In re Thornton
| Decision Date | 25 August 2015 |
| Docket Number | No. 46337-7-II,46337-7-II |
| Court | Washington Court of Appeals |
| Parties | In re the Estate of: CHARLES ROBERT THORNTON, Deceased. |
MELNICK, J. — Martin Thornton appeals from the trial court's summary judgment dismissal of his Trust and Estate Dispute Resolution Act (TEDRA) petition which sought to invalidate Charles (Bob) Thornton's 2010 will for undue influence and fraud in the inducement and to establish a constructive trust over distributed nonprobate assets.1 Because no material factual dispute exists on any claim, we affirm the trial court. We also affirm the trial court's attorney fees award, but we decline to award fees to either party on appeal.
Merry Heberlein and Bob were in a committed loving relationship beginning in March 2003 and ending on December 5, 2010, when Bob passed away at the age of 67. At the time of Bob's death, he and Heberlein lived together and jointly operated a real estate business. They maintained many bank accounts as joint tenants with right of survivorship. They also designated each other as the primary beneficiaries on their respective retirement accounts in 2007 and 2008.
In early October 2010, Bob visited his doctor to inquire about a cough that was getting progressively worse. He also experienced a myriad of health issues including fatigue, afternoonheadaches, and shortness of breath. During the second week of October, Bob's doctors advised him he had a terminal illness. They estimated that he had a 5 percent chance of survival and a life expectancy of 2 to 6 months.
Bob's diagnosis prompted him to reexamine his estate plan and put his affairs in order. Bob enlisted the help of longtime friends. Bob called his friend Sue Holbrook and asked her to recommend an attorney to draft a new will for him. Sue recommended Desiree Hosannah. Bob told Sue that he intended to take care of Heberlein in his new will. Bob also told Paul Henderson, his friend and business associate, that he hired a lawyer to rewrite his will and that he needed to "put his affairs in order." Clerk's Papers (CP) at 79. Bob asked Henderson to witness the execution of the new will.
Bob and Heberlein met with Hosannah on the afternoon of October 18. Heberlein filled out the initial consultation paperwork, which included general information such as Bob and Heberlein's contact information, their purpose for the meeting, and referral information. Both Bob and Heberlein signed the document. The paperwork did not include any substantive information about the proposed terms of Bob's or Heberlein's estate planning documents.
Over the course of the afternoon, Bob and Heberlein had joint and separate meetings with Hosannah. In a private meeting, Bob told Hosannah that, in anticipation of an upcoming medical procedure, he wanted his estate plan in place. He identified Heberlein as his primary beneficiary and his sister, Doris Ellison, as his alternate beneficiary. When Hosannah inquired about his son, Martin, Bob told her that he had "already given him all he is going to get" in the form of a house given some years before, and that Martin was a "bad seed."2 CP at 82. Bob also told Hosannahthat Martin had a criminal background and had brought drugs to a family function a few years ago; therefore, Bob did not want to leave Martin anything in his estate plan. Bob told Hosannah that he had already taken care of some assets by placing them in joint-ownership with Heberlein and that he wanted the new will to address the remaining assets. According to Hosannah, Heberlein did not instruct her as to the terms of Bob's estate plan in any respect.
Bob and Heberlein executed their wills before leaving Hosannah's office on October 18. As requested, Bob's friend, Henderson, signed Bob's will as a witness. Bob's 2010 will named Heberlein as both the primary beneficiary of his entire estate and his personal representative. It named his sister as his alternate beneficiary and alternative personal representative. Bob's 2010 will revoked his 1988 will, which named Martin as Bob's primary beneficiary.
After executing his new will, Bob continued to discuss his desire to provide for Heberlein. In November, Bob told his longtime friend, Judy Johnson, that he had made a new will naming Heberlein as his beneficiary and that he and Heberlein had consolidated their assets. When Bob called his sister to tell her he had terminal cancer, he told her that he had prepared a new will providing for Heberlein.
Bob and Heberlein registered as domestic partners, effective October 19, 2010. They filled out the registration and had their signatures notarized. Bob then called his friend, Joe Holbrook, and asked if he and Sue could file the domestic partner registration documents in Olympia. Bob also told Joe that he wanted to make sure Heberlein was taken care of given his worsening medical condition. According to Heberlein, she and Bob asked their good friends to file the registration documents because they were busy attending Bob's doctor appointments.
