                                                                          FILED
                                                                        MAY 30, 2019
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

 In the Matter of the Estate of                )
                                               )         No. 35845-3-III
 MARIA G. PRIMIANI.                            )
                                               )
                                               )         UNPUBLISHED OPINION
                                               )

       SIDDOWAY, J. — A testator wishing to discourage litigation over the terms of her

will can include a “no contest” or “in terrorem” provision, under which a beneficiary who

challenges the will forfeits his share of the estate or has it reduced to a nominal amount.

Such provisions are generally enforceable; however, Washington courts will not enforce

a provision in some actions brought in good faith and with probable cause.

       Frank Primiani brought an unsuccessful challenge to his mother’s will and appeals

the trial court’s decision that he failed to demonstrate why her no contest clause should

not be enforced. We affirm the trial court.
No. 35845-3-III
In re Estate of Primiani


                       FACTS AND PROCEDURAL BACKGROUND

       Following the death of Maria Primiani in 2014, her will was admitted to probate

and her daughter Anna1 was appointed personal representative. Maria’s other living

child, her son Frank, filed a complaint in the probate proceeding, purporting to assert

claims on behalf of the estate against Anna and her husband, seeking Anna’s removal as

personal representative, and asking the court to order an accounting and partition real

property. The complaint also included allegations of undue influence, misrepresentation

and concealment in the making or execution of Maria’s will, but in an apparent effort to

avoid triggering the no contest provision in Maria’s will, Frank purported to “reserve[ ]

the right to allege details of undue influence in the making and execution of the Will.”

Clerk’s Papers (CP) at 7.2 His prayer for relief did not go so far as to seek a declaration

that her will was invalid.

       When no other legal action to challenge the will was brought within the limitations

period for a will contest, however, Frank’s lawyer, Steven Schneider, told the court that



       1
        We use first names of the members of the Primiani family in this section of the
opinion, for clarity. We intend no disrespect.
       2
           The no contest provision states:
              In the event that any person shall contest this Will or attempt to
       establish that he or she is entitled to any portion of my estate or to any right
       as an heir, other than as herein provided, I hereby give and bequeath unto
       any such person the sum of one dollar.
CP at 2.

                                              2
No. 35845-3-III
In re Estate of Primiani


the intention in filing the complaint had been to include a will contest. The case

proceeded on that basis.

       The estate eventually obtained dismissal of the will contest based on Frank’s

failure to timely personally serve Anna with a complaint. With the will contest having

failed, Anna asked the trial court to enforce the no contest provision and treat Frank as

having forfeited his one-half share of Maria’s real property in Spokane County. The trial

court enforced the no contest provision.

       Frank appealed, and in a 2017 decision, this court affirmed dismissal of the will

contest. In re Estate of Primiani, No. 34200-0-III, slip op. at 1 (Wash. Ct. App. May 2,

2017) (unpublished), http://www.courts.wa.gov/opinions/pdf/342000_unp.pdf. When it

came to enforcement of the no contest provision, however, this court concluded that the

trial court had not made findings addressing Frank’s contention that the provision should

not be enforced because he had challenged the will in good faith and with probable cause.

       Following remand, a hearing was conducted at which the trial court and counsel

discussed how to proceed. Frank’s lawyer outlined evidence he intended to present in

support of his good faith, which included matters remote in time from 2008. The court

observed that what was material was whether or not Maria was subjected to undue

influence in 2008, in connection with the making and execution of the will. The court

also cautioned counsel against relying on inadmissible evidence. The court then set a

schedule for Frank to submit an offer of proof and for the estate to respond.

                                             3
No. 35845-3-III
In re Estate of Primiani


       After considering Frank’s offer of proof and the estate’s response, the trial court

entered a memorandum opinion concluding that the will contest was not filed in good

faith. It again enforced the no contest provision.

       During the weeks the court had enforcement of the provision under advisement,

Mr. Schneider was notified that Frank was investigating potential legal claims against

him and his law firm. Mr. Schneider moved for leave to withdraw. The hearing on Mr.

Schneider’s motion took place shortly after the trial court filed its memorandum opinion.

Among matters argued was whether Frank would be prejudiced by the withdrawal. Mr.

