/or from her employees."

The court assured Samuel that "you have a will contest matter going forward under . . . [chapter 11.24 RCW] in which all of that material could be presented." The court told Samuel, "This order does not affect that case." It elaborated that

the only way it's going to affect the other case is if a later judge6 determined that it's res judicata, and that's for a later determination.
This ruling, this ruling is not in the case of the will contest. It doesn't impact the will contest except insofar as it may at some point if it's determined to be res judicata, it may or may not, but you still have the opportunity to present evidence to show that it's otherwise.
. . . .
. . . And that that evidence wasn't before the Court and was not part of the consideration that this Court had. Therefore, it probably wouldn't be res judicata. At least that's how I see it. Another judge may see it differently.

The court entered findings of fact and conclusions of law on February 22, 2019, denying Samuel's motion for reconsideration. The court found Samuel failed...

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