                                                                                                                      W.
                                                                                                                                ED
                                                                                                             F 06"4T OF APPEALS
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGT6MISM1411
                                                                                                            L0I            5'
                                                    DIVISION II                                                                      8: 45
                                                                                                              IAT`I \ F V S
In re the Estate of:                                                                 No. 46337 -7 -II                                OTOIJ


CHARLES ROBERT THORNTON,                                                                                              EP        y


                                            Deceased.


                                                                              UNPUBLISHED OPINION




           MELNICK, J. —           Martin Thornton appeals from the trial court' s summary judgment

dismissal of his Trust and Estate Dispute Resolution Act ( TEDRA) petition which sought to


invalidate Charles ( Bob) Thornton' s 2010 will for undue influence and fraud in the inducement

and   to   establish a constructive       trust   over   distributed   nonprobate        assets.'   Because no material


factual dispute    exists     on   any   claim, we affirm     the trial   court.    We also affirm the trial court' s


attorney fees award, but we decline to award fees to either party on appeal.

                                                          FACTS


           Merry Heberlein and Bob were in a committed loving relationship beginning in March
2003   and             on    December 5, 2010,      when    Bob    passed    away   at   the   age of   67. At the time of
              ending


Bob'   s   death, he   and   Heberlein lived together        and   jointly   operated a real estate       business.   They

maintained many bank accounts as joint tenants with right of survivorship. They also designated

each other as the primary beneficiaries on their respective retirement accounts in 2007 and 2008.

           In early October 2010, Bob visited his doctor to inquire about a cough that was getting

progressively     worse.      He also experienced a myriad of health issues including fatigue, afternoon



1 We will use first names throughout this opinion when necessary for clarity; we mean no
disrespect.
46337 -7 -II




headaches,     and shortness of          breath.   During the second week of October, Bob' s doctors advised

him he had a terminal illness. They estimated that he had a 5 percent chance of survival and a life

expectancy of 2 to 6 months.

         Bob' s diagnosis prompted him to reexamine his estate plan and put his affairs in order.

Bob    enlisted   the   help    of   longtime friends. Bob called his friend Sue Holbrook and asked her to


recommend an        attorney to draft        a new will   for him. Sue        recommended          Desiree Hosannah. Bob


told Sue that he intended to take care of Heberlein in his new will. Bob also told Paul Henderson,

his friend and business associate, that he hired a lawyer to rewrite his will and that he needed to

 put   his   affairs    in    order."    Clerk' s Papers ( CP)     at   79.   Bob asked Henderson to witness the


execution of the new will.


         Bob      and   Heberlein       met with   Hosannah   on   the    afternoon of   October 18.      Heberlein filled


out the initial consultation paperwork, which included general information such as Bob and

Heberlein' s contact information, their purpose for the meeting, and referral information. Both Bob

and Heberlein signed the document. The paperwork did not include any substantive information

about the proposed terms of Bob' s or Heberlein' s estate planning documents.

          Over the course of the afternoon, Bob and Heberlein had joint and separate meetings with


Hosannah. In a private meeting, Bob told Hosannah that, in anticipation of an upcoming medical

procedure, he wanted his estate plan in place. He identified Heberlein as his primary beneficiary

and his sister, Doris Ellison, as his alternate beneficiary. When Hosannah inquired about his son,

Martin, Bob told her that he had " already given him all he is going to get" in the form of a house

given some years             before. and that Martin   was a "    bad    seed."'   CP   at   82.   Bob also told Hosannah




2 In 1996, Bob conveyed title to his home to Martin. Martin contends that the conveyance was not
 a gift, but a purchase.



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46337 -7 -II




that Martin had a criminal background and had brought drugs to a family function a few years ago;

therefore, Bob          did    not want    to leave Martin anything in his              estate plan.   Bob told Hosannah that


he had already taken care of some assets by placing them in joint -ownership with Heberlein and

that   he   wanted       the   new will    to   address   the remaining       assets.    According to Hosannah, Heberlein

did not instruct her as to the terms of Bob' s estate plan in any respect.

            Bob and Heberlein executed their wills before leaving Hosannah' s office on October 18.

As   requested,         Bob'   s   friend, Henderson,       signed   Bob'    s will as a witness.      Bob' s 2010 will named


Heberlein         as   both the primary         beneficiary   of   his   entire estate and    his   personal representative.      It


named       his   sister as    his   alternate    beneficiary     and alternative personal representative.               Bob' s 2010


will revoked his 1988 will, which named Martin as Bob' s primary beneficiary.

            After executing his new will, Bob continued to discuss his desire to provide for Heberlein.

In November, Bob told his longtime friend, Judy Johnson, that he had made a new will naming

Heberlein         as   his beneficiary      and   that he   and    Heberlein had    consolidated       their   assets.   When Bob


called his sister to tell her he had terminal cancer, he told her that he had prepared a new will

providing for Heberlein.

