Miles v. Jepsen (In re Estate of Jepsen), No. 90874–5.

CourtUnited States State Supreme Court of Washington
Writing for the CourtYU, J.
Citation358 P.3d 403,184 Wash.2d 376
Docket NumberNo. 90874–5.
Decision Date24 September 2015
PartiesIn the Matter of the Estate of Virginia J. Jepsen, Deceased. Julie MILES, as Personal Representative of the Estate of Virginia J. Jepsen, Petitioner, v. Mack JEPSEN, Respondent.

184 Wash.2d 376
358 P.3d 403

In the Matter of the Estate of Virginia J. Jepsen, Deceased.

Julie MILES, as Personal Representative of the Estate of Virginia J. Jepsen, Petitioner
v.
Mack JEPSEN, Respondent.

No. 90874–5.

Supreme Court of Washington, En Banc.

Argued May 21, 2015.
Decided Sept. 24, 2015.


358 P.3d 403

Susan L. Caulkins, Ingrid Linnea Daun McLeod, Davies Pearson, P.C., Tacoma, WA, for Petitioner.

Robert P. Dickson, Dickson Law Group, PS, Tacoma, WA, for Respondent.

Opinion

YU, J.

184 Wash.2d 378

¶ 1 In order to commence a will contest action, there must be timely personal service of the will contest petition on the estate's personal representative. Here, the will contest petition was never personally served on the personal representative. The action was therefore never fully commenced and should have been dismissed. We reverse the Court of Appeals.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 Virginia J. Jepsen executed her last will and testament on July 1, 2009, and died on November 16, 2011. On December 20, 2011, the superior court admitted Jepsen's will to probate, declared the estate was solvent, and appointed Julie Miles as personal representative (PR) with nonintervention powers.

¶ 3 On March 22, 2012, Jepsen's adult son, Mack,1 filed a petition contesting the validity

358 P.3d 404

of Jepsen's will. Mack's attorney e-mailed the petition to the PR's attorney the same day it was filed. There is nothing in the record showing that the PR affirmatively agreed to accept e-mail service on her attorney in lieu of personal service on the PR. On April 27, 2012, the PR filed a response to Mack's petition, denying its substantive allegations but not raising any affirmative defenses.

¶ 4 On October 31, 2012, the PR filed a motion to dismiss Mack's petition because it was not personally served within 90 days of filing. The trial court initially granted the PR's motion but reversed itself on reconsideration, holding that service under RCW 11.24.010 went solely to personal jurisdiction and that any objection on that basis was waived. The

184 Wash.2d 379

PR appealed, and the Court of Appeals affirmed in an unpublished decision. In re Estate of Jepsen, noted at 183 Wash.App. 1020, 2014 WL 4412334 (2014), review granted, 182 Wash.2d 1002, 342 P.3d 326 (2015).2

ISSUES

¶ 5 A. Did the Court of Appeals correctly hold that the PR waived any objection to Mack's failure to comply with RCW 11.24.010 ?

¶ 6 B. Is either party entitled to attorney fees and costs on appeal?

ANALYSIS

¶ 7 RCW 11.24.010 sets forth the steps necessary to commence a will contest action, one of which is personally serving the will contest petition on the PR. Mack did not do so, and the probate of Jepsen's will is now binding and final. However, we disapprove of the PR's delay in raising the issue and therefore deny both parties' requests for attorney fees and costs on appeal.

A. Under the plain language of RCW 11.24.010, the probate of Jepsen's will is binding and final

¶ 8 Questions of statutory interpretation are reviewed de novo. In re Marriage of Buecking, 179 Wash.2d 438, 443, 316 P.3d 999 (2013). We must first consider the statute's plain language. Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wash.2d 1, 9–10, 43 P.3d 4 (2002). In this case, our inquiry ends there. A will contest petitioner must satisfy RCW 11.24.010's requirements in order to commence a will contest action, and Mack did not do so.

184 Wash.2d 380

¶ 9 Will contests are special statutory proceedings governed by ch. 11.24 RCW.3 In re Estate of Toth, 138 Wash.2d 650, 653, 981 P.2d 439 (1999). RCW 11.24.010 sets a four-month limitations period for will contests and provides in relevant part:

For the purpose of tolling the four-month limitations period, a contest is deemed commenced when a petition is filed with the court and not when served upon the personal representative. The petitioner shall personally serve the personal representative within ninety days after the date of filing the petition. If, following filing, service is not so made, the action is deemed to not have been commenced for purposes of tolling the statute of limitations.