Schneider stated during the hearing:

       I’d like to remind the Court that Mr. Primiani is actually co-counsel on this
       matter to the point of contacting and dealing with Mr. Stevens directly at
       some points. Mr. Primiani did researching, briefed cases, provided a lot of
       information as an attorney, and Mr. Primiani knows what this case is
       about.
               ....
               So to say that Mr. Primiani doesn’t know what’s going on, he’s been
       participating with me at every decision made in this case as co-counsel, and
       that’s the way he wanted it. So he knows what’s happening.

Report of Proceedings (RP) (Oct. 10, 2017) at 34-35.

       The court granted Mr. Schneider leave to withdraw. It thereafter entered formal

findings of fact and conclusions of law on the no contest enforcement issue.

       Through new counsel, Frank timely moved for reconsideration, arguing that the

court had applied the wrong standard in making its findings because it failed to consider

whether Frank had relied on Mr. Schneider’s advice in contesting the will. Division Two

                                             4
No. 35845-3-III
In re Estate of Primiani


of this court held in In re Estate of Mumby, 97 Wn. App. 385, 393, 982 P.2d 1219 (1999),

that relying on advice of counsel after fully and fairly laying out material facts is one way

of demonstrating good faith and probable cause.

       Frank supported his motion with a declaration in which he conclusorily asserted

that he had fully and fairly laid out the material facts to Mr. Schneider and relied on his

counsel.3 The trial court entertained the reconsideration motion but denied it, stating that

it had Mumby in mind in making its original decision. The court’s opinion denying

reconsideration observed that “[m]any of the documents filed by attorney Steve

Schneider start with referring to Frank Primiani as co-counsel.” CP at 392-93 (boldface

in original). It included a supplemental finding that Mr. Primiani, a licensed attorney,

“did not rely on advice of his co-counsel when pursuing the will contest and was not




       3
           Frank’s declaration states:

       Prior to filing this case, I consulted with my former counsel, Mr. Schneider,
       and disclosed all material facts known to me at the time. I moved ahead
       with this case on the basis of Mr. Schneider’s counsel and representation
       that there was a case worth pursuing. Had I believed that there would be
       material facts that would prevent me from prevailing in this matter, or had
       I believed that the evidence I could collect would be inadmissible, I would
       not have moved forward with the case.

CP at 377.




                                              5
No. 35845-3-III
In re Estate of Primiani


candid in his disclosures to his co-counsel regarding the undue influence claims.” CP at

394.

       Frank appeals.

                                         ANALYSIS

       Will contests in Washington have long been governed by statute. E.g., State ex

rel. Wood v. Super. Ct. of Chelan County, 76 Wash. 27, 31, 135 P. 494 (1913).

Modernly, they are governed by chapter 11.24 RCW. A statutory consequence of

bringing an unsuccessful will contest is that the trial court may assess reasonable

attorney’s fees against the contestant “unless it appears that the contestant acted with

probable cause and in good faith.” RCW 11.24.050. The good faith exception to liability

for attorney fees in will contests was originally judicially created in In re Estate of

Eichler (Preuss v. Berg), 102 Wash. 497, 173 P. 435 (1918), in which the court held that

“where a person in good faith brings an action to contest a will and makes a prima facie

case, attorney’s fees should not be awarded against him in the event his action fails.” In

re Estate of Chapman, 133 Wash. 318, 322, 233 P. 657 (1925) (emphasis omitted). The

legislature later amended the will contest statutes to identify probable cause and good

faith as a basis for excusing a contestant from liability for the estate’s attorney’s fees.

LAWS OF 1965, ch. 145, § 11.24.050 (codified at RCW 11.24.050).

       At around the same time that our Supreme Court recognized a contestant’s good

faith and probable cause as grounds for shielding the contestant from paying attorney’s

                                               6
No. 35845-3-III
In re Estate of Primiani


fees, it considered similar reasons for sparing the contestant from the operation of a no

contest provision. In In re Estate of Chappell, 127 Wash. 638, 646, 221 P. 336 (1923),

the contestant believed, ultimately incorrectly, that California law would apply and

render the will invalid. After surveying cases from other jurisdictions to decide “whether

we shall adopt the rule of probable cause,” the Supreme Court held that “it not being

denied that the contest was made in good faith . . . we are . . . convinced that appellant

had probable cause for instituting the proceedings he did, and that by so doing he did not

forfeit his legacy.” Id. (emphasis added).

