Cassell v. Portelance (In re Estate of Finch)

• Decision Date: 03 December 2012
• Docket Number: No. 67195-2-I,67277-1-I,67195-2-I
• Court: Washington Court of Appeals
• Parties: In the Matter of the Estate of DAVID DANIEL FINCH. RHODA CASSELL, individually, and as Personal Representative of the ESTATE OF DAVID FINCH, Appellant, v. DOUGLAS A. PORTELANCE, MD; and EASTSIDE INTERNAL MEDICINE, PLLC, a Washington corporation, Respondents.

In the Matter of the Estate of DAVID DANIEL FINCH.RHODA CASSELL, individually, and as Personal Representativeof the ESTATE OF DAVID FINCH, Appellant,

v. DOUGLAS A. PORTELANCE, MD; and EASTSIDE INTERNALMEDICINE, PLLC, a Washington corporation, Respondents.

No. 67195-2-I

67277-1-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

FILED: December 3, 2012

PUBLISHED OPINION

Becker, J. — A defendant in a wrongful death suit obtained an order vacating the appointment of the personal representative. The court then dismissed the wrongful death suit with prejudice, reasoning that the personal representative did not have the right to pursue the wrongful death suit at the time she filed it, and the statute of limitations had since expired. We reverse. The wrongful death defendant lacked standing to attack the probate court's order.

Dr. Douglas Portelance is the wrongful death defendant and therespondent in this appeal. Dr. Portelance saw David Finch several times in 2004 and again in 2006. Finch complained of rectal bleeding. Dr. Portelance told Finch the bleeding was due to hemorrhoids and not to worry about it. In July 2006 a different doctor diagnosed Finch with terminal colorectal cancer.

Finch and his wife Rhoda Cassell met with an attorney to discuss bringing a malpractice action against Dr. Portelance. They asked a second attorney to prepare a will. The attorney prepared a draft of a will and e-mailed it to Cassell on August 27, 2007. That same day, Cassell asked two neighbors to come over and witness the will signing. Finch was very weak. He died of colon cancer on September 2, 2007, at age 50, a little over a year after being diagnosed.

In November 2008, the court admitted Finch's will to probate. The will declared Cassell the sole beneficiary of Finch's estate and named her personal representative. The probate court appointed Cassell personal representative with nonintervention powers.

In December 2008, Cassell sued Dr. Portelance for wrongful death, individually and also as personal representative of the estate, alleging that Dr. Portelance committed medical malpractice by failing to diagnose the colon cancer.

Four days before the wrongful death trial was scheduled to begin in September 2010, Dr. Portelance moved to dismiss the suit on the basis that the will appointing Cassell personal representative was a fraud. As evidence of fraud, Dr. Portelance provided a hospice nurse's notation from August 27, 2007, the day Finch allegedly signed the will.The notation described Finch's mental status as "comatose." The trial judge granted a continuance to permit Dr. Portelance to investigate and address the issue with the probate court.

Dr. Portelance deposed the two neighbors who witnessed the will and the family friend who served as notary public. They admitted they had not actually seen Finch sign the will. Dr. Portelance also obtained a sworn declaration from the nurse. She reiterated that Finch was comatose and heavily medicated when she saw him. With this evidence in hand, Dr. Portelance moved in the probate court for permission to intervene in the probate. He asked the court to vacate the order that appointed Cassell as personal representative because it was based on a will that had not been signed by a testator with the requisite mental capacity.

Cassell responded that Dr. Portelance's motion was a poorly disguised will contest that he had no standing to bring and for which the four-month limitation period in RCW 11.24.010 had long since passed. Cassell denied the allegations of fraud, but she did not initially supply sworn declarations or other evidence. Dr. Portelance replied that Cassell's lack of evidence was "very telling" and it showed there was "no actual dispute that Mr. Finch was comatose" on the date of the will signing. He hinted at some conflict between Cassell and Finch's family and suggested that she had obtained a fraudulent will for self-serving purposes.

At a hearing, Cassell argued that the witnessing error was unintentional, a lay person's mistake. She submitted herown sworn declaration explaining that the witnesses did not want to go in to the room where her husband lay on his deathbed, so she alone took the will into the room for him to sign while they waited in the adjoining room. Declarations by Finch's parents stated that they had talked to Finch numerous times during the week before he died and that he understood what they were saying and responded appropriately. They said that "the whole family" supported Finch's choice of Cassell to handle his estate. Cassell submitted sworn affidavits from each of Finch's heirs consenting to her appointment as personal representative and waiving notice of any hearings relating to her appointment. She continued to argue that Dr. Portelance had no standing to challenge her appointment under the will.