If no person files and serves a petition within the time under this section, the probate or rejection of such will shall be binding and final.

(Emphasis added.) This unambiguous language requires no construction. The PR in this case was never personally served with the will contest petition.4 The probate of Jepsen's will is therefore binding and final.

358 P.3d 405

¶ 10 Mack tries to avoid this plain language by contending that personal service of a will contest petition is necessary only to gain personal jurisdiction over the PR and that the PR waived any objection on that basis under CR 12(h)(1). His primary support for this argument comes from In re Estate of Kordon, 157 Wash.2d 206, 137 P.3d 16 (2006). In that case, we held that issuance of a “citation” under former RCW 11.24.020 (1965) was “equivalent to a civil summons, conferring personal jurisdiction over a party to a

184 Wash.2d 381

will contest.” Id. at 210, 137 P.3d 16 (emphasis added). Kordon, however, interpreted RCW 11.24.020, which (in both its current and former versions) sets forth the requirements for giving notice of a will contest action. By contrast, this case concerns RCW 11.24.010, which sets forth the requirements for commencing a will contest action. Washington courts have always strictly enforced the requirements for commencing will contest actions, and we do so again today. See, e.g., Toth, 138 Wash.2d at 656, 981 P.2d 439 ; State ex rel. Wood v. Superior Court, 76 Wash. 27, 30–31, 135 P. 494 (1913) ; In re Estate of Peterson, 102 Wash.App. 456, 463, 9 P.3d 845 (2000).

¶ 11 Mack also contends that giving effect to the plain language of RCW 11.24.010 would divest the superior courts of their constitutional jurisdiction over “all matters of probate.” Const . art. IV, § 6. However, “the legislature may prescribe reasonable regulations that do not divest the court of its jurisdiction.” Buecking, 179 Wash.2d at 449, 316 P.3d 999. RCW 11.24.010 does just that by setting forth reasonable statutory prerequisites that must be fulfilled in order to commence a will contest action, which, as noted above, is a special statutory proceeding.5 Cf. Christensen v. Ellsworth, 162 Wash.2d 365, 370–71, 173 P.3d 228 (2007) ; James v. Kitsap

184 Wash.2d 382

County, 154 Wash.2d 574, 587–89, 115 P.3d 286 (2005) ;6 In re Parentage of Ruff, 168 Wash.App. 109, 118, 275 P.3d 1175 (2012).

¶ 12 Mack did not complete the necessary steps to commence his will contest action.7 The probate of Jepsen's will is therefore binding and final.

B. Attorney fees and costs are denied

¶ 13 Both parties request attorney fees and costs on appeal pursuant to RCW 11.96A.150(1). Mack failed to comply with the plain language of RCW 11.24.010, so we deny his request. However, we disapprove of the PR's delay in raising the issue, contrary to her statutory duty “to settle the estate ... as rapidly and as quickly as possible, without sacrifice to the probate or nonprobate estate.” RCW 11.48.010. We therefore deny her request as well.

CONCLUSION

¶ 14 For the foregoing reasons, we reverse the Court of Appeals, deny both parties' requests for attorney fees and costs, and remand

358 P.3d 406

for further proceedings consistent with this opinion.

WE CONCUR: MADSEN, C.J., FAIRHURST, WIGGINS, and GONZÁLEZ, JJ.

STEPHENS, J. (dissenting).

¶ 15 The primary dispute in this case concerns whether the personal service requirement in the statute governing will contests, RCW 11.24.010,

184 Wash.2d 383

speaks to the superior court's subject matter jurisdiction over will contest proceedings or to personal jurisdiction over the personal representative of the decedent's estate. The distinction is pivotal because a defense that subject matter jurisdiction is improper can be raised at any time, but a defense that personal jurisdiction is improper may be waived. The superior court and the Court of Appeals held that the statute concerns personal jurisdiction and the estate waived the defense. I would affirm.

