Estate of Stein, In re
| Decision Date | 22 June 1995 |
| Docket Number | No. 16381-1-II,16381-1-II |
| Citation | 78 Wn.App. 251,896 P.2d 740 |
| Court | Washington Court of Appeals |
| Parties | In re the ESTATE OF Nicholas A. STEIN, Deceased. Jack K. STEIN, Appellant, v. Christopher WELCH, personal representative; John Stein; and Tami Stein, Respondents. |
Thomas Cline, Seattle, for appellant.
William Delmar Robison, Morse & Bratt, Vancouver, for respondents.
Jack K. Stein appeals from a summary judgment in favor of his children, John Stein and Tami Stein, barring from probate a document Jack asserts is the 1987 will of Nicholas A. Stein. We reverse and remand.
The decedent, Jack's father and John and Tami's grandfather, died in Clark County on August 23, 1987, leaving an estate valued at over $3,000,000. A few days after the decedent's death, Jack filed a will dated March 17, 1987 in Multnomah County, Oregon, which was admitted to probate. The order admitting the will to probate declared that this 1987 will was the last will and testament of the deceased. The period wherein a challenge could have been made by John and Tami to contest the will then lapsed. Respondents assert that although assets were transferred from Washington to Oregon after his death, Nicholas Stein owned no assets in Oregon at the time of his death.
On March 7, 1988, a petition to probate a will dated July 3, 1984, was made to the Superior Court of Clark County, Washington, and the court ordered the 1984 will admitted to probate. This order declared that the 1984 will was the last will and testament of the deceased. Thereafter, Jack had 4 months during which he could have brought a will contest, but did not. The 1987 will is more favorable to Jack, while the 1984 will is more favorable to John and Tami.
In Washington, Christopher Welch, Jack's stepson-in-law, was appointed as the personal representative of the Washington probate. Meanwhile, Oregon appointed Jack as the personal representative of the 1987 will. Oregon later replaced Jack as personal representative with Richard E. Paul, who in October 1988 petitioned Oregon to close probate proceedings and transfer all assets to Washington. On November 30, 1988, Oregon approved the final accounting of the estate and ordered the following:
IT APPEARING TO THE COURT, That at the time of his death said NICHOLAS A. STEIN was a resident and inhabitant of the State of Washington, as more particularly appears in the affidavit of Christopher D. Welch, on file herein; that as the estate of said decedent should properly be probated in the State of Washington rather than the State of Oregon, a final account was filed herein;
....
IT IS FURTHER ORDERED, That the residue of said estate be paid and distributed to CHRISTOPHER D. WELCH, personal representative of the Estate of NICHOLAS A. STEIN, deceased, in the State of Washington, for final settlement and distribution as may be determined by the Courts of that State.
No further action took place in Oregon.
Nearly a year later, in August 1989, Washington personal representative Welch petitioned the Washington court for instructions, alleging he was uncertain as to which will was the last will of the decedent. On December 20, 1989, Jack challenged the 1984 will in Washington in a "Motion to Revoke and Annul Will and Probate".
Recognizing the confusion surrounding the two wills, on December 22, 1989, Clark County Superior Court Judge Robert Harris entered an "Order Requiring Action On Will". This order required Welch to "procure from Oregon Circuit Court an exemplified copy of the 1987 Will and enter it of record in this proceeding for the Will". Judge Harris also ordered
Any person or persons desiring the probate and execution of the 1987 Will, or any other document purporting to be the last will and testament of the decedent, Nicholas A. Stein, shall have four months from the date of first publication of the notice or four months after the date of filing of a copy of a said published notice with the clerk of this court, which ever is later, within which to make written petition to this court (a) for the probate of the 1987 Will, (b) for the probate of any other will or (c) for a contest of the validity of any will.
On January 5, 1990, Welch filed an exemplified copy of the 1987 will in Washington. On March 14, 1990, within 4 months of Judge Harris's order, Jack filed in Washington a "Petition for Admission of Will to Probate Pursuant to RCW 11.20.020" for the admission of the 1987 will to probate. Jack's petition did not, however, contest the 1984 will. A few days later, John and Tami filed a petition in Washington contesting the 1987 will and requesting that the court declare the 1987 will null and void.
