In re Estate of Mower

• Decision Date: 03 May 2016
• Docket Number: No. 46778–0–II.,46778–0–II.
• Citation: 374 P.3d 180,193 Wash.App. 706
• Court: Washington Court of Appeals
• Parties: In re the ESTATE OF Dana MOWER, Deceased.

193 Wash.App. 706

374 P.3d 180

In re the ESTATE OF Dana MOWER, Deceased.

No. 46778–0–II.

Court of Appeals of Washington, Division 2.

May 3, 2016.

Stuart Charles Morgan, Chrystina R. Solum, Ledger Square Law, P.S., Tacoma, WA, for Appellant.

Charles Tyler Shillito, Morgan Kathleen Edrington, Smith Alling, P.S., Tacoma, WA, for Respondent.

BJORGEN

, A.C.J.

Linda Turner, personal representative of the estate of Dana Mower, appeals the trial court's grant of summary judgment declaring Eric and Theresa Schuler (the Schulers) residuary beneficiaries under Dana's¹ will. The Schulers are the brother and sister-in-law of Dana's former spouse, Christine Mower. Turner argues that (1) the bequest to the Schulers should be revoked under RCW 11.12.051

as a provision “in favor of” a testator's former spouse, (2) the bequest to the Schulers fails because its conditions precedent have not been met, and (3) the assets covered by the bequest to the Schulers should pass via intestacy. Turner also argues that the trial court erred in awarding attorney fees to the Schulers, and both parties request attorney fees on appeal.

¶ 2 We hold that (1) a provision “in favor of” a testator's former spouse under RCW 11.12.051

is one that benefits the former spouse without directly conferring a property interest or power, and the bequest to the Schulers does not qualify as such a provision, (2) operation of RCW 11.12.051 to revoke the primary residuary bequest in Dana's will satisfies the condition precedent to the bequest to the Schulers, and (3) the will, not the law of intestacy, governs distribution of Dana's residuary assets. We therefore affirm the trial court's order granting summary judgment to the Schulers. We also affirm the trial court's award of attorney fees and we award attorney fees on appeal to the Schulers, to be paid from the estate.

FACTS

¶ 3 Dana executed his will in 2005, at which time he was married to Christine. The will included residuary provisions conditioned on whether Christine survived him by at least 30 days. If Christine survived him, part of the residue of his estate would go to her directly and the rest would go into a trust set up for her benefit. If Christine did not survive him, half of the residue would be split equally among his siblings, and the other half would go to the Schulers.

¶ 4 In 2012, Dana and Christine decided to divorce. They filed a stipulated decree of dissolution on November 13 of that year, finalizing the divorce. Dana died unexpectedly from an apparent heart attack 16 days later. Dana did not revise his will or execute a new will before his death.

¶ 5 Dana's will named Christine as the personal representative of his estate, with Turner named as the preferred alternate. Because Christine was his former spouse, and powers conferred on her by Dana's will would be revoked pursuant to RCW 11.12.051

, Turner offered the will for probate and was appointed as the personal representative of Dana's estate in January 2013.

¶ 6 In February 2013, Turner petitioned the trial court for a declaratory judgment that the Schulers were not beneficiaries under the will. Turner argued that under RCW 11.12.051

testamentary gifts to relatives of a testator's former spouse should be revoked, and she presented extrinsic evidence that Dana had intended to disinherit the Schulers after his divorce from Christine, but had not had an opportunity to change his will before he died. In response, the Schulers claimed that Eric Schuler and Dana had been friends before Dana married Christine.

¶ 7 The Schulers moved for summary judgment adjudicating them beneficiaries both under the will and of certain nonprobate assets. Turner then cross-moved for summary judgment, arguing that the bequest to the Schulers should fail because it was conditioned on Christine's death and Christine was still alive. The trial court granted the Schulers' motion, but withheld a final ruling on the nonprobate assets. The trial court denied Turner's cross motion. The Schulers later moved for a final order after determining that they were not named beneficiaries of any nonprobate assets. The trial court granted their motion and awarded them reasonable attorney fees, to be paid by Dana's estate.

¶ 8 Turner appeals.

ANALYSIS

¶ 9 Turner first argues that the residuary bequest to the Schulers in Dana's will should be revoked under RCW 11.12.051

. Turner argues in the alternative that the bequest fails because its conditions precedent have not been satisfied. In either case, Turner asserts that the bequest should not be given effect and the assets covered by the bequest should pass by intestacy.

