Portmann v. Herard, 49563-5-II

• Decision Date: 06 February 2018
• Docket Number: No. 49563-5-II,49563-5-II
• Citation: 409 P.3d 1199
• Parties: Frank PORTMANN, Appellant, v. Sally HERARD, in her capacity as Personal Representative of the Estate of Donald Lewis Cross, Respondent.
• Court: Washington Court of Appeals

409 P.3d 1199

Frank PORTMANN, Appellant,

v.Sally HERARD, in her capacity as Personal Representative of the Estate of Donald Lewis Cross, Respondent.

No. 49563-5-II

Court of Appeals of Washington, Division 2.

Filed February 6, 2018

David Martin Newman, The Rainier Law Group PLLC, Po Box 7328, Bellevue, WA, 98008-1328, Nathan James Neiman, Neiman Law Offices, Po Box 777, Redmond, WA, 98073-0777 for Appellant

Heather L. Crawford, Robin H. Balsam PS, 911 South I St., Tacoma, WA, 98405-4517 for Respondent

PUBLISHED OPINION

MAXA, A.C.J.

¶ 1 Frank Portmann appeals the trial court's order granting summary judgment in favor of Sally Herard, acting as personal representative of the estate of Donald Cross, in his Trust and Estate Dispute Resolution Act (TEDRA)¹ action. Portmann initiated the TEDRA action to specifically enforce the distribution of the remainder of the estate in Cross's 1998 will and to invalidate inconsistent portions of Cross's 2010 will.

¶ 2 The issue in this case is whether Cross and his life partner Glen Morse agreed to execute "mutual wills" in 1998 that became irrevocable after Morse's death in 2000. Portmann, the son of Morse's niece and a beneficiary under Cross's 1998 will, claims that Cross and Morse had an oral agreement to execute mutual wills. Herard claims that there was no agreement to execute mutual wills and that

Cross was free to change his will after Morse's death. The trial court struck portions of a declaration made by Eric Pickle, the husband of Cross's niece, about statements Cross and Morse made to him. The court then ruled that Portmann had failed to create a genuine question of material fact regarding the existence of an oral agreement between Cross and Morse to execute mutual wills.

¶ 3 We hold that (1) the trial court did not err in striking as hearsay the portion of Pickle's declaration stating that Cross and Morse had told him that they had agreed to bequeath half of the survivor's remainder estate to the other's family members, to the extent that the declaration was offered to establish the existence of an agreement to execute mutual wills; and (2) the trial court did not err in granting summary judgment because the evidence Portmann submitted did not create an issue of material fact on whether Cross and Morse entered into an agreement to execute mutual wills.

¶ 4 Accordingly, we affirm the trial court's order granting summary judgment. We also exercise our discretion under RCW 11.96A.150 to award attorney fees on appeal to Herard.

FACTS

Execution of Wills

¶ 5 Cross and Morse were domestic partners beginning in the 1960s, and owned multiple properties together. They executed separate wills with the assistance of attorney Gaylerd Masters in both 1992 and 1995. The wills had similar provisions and generally provided that upon the death of the testator, the remainder of the estate would pass to the surviving partner. The wills also provided that upon the survivor's death, the remainder of the survivor's estate would be divided between Cross's family members and Morse's family members.

¶ 6 In January 1998, Cross executed a revised will that Masters drafted. The will provided that if Morse predeceased

Cross, certain specific distributions would be made and the reminder of the estate would be distributed one-fourth to Cross's sister Herard, one-fourth to Cross's sister Donna Warter, and one-half equally among Morse's sister Minnie Campbell, Campbell's daughter Darlene Portmann, and Portmann's sons Eric and Frank.

¶ 7 On the same day that Cross executed his revised will, Masters also had drafted a revised will for Morse. But Morse wanted to think more about the beneficiaries of his will, and so he did not execute a revised will at that time.

¶ 8 In September 1998, Morse executed a revised will that Masters again drafted. This will was different than the draft will Masters had prepared in January 1998. The will made specific bequests to Campbell, Darlene, Eric and Frank, and left the remainder of the estate to Cross. If Cross predeceased Morse, the will provided a specific bequest of paintings and sculptures and that the remainder would be divided one-half equally among Campbell, Darlene, Eric and Frank, and one-half equally between Herard and Warter.

Morse's Death and Cross's Revised Wills

¶ 9 Morse died in 2000. His property was distributed according to the bequests in his 1998 will, under which Cross received the remainder of the estate after the specific distributions.

¶ 10 Cross executed revised wills in 2002 and 2005, each reducing the size of the bequests to Morse's family. In October 2010, Cross executed another revised will that left his entire estate to Herard, with no bequests to any of Morse's family members.² Masters drafted all of these wills.

