Estate of Burton v. Didricksen

• Decision Date: 18 August 2015
• Docket Number: No. 46441–1–II.,46441–1–II.
• Citation: 189 Wash.App. 630,358 P.3d 1222
• Parties: In the Matter of the ESTATE of Ray Merle BURTON, Victor White, Appellant, v. Richard DIDRICKSEN, Respondent.
• Court: Washington Court of Appeals

189 Wash.App. 630

358 P.3d 1222

In the Matter of the ESTATE of Ray Merle BURTON, Victor White, Appellant

v.Richard DIDRICKSEN, Respondent.

No. 46441–1–II.

Court of Appeals of Washington, Division 2.

Aug. 18, 2015.

Karol Whealdon–Andrews, Andrews Law Office, PLLC, Fircrest, WA, for Appellant

Todd Matthew Blodgett, Eisenhower Carlson PLLC, Tacoma, WA, for Respondent

Tanya Marie Pemberton, Attorney at Law, Tacoma, WA, Rebecca Kaye Reeder, Faubion Reeder Fraley & Cook PS, Lakewood, WA, for Other Parties

Opinion

MAXA, P.J.

¶ 1 Victor White appeals the trial court's order declaring that Ray Burton died intestate. RCW 11.12.020(1) states that wills must be signed by the testator and attested by two witnesses to be valid. White submitted evidence that Burton drafted and signed a document leaving his entire estate to White. The document was signed by one witness, but subsequently was lost. Burton later drafted a second, purportedly similar, document leaving his entire estate to White. That document was signed by a different witness. Richard Didricksen, Burton's legal heir, challenges the validity of the document under RCW 11.12.020(1). White argues that because two witnesses attested to Burton's testamentary intent to leave his estate to White, the documents together constituted a validly executed will under both strict compliance and substantial compliance theories.

¶ 2 We hold that Burton's testamentary documents do not constitute a valid will because Burton did not strictly comply with the requirement in RCW 11.12.020(1) that two witnesses attest to a will. We also hold that even assuming the substantial compliance doctrine applies to RCW 11.12.020(1), Burton did not substantially comply with the attestation requirement. Accordingly, we affirm the trial court's order declaring that Burton died intestate.¹

FACTS

¶ 3 Burton was a successful businessman with substantial assets, including two gold mines and a number of collectible cars. He allegedly was estranged from his living relatives and considered himself without family. Beginning in 2011, White helped the elderly Burton with a variety of tasks around his home. At some point, Burton allegedly began to prepare White to take over his business dealings after he died. Burton was hospitalized for pneumonia in 2013, and after his release White became his caretaker. Burton also received home nurse visits, and later hospice care. Throughout this time, Burton apparently had no will.

¶ 4 Shortly before he died, Burton handwrote and signed a document in red ink that was witnessed and signed by Lisa Erickson, a nurse. Erickson stated in a declaration that the document was for the purpose of Burton leaving his property to White. However, Erickson provided no testimony regarding the actual language used in that document, and she does not know what happened to the document.

¶ 5 The day before he died, Burton handwrote another testamentary statement, again in red ink, on a blank portion of a preprinted healthcare directive form. He apparently needed some assistance from another nurse, Shirley Outson, to complete the writing. The final statement, which is difficult to read, appears to state:

Thank ^{[ 2 ]} Victor White remain my caretaker till I go to sleep/die. The transfer of Gold Mines Montecarlo and Black Hawk One, all my collector cars and real estate located at 36619 Mountain Hwy E, Eatonville, WA 98320. I wish all my worldly possessions to go to Victor White.

Clerk's Papers at 13. Burton signed the form below the statement, as did Outson. But no other witness signed the document.

¶ 6 Burton died on January 25, 2014. White petitioned the trial court to recognize Burton's statement on the healthcare directive form as his will and to name White as personal representative of Burton's estate. Didricksen, Burton's cousin and legal heir, moved for an order declaring that Burton died intestate. The trial court granted Didricksen's motion, finding that Burton had not executed a valid will and therefore had died intestate. White moved for reconsideration, which the trial court denied. In denying White's motion for reconsideration, the trial court noted that White was free to pursue other legal remedies.

¶ 7 White appeals the trial court's order declaring that Burton died intestate and its denial of his motion to reconsider that order.

ANALYSIS

A. Strict Compliance with Two Witness Requirement

¶ 8 White argues that the trial court erred by concluding that Burton died intestate because Burton complied with the requirements of RCW 11.12.020(1) and executed a valid will by creating two equivalent documents, each witnessed by a different person. We disagree.³

1. Standard of Review

¶ 9 White challenges the trial court's legal conclusion that Burton's testamentary documents did not comply with RCW 11.12.020(1). We review a trial court's conclusions of law de novo.