            Bob and Heberlein registered as domestic partners, effective October 19, 2010. They filled

out the registration and had their signatures notarized. Bob then called his friend, Joe Holbrook,

and asked if he and Sue could file the domestic partner registration documents in Olympia. Bob

also told Joe that he wanted to make sure Heberlein was taken care of given his worsening medical

condition.         According to Heberlein, she and Bob asked their good friends to file the registration

 documents because they were busy attending Bob' s doctor appointments.

            Bob        continued     to   work as   a real estate agent.        During the month of October, he helped

 Johnson and her husband sell their home. Bob handled the entire transaction, including the closing




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46337 -7 -II



on   November 22.          Bob transitioned his work files to Henderson in anticipation of his cancer

treatment scheduled to begin on November 29. Henderson found Bob' s files to be well -organized.

         On November 29, the hospital admitted Bob so he could start an aggressive treatment for


kidney   cancer.    Bob' s condition, worse than expected, resulted in the hospital discontinuing the

treatment. On December 2, Bob' s sister, a registered nurse, arrived from out- of-state to visit him

in the hospital.       According           to her, Bob   was   lucid     and coherent.       He suffered from shortness of


breath but     could   talk normally.           He   showed no       signs of mental problems.          On the afternoon of


December 4, Bob took               a   nap   and never regained consciousness.                He passed away the next day.

According to        Bob'     s    treating     physician,      Bob       took numerous         inpatient medications while


hospitalized; however, prior to that time, he did not have prescriptions for any medications that

would alter his mental status or judgment.


          Martin did not visit Bob-at the hospital. According to Heberlein, she contacted Martin and

asked    him to   visit   Bob in the hospital, but Martin did               not   do   so.   According to Martin' s wife and

daughters, Heberlein was not forthcoming about Bob' s welfare and she blocked Martin and his

family   from seeing Bob.              Longtime friends of Bob and Martin' s, Guadalupe and Terry Cuevas,

corroborated Martin' s version that Heberlein would not allow them or Martin' s family to visit Bob

in the hospital during his final days.

          Bob' s 2010 will was admitted to probate, and the court appointed Heberlein the personal

representative of      the       estate.    Martin then filed    a   TEDRA        petition   to invalidate the 2010   will.   He


alleged that Bob lacked-testamentary capacity to execute the will and that the will was the product

of undue influence and fraud in the inducement by Heberlein. Martin also pled a cause of action

for constructive trust, claiming that any nonprobate assets distributed to Heberlein should be held

in a constructive trust for his benefit.




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46337 -7 -II




         Heberlein moved for summary judgment in both her individual capacity and as personal

representative of Bob' s estate. Heberlein filed declarations and exhibits in support of her motions,


and Martin presented competing evidence in opposition.

         Martin. and Heberlein painted different pictures of the quality of Martin and Bob' s

relationship, Bob' s health in his final months, and whether Heberlein isolated Bob from Martin

and his family. According to the Cuevases, Bob and Martin had a close, unstrained relationship.

According to Martin, he and his father treasured their time together, which historically included

five or six family get-togethers a year. Martin' s wife and daughters declared that they had always

had a close relationship with Bob, but as Bob' s relationship with Heberlein progressed, their family

spent less time with him.


         According to Martin' s family, Heberlein reduced the number and duration of family get-

togethers    and made    those   few interactions       uncomfortable.             Martin' s wife described Heberlein as


  driving]     wedge    between [ her]    family       and   Bob."      CP    at   597.   As ,an example, Martin' s wife


described a time when she and Martin contacted Bob during Thanksgiving 2010 and asked to come

visit, but Bob   said   that. "[ Heberlein] is       locking   the    doors   and no one can come over."       CP at 598.


Martin also related an occasion in August 2010, where he claimed Heberlein refused to allow him

  substantive   interaction"     with   Bob   at a   family boating      outing. CP       at   107. Martin averred that on


that   same occasion,     Bob "   was so      ill he   was   lost,"   that he was heavily medicated and coughing

terribly, and that he appeared to be in a very vulnerable state. CP at 107. Further, Martin claimed
that although he made multiple attempts to speak with Bob during the last months of his life,

Heberlein rebuffed him and essentially barred him from speaking with his father. Martin alleged

that Heberlein told Bob that Martin only desired a relationship with him for his money.




                                                                5
46337 -7 -II




           On the other hand, Heberlein declared that Bob and Martin rarely saw each other.

According to Bob' s sister, Bob had an extremely difficult relationship with Martin, and he told her

on more than one occasion that he felt that he had given Martin everything he could possibly give.

According         to   Johnson, Bob repeatedly                  expressed    frustration   with   Martin.       And, Henderson


declared that in October 2010 he personally witnessed Bob call Martin and leave messages asking

Martin to call him back.