       In a 1973 case, this court identified reliance on counsel as “persuasive” of the

bona fides of a will contest in some cases. In re Estate of Kubick, 9 Wn. App. 413, 420,

513 P.2d 76 (1973). The court agreed with the proposition in a West Virginia decision

that if the facts are “fully and fairly laid before counsel” and the contestant then relies on

counsel’s advice in challenging a will, that would establish the contestant’s good faith

and probable cause. Id. (emphasis omitted) (citing Dutterer v. Logan, 103 W.Va. 216,

137 S.E. 1 (1927)). The court cautioned that reliance on counsel alone would not be

conclusive without “establish[ing] what facts were before counsel when and if he advised

the suit in the face of the in terrorem provision.” Id.

       Mumby, on which Frank relies, applied Kubick’s proposition that reliance on fully-

informed counsel can demonstrate good faith and probable cause, but found that it was



                                              7
No. 35845-3-III
In re Estate of Primiani


not demonstrated by the contestant, who was challenging her father’s will.4 In that case,

the daughter’s lawyer provided a declaration in support of his client’s argument that a no

contest provision should not be enforced against her. The trial court concluded that the

lawyer’s declaration did not demonstrate that his advice was based on an evenhanded,

full and fair presentation of the facts; instead, the lawyer simply resubmitted facts that the

daughter had presented at trial, in a light most favorable to her.

       Mr. Primiani makes several arguments as to why the trial court erred. Three can

be resolved summarily before turning to the sufficiency of Mr. Primiani’s evidence of

good faith and probable cause.


       4
         This court’s 2017 opinion in this case pointed out that the decision in Mumby
might have made an unwarranted leap by suggesting that the good faith and probable
cause exception applies to all will contests. Chappell and Kubick, on which Mumby
relied, were more limited. Chappell involved a challenge to a will on public policy
grounds, and discussed the fact that challenges on personal or private grounds might not
qualify for the exception. 127 Wash. at 640-41. In Kubick, the no contest clause
contained an express proviso that it would not apply to a challenge made in good faith
and for probable cause. 9 Wn. App. at 419-20. As discussed in this court’s 2017
opinion, since the estate did not challenge Mumby or argue that the good faith and
probable cause exception did not apply, we assumed without deciding that it did apply
and remanded for the trial court to make findings. Estate of Primiani, slip op. at 15-16.
        The estate now challenges Mumby. But for purposes of this appeal, application of
the good faith and probable cause exception to private or personal disputes is law of the
case. “‘[Q]uestions determined on appeal, or which might have been determined had
they been presented, will not again be considered on a subsequent appeal if there is no
substantial change in the evidence.’” Folsom v. County of Spokane, 111 Wn.2d 256,
263, 759 P.2d 1196 (1988) (quoting Adamson v. Traylor, 66 Wn.2d 338, 339, 402 P.2d
499 (1965)).



                                              8
No. 35845-3-III
In re Estate of Primiani


I.     MR. PRIMIANI HAD A FULL OPPORTUNITY TO PRESENT RELEVANT EVIDENCE AND
       APPLICABLE LAW

       Mr. Primiani argues that the court failed to consider Mumby in rendering its initial

decision. The court states that it did, however, and since it entertained Mr. Primiani’s

motion for reconsideration and entered supplemental findings, any dispute over whether

it initially had Mumby in mind is moot.

       He argues that the court frustrated presentation of his argument on remand by

insisting that he present relevant, admissible evidence of undue influence in connection

with Maria’s execution of the 2008 will. He contends that what should have mattered

was his subjective motivation and concerns in filing the petition.

       The trial court never foreclosed Mr. Primiani from making his record on the issues

he deemed material and wished to preserve for appeal. It provided guidance as to the

matters it projected would be the basis for its decision, which most parties would

welcome. If Mr. Primiani believed that the court was wrong about the facts and law that

mattered, it was incumbent upon him to present them, failing which error would be

unpreserved. See RAP 2.5(a). In any event, the trial court better appreciated what

evidence was relevant.

