Estate of Van Dyke, Matter of, No. 22242-2-I

CourtCourt of Appeals of Washington
Writing for the CourtPEKELIS
Citation772 P.2d 1049,54 Wn.App. 225
PartiesIn the Matter of the ESTATE OF Laverne W. VAN DYKE, Deceased. Gracie L. JONES, Appellant, v. Lily F. NIELSEN; Bonnie Howeiller; Jon Van Dyke; Pennie Smith; Jean Wilson; Kathy Gorham; and Mary Stevens, Respondents.
Decision Date22 May 1989
Docket NumberNo. 22242-2-I

Page 225

54 Wn.App. 225
772 P.2d 1049
In the Matter of the ESTATE OF Laverne W. VAN DYKE, Deceased.
Gracie L. JONES, Appellant,
v.
Lily F. NIELSEN; Bonnie Howeiller; Jon Van Dyke; Pennie
Smith; Jean Wilson; Kathy Gorham; and Mary
Stevens, Respondents.
No. 22242-2-I.
Court of Appeals of Washington,
Division 1.
May 22, 1989.

Page 226

Peter M. Hebert, Theodore M. Rosenblume, Charles Z. Smith & Associates, Seattle, for Gracie L. Jones.

Peters Parsons, Stuart R. Dunwoody, Davis, Wright & Jones, Seattle, for Lilly F. Nielsen, Bonnie Howeiller, Jon Van Dyke, Pennie Smith, Jean Wilson, Kathy Gorham and Mary Stevens.

PEKELIS, Judge.

Gracie L. Jones appeals from the summary judgment dismissal of her will contest [772 P.2d 1050] petition, alleging that the trial court erred in determining that her failure to issue citations to all legatees pursuant to RCW 11.24.020 compelled dismissal of her action as a matter of law. She contends that the trial court should have made a CR 19(b) determination of whether the nonjoined legatees were indispensable parties. We agree and remand for such a determination.

The relevant facts are undisputed. A document alleged to be the Last Will and Testament of Laverne W. Van Dyke was executed on June 6, 1986, and was admitted to probate February 25, 1987, upon the petition of Lily F. Nielsen, executrix. On June 24, 1987, within the 4-month limitation period set forth by RCW 11.24.010, Gracie L. Jones filed a petition to contest Van Dyke's will. In this original petition, no respondents were named and the record does not reflect which, if any, legatees were personally issued citations. Jones filed an amended petition on July 23, 1987, which named all the individual legatees as well as the executrix of the estate as respondents. Jones served 20-day summonses and copies of the amended petition on each of the individual legatees, and on the executrix.

Page 227

However, three charitable institution legatees, Children's Orthopedic Hospital, Salvation Army and Millionair Club were neither named as parties nor issued citations upon the filing of either petition. Jones had sent them copies of her original petition by certified mail, return receipt requested. The return receipts indicate that Salvation Army and Millionair Club received the petition on June 24, 1987. The return receipt for Children's Orthopedic Hospital indicates a mailing date of June 23, 1987 and that Children's Orthopedic Hospital received it, but does not show a receipt date. 1

Each of the three charitable legatees would receive 5 percent of the residue of Van Dyke's estate under the June 6, 1986 will. They would similarly receive 5 percent of the residue under a October 18, 1985 will that Jones asserts is truly Van Dyke's Last Will and Testament. Although the trial court found that because of this their interests would not be directly affected by the outcome of the will contest, it nevertheless concluded that the three charitable institution legatees were necessary parties under RCW 11.24.020 and that Jones' failure to serve them constituted inexcusable neglect precluding a CR 15(c) amendment to her petition. Thus, it dismissed Jones' will contest with prejudice.

Jones contends that RCW 11.24.010 and 020 do not conflict with CR 19. (b). 2 She argues that while RCW 11.24.020 does, in effect, establish the necessary parties under CR 19(a) to a will contest action, it does not decide the question of whether these are indispensable parties under CR 19(b). Thus, Jones seeks a remand to the trial court for a factual determination under CR 19(b) as to whether the

Page 228

legatees who were not issued citations were indispensable parties.