           Martin voluntarily dismissed his lack                     of   testamentary capacity        claim.    The trial court


dismissed the remainder of Martin' s claims on summary judgment. Martin appeals.

                                                                ANALYSIS


I. -       STANDARD OF REVIEW


           We review an order for summary judgment de novo, engaging in the same inquiry as the

trial    court.    Jones       v.   Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P. 3d 1068 ( 2002).                     Summary

judgment is proper " if the pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no genuine issue as to any material fact

and     that the moving party is            entitled   to   a   judgment    as ' a matter of   law."   CR 56( c).   We construe


all facts and their reasonable inferences in the light most favorable to the nonmoving party. Jones,

146 Wn.2d         at   300. "`      A material fact is one upon which the outcome of the litigation depends, in

whole or     in   part."'      Hisle   v.   Todd Pac. Shipyards           Corp., 151 Wn.2d 853, 861, 93 P. 3d 108 ( 2004)

 quoting Barrie v. Hosts ofAm., Inc., 94 Wn.2d 640, 642, 618 P. 2d 96 ( 1980)).

           A party moving for summary judgment bears the initial burden of demonstrating that there

is     no genuine      issue   of material    fact. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d


 16, 26, 109 P. 3d 805 ( 2005).              A party may move for summary judgment by ( 1) setting out its own

version of the facts and alleging that there is no genuine issue as to the facts as set out, or ( 2) by



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46337 -7 -II




pointing   out   that the nonmoving party             lacks   sufficient evidence         to   support   its   case.    Pac. Nw.


Shooting ParkAss' n     v.   City ofSequim,          158 Wn.2d 342, 350, 144 P. 3d 276 ( 2006); Guile v. Ballard


Cmty. Hosp., 70 Wn. App. 18, 21, 851 P. 2d 689 ( 1993).

        If the moving party satisfies its burden, the nonmoving party must present evidence

demonstrating     that a    material      fact    remains   in dispute.      Vallandigham, 154 Wn.2d               at   26.    The


nonmoving party may          not rest on mere allegations or             denials from the       pleadings.      CR 56(   e).   The


response, by affidavits or as otherwise provided under CR 56, must set forth specific facts that

reveal a genuine    issue for trial. Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 359, 753


P. 2d 517 ( 1988). "[ C] onclusory         statements of      fact   will not suffice."    Grimwood, 110 Wn.2d at 360.


  A] complete failure of proof concerning an essential element of the nonmoving party's case

necessarily    renders all other     facts immaterial."        Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.

Ct. 2548, 91     L. Ed.2d   265 ( 1986).         If the nonmoving party fails to demonstrate that a material fact

remains in dispute, and reasonable persons could reach but one conclusion from all the evidence,

then summary judgment          is   proper.       Vallandigham, 154 Wn.2d at 26.


         We may      affirm on      any    ground     the   record    adequately   supports.      Skinner v. Holgate, 141


Wn. App. 840, 849, 173 P. 3d 300 ( 2007).

II.      WILL CONTEST CLAIMS


         Martin argues that the trial court erred by dismissing his undue influence and fraud claims

on summary judgment because material factual disputes remain. He also argues that the trial court

applied an incorrect standard in deciding the summary judgment motion. We disagree.

         Martin argues that the trial court incorrectly considered the clear, cogent, and convincing

evidentiary standard in deciding the summary judgment motion. We disagree.




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46337 -7 -II




         A party claiming undue influence or fraud must prove its claim by clear, cogent, and

convincing      evidence.      In   re   Estate of Lint, 135 Wn.2d 518, 535, 957 P. 2d 755 ( 1998); In re Estate


of Mumby, 97 Wn.          App.       385, 391, 982 P. 2d 1219 ( 1999).                 A trial court ruling on a motion for

summary judgment must view the evidence presented through the lens of the substantive

evidentiary burden, "          bear[ ing] in mind the actual quantum and quality of proof necessary to

support"   the   plaintiff' s claims.            Anderson        v.   Liberty Lobby,   Inc., 477 U.S. 242, 254, 106 S. Ct.


2505, 91 L. Ed. 2d 202 ( 1986) (                 holding that heightened evidentiary standard must be considered

in   deciding    a   summary judgment              motion        to dismiss a libel     suit).    Therefore, on a motion for


summary judgment, the trial court must determine whether there is a genuine issue of material fact

and whether      the moving party           is   entitled   to   a    judgment   as a matter of   law. CR 56( c). In an undue


influence or fraud claim, a party is entitled to a judgment as a matter of law if the clear, cogent,

and   convincing      evidence standard            is   satisfied..      Kitsap Bank v. Denley, 177 Wn. App. 559, 569,

312 P. 3d 711 ( 2013);           Woody       v.    Stapp,    146 Wn.        App. 16,     22, 189 P. 3d. 807 ( 2008);    accord




Anderson, 477 U.S. at 252.