¶ 11 Cross died in 2015, and his October 2010 will was admitted to probate.

TEDRA Petition

¶ 12 Portmann filed a TEDRA petition against Herard, as the personal representative of Cross's estate, to specifically enforce Cross's 1998 will. Portmann alleged that Cross and Morse agreed with each other that if one predeceased the other, the survivor would divide the remainder of the survivor's estate between their two families, and that their 1998 wills were an expression of this agreement. Portmann claimed that the 1998 wills were mutual wills that could not be unilaterally revoked. He sought an order directing Herard to distribute Cross's estate in accordance with the 1998 will.

¶ 13 Herard moved for summary judgment. In support of her motion, Herard presented a declaration by Masters. Masters stated that he discussed the concept of mutual wills with Cross and Morse. He also stated that if Cross and Morse had told him that they wanted a mutual will, he would have included language to that effect in the wills and would not have agreed to draft revised wills for Cross after Morse's death.

¶ 14 Masters further stated:

After updating their wills several times and hearing their different intentions each time, I am absolutely sure that they did not intend to prepare mutual wills. They were very adamant and it was important to each of them to be free to do as they pleased with their resources—especially after one of them passed away. Neither of them made any statements that they wanted mutual wills or wanted to enter into a contract not to change their wills.

Clerk's Papers (CP) at 112. Masters concluded that "I am sure that Mr. Morse and Mr. Cross never had any intent to lock each other into mutual wills." CP at 113.

¶ 15 In response, Portmann submitted several declarations, including a declaration by Pickle, the husband of Warter's daughter Sherrie (Cross's niece). Pickle stated that he and his wife were close to Cross and Morse, and that Pickle had reviewed Cross's 1998 will. Pickle stated:

In subsequent conversations, [Cross] and [Morse] emphasized to Sherrie and me the fundamental feature of their agreement in their plan: half of the survivor's estate going to the other's family members. Both men told us that this was their agreement.

CP at 254. Pickle concluded that ever since Cross made a new will in January 1998,

[I]t has always been clear in my mind that [Cross] and [Morse] had a well-thought-out end-of-life plan. Each partner would leave his estate to the other, and the survivor would be free to use the money and property as he wished. Upon the survivor's death, the remainder of the estate would be divided in half, with half going to [Morse's] family and half going to [Cross's] family.

CP at 255.

¶ 16 Herard filed a motion to strike Pickle's declaration on the ground that the declaration was inadmissible under RCW 5.60.030, the "deadman's statute." The trial court granted the motion to strike specific paragraphs that contained purported statements of Cross and Morse, ruling that such statements were inadmissible under RCW 5.60.030 and also as hearsay.

¶ 17 The trial court then granted summary judgment in favor of Herard and dismissed Portmann's TEDRA petition. The court subsequently awarded reasonable attorney fees to Herard.

¶ 18 Portmann appeals the trial court's order granting summary judgment.

ANALYSIS

¶ 19 This case involves a narrow issue: whether Cross and Morse entered into an oral agreement to execute mutual wills that became irrevocable when one of them died. If they did, Cross could not change his 1998 will after Morse's death. If they did not, Cross was free to change his 1998 will. Because the trial court granted summary judgment in favor of Herard, the question on appeal is whether there was sufficient evidence to create a genuine issue of material fact regarding the existence of an agreement to execute mutual wills. We hold that the evidence did not show a genuine issue of material fact.

A. STANDARD OF REVIEW

¶ 20 We review a trial court's order granting summary judgment de novo. Zonnebloem, LLC v. Blue Bay Holdings, LLC , 200 Wash.App. 178, 182, 401 P.3d 468 (2017). We view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Id. Summary judgment is appropriate where there is "no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." CR 56(c). A genuine issue of material fact exists if the evidence is sufficient for a reasonable jury to find in favor of the nonmoving party. Zonnebloem , 200 Wash.App. at 182-83, 401 P.3d 468. A factual issue may be determined on summary judgment if reasonable minds can reach only one conclusion on that issue. Id. at 183, 401 P.3d 468.

¶ 21 If a moving defendant shows the absence of any evidence supporting the plaintiff's claim, the burden shifts to the plaintiff to show a genuine issue of material fact. Id. To meet this burden, the plaintiff must present specific facts that demonstrate an issue of fact. Id. A nonmoving party cannot rely on conclusory statements or conjecture. Elcon Constr., Inc. v. E. Wash. Univ. , 174 Wash.2d 157, 169, 273 P.3d 965 (2012).

B. EXISTENCE OF AGREEMENT TO EXECUTE...