       Finally, Mr. Primiani complains that he was denied the opportunity to conduct

additional discovery. Mr. Primiani did not demonstrate to the trial court why he needed




                                             9
No. 35845-3-III
In re Estate of Primiani


additional discovery to establish that he had a good faith basis and probable cause for

filing his petition in 2015.

II.    MR. PRIMIANI DID NOT DEMONSTRATE GOOD FAITH AND PROBABLE CAUSE

       A will is presumed valid, but may be disregarded when a will contestant presents

clear, cogent, and convincing evidence that a beneficiary exercised undue influence over

the testator. In re Trust & Estate of Melter, 167 Wn. App. 285, 298, 273 P.3d 991

(2012). “[T]he undue influence which operates to void a will must be something more

than mere influence alone. Rather, it must be influence which ‘at the time of the

testamentary act, controlled the volition of the testator, interfered with his free will, and

prevented an exercise of his judgment and choice.’” In re Estate of Kessler, 95 Wn.

App. 358, 376-77, 977 P.2d 591 (1999) (emphasis added) (quoting In re Estate of Lint,

135 Wn.2d 518, 535, 957 P.2d 755 (1998)).

       In attempting to demonstrate good faith and probable cause, Mr. Primiani was

entitled to rely on information obtained up until the time he filed the will contest, but the

trial court properly cautioned counsel that information should bear on the circumstances

under which Maria executed the 2008 will. And it needed to be admissible evidence, or

information supporting the existence of admissible evidence. An action is not brought in

good faith if the only information that can be presented to support it is legally

inadmissible.




                                              10
No. 35845-3-III
In re Estate of Primiani


       A.     Clear, cogent and convincing evidence does not support Mr. Primiani’s
              reliance on counsel

       As demonstrated by Chappell and Kubick, when a contestant seeks to establish

good faith and probable cause by showing the contestant’s reliance on counsel, a

demonstration of the facts that were fully and fairly laid out is as important a part of the

exception to enforcement as is a credible showing of reliance. Mr. Primiani complains

that this requires the client to understand the law, but it does not. The required showing

can also be made if the contestant consults competent counsel who asks about material

facts and the contestant provides full and fair responsive information. If, as Mr. Primiani

contends, the exception applies anytime a contestant with a meritless challenge hires a

lawyer and claims to rely on legal advice, the exception would swallow the general rule

of enforceability.

       Mr. Primiani made no effort to specify the facts that he fully and fairly laid out to

Mr. Schneider. Given his position that what mattered was his subjective motivation and

concerns, it is doubtful that the material facts were laid out.

       The trial court also reasonably found that Mr. Primiani did not credibly

demonstrate reliance. He and Mr. Schneider were identified as “co-counsel” on a number

of materials filed with the court. E.g., CP at 59, 101, 190 (declaration of Mr. Primiani,




                                              11
No. 35845-3-III
In re Estate of Primiani


stating “I am the Petitioner and Co-Counsel herein . . . .”), 194, 403, 408, 413. Only

weeks earlier, Mr. Schneider, as an officer of the court, had made representations to the

court about the extent of Mr. Primiani’s involvement. After Mr. Schneider was allowed

to withdraw, Mr. Primiani, acting “pro se”, filed a 9-page response to the findings and

conclusions presented by the estate. The trial court could reasonably find that Mr.

Primiani’s conclusory declaration—unsupported by any declaration from Mr.

Schneider—did not meet his burden of proving reliance.

       B.     Clear, cogent and convincing evidence did not otherwise support good faith
              and probable cause

       Before the legislature incorporated the “probable cause and in good faith” defense

to an unsuccessful will contestant’s liability for attorney’s fees into RCW 11.24.050, our

Supreme Court repeatedly held that the judicially-recognized exception to liability

applies when a contestant’s evidence establishes a prima facie case, even if the challenge

ultimately fails. See Eichler, 102 Wash. at 499-500; In re Estate of Hille, 117 Wash. 205,

206, 200 P. 1034 (1921); and In re Estate of Mitchell, 41 Wn.2d 326, 353, 249 P.2d 385

(1952). The same should be true of the judicially-created exception to enforcing a no

contest clause, since the same “good faith and probable cause” language is used. A

contestant bears the burden of establishing that he falls within the exception to the

general rule that no contest provisions are enforceable.