         Here,       we view    the evidence in the light                most    favorable to Martin. Jones, 146 ViWn. 2d at


300. Heberlein' s summary judgment motion should be granted if there is no issue of material fact

and reasonable persons could reach but one conclusion from all the evidence, that the will was not

the product of undue influence or fraud by clear, cogent, and convincing evidence.3 See Kitsap

Bank, 177 Wn. App. at 569- 70. In order to defeat a summary judgment dismissal ofhis will contest
claims, Martin must show that there is a genuine issue of material fact as to whether Bob' s 2010

will was the product of undue influence or fraud by clear, cogent, and convincing evidence. See



3 Martin contends that the standard set forth in Kitsap Bank was not the law when the trial court
dismissed his        claims.   Kitsap      Bank did       not announce a new          summary judgment      standard.
46337 -7 -II




Kitsap Bank, 177 Wn. App. at 569; Woody, 146 Wn. App. at 22; accord Anderson, 477 U.S. at

252- 54.


              A.         Undue Influence Claim


              Martin argues that the trial court erred by dismissing his undue influence claim because the

presumption of undue                  influence      applied     and   it   should     have defeated Heberlein' s      motion.    We


disagree.


              The law presumes that a facially rational, legally executed will is valid. Dean v. Jordan,

194 Wash. 661, 668, 79 P. 2d 331 ( 1938).                          A trial court may set aside a will, however, if a will

contestant proves by clear, cogent, and convincing evidence that the will is a product of undue

influence.          In   re   Estate of Haviland, 162 Wn.                       App.   548, 557- 58, 255 P. 3d 854 ( 2011).        To


invalidate a will for undue influence, a will contestant must show more than " mere influence."

Dean, 194          Wash.      at   671. "   Undue influence involves unfair persuasion that seriously impairs the

free   and competent exercise of judgment."                       In re Estate ofJones, 170 Wn. App. 594, 606, 287 P. 3d

610 ( 2012). The influence                  must    be "` tantamount to force or fear which destroys the testator' s free


agency and          constrains       him to do      what   is   against     his   will."'   Lint, 135 Wn.2d at 535 ( quoting In re

Estate ofBottger, 14 Wn.2d 676, 700, 129 P.2d 518 ( 1942)).

              Certain facts and circumstances give rise to a rebuttable presumption of undue influence.

Dean, 194 Wash. at 671- 72; Kitsap Bank, 177 Wn. App. at 570. The three most important factors

         1)                                            relationship between the              beneficiary   and   the testator; ( 2) the
are: (         a   fiduciary       or confidential




beneficiary' s active participation in procuring the will; and ( 3) the beneficiary' s receipt of an

unusually or unnaturally large part of the testator' s estate. Dean, 194 Wash. at 671- 72; Kitsap

Bank, 177 Wn.             App.      at   570- 71.   The court should also consider the age and mental and physical


health of the testator, the nature of the relationship between the testator and the beneficiary, the



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46337 -7 -II




opportunity for exerting undue influence, and the naturalness or unnaturalness of the will. Dean,

194 Wash. at 671- 72; Kitsap Bank, 177 Wn. App. at 571.

          Martin argues that he met all three factors necessary to establish a presumption of undue

influence.       It is undisputed that the record includes significant evidence of a confidential or


fiduciary relationship between Heberlein and Bob.4 But Martin does not present evidence that
Heberlein participated in procuring Bob' s will or that she received an unusually large or unnatural

part of   his   estate.    Therefore, we hold that Martin did not present evidence raising a presumption

of undue influence.5




4 "`
       A confidential relation exists between two persons when one has gained the confidence of the
other and purports         to   act or advise with   the other' s interest    in   mind."'   Kitsap Bank, 177 Wn. App.
at 572 ( quoting McCutcheon              v.   Brownfield, 2 Wn.      App.   348, 357, 467 P. 2d 868 ( 1970)). "   Family
relationships      are          likely to create confidential relationships." Kitsap Bank, 177 Wn.
                          particularly

App. at 572. Similarly, "[ i] n a fiduciary relationship, one party ` occupies such a relation to the
other party as to justify the latter in expecting that his interests will be cared for."' Kitsap Bank,


177 Wn. App. at 574 ( quoting Liebergesell v. Evans, 93 Wn.2d 881, 889- 90, 613 P.2d 1170 ( 1980)
  quoting RESTATEMENT ( FIRST) OF CONTRACTS § 472 ( 1)( C) ( 1932) ( internal quotations omitted)).
        Here, Heberlein and. Bob were business partners and domestic partners.          They lived
together and       maintained numerous            joint   accounts.   When Bob was diagnosed with cancer, Bob
and Heberlein formalized their relationship by registering as domestic partners and naming
Heberlein as Bob' s attorney- in- fact for financial and health care decisions. Bob and Heberlein
were concerned that without those documents, Heberlein might be separated or excluded from
Bob' s doctor visits or from the hospital.


