                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                       September 22, 2015

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II

    In re PATRICIA L. FORSBERG SPOUSAL                              No. 46251-6-II
    TRUST u/w of WALTER A. FORSBERG,

                                  Deceased.

    PAULINE FORSBERG & LESLIE                                 UNPUBLISHED OPINION
    FORSBERG,

                                 Appellants,

           v.

    PATRICIA L. FORSBERG, in her
    Representative Capacity as Trustee of the
    Patricia L. Forsberg Spousal Trust and in her
    Individual Capacity; REBECCA and JAMES
    HINKEN, and their Marital Community;
    PARIS (aka PENELOPE) & FRED LUJAN,
    and their Marital Community; DEBORAH and
    MICHAEL SOMERS, and their Marital
    Community; and all Persons or Parties
    Unknown Claiming any Right, Title, Estate
    Lien, Or Interest in the Real Estate Described
    in the Complaint herein,

                                 Respondents.

          BJORGEN, J. — Pauline and Leslie Forsberg, daughters of the deceased, Walter A.

Forsberg, and his first wife,1 appeal from the trial court’ s summary judgment ruling in favor of


1
 Patricia’ s daughters and sons-in-law are Rebecca and James Hinken, Paris and Fred Lujan, and
Deborah and Michael Somers. We refer to Patricia, her daughters, and their husbands
collectively as “ Patricia.” We refer to Pauline and Leslie as “ Pauline.”
No. 46251-6-II


Patricia L. Forsberg, Walter’ s second wife, and her daughters from her first marriage and their

husbands. Pauline sued Patricia, claiming that Patricia gave around $1.4 million in assets to the

children of her first marriage in violation of Patricia’ s and Walter’ s mutual wills and the

associated Forsberg Property Agreement (Agreement) and requesting various forms of relief,

including setting aside the transfers. Pauline contends that the trial court erred in ruling (1) that

the claims were barred by her failure to timely challenge Patricia’ s administration of Walter’ s

will and (2) that Patricia made the gifts in compliance with the terms and underlying intent of the

Agreement and mutual wills. We reverse the order of summary judgment in favor of Patricia

and remand for entry of partial summary judgment in favor of Pauline.

                                               FACTS

       Walter and Patricia married in 1975. Although they had no children together, both had

children from previous marriages: Walter’ s two daughters, the appellants; and Patricia’ s three

daughters, who are among the respondents. Walter and Patricia acquired some community

property, but until Walter’ s death held most of their nearly $6.8 million in assets as separate

property, maintaining that status throughout the marriage.

                              I. THE ESTATE PLANNING INSTRUMENTS

       In December 2003, Walter and Patricia executed the Agreement and mutual wills, which

documents incorporate one another by reference.2 The Agreement provides that

                a]ll of the property as now owned and hereafter acquired by the Husband
       and Wife shall be community property of Husband and Wife . . . under the laws of
       the state of Washington upon the death of the first spouse to die.




2
 Patricia’ s will does not appear in the record. Patricia does not dispute that her will incorporates
Walter’ s will and the Agreement by reference, however.

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No. 46251-6-II


Clerk’ s Papers (CP) at 281. The Agreement describes Walter and Patricia’ s intent to provide for

one another in life and distribute their wealth to their children after their deaths as follows:

       Husband’ s and Wife’s intent, as set forth in each of their wills, is to provide for
       each other’ s health, support and maintenance in their accustomed manner of living
       and, after both of their deaths, to dispose of their combined estates, to their
       respective children or issue in proportion to their relative ownership of property
       prior to it[ ]becoming community property.

CP at 280-81. Consistently with this intent, the Agreement specifies that each spouse’ s will

would establish a trust for the benefit of the surviving spouse and that, after the deaths of both

spouses, the “ combined estates” would pass to their children:

                Husband and Wife each agree to execute mutual wills contemporaneously
       with this Agreement. The Last Will and Testament of Husband and Wife shall
       include one or more trusts that provide for the health, support and maintenance of
       the surviving spouse in his or her accustomed manner of living. The trust
       provisions in Husband and Wife’s wills shall also provide, upon the death of both
       spouses, for the distribution of their combined estates, after distribution of specific
       gifts, to their respective children or issue.

CP at 281.

       The Agreement establishes a formula3 for determining the proportion of the “ combined

estates” that will go to each spouse’ s descendants:

               The ultimate distribution of Husband and Wife’s combined estates to their
       children or issue shall be completed in a manner that is proportionate to Husband
       and Wife’s relative ownership of all property prior to the time it becomes
       community property . . . ( hereinafter referred to as “ percentage of relative
       ownership”). Husband’ s percentage of relative ownership shall be distributed to
       his children or issue, and Wife’s percentage of relative ownership shall be
       distributed to her children or issue. Husband and Wife’s percentage of relative
       ownership shall be determined upon the death of the first spouse to die, and it shall


3
 The Agreement and mutual wills exclude certain small bequests to specific organizations and
most tangible personal property from distribution according to this formula, and designate
particular parcels of real property—the “ Forsberg farm” and the “ Teepee property”— that must
ultimately pass to Walter’ s and Patricia’ s descendants, respectively. CP at 282. Those
provisions have no bearing on our analysis, and we do not further address them.

                                                  3
No. 46251-6-II


        be based upon the value of the property included in their combined estates as of the
        date of the death of the first spouse to die.

