Wood v. Whealen (In re Estate of Wood)

• Decision Date: 31 October 2011
• Docket Number: NO. 65376-8-I,NO. 65970-7-I,65376-8-I,65970-7-I
• Parties: In the Matter of the Estate of JODY SCOTT WOOD. DYLAN THOMPSON WOOD, Appellant, v. MARY FRANCES WHEALEN, as Personal Representative of the Estate of JODY SCOTT WOOD, Deceased, Respondent.
• Court: Washington Court of Appeals

In the Matter of the Estate of JODY SCOTT WOOD.

DYLAN THOMPSON WOOD, Appellant,

v.MARY FRANCES WHEALEN,

as Personal Representative of the

Estate of JODY SCOTT WOOD,

Deceased, Respondent.

NO. 65376-8-I

NO. 65970-7-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

FILED: October 31, 2011

UNPUBLISHED OPINION

Leach, A.C.J. — In this consolidated appeal, Dylan Thompson Wood primarily challenges trial court orders dismissing his petition to revoke probate of his mother's will and denying his petition to remove his mother's partner, Mary Whealen, as the estate's executrix. Tom¹ does not support his will challenge with any evidence in the record creating a genuine issue of material fact. And the record amply supports the trial court's exercise of discretion to dismiss the removal petition. We affirm.

FACTS

Jody Scott Wood and Mary Whealen were life partners for the 30 years before Wood's death in December 2007. In a 2004 will, Wood left the bulk of her estate to Whealen, including a Shoreline house where the couple resided and her interests in a real estate business and property in Okanogan, Washington. To Tom, who lives in California and visited Wood only once in the 20 years before her death, she bequeathed an antique rifle and artwork by his father, O.T. Wood. Wood named Whealen as personal representative, granting her nonintervention powers.

In January 2008, Whealen filed a petition to probate the 2004 will. At a hearing on the petition, Tom challenged the will's validity, arguing that it looked like it had been altered. Whealen testified, explaining that the will appeared as it did because she and Wood had updated their old wills by cutting and pasting new language into them. Whealen also brought a copy of her 2004 will to the hearing, which appeared similar in format to Wood's. Whealen said she probably typed the alterations, but "[t]he wording and changes we determined together."

The court admitted Wood's will to probate and appointed Whealen as personal representative.² Tom then filed two separate petitions: one to revokeprobate of Wood's will and the other to remove Whealen as personal representative.³

In the petition to revoke probate, Tom argued, among other grounds, that the will was invalid because Wood lacked testamentary intent and that the will was the product of undue influence. The trial court granted Whealen's motion for summary judgment because no admissible evidence supported Tom's claims. The court noted, "[Tom] Wood's 30 page declaration is largely inadmissible as evidence, and those portions are not considered by the court. Those portions that are argumentative, speculative, based on inadmissible hearsay, or lack of personal knowledge or foundation are inadmissible and have not been considered by the court."

The trial court also granted Whealen's motion for attorney fees and costs under RCW 11.24.050 and RCW 11.96A.150 after finding that Tom filed his petition in bad faith and without probable cause. The court explained, "The extensive record before the court establishes the sole design of Petitioner was toharass the Respondent through litigation of no merit, and to obfuscate the truth. Such litigation provided no benefit to the estate, and served only to drain it."

In his removal petition, Tom argued that Whealen breached her fiduciary duties, embezzled funds from Wood in the four years before her death, failed to pay off the Shoreline property's reverse mortgage, and engaged in other "serious misbehavior and acts of dishonesty and moral turpitude."

In connection with the petition, Tom filed a motion to compel discovery. He sought access to Whealen's financial records and to the Shoreline property to inspect, videotape, and photograph its interior and exterior and to copy "all files on the disc-drives of the computer(s) used by Decedent . . . and/or . . . Whealen." The trial court denied Tom's motion and granted Whealen's motion for a protective order.⁴

After two hearings, a superior court commissioner denied Tom's removal petition and awarded Whealen attorney fees and costs. The commissioner found the petition to be "unsupported by any factual statements that the Court may rely upon."

Tom filed a motion to revise the commissioner's order and judgment, arguing in part that the commissioner engaged in reverse discrimination. After ade novo review, the trial court entered an order denying revision.

Tom appeals.

