In the Matter of The EState Bussler

• Decision Date: 08 March 2011
• Docket Number: No. 39804–4–II.,39804–4–II.
• Court: Washington Court of Appeals
• Parties: In the Matter of the ESTATE OF Jacquelyn BUSSLER, Deceased.

160 Wash.App. 449

247 P.3d 821

In the Matter of the ESTATE OF Jacquelyn BUSSLER, Deceased.

No. 39804–4–II.

Court of Appeals of Washington, Division 2.

March 8, 2011.

Suzan L. Clark, Attorney at Law, Vancouver, WA, for Appellant/Cross–Respondent.William Leslie Miles, Miles & Miles PS, Vancouver, WA, Valerie A. Villacin, Catherine Wright Smith, Smith Goodfriend PS, Seattle, WA, for Respondent/Cross–Appellant.VAN DEREN, J.

[160 Wash.App. 453] ¶ 1 Kathleen Bussler appeals the trial court's determination that her mother, Jacquelyn Bussler, had testamentary capacity when she executed her March 14, 2009, will and that it was not the product of undue influence by Kathleen's sister, Karen Bussler,¹ the sole beneficiary under the 2009 will. Karen cross appeals, arguing that the trial court erred in awarding her attorney fees paid from Jacquelyn's estate rather than by Kathleen in her individual capacity under RCW 11.24.050. We hold that the trial court did not err in admitting the 2009 will to probate because Kathleen failed to prove by clear, cogent, and convincing evidence that (1) Jacqueline did not have testamentary capacity when she executed it or that (2) Karen exerted undue influence on her mother to persuade her to execute the 2009 will. We further hold that the trial court did not abuse its discretion in denying Karen's request to require Kathleen to pay Karen's attorney fees under RCW 11.24.050; accordingly, we deny Karen's cross appeal. We also deny both parties' requests for attorney fees on appeal.

FACTS

¶ 2 Jacquelyn Bussler died on March 22, 2009, and was survived by four children: Karen Bussler,² Kathleen Bussler, James Robert Ryan III, and Michael John Ryan.³ Only Karen inherited under Jacquelyn's 2009 will but both Karen and Kathleen had been designated to inherit under her 1997 will.

¶ 3 Jacquelyn suffered from chronic obstructive pulmonary disease (COPD) for eight years, and also had peripheral vascular disease and ischemic cardiomyopathy. In April 2008, Karen moved from Illinois to live with Jacquelyn at Jacquelyn's residence⁴ in Vancouver, Washington, and to serve as her primary caregiver due to Jacquelyn's declining health. Kathleen lived in Hayden, Idaho, and had last visited her mother in Vancouver for five weeks at the end of 2008.

¶ 4 Gilbert Kaleweno prepared a will for Jacquelyn in 1995.⁵ He also prepared her 1997 will, which Kathleen argues should be probated in place of the 2009 will. The 1997 will bequeathed Jacquelyn's estate equally to her daughters, Karen and Kathleen, disinherited her two sons, named her husband as the personal representative, and named Kathleen as the alternate personal representative. In February 2000, Kaleweno also prepared a codicil to the 1997 will that replaced Kathleen with Karen as the alternate personal representative and kept Jacquelyn's husband as the primary personal representative. In 2001, Jacquelyn named Karen the primary beneficiary and Kathleen the contingent beneficiary of a life insurance policy worth $2,200 at the time of her death.

¶ 5 In December 2003, Jacquelyn designated Karen as her attorney-in-fact through a durable power of attorney. The power of attorney became “effective upon the disability or incompetence of the Principal.” Ex. 17 at 1. Karen testified that in the months before Jacquelyn's death, she signed documents for her mother using her power of attorney. On December 12, 2008, using the power of attorney, Karen signed a quitclaim deed transferring Jacquelyn's house, located at 8108 Northeast 101st Avenue, into her (Karen's) name to help her mother qualify for state assistance. The next month, on January 22, 2009, Karen transferred the home back into her mother's name. Karen also used the power of attorney to sign her mother's election for hospice services, a Medicare secondary payor screening form, and a physician's order for life sustaining treatment. RP at 79–80. Karen stated that she did not consider her mother mentally disabled or incompetent but, rather, physically disabled. Karen testified that her mother “was having so much trouble with shakiness” that it made her handwriting “[b]ad.” Report of Proceedings (RP) at 103.

¶ 6 Karen stated that in 2009, her mother asked her to contact an attorney to execute a new will and that she contacted William Miles after she unsuccessfully tried to contact Kaleweno. On March 14, 2009, eight days before her death, Jacquelyn executed a will drafted by Miles that left her entire estate to Karen. Jacquelyn executed the 2009 will at her home in Vancouver with two neighbors, Michael and Barbara Meyer, as witnesses. Before Jacquelyn signed the will, Marlis Cameron, Miles's legal assistant, reviewed the contents of the will with Jacquelyn; Cameron also witnessed and notarized Jacquelyn's and the witnesses' signatures on the will.

