Gray v. Tymony (In re Tymony)

• Decision Date: 27 June 2022
• Docket Number: 82909-2-I
• Parties: In the Matter of the Estate of LILLIAN MAE TYMONY, Deceased v. CRAIG TYMONY, Appellant. JUDY GRAY, Respondent,
• Court: Washington Court of Appeals

In the Matter of the Estate of LILLIAN MAE TYMONY, Deceased

JUDY GRAY, Respondent,
v.
CRAIG TYMONY, Appellant.

No. 82909-2-I

Court of Appeals of Washington, Division 1

June 27, 2022

UNPUBLISHED OPINION

ORDER WITHDRAWING OPINION AND SUBSTITUTING OPINION

The court having been apprised of a scrivener's error on page 2 of the opinion entered June 21, 2022, it is hereby

ORDERED that the opinion shall be changed to reflect the correct spelling of Craig Tymony Jr.'s last name on page 2. It is further

ORDERED that the opinion filed on June 21, 2022, is withdrawn and a substitute opinion shall be filed.

SMITH, A.C.J.

Lillian Tymony's estate is the subject of an intestacy probate action, a will probate action, and a Trust and Estate Dispute Resolution Act, ch. 11.96A RCW, (TEDRA) petition challenging the validity of the will. The court granted the TEDRA petition and dismissed the will probate. But an heir named in the will was not joined in the TEDRA action, and the authority cited by the court in granting the petition does not provide a basis to invalidate a will. We therefore reverse.

FACTS

Lillian Tymony executed a will on June 22, 2005, witnessed by three of her children: Craig Tymony, Clifford (Cliff) Tymony, and Diane Anderson. It was notarized by Efren Pascua. The witnesses disagree about the circumstances

1

under which the will was signed. Cliff^[1] claims the witnesses and notary signed the will at a Wells Fargo bank outside of Lillian's presence. Craig and Diane attest that it was signed in her presence, and Pascua confirms their assertion.

Article III of the will addresses the disposition of Lillian's estate, and specifically the disposition of her ownership in two houses on South Angeline Street:

I Lillian Tymony give consent for all my asset[s] to be distributed] as follows[:] the house at 2502 [S.] [A]ngeline [St.] and the property set on Quit Claim Deed to Sharon Tymony or will[ed] to her. The house at 2442 [S.] [A]ngeline [St.] be divi[d]ed equall[y]. I do not want the house sold unless executor Craig Tymony said to. Each other assets divi[d]ed equal[ly] among my children

The will appointed Craig as executor and extended broad powers to him in that role through its nonintervention clause.^[2] In the event that Craig could not perform his duties as executor, Lillian directed that either her son Patrick Tymony-now deceased-or Craig Tymony Jr. be appointed in his stead. She also expressed her desire that any child who contested her will should be disinherited.^[3]

2

Lillian died on December 31, 2013. Though Craig had been appointed executor of Lillian's will, he did not initiate probate in the years following her death; he attributes this to her strong admonition against involving attorneys. Regardless, the terms of the will appear to have been followed. In particular, Cliff and Diane lived at the 2442 S. Angeline St. property until Cliff left in 2020 under disputed circumstances.

The legal proceedings leading to this appeal began when Judy Gray initiated the first of three actions relating to her mother's estate. She petitioned for intestate probate, and was appointed as the administrator of Lillian's estate in December 2020. Her petition denied knowledge of any will. Judy listed five intestate heirs and provided notice to them: Patricia Tymony, the widow of Lillian's son Fred; Diane; Cliff; Craig; and herself. She did not provide notice to the three children of Lillian's deceased son Patrick or to Sharon Tymony, Craig's ex-wife, who had been listed in the will.^[4]

In response to Judy's probate action, Craig initiated a second probate, this time under the will. Apparently on the advice of his then counsel, Craig did not inform the court of the first probate proceeding. The schedule of heirs and

3

distributees included with Craig's petition listed Lillian's children and grandchildren but excluded Sharon.

Judy subsequently began a third proceeding on May 10, 2021, this time under the TEDRA statute, contesting the validity of the will and the letters testamentary issued to Craig. Her petition made several claims: (1) relying on a declaration from Cliff, it asserted that the witnesses to the will had signed outside Lillian's presence and that the will was invalid as a result; (2) because all signing witnesses stood to inherit, a statutory presumption that they had unduly influenced Lillian existed, and so the witnesses should receive only what they would have under laws of intestacy; and (3) Craig opened the second probate action in bad faith, without disclosing the existence of the first probate, and should bear the legal fees in all three proceedings as a result.^[5]

Though Judy's requested remedy was that "[t]he probate of the invalid will should be revoked and annulled [and] the intestate probate should carry on," her only legal argument explicitly addressing the will's validity was the first of the three listed above. Her petition was supported by declarations from Cliff and from Judy's attorney but not from Judy herself, and did not include a copy of the challenged will. A declaration of service supporting the petition indicated that Lillian's surviving children and grandchildren were given notice of the TEDRA action, but that Sharon was not.

4

Craig moved to dismiss the TEDRA petition under CR 12(b)(6). He asserted that Judy bore the burden to prove the invalidity of the will and that Cliff's declaration alone was insufficient to meet that burden because it was contradicted by Craig and the notary.^[6] The motion to dismiss was supported by: (1) the inclusion of a copy of the will; (2) a declaration from Craig, in which he asserted that Judy and Cliff were both aware of the will prior to the intestate probate action and that he had faithfully executed the will; (3) a declaration from Efren Pascua that he had notarized the will at Lillian's residence with Lillian and all three witnesses; and (4) a declaration from Diane supporting the above and contesting a number of Cliff's factual assertions.

Judy's reply requested that the matter be resolved at the initial TEDRA hearing. It did not revisit her argument that the will was invalid because the witnesses had signed outside of Lillian's presence. Instead, it focused on the presumption of undue influence created by statute, denied that the presumption had been rebutted by the motion to dismiss,^[7] and concluded that as a result "Craig, Clifford, and Diane must take only what they would receive if the Alleged Will did not exist." It argued that "[t]o accomplish this, the Court need only terminate the improper probate of the Alleged Will, ratify the intestate probate, and allow Judy Gray to administer the probate."

5

At the TEDRA hearing, Craig's attorney emphasized that Judy bore the burden to demonstrate undue influence in order to invalidate the will and contended that her petition had not met that burden. Judy's attorney largely conceded that point: "I believe counsel is right that if we needed to prove undue influence, perhaps we have not done that yet." But, notably, he confused the matter by implying that the burden to demonstrate a valid will fell on Craig: "the notary in and of itself is not sufficient to create a valid Will." (Emphasis added.)

The bulk of argument, though, focused on the statutory...