5 We reject Martin' s argument that summary judgment was improper because he had raised a
presumption of undue influence, and we also conclude that without the presumption, the record as
a whole does not present a sufficient disagreement to require submission of the undue influence
claim to a jury. See Anderson, 477 U.S. at 251- 52.



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46337 -7 -II



                      1.      Participation in Procuring the Will

          Martin argues that Heberlein participated in procuring Bob' s will because she accompanied

Bob to the attorney' s office, filled out the initial intake paperwork, and attended meetings between

Bob     and   the attorney    where    Bob discussed the terms     of   his   new proposed will.      The facts that


Martin relies on are not evidence of Heberlein' s participation in procuring Bob' s will because none

of them includes her participating substantively as to the terms of the will. See Kitsap Bank, 177

Wn.     App.    at   577 (" Participation in the transaction sufficient to support a presumption of undue


influence requires that the beneficiary actively dictated the terms of transaction, purportedly on

behalf of the decedent.").


          The undisputed evidence shows that Bob initiated the estate planning process in order to

provide       for Heberlein. After his terminal cancer diagnosis, Bob told Heberlein that he needed a


will.    He then promptly contacted his friend Sue Holbrook and asked her to recommend an

attorney.       The fact that Heberlein accompanied Bob to the attorney' s office is unremarkable

especially because she also had her estate planning documents drawn up. Heberlein filled out the

initial consultation paperwork for herself and Bob, but it did not include any information about the

proposed       terms of Bob'    s estate   planning documents.    Heberlein merely facilitated Bob' s meeting

the attorney. She did not participate in his procuring his estate planning documents.

          Although Bob and Heberlein had an initial joint meeting with the attorney, they met

separately with the attorney to go over the terms of their individual estate plans. According to the

               she met     privately   with   Bob specifically to insure he    could speak   freely   with   her. In a
attorney,


private meeting, Bob explained the reasons he sought estate planning, identified his intended

primary and alternate beneficiaries, explained why he did not include Martin as an intended

beneficiary,         and   discussed his      assets,   including designations he had made with regard to




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46337- 7- 11



nonprobate assets.         Furthermore, the attorney filed a declaration stating that Heberlein did not

instruct her as to the terms of Bob' s estate plan in any respect. Based on the evidence presented,

there is no genuine issue of material fact as to whether Heberlein participated in procuring Bob' s

will.



                    2.       Unusually or Unnaturally Large Benefit

         Martin argues that Heberlein received an unnaturally large portion of Bob' s estate under

the 2010 will in comparison to Bob' s previous will, especially considering that Heberlein and Bob

were neither spouse nor domestic partner at the execution of the 2010 will. We disagree.

         The    naturalness of a gift      depends    on     the individual    circumstances of            the testator.   In re


Miller' s Estate, 10 Wn.2d 258, 267, 116 P. 2d 526 ( 1941). "                A will is unnatural when it is contrary

to what the testator, from his known views, feelings, and intentions would have been expected to

make.'?   In   re   Miller' s Estate, 10 Wn.2d      at   267. In Haviland, we upheld a presumption of undue


influence based in part, on a trial court' s finding that the wife received an unnaturally large share

of   her husband'    s estate compared      to his earlier     estate plans.    162 Wn.        App.   at   559, 568.   But the


unusual   facts     of   Haviland   made   the increased      testamentary     gift   to the   wife suspect.      The testator


in Haviland, a very wealthy widower in his mid -eighties, married a woman in her mid -thirties.

Haviland, 162 Wn. App. at 553. The couple signed a prenuptial agreement to maintain the separate

nature of the testator' s property, but as the testator became more vulnerable due to physical and

cognitive impairments, his wife made numerous revisions to his estate plan. Each change resulted


in a greater portion of his estate going to his wife and less going to his children and designated

charities.     Haviland, 162 Wn.      App.   at   553- 55.    The last major revision effectively disinherited the

testator' s children. Haviland, 162 Wn. App. at 555.




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           Martin argues that the gift to Heberlein is unnaturally large because it significantly changed

Bob'   s   previous   estate plan     and   disinherited his only   son.   But here, unlike in Haviland, the


significant change in Bob' s estate plan does not appear suspect or unnatural under the

circumstances. The challenged will in Haviland constituted a significant and unexplained change.


Haviland, 162 Wn.         App.   at   553- 55.   Here, the change in the testamentary disposition of Bob' s

property can be explained by changed circumstances. It is not unnaturally large.