CP at 281. The Agreement further prohibits the surviving spouse from changing the will’s

terms, except with respect to “her percentage of relative ownership”:

                Husband and Wife shall not modify or revoke the terms of this Agreement
        or their last Will and Testament after the death of the other; provided, however, the
        surviving spouse may dispose of his or her percentage of relative ownership as he
        or she chooses.

CP at 282. The Agreement expressly designates Walter’ s and Patricia’ s descendants as intended

beneficiaries, entitled to enforce its terms:

        This Agreement shall bind the parties and their respective heirs, executors and
        administrators. The terms of this Agreement are intended as a contract for the
        benefit of the parties, their children and their children’ s issue, and this Agreement
        may be specifically enforced by any of them.

CP at 282.

        Walter’ s will referred to Patricia’ s will and the Agreement, and described their mutual

intent consistently with the Agreement:

                I have entered into the Forsberg Property Agreement with my spouse dated
        December 17, 2003. The terms of the Agreement provide that all property owned
        by me and my spouse shall be community property upon the death of the first one
        of us to die. We have also agreed to execute mutual wills which include a specific
        plan for ultimate distribution of all of our combined property as set forth in our
        wills. The distribution plan set forth in this will cannot be modified or revoked,
        unless both my spouse and I mutually agree to a modification or revocation in
        writing. We have agreed that our wills shall be binding, not only on ourselves but
        also to our heirs, beneficiaries, successors and/or assigns.

CP at 302. The will appointed Patricia personal representative, or Pauline if Patricia could not so

act, or Leslie if neither Patricia nor Pauline could act.




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No. 46251-6-II


       Consistently with the Agreement, the will created a trust for Patricia’ s benefit “ to provide

for her health, support and maintenance in her accustomed manner of living,” with a remainder

interest in Walter’ s and Patricia’ s descendants. CP at 306-08. The residue of Walter’ s estate,

defined as “ all probate estate property” Walter owned at death, less certain specific bequests and

estate expenses, funded the trust. CP at 306.

       The will provided for appointment of the trustee in the same order of preference as the

personal representative: Patricia, then Pauline, then Leslie. It designated Patricia sole

beneficiary during her lifetime with the entire net income distributed to her monthly or quarterly,

and authorized the trustee to distribute the principal if necessary “ to accomplish the trust

purposes,” specifying, however, that the “[ t]rustee may consider and give effect to other

resources and support available to” Patricia. CP at 306-07.

       Once Patricia dies, the trust terminates and the trustee must distribute the remaining

property, with a portion equal to Walter’ s percentage of relative ownership going to Walter’ s

daughters in equal shares and a portion equal to Patricia’ s percentage of relative ownership going

to her daughters in equal shares. The will specifies that the percentages of relative ownership

shall be determined according to the Agreement, as described above.

                         II. WALTER’ S DEATH AND PROBATE OF HIS WILL

       Walter died July 1, 2009. Patricia, acting as personal representative with nonintervention

powers, had her and Walter’ s property inventoried, appraised, and characterized according to the

Agreement. The total appraised value of all the property came to $6,770,886.13, of which

 4,915,209.89 was Walter’ s separate property and $1,732,263.18 was Patricia’ s, yielding

percentages of relative ownership of 73.5 percent for Walter and 26.5 percent for Patricia.




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No. 46251-6-II


       In June 2010, the attorney representing Patricia in her capacity as personal representative

sent Pauline a letter with, among other things, a copy of the Agreement and will, the asset

inventory,

       a summary of the estate plan [ Walter and Patricia] developed, a description of the
       property they owned at the time [ Walter] passed away, an analysis of the relative
       ownership interests [ Walter and Patricia] had in that property, and a proposal for
       the distribution of the assets of [Walter]’ s estate.

CP at 316-20. The letter explains that the “ recharacterization of all of the estate property as

community property was done primarily to minimize or avoid an estate tax on [Walter]’ s portion

of the estate assets.” CP at 317. The letter goes on to explain that

        alt]hough the Inventory characterizes all of the estate assets as community
       property, the Property Agreement preserves each spouse’ s percentage of relative
       ownership in the estate assets by requiring that the assets shall be put into a trust
       for the benefit of the surviving spouse, and that, upon the death of the surviving
       spouse, the total remaining estate shall be distributed among both spouses’ children
       according to each spouse’ s percentage of relative ownership. . . . [Patricia] will be
       the beneficiary of a trust that contains all of [Walter]’ s and her assets, and she may
       sell any of the assets . . . if the income of the trust estate is not sufficient to support
       her. On her death, the remaining assets shall be distributed in accordance with the
       percentage of relative ownership.

CP at 317-18.

       The letter goes on to describe Patricia’ s dissatisfaction with the Agreement’ s distribution

formula:

               As you can imagine, [ Patricia] was shocked and disappointed to learn that
       her relative interest in the total estate could be only slightly more than one -quarter
       of the value of the estate. After nearly 35 years of marriage, and particularly given
       the humble circumstances of the early years of the marriage and the history of
        Patricia]’ s contributions to the marital community, [Patricia] had expected that her
       percentage interest in the estate would be no less than 50% so that she will have a
       generous legacy to leave to her children. At the time [Patricia] signed the Property
       Agreement, she did not realize, nor did she anticipate, that, upon her death, her
       children would be receiving less than 50% of the overall value of the assets she and
       your father had accumulated. Later, when this outcome became clear to her, she


                                                   6
No. 46251-6-II


        and your father discussed it and they planned to adjust their estate plan to avoid
        such a result. Unfortunately, your father passed away before they could consult
        with their attorney about modifying the Property Agreement.