In re Estate of Jones, 152 Wash.2d 1, 8–9, 93 P.3d 147 (2004). We also review questions of statutory interpretation de novo. Id.

¶ 10 If the plain meaning of a statute is unambiguous, we apply that plain meaning as an expression of legislative intent without considering extrinsic sources. Jametsky v. Olsen, 179 Wash.2d 756, 762, 317 P.3d 1003 (2014). We give words their usual and ordinary meaning and interpret them in the context of the statute in which they appear. Lake v. Woodcreek Homeowners Ass'n, 169 Wash.2d 516, 526, 243 P.3d 1283 (2010).

2. No Strict Compliance

¶ 11 RCW 11.12.020(1) requires that a will meet three basic formalities:

Every will shall be [1] in writing [2] signed by the testator or by some other person under the testator's direction in the testator's presence, and shall be [3] attested by two or more competent witnesses, by subscribing their names to the will, or by signing an affidavit that complies with RCW 11.20.020(2), while in the presence of the testator and at the testator's direction or request.

(Emphasis added).⁴ Attestation by two witnesses always is required, and Washington does not recognize “holographic” wills.⁵ In re Brown's Estate, 101 Wash. 314, 317, 172 P. 247 (1918).

¶ 12 White argues that the healthcare directive document is a valid will that complies with the two witness requirement. But that document was signed by only one witness. Therefore, on its face the document does not comply with RCW 11.12.020(1).

¶ 13 However, White argues that two witnesses did attest to Burton's will. White claims that they attested to the will in counterparts, separately signing two counterpart documents describing the same testamentary gift. White notes that nothing in RCW 11.12.020(1) prohibits executing a will in counterparts and that no Washington cases address this situation.

¶ 14 Even if we assume that witnesses can attest to a will in counterparts, the facts here show that Burton's witnesses did not sign counterpart documents. A “counterpart” is “one of two corresponding copies of a legal instrument;” a synonym is “duplicate.” Webster's Third New Int'l Dictionary, 520 (2002). Here, there is no evidence that Burton prepared duplicative copies of any testamentary document. The witnesses stated that the two handwritten testamentary documents both left Burton's entire estate to White, but neither witness stated that the documents were identical. Having one witness sign one testamentary document and having another witness sign a different testamentary document does not constitute signing one document in counterparts.

¶ 15 White also argues that the two documents must be viewed as a single integrated document that was signed by two witnesses. However, even if we assume that these documents somehow formed a single will, there were no witnesses that signed that will. Erickson and Outson each signed a portion of the will, but neither witnessed the “integrated” document.

¶ 16 Without evidence that two witnesses signed the same document, or at least identical duplicates of that document, White cannot show that Burton complied with RCW 11.12.020(1). Because only one witness signed the healthcare directive document—the only testamentary writing signed by Burton in the record—we hold that Burton did not strictly comply with the two witness requirement in RCW 11.12.020(1).

B. Substantial Compliance

¶ 17 White argues that even if Burton did not strictly comply with the two witness requirement in RCW 11.12.020(1), we should conclude that he executed a valid will because he substantially complied with that requirement. We disagree.

1. Legal Principles

¶ 18 Under the substantial compliance doctrine a party complies with statutory requirements by “satisfaction of the substance essential to the purpose of the statute.” Crosby v. Spokane County, 137 Wash.2d 296, 302, 971 P.2d 32 (1999) ; accord In re Santore, 28 Wash.App. 319, 327, 623 P.2d 702 (1981). Courts may invoke the doctrine where a party has “substantially complied with the requirements crucial to the underlying design intended by the legislature.” Murphy v. Campbell Inv. Co., 79 Wash.2d 417, 422, 486 P.2d 1080 (1971). However, some statutes are not susceptible to substantial compliance. See, e.g., Medina v. Pub. Utility Dist. No. 1 of Benton County, 147 Wash.2d 303, 317–18, 53 P.3d 993 (2002) (failure to comply with a statutory time limitation cannot be considered substantial compliance with the statute).

2. Substantial Compliance and RCW 11.12.020(1)

¶ 19 Washington courts have not applied the substantial compliance doctrine to the requirements of RCW 11.12.020(1). The only Washington case that even mentions substantial compliance with regard to RCW 11.12.020(1) is In Re Estate of Ricketts, 54 Wash.App. 221, 773 P.2d 93 (1989). In that case, the two witnesses to a will codicil did not subscribe their names to the codicil, but instead signed an affidavit that was stapled to it. Id. at 221, 773 P.2d 93. It was undisputed that this procedure did not strictly conform with the requirements of the version of RCW 11.12.020(1) then in effect.⁶ Id. at 222, 773 P.2d 93. But the proponent of the will cited...