                                             12
No. 35845-3-III
In re Estate of Primiani


       In concluding that Mr. Primiani did not demonstrate good faith and probable

cause, the trial court looked to Dean v. Jordan, 194 Wash. 661, 79 P.2d 331 (1938),

“which is often relied upon as the earliest formulation of circumstances giving rise to

concern [about undue influence], and their effect on the parties’ proofs.” Melter, 167

Wn. App. at 298; CP at 366. Dean holds that the most important facts and circumstances

weighing against the validity of a testamentary instrument are “(1) that the beneficiary

occupied a fiduciary or confidential relation to the testator; (2) that the beneficiary

actively participated in the preparation or procurement of the will; and (3) that the

beneficiary received an unusually or unnaturally large part of the estate.” Dean, 194

Wash. at 672.

       The trial court found that Anna occupied a fiduciary or confidential relation to her

mother, but entered the following findings with respect to the other two most important

facts and circumstances:

       [T]he Court finds that Petitioner fails with the second factor. There was no
       direct evidence presented by the Petitioner that Anna actively participated
       in the preparation or procurement of the will itself. Two independent
       witnesses signed the will, and an attorney prepared the will. The will was
       signed in July 2008. At no time, did the Petitioner present any evidence
       that during the time of making and signing this will there was undue
       influence on Maria. Other than Maria living with Anna, there is no actual
       evidence other than self-serving double hearsay evidence that Ann[a] or her
       husband actively participated in the preparation or procurement of the will.

       . . . Under the third factor in Dean v. Jordan, the Petitioner fails to establish
       that Anna received an unusually large portion of the estate. At the time of
       her death, Maria had two children, Anna and Frank, and each child received

                                              13
No. 35845-3-III
In re Estate of Primiani


       half her estate. This does not constitute an unnatural or unusual to one over
       the other.

CP at 366-67 (Findings of Fact 12, 13). Mr. Primiani does not assign error to the

findings, which are verities on appeal. In re Estate of Muller, 197 Wn. App. 477, 486,

389 P.3d 604 (2016).

       Ultimately, Mr. Primiani’s undue influence claim was predicated on a change in

Maria’s 2008 will from provisions made in a will she had executed in 1999. As

explained by one of Mr. Primiani’s declarations:

       Particularly relevant is the fact that the 1999 Will states that Anna and I
       should equally divide the farmland, and that if one of them died, that share
       would go to the survivor. In the 2008 Will, that provision was changed so
       that if Anna predeceased me, her share would go to her children instead.
       This is a very substantial difference, and results in a very disproportionate
       gain to Anna’s estate.

CP at 228.

       In fact, the 2008 will evenhandedly divided the residuary estate in equal shares to

Anna and Frank and provided as to both that “[i]f any child does not so survive me, I

give that child’s share to his or her living issue.” CP at 1. If the result of the 2008




                                              14
No. 35845-3-III
In re Estate of Primiani


change was a “very disproportionate gain to Anna’s estate,” it was only because Anna

was 14 years older than Mr. Primiani and, at the time he filed the will contest, she was

terminally ill. The trial court found that Mr. Primiani “wanted more than his share of his

mother’s estate.” CP at 394.

       Substantial evidence supports the trial court’s findings of fact entered following

remand, which in turn support its conclusions of law.

III.   ATTORNEY FEES

       The estate requests an award of attorney’s fees, characterizing this as a frivolous

appeal.

       An appeal is frivolous if the court is convinced that it presents no debatable issues

on which reasonable minds could differ, and is so lacking in merit that there is no

possibility of reversal. In re Marriage of Foley, 84 Wn. App. 839, 847, 930 P.2d 929

(1997). A civil appellant has a right to appeal under RAP 2.2, and all doubts as to

whether the appeal is frivolous should be resolved in favor of the appellant. See Streater

v. White, 26 Wn. App. 430, 434-35, 613 P.2d 187 (1980).

       Little published case law exists on the exception to the general enforceability of no

contest provisions, perhaps because they usually have their intended effect of

discouraging challenges. We decline to find the appeal entirely frivolous and deny the

estate’s request for an award of reasonable attorney’s fees.




                                             15
No. 35845-3-III
In re Estate of Primiani


       Affirmed.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:




Pennell, J.




                                            16