Nielsen responds that RCW 11.24.020, requiring service on all legatees, prevails over CR 19. Alternatively, Nielsen contends that even if the will contest statute does not prevail over the court rule, the unnamed legatees are indispensable parties as a matter of law. Nielsen bases this contention on her claim that there is no guarantee that the October 18, 1985 will would be the one admitted to probate if the June 6, 1986 contested will were found to be invalid. Finally, Nielsen contends that summary judgment should be upheld because there were no genuine issues of material fact on the merits of Jones' allegations. 3

[772 P.2d 1051] In reviewing an order of summary judgment, the appellate court engages in the same inquiry as the trial court. Summary judgment is to be granted only if the record demonstrates that there is no genuine issue as to any fact that is material to the cause of action, Seven Gables Corp. v. MGM-UA Entertainment Co., 106 Wash.2d 1, 12, 721 P.2d 1 (1986), and that the moving party is entitled to judgment as a matter of law. CR 56(c); Sheriffs' Ass'n v. Chelan Cy., 109 Wash.2d 282, 294, 745 P.2d 1 (1987).

We address first the question of interpretation of RCW 11.24.010 and .020. A...

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19 practice notes
  • Estate of Stover v. Simmons, No. 69546–1–I.
    • United States
    • Court of Appeals of Washington
    • December 23, 2013
    ...Rule 6 applies to probate proceedings....” Resp't's Br. at 24. 10. Vaux–Michel's citation to In re Estate of Van Dyke, 54 Wash.App. 225, 772 P.2d 1049 (1989) (remanding will contest petition for determination as to whether nonjoined legatees were indispensable parties under CR 19(b)) is unh......
  • In re Estate of Peterson, No. 24091-2-II.
    • United States
    • Court of Appeals of Washington
    • August 18, 2000
    ...proceedings, and courts "must be governed by the provisions of the applicable statute." In re Estate of Van Dyke, 54 Wash.App. 225, 228, 772 P.2d 1049 (1989). RCW 11.24.010 sets the time period for interested parties seeking to contest wills that have been admitted to probate. The statute p......
  • Estate of Gaines, Matter of, No. 12560
    • United States
    • New Mexico Court of Appeals of New Mexico
    • March 5, 1992
    ...with the mandate of rules of civil procedure regarding party participation. Compare In re Estate of Van Dyke, 54 Wash.App. 225, 772 P.2d 1049 (1989) (Probate Code provision requiring notice to legatees is not inconsistent with necessary party provisions of Rule 19) with In re Estate of Davi......
  • Orwick v. Fox, No. 25603-3-I
    • United States
    • Court of Appeals of Washington
    • April 13, 1992
    ...court concluded that dismissal of action was based on privilege and not CR 19(b)); In re Estate of Van Dyke, 54 Wash.App. 225, 232, 772 P.2d 1049 (1989) (remanding to court for determination of whether legatees were indispensable parties under CR 19(b)); see also Ferguson v. Thomas, 430 F.2......
  • Request a trial to view additional results
19 cases
  • Estate of Stover v. Simmons, No. 69546–1–I.
    • United States
    • Court of Appeals of Washington
    • December 23, 2013
    ...Rule 6 applies to probate proceedings....” Resp't's Br. at 24. 10. Vaux–Michel's citation to In re Estate of Van Dyke, 54 Wash.App. 225, 772 P.2d 1049 (1989) (remanding will contest petition for determination as to whether nonjoined legatees were indispensable parties under CR 19(b)) is unh......
  • In re Estate of Peterson, No. 24091-2-II.
    • United States
    • Court of Appeals of Washington
    • August 18, 2000
    ...proceedings, and courts "must be governed by the provisions of the applicable statute." In re Estate of Van Dyke, 54 Wash.App. 225, 228, 772 P.2d 1049 (1989). RCW 11.24.010 sets the time period for interested parties seeking to contest wills that have been admitted to probate. The statute p......
  • Estate of Gaines, Matter of, No. 12560
    • United States
    • New Mexico Court of Appeals of New Mexico
    • March 5, 1992
    ...with the mandate of rules of civil procedure regarding party participation. Compare In re Estate of Van Dyke, 54 Wash.App. 225, 772 P.2d 1049 (1989) (Probate Code provision requiring notice to legatees is not inconsistent with necessary party provisions of Rule 19) with In re Estate of Davi......
  • Orwick v. Fox, No. 25603-3-I
    • United States
    • Court of Appeals of Washington
    • April 13, 1992
    ...court concluded that dismissal of action was based on privilege and not CR 19(b)); In re Estate of Van Dyke, 54 Wash.App. 225, 232, 772 P.2d 1049 (1989) (remanding to court for determination of whether legatees were indispensable parties under CR 19(b)); see also Ferguson v. Thomas, 430 F.2......
  • Request a trial to view additional results

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