CP at 318-19. The letter then proposed an alternative arrangement under which Pauline would

have immediately received 50 percent of the combined assets and surrendered any future claim

against Patricia’ s estate. Pauline did not accept this offer.

        In June 2011, Patricia’ s attorney sent Pauline another letter with “an explanation of the

allocation of property pursuant to [Walter]’ s Will, a proposal for the distribution of the assets of

the Trust for Patricia L. Forsberg, and a summary of the administration of [Walter]’ s estate.” CP

at 322-23. It informed Pauline that Patricia had filed a Declaration of Completion of Probate

Declaration) in the probate proceeding and was ready to close the estate, and that “ the probate

estate will be deemed to be closed and [ Patricia] will be discharged as Personal Representative,

unless [ Pauline] take[s] action as set forth in the Declaration and the Notice of Filing Declaration

of Completion of Probate enclosed.” CP at 325.

        This second letter described the effect of the estate planning documents very differently

than the first, such that only half of the total assets funded the trust and the other half passed to

Patricia directly, with the descendants retaining a remainder interest:

         Walter] and [ Patricia] executed the Forsberg Property Agreement in December,
        2003, according to which all of the property owned by them is to be characterized
        as their marital community property upon [ Walter]’ s passing. The Property
        Agreement further provides that the assets of [Walter]’ s probate estate, that is, his
        one-half of the total property, shall be put into a trust for [Patricia]’ s benefit. The
        other half of the total property shall pass outright to [ Patricia]. When [ Patricia]
        passes away, the total remaining estate, consisting of what is left of the assets of
        the trust and the assets that went directly to [Patricia], shall be combined and then
        distributed to both of you and to [ Patricia]’ s children in accordance with each
        spouse’ s original relative ownership interests in the total estate.




                                                   7
No. 46251-6-II


CP at 323. The letter states that “[ a]s for those assets that have been distributed outright to her,

Patricia] is entitled to use them as she pleases during her lifetime.” CP at 324.

        The second letter also contained an offer to distribute the trust assets immediately to

Pauline:

                It is still possible for you to receive the assets of the Trust now, rather than
        waiting until [Patricia] passes away. [Patricia] is willing to enter into an agreement
        with you so that the assets of the Trust are disbursed to the two of you and she
        would no longer be entitled to receive the Trust income or to spend Trust principal
        for her living expenses. Instead, [Patricia] would be limited to living off the assets
        that she received outright when the estate was allocated between her and the Trust.
        An early distribution of the Trust estate to you would mean that you would have
        immediate possession and control of the real property and financial assets of the
        Trust at their present value, rather than having to wait to receive your portion of
        what remains of them after [Patricia] passes away.

CP at 324. Pauline did not accept this offer either.

        The Declaration included with the letter states that the residue of the estate passed to

Patricia as trustee of the Trust for Patricia L. Forsberg. It recites that “[ t]he Personal

Representative has completed the probate of the Decedent’ s estate without court intervention,

and the estate is ready to be closed.” CP at 156. The accompanying notice of filing of the

Declaration warns:

        Unless you file a petition with the Court requesting the Court to approve the
        reasonableness of the fees, or for an accounting, or both, and serve a copy of the
        petition upon the Personal Representative or the attorney for the Personal
        Representative within thirty (30) days after the above filing date:

                ii) The Declaration of Completion of Probate will be final and deemed the
        equivalent of a decree of distribution entered under Chapter 11.76 RCW;
                iii) The acts that the Personal Representative performed before the
        Declaration of Completion of Probate was filed will be deemed approved, and the
        Personal Representative will be automatically discharged without further order of
        the Court with respect to all such acts.

CP at 158.


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No. 46251-6-II


        Patricia’ s attorney also enclosed a copy of an Allocation Agreement between Patricia,

acting as personal representative of Walter’ s estate, and Patricia, acting in her individual

capacity. The Allocation Agreement recites that “ each party owns an undivided one-half interest

in various estate assets, and they each wish to allocate assets between them to the end that they

each will own certain assets free and clear of any claims of the other.” CP at 328. The document

purports to transfer interests in specifically itemized assets, amounting to exactly half of the total

value of Walter’ s and Patricia’ s combined property, to the estate, and the remainder, consisting

of the other half of the total value, to Patricia individually.

        Pauline did not file a petition or demand an accounting in the probate proceeding, so the

estate closed and Patricia was discharged as personal representative 30 days after filing the

Declaration. See RCW 11.68.110. Neither the Declaration nor the accompanying notice,

however, mentions the Allocation Agreement, which Patricia did not file in the probate court.

                       III. PATRICIA’ S GIFTS OF PROPERTY SHE TOOK UNDER
                              WALTER’ S WILL AND THE AGREEMENT

        In March 2013, Leslie drove by the “ Forsberg-Fisher Property,” consisting of several

contiguous parcels of real estate that Walter had formerly held as his separate property, and

noticed a logging operation underway. The Allocation Agreement had purported to transfer

Walter’ s estate’ s interest in the Forsberg-Fisher parcels to Patricia individually. Upon inquiry,

Patricia admitted that she had given the property, valued at $1.2 million as of Walter’ s death, to

her daughters and sons-in-law. The statutory warranty deeds confirm, and Patricia admits, that

the grantees gave no consideration for the property. Some of the grantees subsequently listed

portions of the property for sale.




