In re Estate of Lowe
| Decision Date | 10 November 2015 |
| Docket Number | No. 32192–4–III.,32192–4–III. |
| Citation | 361 P.3d 789 |
| Court | Washington Court of Appeals |
| Parties | In the Matter of the ESTATE OF Betty L. LOWE, Deceased. |
Robert Eugene Kovacevich, Robert E. Kovacevich PLLC, Spokane, WA, for Appellant.
Greg Martin Devlin, Winston & Cashatt PS, Spokane, WA, William O'Reilly Etter, Witherspoon Kelley, Spokane, WA, for Respondent.
¶ 1 Aaron Lowe sued, challenging his brother Lonnie Lowe's right to numerous silver bars and bags of silver coins that the latter received from their late mother, Betty Lowe. The trial court rejected Aaron's various legal challenges and confirmed Lonnie's right to the silver bars and coins. The trial court additionally ordered Aaron to pay Lonnie's and the estate's attorney fees.
¶ 2 Aaron raises numerous issues on appeal. We determine that substantial evidence supports the trial court's findings and that Aaron is not entitled to the relief he seeks. Although we affirm the trial court's award of attorney fees in favor of Lonnie and the estate, we use our independent discretion and deny an award of fees on appeal.
¶ 3 Donald Lowe and his wife Betty lived in Spokane and were married for approximately 60 years. Donald died on April 16, 2003. Donald's will left several specific bequests and left his residuary estate to “the Personal Representative as appointed in Article 5 of this will.” Ex. P–31. Section 5.1 of Donald's will named Aaron as the first personal representative, Aaron's ex-wife as first alternate, and Lonnie as second alternate. Section 5.1 of Donald's will also provided, “Any successor Personal Representative shall have the same power as the original Personal Representative to designate a successor.” Ex. P–31. Aaron, his ex-wife, and Lonnie each filed declinations to serve as personal representative, and Aaron filed an affidavit nominating his mother Betty to serve as personal representative. Sometime before he died, Donald also wrote a letter addressed to his three sons, stating:
Ex. P–35. The copy of the quoted letter was faxed from Lonnie to his father's estate planning attorney, Robert Lamp, on August 18, 2003.
¶ 4 Betty filed a petition for probate of Donald's will on October 27, 2003, seeking appointment as administrator and an order that the estate be distributed pursuant to the laws of intestacy. The probate court granted Betty's request to be designated the administrator. Further, because Donald's will did not specifically name the residual beneficiary, the probate court granted Betty's request to probate her husband's estate pursuant to the laws of intestacy.
¶ 5 It is now necessary to provide some background information as context for later events. Donald collected silver bars and coins over the years. Sometime in the 1980s, Donald and a friend, Donald Poindexter, hid silver bars and coins in the flume of the former's fireplace in the basement of the family home. Additionally, Donald secreted coins in various hiding places throughout the family home. Lonnie and Aaron knew that most of the treasure was hidden in the flume of the fireplace in the basement. Soon after Donald died, Lonnie assisted his mom in recovering the treasure by disassembling the flume.
¶ 6 On September 15, 2003, and during the pendency of Donald's probate, Betty executed her own will. The will named Lonnie as personal representative. On the same date, Betty executed a general power of attorney in favor of Lonnie. Mr. Lamp prepared both documents. Betty's will directed that 80 percent of her estate be distributed equally among her three sons, and the remaining 20 percent be distributed equally among her grandchildren. Article II of the will stated, “If I leave a list of written instructions for disposition of any of my tangible personal property, I direct that such property listed in those instructions be distributed to the persons named to receive such property in the written instructions.” Ex. P–15.
¶ 7 On January 27, 2004, Betty filed an inventory and appraisement of Donald's estate. Donald's will did not disclose the treasure, and Betty similarly opted not to disclose it when she filed the inventory and appraisement. Donald's probate was completed without objection in early 2004.
¶ 8 Between 2004 and 2007, Lonnie, with Betty's consent, removed the silver bars and bags of silver coins from Betty's house and hid them in a locked safe on his property in Olympia. Lonnie never kept a written record of how many silver bars and bags of silver coins he transferred from Betty's home to his.