¶ 7 At the same time she executed her 2009 will, Jacquelyn executed a warranty deed conveying to Karen the real property she owned at 8108 Northeast 101st Avenue, valued at $170,000. In addition to the real property, Jacquelyn had two bank accounts; her account at First Independent Bank had a $977.51 balance on April 1, 2009, following her death.⁶

¶ 8 On March 31, Karen filed the 2009 will with the Clark County Superior Court but she did not file a petition requesting that it be admitted to probate. On April 2, Kaleweno provided Kathleen with Jacquelyn's 1997 will and the 2000 codicil. On April 10, Kathleen filed a petition requesting that the trial court probate the 1997 will, invalidate the 2009 will, and appoint her the personal representative of her mother's estate. Kathleen's petition asserted that the 2009 will was “invalid and was executed without competency, capacity and under undue influence.” Clerk's Papers (CP) at 1–2. On April 21, Karen filed a petition asking the court to revoke the 1997 will, probate the 2009 will, appoint her as the personal representative of Jacquelyn's estate, and award her $750 in attorney fees.

¶ 9 The will contest went to trial. At trial, the following people testified: (1) Karen; (2) Kathleen; (3) Kaleweno; (4) Mary Christenson, Kathleen's partner; (5) Cameron, the legal assistant who had reviewed the 2009 will with Jacquelyn and notarized it; (6) Mark and Raeann McGahuey, Jacquelyn's renters; (7) Scott Davidson, Karen's significant other; ⁷ and (8) Barbara and Michael Meyer, the neighbors who had witnessed Jacquelyn execute the 2009 will.

¶ 10 Cameron testified that she had reviewed the will and the warranty deed with Jacquelyn for approximately an hour before Jacquelyn signed and executed them. Jacquelyn and Cameron were the only people present during the review. According to Cameron, Jacquelyn appeared ill, had a hard time moving without a cane, was in a wheelchair, and looked like she had lost most of her hair. Cameron also felt that Jacquelyn was alert, cognizant, and understood the documents she was reviewing and signing.

¶ 11 Barbara and Michael Meyer had lived across the street from Jacquelyn for 27 years. They both testified that Jacquelyn knew who they were, that she knew that they were at her residence to witness her will execution, that she thanked them for coming over to her house, and that she had to be shown where to sign the will. Michael also stated that Jacquelyn appeared “[s]haky” when signing the will. RP at 23.

¶ 12 Davidson testified that on March 15, 2009, the day after Jacquelyn executed her 2009 will, she fell while trying to get to the porch. Davidson stated that the hospice workers had instructed them that Jacquelyn was to make her own decisions about her care and about whether she should be taken to the hospital. Even though Jacquelyn seemed shaken and tired after the fall, she did not want Davidson to call anyone.

¶ 13 Christenson testified that she last spoke to Jacquelyn on the telephone in October 2008 and that Jacquelyn did not indicate that she was angry or upset with Kathleen. On March 11, 2009, Christenson received a text message from Karen's cell phone that stated Christenson and Kathleen were not welcome in Jacquelyn's home. According to Karen, she sent a text message to Kathleen before Jacquelyn's death attempting to get her to call their mother.

¶ 14 Kathleen described her relationship with her mother as “[l]oving, caring, [and] very close.” RP at 114. She stated that she called her mother “[a]t least once a week [and w]hen she got sick it was all the time, every couple [of] days.” RP at 114–15. Kathleen testified that she received a text message from Karen stating that “we weren't welcome there and that [she (Kathleen) ] wasn't allowed to speak to [her] mother.” RP at 124. The last time Kathleen spoke to her mother was on February 8. Kathleen stated that she tried to call her mother after February 8 but was unable to reach her. Kathleen felt that her mother did not have any reason to be angry with her or not want to talk with her. She disputed that she was estranged from her mother. Kathleen stated that Karen would not let her participate in Jacquelyn's funeral arrangements and tried to discourage her from seeing her mother's body at the mortuary.

¶ 15 The trial court also admitted Jacquelyn's medical records.⁸ Hospital records from February 4 indicated that Jacquelyn (1) was “able to interact with the interviewer” and there was “no psychomotor agitation or retardation”; (2) “[a]ppears mildly dysphoric”; (3) had adequate “[c]ontinuity of thought”; (4) had “[m]ildly impaired” cognition and was “able to come up with the year, but not the month, telling [the doctor] that it [was] September” and “unable to come up with the name of the president or the prior presidents” but “[c]oncentration [wa]s intact”; and (5) that her “[m]emory [wa]s grossly impaired.” Ex. 7. A March 2 medical record stated that Jacquelyn was alert. On March 9, an emergency room physician called Jacquelyn's doctor to arrange a “Hospice consult;” records indicated a concern that Jacquelyn had...