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No. 46251-6-II


       After filing this suit, Pauline learned in discovery that Patricia had also made cash gifts to

her daughters and sons-in-law totaling $216,000, as well as numerous contributions to various

charitable organizations totaling about $5,000. Thus, Patricia gave away almost 21 percent of

the total date-of-death value of her and Walter’ s combined assets, almost entirely to her

daughters and sons-in-law. Patricia explained that she “ wanted to make gifts during [her]

lifetime so [ she] could enjoy the pleasure of sharing with [her] children and with organizations

that are important to [her].” CP at 88. She also admitted in discovery that she did not notify

Pauline of her intent to give the Forsberg-Fisher parcels to her descendants and that, as a result of

the gift, Pauline would ultimately inherit less than Walter’ s percentage of relative ownership of

the combined assets that Walter and Patricia owned at the time of Walter’ s death.

                                   PROCEDURAL HISTORY

       In September 2013, Pauline filed a Petition for Removal of Trustee, Appointment of

Successor Trustee, Accounting, Declaratory Judgment, Specific Performance, and Damages

under chapter 11.96A RCW, Trust and Estate Dispute Resolution Act (TEDRA), naming as

respondent, Patricia, individually and in her capacity as trustee of the spousal trust. Shortly

thereafter, Pauline filed an amended petition, adding Complaint To Quiet Title and Vacate Deeds

to the caption and adding Patricia’ s daughters and sons-in-law, and their marital communities, as

respondents. The amended petition included claims for the following: breach of contract,

removal of trustee, accounting, declaratory judgment, specific performance, injunctive relief,

damages, vacation of deeds, quiet title, and attorney fees. The breach of contract claim relied on

Pauline’ s third party beneficiary status under the Agreement and mutual wills.




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No. 46251-6-II


        The amended petition set forth the facts largely as described above and prayed for (1) an

injunction prohibiting Patricia and her daughters and sons-in-law “from selling, giving away,

encumbering, conveying or otherwise disposing of any of the property owned by Walter

Forsberg and/or Patricia Forsberg at the time of Walter’ s death,” ( 2) removal of Patricia and

appointment of Pauline, or a professional fiduciary, as trustee of the spousal trust, (3) orders

requiring Patricia to provide an accounting showing the disposition and status of all property she

and Walter owned at the time of his death and to transfer all such property to the trust, (4) a

declaration that Patricia breached her fiduciary duty by improperly funding and managing the

trust, (5) an order requiring Patricia to reimburse the trust for losses sustained as a result of her

alleged breach of fiduciary duty, (6) declarations voiding the transfer of the Forsberg-Fisher

parcels, (7) orders quieting title in the trust to the Forsberg-Fisher parcels and all other realty

Patricia and Walter owned as of Walter’ s death, (8) reasonable attorney fees, and (9) “ such

further relief as the court deems just and equitable.” CP at 276.

        Patricia responded to the petition, admitting many of the factual allegations and asserting

the affirmative defenses of “laches, estoppel, waiver, failure to state a claim upon which relief

can be granted, failure to mitigate damages, release, res judicata, and statute of limitations.” CP

at 224. The answer prayed for dismissal of the petition with prejudice, attorney fees, and “[ s] uch

other and further relief as the Court deems appropriate.” CP at 224.

        Patricia moved for partial summary judgment, contending in support of the motion that

Pauline’ s

        claims for breach of contract, declaratory judgment, specific performance,
        injunctive relief, vacation of deeds, and quiet title all relate to the manner in which
        property . . . was conveyed from the Estate either to Patricia outright, or to a
        testamentary trust established under the terms of Walter Forsberg’ s Last Will and
        Testament.



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No. 46251-6-II


CP at 146. From this, Patricia argued that Pauline’ s failure to file a petition in the probate

proceeding, prior to Patricia’ s discharge as personal representative, waived those claims.

       Pauline cross-moved for partial summary judgment, arguing that Patricia had violated the

Agreement and mutual wills as a matter of law by giving away the Forsberg-Fisher property.

Pauline further argued that Patricia had, as a matter of law, breached her fiduciary duty as trustee

of the trust, and Pauline asked the court to void the gifts of the Forsberg-Fisher property and rule

that Patricia had violated her fiduciary duty as trustee.

       The trial court granted Patricia’ s motion, denied Pauline’ s, and dismissed the claims at

issue with prejudice. In a memorandum opinion, the court agreed that Pauline’ s failure to file a

petition in the probate proceeding prior to Patricia’ s discharge as personal representative barred

the claims. As an alternative basis for its decision, the court ruled that Pauline’ s claims were

 not supported by relevant law or facts,” CP at 24, reasoning as follows:

               Patricia Forsberg is carrying out the plans she and her late husband had for
       the disposition of their property. When Walter Forsberg died, their property was
       characterized as community property. One-half of this community property passed
       directly to Patricia Forsberg and the other half was put into a trust for Patricia
       Forsberg’ s benefit. At Patricia Forsberg’ s death, the remaining estate will be
       distributed to the parties’ children in accordance with Walter and Patricia
       Forsberg’ s original relative ownership interests in the property.
               Patricia Forsberg is not giving away property that should have been
       transferred to the trust, but is simply exercising dominion and control over her one-
       half interest in the estate in accordance with the Will, the FPA and applicable
       Washington law.

CP at 26.

       Pauline appeals.