¶ 9 On September 3, 2007, Betty drafted written instructions for the distribution of the silver coins and bars. The instructions stated that Lonnie had discretion on how to divide the silver coins and bars. Betty attempted to give those instructions to Lonnie, but he referred her to Mr. Lamp. Mr. Lamp formalized the written instructions, and referring to the clause in Betty's will allowing for such instructions, left “to Lonnie O. Lowe any and all silver coins and bars to distribute as he shall determine or to retain for himself.” Ex. P–14, On September 11, 2007, Betty signed the instructions prepared by Mr. Lamp. Lonnie was not present at the signing.
¶ 10 Betty died on October 1, 2011. Later that month, Lonnie filed a petition for an order admitting Betty's will to probate and for appointment as personal representative. Aaron initiated this action on February 22, 2012. In his initial and his later amended petitions, Aaron sought an order requiring Lonnie to account for all assets including the silver treasure and an order removing Lonnie as personal representative. Additionally, the petitions alleged numerous legal theories to support Aaron's requested relief of returning the silver treasure to Betty's estate so it could be distributed to her children and grandchildren in accordance with her will.
¶ 11 On August 23, 2013, less than a month before the start of trial, Aaron filed a motion seeking court permission to file a second amended and supplemental petition. This second amended and supplemental petition sought to add additional claims, including an argument that the assets in Donald's estate were distributed in error to Betty, that Lonnie should not inherit anything, and that all of the property removed by Lonnie be returned to the estate. Lonnie, both personally and as personal representative of his mother's estate, opposed that motion. The court denied the motion, and the matter proceeded to trial.
¶ 12 Trial occurred September 16–19, 2013. At trial, Mr. Lamp testified as to Betty's competency at the initial will conference, stating, Report of Proceedings (RP) at 389. Mr. Lamp stated he did not have any concerns about her competency at the initial conference, on the day she signed the will, or on the day she executed the written instructions regarding her tangible personal property.
¶ 13 Joni Marsh, a nurse practitioner who saw Betty for annual physicals and some medical issues from 2002 to 2011, also testified that Betty was alert, oriented, well groomed, and did not display any confusion during her visits. Ms. Marsh also testified, however, that a note from a neurologist in Betty's medical record indicated she had been tested for dementia
in early 2011, and her results were consistent with moderate to severe dementia.
¶ 14 Testimony also revealed that Betty worked cleaning houses for most of her life, drove until the time of her death, cared for grandchildren two to three days per week, and lived independently in her own home. Lonnie stated that his mother started having some short-term memory loss
the year she died. While Aaron testified generally that his mother had abused prescription pills and drank alcohol during the 1960s and 70s, he did not testify regarding her mental state when she executed the relevant documents. Aaron was not present when Betty signed her will or her written instructions for distribution of personal property.
¶ 15 Lonnie admitted that he removed silver bars and bags of silver coins from his mother's home on three to four occasions between 2004 and 2007 at his mother's direction and in her presence. One silver bar weighed approximately 1,000 ounces. Betty directed that the bar be sold, and the proceeds were used for various expenses Betty incurred, including a new roof, other work on her house, and the purchase of an automobile. Lonnie admitted that he did not inventory or account for the silver his mother directed him to remove while she was living, nor did he keep track of what she directed him to sell or spend. He never had an appraisal made of any of the items he removed from the fireplace before her death. Aaron testified that up until her death, Betty would ask him for money, and he would give her $100 every time she asked for it.
¶ 16 Betty also gifted cash to Lonnie at various times, but he testified he did not exercise any powers under the power of attorney to obtain any of his mother's assets during her life. He did not gift himself any of her property, including proceeds from the sale of the silver, the silver itself, or money from her bank accounts for which he was a signatory. Lonnie testified that after his mother's death, in accordance with the written instructions and his nonintervention powers, he sold some of the silver coins and retained the money for himself. He inventoried the silver and other assets of the estate in the...
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