A year passed with apparently no action on this case. Then, on March 26, 1991, John and Tami moved for summary judgment, arguing that the 1987 will was time-barred under RCW 11.28.340. Jack filed a cross-motion for summary judgment, arguing that Oregon--through the order admitting will to probate, which was not challenged by John and Tami--established the 1987 will as decedent's last will. He contended that the Oregon decision was binding on all parties to the Washington probate proceeding under the full faith and credit clause of the United States Constitution.
On July 30, 1992, Superior Court Judge Ted Kolbaba granted John and Tami's summary judgment motion. Jack then appealed to this court.
In reviewing a summary judgment, an appellate court engages in the same analysis as the trial court: a motion for summary judgment is properly granted if the moving party shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The appellate court considers the facts in the light most favorable to the nonmoving party. 1
Jack argues that Judge Kolbaba erred in granting John and Tami's summary judgment motion because the court was without authority to overrule a previous order admitting the 1987 will to probate. Jack contends that "[t]he summary judgment at issue in this appeal was entered thirty-one months after the order expressly permitting probate of the 1987 will" and that Judge Kolbaba lacked authority to review an order by Judge Harris and set the order aside. John and Tami respond that the 1987 will "has never been presented or admitted by the trial court for probate".
There is a conflict between the orders of Judges Harris and Kolbaba. To understand the conflict, a careful examination must be made of both the chronology of events and the applicable statutes.
First, in March 1988, a petition was filed to admit the 1984 will to probate in Washington, with notice being sent out to all interested parties. Jack apparently did nothing in response to this notice.
Second, on December 22, 1989, Judge Harris issued an order, reproduced in part above, which gave all parties 4 months to petition the court to probate the 1987 will or to contest any will within the 4-month period allowed under RCW 11.28.340. On March 20, 1990, within the 4-month period allowed by Judge Harris in his order, Jack petitioned Washington for probate of the 1987 will.
Third, in July 1992, Judge Kolbaba granted John and Tami's summary judgment motion, effectively overruling Judge Harris's December 1989 order. Judge Kolbaba ruled that Jack's petition to probate the 1987 will was untimely for two reasons. Judge Kolbaba found Jack's petition to probate the 1987 will was brought after the 4-month period prescribed by RCW 11.28.340 and thus he was barred from asserting that will. Judge Kolbaba's reasoning was based upon the fact that Washington probate began in March 1988, notice was sent to Jack, and Jack failed to do anything in response to the notice.
Alternatively, Judge Kolbaba also found that under the court's broad powers bestowed by RCW 11.96.020, Jack's petition was untimely because the petition "was brought outside the four month period following notice of this probate proceeding and outside the four month period after termination of the Oregon Probate proceeding". Thus, Judge Kolbaba ignored Judge Harris's order, went back to the beginning of the Washington proceeding and the end of the Oregon proceeding, and found Jack's petition to be untimely.
The first issue raised is whether Jack's petition for probate of the 1987 will was timely or whether it was time-barred by RCW 11.28.340. RCW 11.28.340 furnished the primary basis for Judge Kolbaba's decision. While RCW 11.24.010 authorizes any interested person to contest the probate or rejection of a will if the person petitions the court within 4 months following the order admitting a will to probate or rejection, RCW 11.28.340 authorizes any interested party to offer a later will for probate:
Unless, within four months after the entry of the order adjudicating testacy or intestacy and heirship, and the mailing or service of the notice required in RCW 11.28.330 any heir, legatee or devisee of the decedent shall offer a later will for probate or contest an adjudication of testacy in the manner provided in this title for will contests, or offer a will of the decedent for probate following an adjudication of intestacy and heirship, or contesting the determination of heirship, an order adjudicating testacy or intestacy and heirship without appointing a personal representative to administer a decedent's estate shall, as to those persons by whom notice was waived or to whom said notice was mailed or on whom served, be deemed the equivalent of the entry of a final decree of distribution in accordance with the provisions of chapter 11.76 RCW for the purposes of:
(1) Establishing the decedent's will as his last will and testament and persons entitled to receive his estate thereunder[.]
The "notice of adjudication of testacy" must include: (1) a statement that an order from a Washington superior court adjudicating that the decedent died testate was made, and (2) a copy of the will along with a...
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