                                            ANALYSIS

       After setting forth the standard of review, we first address the effect on Pauline’ s claims

of Patricia’ s discharge as personal representative in the probate proceeding. Concluding that the


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No. 46251-6-II


closing of the estate does not bar the claims regarding Patricia’ s inter vivos gifts, the funding of

the trust with only one half of the combined assets, and the Allocation Agreement, we then

consider whether the trial court should have granted summary judgment to Pauline on those

claims. Finally, we turn to the trial court’ s attorney fee award and the parties’ requests for

attorney fees on appeal.

                                      I. STANDARD OF REVIEW

       We review a grant of summary judgment de novo, performing the same inquiry as the

trial court. Macias v. Saberhagen Holdings, Inc., 175 Wn.2d 402, 407, 282 P.3d 1069 (2012).

Under CR 56(c), summary judgment should be granted 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.” A material fact is one on which the outcome of the litigation depends in whole or

in part. Atherton Condo. Apt.-Owners Ass’ n Bd. of Dirs. v. Blume Dev. Co., 115 Wn.2d 506,

516, 799 P.2d 250 (1990). Interpreting CR 56, our Supreme Court has held that courts should

grant summary judgment only if reasonable persons could reach but one conclusion from all the

evidence. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805

2005). In determining whether summary judgment was proper, the appellate court must

consider the facts, and the reasonable inferences therefrom, in the light most favorable to the

nonmoving party. Vallandigham, 154 Wn.2d at 26; Atherton, 115 Wn.2d at 516.

       We review a trial court’ s interpretation of a will de novo. Estate of Burks v. Kidd, 124

Wn. App. 327, 331, 100 P.3d 328 (2004). The interpretation of a contract also presents a

question of law reviewed de novo, aside from factual findings or inferences the trial court may




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No. 46251-6-II


have drawn from extrinsic evidence. See Viking Bank v. Firgrove Commons 3, LLC, 183 Wn.

App. 706, 711-12, 334 P.3d 116 (2014).

              II. PATRICIA’ S DISCHARGE AS PERSONAL REPRESENTATIVE DOES NOT
                                    BAR PAULINE’ S CLAIMS

        Pauline contends that Patricia’ s discharge as personal representative does not bar

Pauline’ s claims, because they challenge actions Patricia took in her personal capacity and as

trustee of the spousal trust, not Patricia’ s distribution of estate assets as personal representative.

Pauline also argues that “[ t]he Allocation Agreement should not be considered part of the

Declaration of Completion, because” Patricia never filed the Allocation Agreement in the

probate court and the Declaration does not mention it, robbing the Agreement of any preclusive

effect. Br. of Appellant at 16-18.

        Patricia counters that Pauline’ s claims “ all arise from actions [ Patricia] took as Personal

Representative” and are time barred by RCW 11.68.110 and constitute impermissible collateral

attacks on the probate of Walter’ s estate. Br. of Resp’ t at 23. Thus, Patricia maintains that

Pauline cannot now complain about how Patricia divided property between herself and the trust

or what she subsequently did with the property she distributed to herself individually.

        The statute governing the discharge of a personal representative with nonintervention

powers provides:

                Subject to the requirement of notice as provided in this section, unless an
        heir, devisee, or legatee of a decedent petitions the court either for an order
        requiring the personal representative to obtain court approval of the amount of fees
        paid or to be paid to the personal representative, lawyers, appraisers, or accountants,
        or for an order requiring an accounting, or both, within thirty days from the date of
        filing a declaration of completion of probate, the personal representative will be
        automatically discharged without further order of the court and the representative’ s
        powers will cease thirty days after the filing of the declaration of completion of
        probate, and the declaration of completion of probate shall, at that time, be the
        equivalent of the entry of a decree of distribution in accordance with chapter 11.76
        RCW for all legal intents and purposes.

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No. 46251-6-II



RCW 11.68.110(2). The statute sets forth the required contents of the notice the personal

representative must send to the interested parties regarding the Declaration, which the notice at

issue here contained, including the following:

       unless you shall file a petition in the above-entitled court requesting the court to
       approve the reasonableness of the fees, or for an accounting, or both, and serve a
       copy thereof upon the personal representative or the personal representative’ s
       lawyer, within thirty days after the date of the filing, the amount of fees paid or to
       be paid will be deemed reasonable, the acts of the personal representative will be
       deemed approved, the personal representative will be automatically discharged
       without further order of the court, and the Declaration of Completion of Probate
       will be final and deemed the equivalent of a Decree of Distribution entered under
       chapter 11.76 RCW.

RCW 11.68.110(3).

       Pauline did not object or file her petition within this 30-day period. Thus, if Patricia gave

effective notice through the Declaration and accompanying notice of the actions Pauline here

challenges, Pauline’ s claim is barred and the Declaration has the effect of a Decree of

Distribution. See In re Estate of Harder, 185 Wn. App. 378, 384, 341 P.3d 342 (2015).

       Pauline concedes that she received, along with the notice of the Declaration, notice that

Patricia had funded the trust with only half of the combined assets and entered the Allocation

Agreement as personal representative. However, because the Declaration and accompanying

notice did not give Pauline sufficient notice that she had to object in the probate court to preserve

her claims under the Agreement and mutual will contract, we hold that Pauline’ s failure to seek

an accounting in the probate court within 30 days of the filing of the Declaration does not

preclude her claims.

       The Declaration identifies only a distribution to Patricia as trustee of the spousal trust, not

any distribution of assets to Patricia individually. Nothing in the Declaration or in the associated

notice reasonably apprises Pauline that Patricia is taking 50 percent of the combined assets

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No. 46251-6-II


outright under the Agreement and will and is authorized, based on her actions during the probate

proceeding, to make inter vivos gifts to her preferred devisees without limitation from that 50

percent.