¶ 16 The majority takes a different approach. The majority concludes the statute creates a defense that cannot be waived—but without discussing its jurisdictional status at all. In my view, this avoids the proper analysis. Regardless of whether a statute is phrased in “mandatory” terms, the deeply rooted norm in our adversarial litigation process is that a defense is waived if the defense is not timely asserted. CR 12(h)(1). A defense for lack of subject matter...

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14 practice notes
  • In re Reyes, No. 89465–5.
    • United States
    • United States State Supreme Court of Washington
    • September 24, 2015
    ...consistent with, our state's civil commitment cases. It is not compelled by, and not consistent with, our state's criminal cases. In fact, 358 P.3d 403the majority's analysis is inconsistent with D.F.F., Bone–Club, and Easterling.--------Notes:1 Seattle Times Co. v. Ishikawa, 97 Wash.2d 30,......
  • Banowsky v. Backstrom, NO. 96200-6
    • United States
    • United States State Supreme Court of Washington
    • July 25, 2019
    ...Buecking gives reason to question that label. 179 Wash.2d at 446-54, 316 P.3d 999. But see In re Estate of Jepsen, 184 Wn.2d 376, 358 P.3d 403 (2015).7 Ch. 34.05 RCW.8 The legislature appears to agree that case transfer is a procedural matter. See RCW 34.05.510 (referring to transfer as an ......
  • Hansen v. Rozgay, 74636-7-I
    • United States
    • Court of Appeals of Washington
    • September 11, 2017
    ...11.24.010. Washington courts strictly enforce the requirements for commencing a will contest. In re Estate of Jepsen, 184 Wn.2d 376, 381, 358 P.3d 403 (2015) (citing In re Estate of Toth, 138 Wn.2d 650, 653, 981 P.2d 439 (1999)). "The four-month period is absolute If the will contest is not......
  • Hansen v. Rozgay, No. 74636-7-I
    • United States
    • Court of Appeals of Washington
    • October 23, 2017
    ...11.24.010. Washington courts strictly enforce the requirements for commencing a will contest. In re Estate of Jepsen, 184 Wn.2d 376, 381, 358 P.3d 403 (2015) (citing In re Estate of Toth, 138 Wn.2d 650, 653, 981 P.2d 439 (1999)). "The four-month period is absolute. . . . If the will contest......
  • Request a trial to view additional results
14 cases
  • In re Reyes, No. 89465–5.
    • United States
    • United States State Supreme Court of Washington
    • September 24, 2015
    ...consistent with, our state's civil commitment cases. It is not compelled by, and not consistent with, our state's criminal cases. In fact, 358 P.3d 403the majority's analysis is inconsistent with D.F.F., Bone–Club, and Easterling.--------Notes:1 Seattle Times Co. v. Ishikawa, 97 Wash.2d 30,......
  • Banowsky v. Backstrom, NO. 96200-6
    • United States
    • United States State Supreme Court of Washington
    • July 25, 2019
    ...Buecking gives reason to question that label. 179 Wash.2d at 446-54, 316 P.3d 999. But see In re Estate of Jepsen, 184 Wn.2d 376, 358 P.3d 403 (2015).7 Ch. 34.05 RCW.8 The legislature appears to agree that case transfer is a procedural matter. See RCW 34.05.510 (referring to transfer as an ......
  • Hansen v. Rozgay, 74636-7-I
    • United States
    • Court of Appeals of Washington
    • September 11, 2017
    ...11.24.010. Washington courts strictly enforce the requirements for commencing a will contest. In re Estate of Jepsen, 184 Wn.2d 376, 381, 358 P.3d 403 (2015) (citing In re Estate of Toth, 138 Wn.2d 650, 653, 981 P.2d 439 (1999)). "The four-month period is absolute If the will contest is not......
  • Hansen v. Rozgay, No. 74636-7-I
    • United States
    • Court of Appeals of Washington
    • October 23, 2017
    ...11.24.010. Washington courts strictly enforce the requirements for commencing a will contest. In re Estate of Jepsen, 184 Wn.2d 376, 381, 358 P.3d 403 (2015) (citing In re Estate of Toth, 138 Wn.2d 650, 653, 981 P.2d 439 (1999)). "The four-month period is absolute. . . . If the will contest......
  • Request a trial to view additional results

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