           Bob executed his prior will more than twenty years ago, well before the beginning of his

relationship    with     Heberlein.     Bob met Heberlein in 2003 and began a seven -and -a -half year


relationship.     They lived together as a couple, worked together, held many of their accounts as

joint tenants with right of survivorship, and designated each other primary beneficiaries on their

retirement accounts. Within a week of learning that about his terminal illness, Bob acted quickly
to ensure his estate plan provided for Heberlein. He executed a will on October 18, 2010, naming

Heberlein as the primary beneficiary.of his entire estate. The next day, he and Heberlein became

registered domestic partners under state law.6

           Furthermore, since executing his prior will, from Bob' s perspective, he had given Martin

a house and their relationship had deteriorated. Martin contends that he purchased the house from

Bob and that his criminal history could not have been a reason to disinherit him because it predated

the   prior will.     However, Martin' s allegations do not create a material issue of fact because the

undisputed evidence presented shows that Bob' s expressed perspective was that he had already

provided for Martin in the form of a house and that Martin was not deserving of additional gifts.



6 We note that registered domestic partners share the status of spouses under state law. See RCW
26. 60. 015; In     re   Custody    of B.M.H., 179 Wn.2d 224, 263, 315 P. 3d
                                                                             470 ( 2013) ( J. Wiggins,

 dissenting).




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         Bob repeatedly and consistently made it clear to his friends and family that he intended to

provide    for Heberlein       after   his death.    Prior to executing his 2010 will, Bob told Sue and Joe

Holbrook that he intended to            provide     for Heberlein.   And after executing the will, Bob told his

sister and Johnson that he had provided for Heberlein in his will. Based on the evidence presented,


we conclude that reasonable minds could not differ and there is no genuine issue of material fact

about whether     Bob'   s    leaving his   entire estate   to Heberlein   was unnatural.   Bob did not leave an


unnaturally large amount of his estate to Heberlein.

                  3.          Other Factors


          Martin argues that additional factors support the presumption of undue influence.

Specifically, Martin claims that Heberlein had the opportunity to exert undue influence over Bob

because of his poor health and isolation from friends and family. We disagree.

          Although Bob suffered physically at the time that he executed his will, the evidence shows

that his symptoms, e. g. fatigue, headaches, coughing, coughing up blood, did not impact him in

any way that made him susceptible to undue influence. The declarations of Heberlein, Bob' s sister,

and various friends all support that other than breathing problems, Bob functioned normally until

the last    few days     of    his life.    Martin does not present any evidence about Bob' s health or

vulnerabilities near the time Bob executed the 2010 will.


           In addition, Martin did not present evidence that raised a genuine issue of material fact

about whether Heberlein isolated Bob from friends and family near the time Bob signed the 2010

will. Declarations from Bob' s friends and sister showed that they communicated with Bob during

October and November 2010, that he worked as a realtor, and that Bob even called Martin a few

times.




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46337 -7 -II




        The allegations of Martin' s wife and children portray a general distancing between Bob

and his family in the last few years of his life and not a situation where Heberlein secreted Bob. .

In fact,    the only specific allegation of Heberlein excluding Martin or anyone else from

communicating with Bob occurred during Bob' s hospitalization in the last few days of his life.

Heberlein disputes that she excluded Martin from seeing Bob in the hospital, but even if she did,

it took place in an extraordinary time when Bob was very close to death. Furthermore, it occurred

more   than a   month after    he    executed   the 2010     will.   Based on the evidence presented, there is no


genuine issue of material fact about whether Heberlein isolated Bob to the extent.that it created an


opportunity for her to exert undue influence over him during the time he executed his 2010 will.

        Martin failed to       raise   a genuine     issue   of material   fact for trial.   Viewing the evidence

presented in the light most favorable to Martin, no reasonable factfinder could conclude that Martin

presented clear and convincing evidence that raised either a presumption of Heberlein' s undue

influence or of Heberlein' s actual undue influence over Bob when he executed his 2010 will. The


trial court did not err by dismissing Martin' s undue influence claim on summary judgment.

        B.         Fraud


           Martin claims that the trial court erred in dismissing his fraud claim on summary judgment.

He   claims    that he   presented   facts raising   a presumption of     fraud in the inducement, but even if no

presumption applied, material issues of fact existed that prevented the trial court from granting

Heberlein' s motion. We disagree.


             F] raud in the inducement" is "[        f]raud occurring when a misrepresentation leads another

to enter into a transaction with a false impression of the risks, duties, or obligations involved."



7 Martin does explain which facts raise a presumption of fraud. But to the extent he relies on the
same factors as in the undue influence context, he fails to raise a presumption of fraud for the same
reasons he failed to raise a presumption of undue influence.


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BLACK' s LAw DICTIONARY 776 ( 10th                            ed.    2014).       A court may set aside a will if the will was

induced      by   fraudulent      representation of a person                  benefitting from       the   will.    Lint, 135 Wn.2d at


533.       The    elements      of    fraud    are: (   1)    representation         of an   existing fact; (   2) materiality of the

representation; (        3)   falsity   of   the   representation; (        4) knowledge of the falsity or reckless disregard

as   to its truth; ( 5) intent to induce             reliance on        the representation; ( 6) ignorance of the               falsity; ( 7)

reliance on       the truth      of   the    representation; (         8) justifiable    reliance;   and (    9) damages.        Lint, 135


Wn.2d at 533 n.4. The general rule is that fraud is never presumed.` Beckendorfv. Beckendorf, 76

Wn.2d 457, 462, 457 P. 2d 603 ( 1969).                        The challenger must prove the elements of fraud by clear,

cogent, and convincing evidence in order to have the will set aside.. Lint, 135 Wn.2d at 533.