         The Agreement and mutual will contract unambiguously require that all of the couple’ s

combined assets, except for those needed to provide for Patricia’ s health, support, and

maintenance during her lifetime, be ultimately distributed to their children according to each

spouse’ s percentage of relative ownership, as described in the Facts, above. The only exception

is that the Agreement allows the surviving spouse to dispose of her percentage of relative

ownership as she desires. Patricia’ s position, that she took 50 percent of the combined assets

outright upon Walter’ s death with full authority to dispose of that portion to her children, starkly

contradicts the terms and intent of the Agreement and mutual wills, and nothing in the

Declaration gave Pauline notice that such a fundamental shift in the ultimate distribution was at

stake.

         In fact, Pauline had no reason to know that she needed to challenge Patricia’ s actions

until Pauline learned of the inter vivos gifts. Only then did Pauline know that Patricia claimed

the authority to give up to half of the couple’ s combined property to her daughters, thus reducing

the amount Pauline would ultimately receive under the Agreement and mutual wills.

         Harder, the case on which Patricia relies, does not save the inadequate notice that Pauline

received. Although Harder dealt with the same statute, the adequacy of the notice triggering the

30-day deadline was not at issue. Harder, 185 Wn. App. at 384. Instead, the decision centered

on whether issuing a notice of mediation was sufficient to meet that deadline, once triggered.

Harder, 185 Wn. App. at 384.




                                                 16
No. 46251-6-II


         In asserting that Pauline waived her claims by failing to raise them in the probate

proceeding, Patricia also relies on the language in her attorney’ s June 2011 letter to Pauline that

    a]s for those assets that have been distributed outright to her, [Patricia] is entitled to use them

as she pleases during her lifetime,” and on language in the Allocation Agreement between

herself and the estate stating that “ each will own certain assets free and clear of any claims of the

other.” CP at 324, 328. As described above, the June 2011 letter followed the June 2010 letter

from the same attorney in which Patricia expressed dissatisfaction with the Allocation

Agreement’ s distribution formula and proposed an alternative. The 2011 letter also proposed an

alternative solution. Pauline responded to neither letter. These letters, consequently, are most

reasonably taken as a statement of disagreement and proposal of settlement. In that context, the

statement just quoted from the 2011 letter cannot serve as notice to Pauline that she will be

bound by Patricia’ s proposal if she fails to object within the 30-day period. Perhaps more to the

point, even if we accepted, arguendo, that under the Allocation Agreement and other documents,

Patricia owns half of the combined assets free of any claim of Walter’ s estate, it does not follow

that she owns it free of any claim of the beneficiaries of her own mutual will contract and the

Agreement or that she may give that property away in a manner that fundamentally alters the

ultimate distribution formula those instruments established.

         For these reasons, the Declaration, its accompanying notice, the Allocation Agreement,

and the 2011 letter did not give Pauline reasonable notice that she needed to object within the 30-

day period to preserve her objections to Patricia’ s actions.4 The trial court erred in ruling that




4
 Although the appellants do not raise the issue, we also note the rule in Mullane v. Central
Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865 (1950):
              An elementary and fundamental requirement of due process in any
      proceeding which is to be accorded finality is notice reasonably calculated, under

                                                    17
No. 46251-6-II


Pauline’ s failure to seek an accounting in the probate court barred her claims. We now turn to

the merits of those claims.

              III. PATRICIA’ S GIFTS VIOLATE THE AGREEMENT AND MUTUAL WILLS

       Pauline contends that Patricia’ s inter vivos gifts violate the terms of the Agreement and

mutual wills, because they result in an ultimate distribution of the combined assets as of Walter’ s

death that is different than that specified by the Agreement’ s percentage-of-relative-ownership

formula. Patricia counters that her actions “ were consistent with the powers granted to her under

Walter’ s Will,” and that the mutual wills and Agreement placed “[ n]o limits . . . on the surviving

spouse’ s use of the property received directly as her half of the community property during her

lifetime.” Br. of Resp’ t at 33; CP at 35. From this Patricia argues that the Agreement and

mutual wills authorized her inter vivos gifts. We agree with Pauline.

       In construing a will, our “ paramount duty . . . is to give effect to the testator’ s intent.” In

re Estate of Bergau, 103 Wn.2d 431, 435, 693 P.2d 703 (1985). Washington’ s will statute

mandates that “[ a] ll courts and others concerned in the execution of last wills shall have due

regard to the direction of the will, and the true intent and meaning of the testator, in all matters

brought before them.” RCW 11.12.230. We must, if possible, ascertain such intent “ from the

language of the will itself.” Bergau, 103 Wn.2d at 435. We consider the will “in its entirety”

and give effect to “ every part thereof.” Bergau, 103 Wn.2d at 435. In addition,

                 b]ecause a testator employs language in the will with regard to facts within
       his knowledge, the court must consider all the surrounding circumstances, the
       objects sought to be obtained, the testator’ s relationship to the parties named in the
       will, his disposition as evidenced by provisions to be made for them and the general
       trend of his benevolences as disclosed by the testament.



       all the circumstances, to apprise interested parties of the pendency of the action and
       afford them an opportunity to present their objections.


                                                  18
No. 46251-6-II


Bergau, 103 Wn.2d at 436.