Bob continued to work as a real estate agent. During the month of October, he helped Johnson and her husband sell their home. Bob handled the entire transaction, including the closingon November 22. Bob transitioned his work files to Henderson in anticipation of his cancer treatment scheduled to begin on November 29. Henderson found Bob's files to be well-organized.
On November 29, the hospital admitted Bob so he could start an aggressive treatment for kidney cancer. Bob's condition, worse than expected, resulted in the hospital discontinuing the treatment. On December 2, Bob's sister, a registered nurse, arrived from out-of-state to visit him in the hospital. According to her, Bob was lucid and coherent. He suffered from shortness of breath but could talk normally. He showed no signs of mental problems. On the afternoon of December 4, Bob took a nap and never regained consciousness. He passed away the next day. According to Bob's treating physician, Bob took numerous inpatient medications while hospitalized; however, prior to that time, he did not have prescriptions for any medications that would alter his mental status or judgment.
Martin did not visit Bob at the hospital. According to Heberlein, she contacted Martin and asked him to visit Bob in the hospital, but Martin did not do so. According to Martin's wife and daughters, Heberlein was not forthcoming about Bob's welfare and she blocked Martin and his family from seeing Bob. Longtime friends of Bob and Martin's, Guadalupe and Terry Cuevas, corroborated Martin's version that Heberlein would not allow them or Martin's family to visit Bob in the hospital during his final days.
Bob's 2010 will was admitted to probate, and the court appointed Heberlein the personal representative of the estate. Martin then filed a TEDRA petition to invalidate the 2010 will. He alleged that Bob lacked-testamentary capacity to execute the will and that the will was the product of undue influence and fraud in the inducement by Heberlein. Martin also pled a cause of action for constructive trust, claiming that any nonprobate assets distributed to Heberlein should be held in a constructive trust for his benefit.
Heberlein moved for summary judgment in both her individual capacity and as personal representative of Bob's estate. Heberlein filed declarations and exhibits in support of her motions, and Martin presented competing evidence in opposition.
Martin and Heberlein painted different pictures of the quality of Martin and Bob's relationship, Bob's health in his final months, and whether Heberlein isolated Bob from Martin and his family. According to the Cuevases, Bob and Martin had a close, unstrained relationship. According to Martin, he and his father treasured their time together, which historically included five or six family get-togethers a year. Martin's wife and daughters declared that they had always had a close relationship with Bob, but as Bob's relationship with Heberlein progressed, their family spent less time with him.
According to Martin's family, Heberlein reduced the number and duration of family get-togethers and made those few interactions uncomfortable. Martin's wife described Heberlein as "[driving] wedge between [her] family and Bob." CP at 597. As an example, Martin's wife described a time when she and Martin contacted Bob during Thanksgiving 2010 and asked to come visit, but Bob said that "[Heberlein] is locking the doors and no one can come over." CP at 598. Martin also related an occasion in August 2010, where he claimed Heberlein refused to allow him "substantive interaction" with Bob at a family boating outing. CP at 107. Martin averred that on that same occasion, Bob "was so ill he was lost," that he was heavily medicated and coughing terribly, and that he appeared to be in a very vulnerable state. CP at 107. Further, Martin claimed that although he made multiple attempts to speak with Bob during the last months of his life, Heberlein rebuffed him and essentially barred him from speaking with his father. Martin alleged that Heberlein told Bob that Martin only desired a relationship with him for his money.
On the other hand, Heberlein declared that Bob and Martin rarely saw each other. According to Bob's sister, Bob had an extremely difficult relationship with Martin, and he told her on more than one occasion that he felt that he had given Martin everything he could possibly give. According to Johnson, Bob repeatedly expressed frustration with Martin. And, Henderson declared that in October 2010 he personally witnessed Bob call Martin and leave messages asking Martin to call him back.
Martin voluntarily dismissed his lack of testamentary capacity claim. The trial court dismissed the remainder of Martin's claims on summary judgment. Martin appeals.
We review an order for summary judgment de novo, engaging in the same inquiry as the trial court. Jones v. Allstate Ins. Co., 146 Wn.2d...
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