            Martin claims that Heberlein misrepresented to Bob that Martin and his family only desired

Bob'   s   money,        which    resulted         in Bob         disinheriting      Martin.     Heberlein moved for summary

judgment         and met      her initial burden.             She presented evidence of the absence of fraud, i. e. that


Bob' s will expressed his true desire to provide for her and reasons for disinheriting Martin, e.g.

Bob had already           given      Martin    a   house. In support, Heberlein presented declarations from Bob' s


friends     and    his   sister      describing      Bob'     s     expressed      desire to   provide      for Heberlein.        She also


presented a declaration from Bob' s attorney stating that Bob told her that he was disinheriting

Martin because Martin was a " bad seed" who had brought drugs to a family event and that he had

already been        provided      for in the form            of a gift of a       house. CP at 82.


            As the nonmoving party, Martin needed to present specific facts demonstrating that a

material     fact   remained         in dispute.        See CR 56( e);            Vallandigham, 154 Wn.2d            at   26.   He did not.


Although Martin alleges that Heberlein' s misrepresentations to Bob about him and his family

induced the 2010. will; he does                    not support        his   allegations with cites         to the   record.     Martin also


disputes Bob' s stated reasons for excluding him in his new estate plan and claims that Bob' s



                                                                            Wei
46337 -7 -II




opinions were based on false information fed to him by Heberlein. But again, Martin fails to cite

to specific evidence of Heberlein' s misrepresentations. 8

        Our independent review of the record also shows that Martin failed to present evidence of


a sufficient quantity or quality to survive summary judgment. In an interrogatory, Heberlein asked

Martin to identify with particularity all statements made by her that he contends are false and

misleading, including the dates of the statements and the source of his knowledge about the

statements. Martin' s conclusory response did not reveal the basis for his knowledge:

        The Personal Representative set the stage for the Decedent to think he should
        change   his Will.   As set forth very explicitly in the Petition, the Personal
        Representative made affirmative statements to the Decedent that Mr. Thornton only
        desired a relationship with the Decedent for his money. Based on the information
        provided in this probate through Desiree Hosanna[ h] and the information already
        provided by the Personal Representative, it is clear that her position is that Mr.
        Thornton only desired money and assets from his father.

CP at 119- 20. Although Martin may not rest on allegations from his pleadings, it is worth pointing

out that in his petition, he did not identify with particularity any statements made by Heberlein:

        Based on information and belief, Ms. Heberlein made numerous allegations of
        material facts to the Decedent about Mr. Thornton which were false and misleading
        including, but not limited to, that Mr. Thornton and his family were only interested
        in the Decedent for the Decedent's assets. The statements made by Ms. Heberlein
        to the Decedent regarding Mr. Thornton and his family were made with the intent
        and design to persuade the Decedent to change his estate. plan to remove Mr.
        Thornton as the sole beneficiary and replace him with Ms. Heberlein.

CP at 5. Martin did not present any nonconclusory evidence of the alleged misrepresentations that

Heberlein made to Bob or any evidence that the alleged misrepresentations formed the bases for



8 Martin provides evidence that he purchased the house from Bob rather than receiving it as a gift.
But Martin and Bob' s disagreement on the nature of the transaction does not raise a material factual
dispute because Martin has not shown that Bob' s opinion was based on a misrepresentation made
by Heberlein. Moreover, it would be difficult for Heberlein to have misrepresented to Bob the
nature of a transaction that occurred between Bob and Martin more than five years before the
beginning of Heberlein and Bob' s relationship.

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Bob' s testamentary disposition.

         Martin cites to Lint, 135 Wn.2d at 533, for support. In Lint, our Supreme Court upheld a

trial court' s conclusion that a challenged will was the product of fraud based on its factual findings


that the beneficiary systematically and pervasively isolated the testator from friends and family

and told her that her family only wanted to put her in a convalescent home and get their share of

her estate. 135 Wn.2d at 533- 34. Martin draws parallels between the facts of Lint and the alleged

facts   of   this   case.   But Martin fails to put forth evidence of his allegations sufficient to survive


summary j udgment.

         Because Martin failed to produce evidence of particular misrepresentations made by

Heberlein that induced Bob to make his 2010 testamentary disposition, he did not show that a

genuine issue of material fact remained for trial.9 Therefore, the trial court did not err by granting

summary judgment dismissal of Bob' s fraud claim.