The will contest statute permits "any person interested in any will" to petition for a determination of issues "respecting the competency of the deceased to make a last will and testament, or respecting the execution by a deceased of the last will and testament under restraint of undue influence or fraudulent representations, or for any other cause affecting the validity of the will or a part of it." RCW 11.24.010. The probate judge decided that Dr. Portelance was a "person interested" in Finch's will within the meaning of the statute because his position as defendant in the wrongful death suit gave him an interest in challenging Cassell's appointment as personal representative. The judge did not make a finding of fraud, but he was persuaded that the witnesses had not properly witnessed the will, that the willwas therefore invalid, and that the order appointing Cassell as personal representative under the will was also invalid.

At the same hearing, the probate judge determined that Cassell could validly be appointed personal representative as Finch's surviving spouse. SeeRCW 11.28.030; RCW 11.68.011(2)(b). He issued a new order reinstating Cassell as personal representative by operation of statute. Cassell immediately signed and filed with the court a document ratifying all of her previous actions as personal representative.

The judge who was presiding over the wrongful death trial then held a hearing on the impact of the probate court's orders. The trial judge determined that the probate court had nullified its original order appointing Cassell as personal representative, and therefore any actions taken by Cassell pursuant to that order—including filing the wrongful death suit—were likewise null and void. The trial judge concluded that because the deadline for filing suit under the three-year statute of limitations had passed by the time the probate court reinstated Cassell as personal representative, the suit could not be refiled. The result was an order dismissing the wrongful death suit with prejudice.

Cassell assigns error to the probate judge's decisions permitting Portelance to intervene in the probate and removing Cassell as personal representative, and the trial judge's decision to dismiss the wrongful death case.

1. Standing to bring a will contest

A trial court's interpretation of a probate statute is a question of law reviewed on appeal de novo. In re Estate of Jones, 152 Wn.2d 1, 8-9, 93 P.3d 147 (2004). A court may treat a motion as a will contest, even where the petitioner styles it otherwise. See, e.g., In re Estates of Palmer, 146 Wn. App. 132, 137-38, 189 P.3d 230 (2008). Although Dr. Portelance denied that his motion to intervene was an attempt toinitiate a will contest, the probate judge treated it as a will contest governed by RCW 11.24.010. A will contest is the proceeding in which a court determines issues "affecting the validity of the will." RCW 11.24.010. Dr. Portelance based his motion on "technical deficiencies" affecting the validity of the will:

What we're here to do is to point out that the appointment of Ms. Cassell as PR was facially invalid. It was void. It remains void for a number of reasons. . . . There were many technical deficiencies.

Number one, by all evidence . . . Mr. Finch was not of sound mind and body. He was incompetent and could not have signed a will . . . .

. . .

Then I looked at his signature, which is not really a signature. . . .

. . .

. . . an invalid attempt to make a will was made. There were no witnesses to the will. We took their depositions. No one saw the signature.

If no one saw the signature, the will is invalid.

(Emphasis added.) These allegations—that Finch lacked the capacity to make a will on the day he signed it, that he had not signed the will, and that the will was not properly witnessed—are precisely what a court considers in a will contest under RCW 11.24.010. The judge did not err by treating Dr. Portelance's motion as a will contest. The judge did err, however, in concluding that Dr. Portelance was a proper will contestant.

A will contest can by initiated only by a person "interested" in the will. RCW 11.24.010. The judge erroneously ruled that the term "interested" was broad enough to include Dr. Portelance's interest, as a wrongful death defendant, in establishing that Cassell was not lawfully serving as the estate's personal representative when shecommenced the suit against him.¹ Only an individual who possesses a "direct, pecuniary interest" in the devolution of the testator's estate may contest a will. In re Estate of O'Brien, 13 Wn.2d 581, 591, 126 P.2d 47 (1942) (executor of earlier will who attempted to challenge a later will on grounds of undue influence and lack of testamentary capacity was not authorized to initiate a will contest).

That a person in Dr. Portelance's relationship to the estate has no standing under the probate code to challenge the appointment of the personal representative is confirmed by In re Estate of Upton, 199 Wash. 447, 92 P.2d 210 (1939). In that case, the appellants were individuals who had been sued for wrongful death. They moved to have the...