         A] mutual agreement to devise to third parties by will” is a contract effective from the

date of execution. Raab v. Wallerich, 46 Wn.2d 375, 383, 282 P.2d 271 (1955). Similarly,

        j]oint or mutual wills, made upon proper understanding and executed pursuant to
       a contract or policy designed to settle the probable interests of the testators and
       looking to the just provision of those having a claim upon their bounty, partake of
       the nature of a contract and may be specifically enforced.

Prince v. Prince, 64 Wash. 552, 556, 117 P. 255 (1911). As applied to wills, the doctrine of

election requires “ that one who takes under a will must conform to all its provisions, and if he

accepts a benefit thereunder he must renounce every right inconsistent therewith.” Tacoma Sav.

  Loan Ass’ n v. Nadham, 14 Wn.2d 576, 596-97, 128 P.2d 982 (1942).

       Consistently with these principles, if one spouse who is a party to a mutual will

agreement dies while it remains in effect, the agreement becomes irrevocable:

         If two testators who have united in the execution of a mutual will have devised
       their property to each other so that the devises form a mutual consideration, neither,
       after the death of the other and the probate of the will as to it, is at liberty, after
       accepting the benefit conferred, to repudiate the contract to the injury of the heirs
       or next of kin of the testator who predeceased him. The mutual will was made upon
       condition that the whole shall be but one transaction. If the will is not revoked
       during the joint lives of the testators, he who dies first has a right to rely upon the
       promise of the survivor. He has fulfilled his part of the agreement, and it is not just
       to his representatives to permit a revocation when he has been prevented from
       revoking his will by a reliance upon the other’ s promise. It is too late for the
       survivor, after receiving the benefit, to change his mind because the first will is then
       irrevocable. It would have been differently framed, or perhaps not made at all, if it
       had not been for his inducement.”

Prince, 64 Wash. at 558 (quoting 1 H.C. UNDERHILL, LAW OF WILLS, at 20 (1900)). As

discussed, the mutual wills and the Agreement at issue here expressly specify that they are

irrevocable without the mutual written consent of the parties.




                                                 19
No. 46251-6-II


        As in the case of wills, “[t]he touchstone of contract interpretation is the parties’ intent.”

Tanner Elec. Co-op. v. Puget Sound Power & Light Co., 128 Wn.2d 656, 674, 911 P.2d 1301

1996). Washington courts “ follow the objective manifestation theory of contracts,” determining

the parties’ intent “ by focusing on the objective manifestations of the agreement, rather than on

the unexpressed subjective intent of the parties” and imputing “ an intention corresponding to the

reasonable meaning of the words used.” Hearst Commc’ ns, Inc. v. Seattle Times Co., 154 Wn.2d

493, 503, 115 P.3d 262 (2005).

        The plain language of the Agreement unambiguously expresses the underlying intent of

the parties: after providing for the “ health, support and maintenance” of the surviving spouse in

his or her “ accustomed manner of living,” the parties intended “ to dispose of their combined

estates, to their respective children or issue in proportion to their relative ownership of property

prior to its becoming community property.” CP at 280-81. The Agreement also states that “ the

ultimate distribution of [Walter]’ s and [ Patricia]’ s combined estates to their children or issue

shall be completed in a manner that is proportionate to [Walter] and [Patricia]’ s relative

ownership of all property prior to the time it becomes community property” and that Walter and

Patricia’ s percentage of relative ownership shall be determined upon the death of the first spouse

to die. The percentages of relative ownership shall be based upon the value of the property

included in their combined estates as of the date of the death of the first spouse to die. In

addition, the Agreement specifies that “[ Walter]’ s percentage of relative ownership shall be

distributed to his children or issue, and [ Patricia]’ s percentage of relative ownership shall be

distributed to her children or issue,” subject, as noted above, to the right of the surviving spouse

to dispose of her percentage of relative ownership as she wishes.




                                                  20
No. 46251-6-II


       Thus, the plain language of the Agreement demonstrates an intent to ensure that,

regardless of which spouse dies first, their children ultimately receive Walter’ s and Patricia’ s

respective percentages of relative ownership of the couple’ s total combined assets, determined as

of the death of the first spouse, less the amount necessary to provide for the surviving spouse in

his or her accustomed manner of living. The parties intended that the “ combined” property as of

Walter’ s death would provide not just the basis for calculating the percentages of relative

ownership, but also would be the corpus against which those percentages would be applied, after

subtraction of amounts needed to provide for the surviving spouse. Consistently with this

understanding, Walter’ s will states that “[ w]e have also agreed to execute mutual wills which

include a specific plan for ultimate distribution of all of our combined property as set forth in our

wills.” CP at 302. Thus, the property subject to the Agreement is plainly not limited to whatever

remains when Patricia dies.

       Under Patricia’ s interpretation of the Agreement, Walter’ s descendants could, due to

Patricia’ s inter vivos giving, receive as little as 36.75 percent of the combined assets upon her

death (73.5 percent of one half of the total remaining) because he died first; but could have

received up to 86.75 percent (half of the total plus 73.5 percent of the other half of the total) had

Patricia died first and Walter given his daughters one half of the newly created community

property. Conversely, Patricia’ s descendants could receive as much as 63.25 percent of the total

one half plus 26.5 percent of the other half) under Patricia’ s interpretation, but could have

received as little as 13.25 percent had she died first. Such a result is absurd in light of the

unambiguous language just discussed.

       The community property provision on which Patricia’ s argument entirely relies in no way

detracts from the clarity of the language expressing the intent underlying the Agreement and



                                                  21
No. 46251-6-II


mutual wills. The provision cannot reasonably be read to demonstrate the parties’ intent to allow

for an “ ultimate distribution of all of [their] combined property,” CP at 302, that could so

dramatically differ depending on which spouse died first.