¶ 10 We review de novo a trial court's order granting summary judgment, performing the same inquiry as the trial court. Lakey v. Puget Sound Energy, Inc., 176 Wash.2d 909, 922, 296 P.3d 860 (2013)

. We view all evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Id. If there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law, we will affirm the trial court's order of summary judgment. Id. We may do so on any grounds supported by the record. Pac. Marine Ins. Co. v. State ex rel. Dep't of Revenue, 181 Wash.App. 730, 737, 329 P.3d 101 (2014)

.

I. Revocation of Testamentary Gifts to a Former Spouse's Family Members

¶ 11 According to Turner, we should interpret RCW 11.12.051

as providing for automatic revocation of testamentary gifts to a former spouse's family members upon dissolution of the marriage between the testator and the former spouse. We disagree with this interpretation of RCW 11.12.051.

1. Principles of Statutory Interpretation

¶ 12 In interpreting statutes enacted by our legislature, we determine and give effect to the legislature's intent. Jametsky v. Olsen, 179 Wash.2d 756, 762, 317 P.3d 1003 (2014)

. To do so, we first look to the plain language of the statute. Id. “When the legislature has expressed its intent in the plain language of a statute, we cannot substitute our judgment for the legislature's judgment.” Protect the Peninsula's Future v. Growth Mgmt. Hr'gs Bd., 185 Wash.App. 959, 972, 344 P.3d 705 (2015). To assess the meaning of the plain language, we consider the text of the provision in question, the context of the statute in which the provision is found, and related statutes. Id. Where a statutory term is not expressly defined in the statute, we look to its usual and ordinary meaning. Id. If the plain meaning of a statute is unambiguous, we must apply that plain meaning as an expression of legislative intent without considering extrinsic sources. Jametsky, 179 Wash.2d at 762, 317 P.3d 1003. We will not add language to an unambiguous statute under the guise of interpretation. Kilian v. Atkinson, 147 Wash.2d 16, 20, 50 P.3d 638 (2002).

¶ 13 However, we must construe ambiguous statutory provisions. Statutory language is ambiguous when it is “ ‘susceptible to more than one reasonable interpretation.’ ” Seven Sales LLC v. Otterbein, 189 Wash.App. 204, 208, 356 P.3d 248 (2015)

(quoting Stephenson v. Pleger, 150 Wash.App. 658, 662, 208 P.3d 583 (2009) ). To construe such ambiguous language, we look to the legislative history, relevant case law, and established principles of statutory construction to discern legislative intent.

Anthis v. Copland, 173 Wash.2d 752, 756, 270 P.3d 574 (2012)

. Moreover, “policy considerations may provide a valuable rule of statutory construction in interpreting an ambiguous statute.” Allan v. Dep't of Labor & Indus., 66 Wash.App. 415, 418, 832 P.2d 489 (1992).

2. Interpretation of RCW 11.12.051

¶ 14 Turner argues that the trial court should have revoked Dana's testamentary gift to the Schulers because the gift was “in favor of” Christine within the meaning of RCW 11.12.051

. Br. of Appellant at 12. We disagree and hold that testamentary gifts to family members of a former spouse are not necessarily gifts in favor of the former spouse.

¶ 15 RCW 11.12.051(1)

provides:

If, after making a will, the testator's marriage or domestic partnership is dissolved, invalidated, or terminated, all provisions in the will in favor of or granting any interest or power to the testator's former spouse or former domestic partner are revoked, unless the will expressly provides otherwise. Provisions affected by this section must be interpreted, and property affected passes, as if the former spouse or former domestic partner failed to survive the testator, having died at the time of entry of the decree of dissolution or declaration of invalidity.

(Emphasis added.) Because the statute is in derogation of the common law, we construe its provisions strictly. See Peiffer v. Old Nat'l Bank & Union Tr. Co., 166 Wash. 1, 6, 6 P.2d 386 (1931)

.

¶ 16 By its plain language, the statute requires courts to apply the legal fiction that a former spouse predeceased the testator when interpreting will provisions that specifically give an interest in property or a power to the former spouse or that operate “in favor of” the former spouse. Here, the will provision bequeathing half of Dana's residual estate to the Schulers neither conveys an interest in property to Christine nor confers any power on her. However, Turner argues that the bequest was included due to the Schulers' familial relationship with Christine and therefore constitutes a provision “in favor of” Christine. Thus, the primary interpretive question before this court is what “in favor of” means in RCW 11.12.051

.

A. Ambiguity

¶ 17 To begin our interpretive analysis, we must determine whether the phrase “in favor of” is ambiguous as used in RCW 11.12.051

. We conclude that it is.

¶ 18 The usual and ordinary meaning of the phrase “in favor of” is “to the special advantage or benefit of.” Webster's Third New Int'l Dictionary at 830 (1969). This meaning seems to require that a provision in favor of a party confer some direct benefit on that party. However, among the usual and ordinary meanings of the verb “fa...