III.         CONSTRUCTIVE TRUST ON NON -PROBATE ASSETS


         Martin argues that the trial court erred by granting summary judgment dismissal of his

constructive trust claim based on a statute of limitations that does not apply. Although the basis

for Martin' s constructive trust claim over nonprobate assets is vague, we accept his concession

that his constructive trust cause of action is dependent on the success of his will contest claims. In

his reply brief, Martin         explains   that "[   h] is [ constructive trust] claim was that the Court impose a



9                                                                                                                     The
    Martin    also alleges    that Heberlein furthered her          fraud   by isolating   Bob from his     family.
evidence related to this allegation was discussed briefly in the section on undue influence.
Isolation of a testator may support a claim of fraud, primarily because an isolated testator is more
likely to be affected by a misrepresentation. See Lint, 135 Wn.2d at 534. However, Martin' s
allegation of isolation does not require additional analysis because Martin' s failure to present
evidence of a misrepresentation by Heberlein, a necessary element of fraud, necessarily renders
all other     facts immaterial. See Celotex           Corp,   477 U. S.   at   323; Lint, 135 Wn.2d   at   533.   Martin' s

fraud claim fails as a matter of law.




                                                               18
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constructive     trust   over   any   such assets     if it   is determined that the 2010 Will is invalid."      Reply Br.

at   17 (   emphasis added).      Because we affirm the trial court' s dismissal of Martin' s will contest


claims, we      do   not   decide the    constructive         trust   statute of   limitations issue.   We uphold the trial


court' s summary judgment dismissal of Martin' s constructive trust claim, albeit on a different

ground      than the trial court relied     on   to    grant    summary judgment.          See Skinner, 141 Wn. App. at

E:0!]


IV.         ATTORNEY FEEs AT TRIAL COURT LEVEL


            In any title 11 RCW action, courts have discretion to award costs, including reasonable

attorney fees to any party from any party in such amount and in such manner as the court

determines to be         equitable.    In re Guardianship ofMatthews, 156 Wn. App. 201, 213, 232 P. 3d

1140 ( 2010).        In exercising its discretion, the court may consider any and all factors that it deems

relevant and appropriate.             RCW 11. 96A. 150.               We review a trial court' s decision to award fees


under       TEDRA for      abuse of     discretion.      Bale v. Allison, 173 Wn. App. 435, 461, 294 P.3d 789

 2013);      In re Estate ofBlack, 153 Wn.2d 152, 173, 102 P. 3d 796 ( 2004).

            The trial court awarded Heberlein, in her individual capacity, attorney fees for work done

in relation to her successful summary judgment motion on Martin' s claim for a constructive trust

on nonprobate assets. The trial court found that $9, 497. 50 in fees were reasonable and necessarily

incurred for the successful outcome in the summary judgment motion or the collection of attorney

fees related to that motion.


            Martin    argues    that the   award       should     be       reversed.   He argues that the fee award was


unwarranted because the basis for the trial court' s summary judgment ruling was incorrect and that

even if it was correct, it would be an issue of first impression. Although we upheld dismissal of

the constructive trust claim without deciding the statute of limitation issue, we conclude that the



                                                                      19
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trial   court' s   rationale   for making the fee      award   still   applies   with   equal      strength.   Martin' s


constructive trust claim was extremely vague and it was not until his reply brief to this court that

he clearly articulated that his constructive trust claim was dependent on the success of his will

contest    claims.     Therefore, we conclude that the fees award was reasonable and necessarily

incurred for a successful summary judgment dismissal of Martin' s claim. Accordingly, we uphold

the trial court' s fee award related to summary judgment of the constructive trust claim.

          The trial court also awarded the Estate attorney fees for work done in relation to the

successful     summary judgment       motion of   Martin' s    will contest claims.      Martin concedes that the


trial court' s award was appropriate if its summary judgment ruling stands. Because we agree with

the trial court' s summary judgment ruling on the will contest claims, the attorney fee award against

Martin remains intact.


V.        ATTORNEY FEES ON APPEAL


          The Estate and Heberlein request attorney fees on appeal under RCW 11. 24.050 and RCW

11. 96A. 150. Martin requests attorney fees on appeal under RCW 11. 96A. 150.

           RCW 11. 24. 050       provides   that in   an unsuccessful     will   contest "   the    court"   may assess


against the contestant such costs the court may deem proper, including reasonable attorney fees,

unless it appears that the contestant acted with probable cause and in good faith. RCW 11. 96A. 150


allows the superior court and any court on an appeal to make an award in estate dispute resolutions

in the court's discretion " as the court determines to be equitable."


           We decline to award reasonable attorney fees on appeal to either party under RCW

 11. 96A. 150.      If RCW 11. 24. 050 applies on appeal, we decline to award reasonable attorney fees

under that statute as well.




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        We affirm.


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

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,

it is so ordered.




                                                             Melnick, J.     J

We concur:




         3 orgen, A.C. J




               Gordon McCloud, J.P. T.




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