ANALYSIS

Petition To Remove Whealen as Personal Representative

Tom asserts the trial court erred by denying his motion to revise the commissioner's ruling. A probate court may remove a personal representative or restrict his or her nonintervention powers for waste, embezzlement, mismanagement, fraud, or "for any other cause or reason which to the court appears necessary."⁵ We give considerable deference to a trial court's decision regarding a removal petition and will not disturb that decision absent a manifest abuse of discretion.⁶

Tom first claims that Whealen failed to perform her general duties as personal representative. A personal representative has a fiduciary duty to the estate's beneficiaries to marshal the estate's assets, to notify creditors and settle claims, to pay taxes, and to distribute the estate's assets to the proper parties.⁷ Tom argues that Whealen breached this duty by failing to refinance the Shoreline house in order to pay the balance due on its reverse mortgage.

However, the record demonstrates that Tom's actions frustrated Whealen's attempts to make the required payment. After Wood's death, Whealen met with a mortgage broker to discuss the application process for a new mortgage. Then in May 2008, a month before payment on the reverse mortgage became due, Tom recorded a lis pendens against the property. Despite Whealen's requests, Tom refused to release this encumbrance to facilitate a new mortgage. In December 2008, Whealen obtained a court order requiring Tom to do so. Three months later, Tom finally released the lis pendens, after Whealen advised him that the property had gone into foreclosure. Whealen then avoided foreclosure by obtaining a new mortgage. This sequence of events demonstrates Whealen's diligent attempts to perform her personal representative duties and does not show mismanagement of the estate.

Second, Tom argues that Whealen should have been removed as personal representative based upon his claim that she embezzled at least $130,000 from Wood between 2004 and 2007. According to Tom, Whealen gained access to these funds by "forging" Wood's signature on "hundreds of checks." Tom's argument is fundamentally flawed for two reasons. First, there is no evidence in the record that Wood did not authorize any of the disputed transactions or that Whealen ever had an improper purpose. Second, becausethe alleged misconduct occurred before Wood died, it necessarily occurred before the court appointed Whealen as personal representative. Therefore, her conduct during that time period cannot serve as the basis of a finding that she breached her duties as personal representative.

Finally, Tom claims Whealen should have been removed because she had "multiple, serious, and irreconcilable conflicts of interest" and engaged in waste by failing to maintain the Shoreline property in good repair.⁸ Tom, however, does not support his claims with any citation to evidence in the record, as RAP 10.3(a)(6) requires. Without citation to the record, we cannot determine whether the trial court abused its discretion.⁹

Tom contends that another personal representative should be appointed. Because Tom has not shown that Whealen should have been removed, his claim fails.

Discovery

Tom next claims the trial court erred by denying his motion to compel discovery and by granting a protective order preventing Tom from entering the Shoreline property. According to Tom, the trial court's decision was improperunder ER 106. But ER 106 governs the admissibility of certain documents or parts of documents. It does not speak to whether those documents are discoverable. Rather, CR 26, a rule that Tom does not cite, governs the scope of discovery. Additionally, Tom did not present an argument based on ER 106 to the trial court. Generally, we will not consider on appeal arguments or theories not argued below.¹⁰ For these reasons, we reject Tom's claim.

Will Contest

Tom contends the trial court erred by granting Whealen's motion for summary judgment and dismissing his petition to revoke probate of Wood's will. According to Tom, the will is invalid due to lack of testamentary intent, improper form and preparation, fraud, forgery, mistake, and undue influence.

We review an order granting summary judgment de novo, engaging in the same inquiry as the trial court.¹¹ Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.¹² The moving party has the burden of proving that there is no genuine issue of material fact.¹³ If the moving party meets its burden, the burdenshifts to the nonmoving party to "'set forth specific facts showing that there is a genuine issue for trial.'"¹⁴ The nonmoving party must set forth evidentiary facts and cannot meet its burden by relying on "speculation, argumentative assertions that unresolved factual issues remain, or in having its affidavits considered at face value."¹⁵ In determining whether a genuine issue exists, we construe the facts and reasonable inferences therefrom in the light most favorable to the nonmoving party.¹⁶

As a preliminary matter, we note that Tom's argument largely relies on phone and in-person conversations he claims he had with his mother. Generally, a court cannot consider inadmissible hearsay evidence when ruling on a motion for summary judgment.¹⁷ Tom, however, seems to suggest the conversations were admissible because (1) Whealen waived the application of the dead man's statute¹⁸ and (2) the conversations fall under the exceptions to the...