       We also consider Patricia’ s decision to fund the trust with only 50 percent of the

combined assets after Walter’ s death inconsistent with the plain language of the Agreement and

mutual wills. The trust was to be funded with the residue of Walter’ s estate. The will defines

the residue of the estate in relevant part as “ all probate estate property which [Walter] own[ed] at

the time of [his] death.” CP at 306. Thus, Walter’ s separate property and one half of the pre-

death community property should have funded the trust. This includes, but is not limited to, the

Forsberg-Fisher property, which Walter held as separate property until his death. It should have

gone into the trust corpus.

       Patricia’ s argument in defense of her actions relies on the basic principle of contract law

 that the general law in force at the time of the formation of the contract is a part thereof.”

Arnim v. Shoreline Sch. Dist. No. 412, 23 Wn. App. 150, 153, 594 P.2d 1380 (1979). Because

the probate statute provides that “ upon the death of a decedent, a one-half share of the

community property shall be confirmed to the surviving spouse,” RCW 11.02.070, Patricia

argues that “ it must be presumed that because Walter and Patricia specifically agreed that their

property would become community property, they intended for the surviving spouse to take half

of the combined assets directly.” Br. of Resp’ t at 30-31.

       This argument fails. Initially, it disregards the election doctrine, discussed above, “ that

one who takes under a will must conform to all its provisions, and if he accepts a benefit

thereunder, he must renounce every right inconsistent therewith.” Nadham, 14 Wn.2d at 596-97.

Thus, however the Agreement characterized the combined property, Patricia had to accept the



                                                  22
No. 46251-6-II


trust provisions and distribution formula of the Agreement, along with the community property

provision.

       Perhaps more to the point, the bedrock intent animating the Agreement and mutual wills,

as shown above, was that the couple’ s combined assets, however held or characterized, would

ultimately be distributed to the children according to the formula specified. As also shown

above, giving Patricia outright ownership and full control over one half of the entire estate based

on the recharacterization to community property would require us to read the Agreement and

wills to generate wildly diverging distributions to the children depending on who died first. Such

an absurdity would contradict all objective signs of the couple’ s intent. Because Patricia took

assets under the will, she did so subject to the Agreement’ s provisions for ultimate distribution of

all the combined assets to the couple’ s respective children.

       The record makes clear that Patricia’ s inter vivos gifts amount to an attempt to evade the

distribution formula specified in the Agreement. The majority of courts facing similar

circumstances have held that inter vivos gifts made to avoid obligations under mutual wills are

improper:

       Regardless of the wording of a joint or mutual will, or the accompanying
       agreement, if property is left to third-party beneficiaries who are to take upon the
       death of the survivor, most courts consider any inter vivos transfer made by the
       survivor with an intent to avoid the agreement, to be improper.

85 A.L.R.3d 8 § 21, at 59 (originally published in 1978) (compiling cases).

       In Newell v. Ayers, 23 Wn. App. 767, 768-69, 598 P.2d 3 (1979), we reached the same

result under facts very similar to those here: a surviving spouse who had entered into a mutual

will agreement made substantial inter vivos gifts to his daughter, her husband, and their

descendants, thereby avoiding his obligation to devise much of his property to his deceased




                                                 23
No. 46251-6-II


wife’ s children from a prior marriage. We held that “[ s]ince the evidence also discloses that the

decedent’ s inter vivos transfers were in effect testamentary dispositions contrary to the

disposition called for by the agreement, those transfers were void and were properly set aside,”

noting that “[ o]nce the survivor elects to take under the provisions of such a will, he is not free to

avoid the obligation to dispose of his property as previously agreed.” Newell, 23 Wn. App. at

769-70.

       In Newell, 23 Wn. App. at 770, we relied on Olsen v. Olsen, in which a New York court

considering a similar case held:

        A]ll property held by [the wife], by [the husband], by them jointly, or by either in
       trust for the other, was embraced in the agreement, for the parties provided therein
       for the disposition of “our property.” This term would include the property of either
       as well as the property which they held together.
               Of course when [the wife] died [the husband] acquired the joint property for
       himself, bound, however, by the terms of their common agreement. Moreover,
       while [the husband] had the right to use as much of the assets of their joint estates
       during his lifetime as he required, he did not have the right to “ make a gift in the
       nature, or in lieu, of a testamentary disposition or to defeat the purpose of the
       agreement.”

189 Misc. 1046, 1052, 70 N.Y.S.2d 838 (Sup. Ct. 1947) (quoting Rastetter v. Hoenninger, 214

N.Y. 66, 74, 108 N.E. 210 (1915)). The language of the will at issue here is even clearer: it

creates “ a specific plan for ultimate distribution of all of our combined property.” CP at 302.

       Patricia seeks to distinguish Newell and Olsen on the ground that the surviving spouses in

those cases sought to give away more than half of the community property and leave the

deceased spouse’ s chosen devisees with nothing or almost nothing, while Patricia has given

away only a portion of the community property confirmed to her, leaving substantial assets in the

trust for Pauline’ s inheritance. These differences, however, played no role in those courts’

analyses. Newell, 23 Wn. App. at 770-72; Olsen, 70 N.Y.S.2d at 842-44.

       We adhere to our decision in Newell, which is directly on point and controls the outcome

                                                  24
No. 46251-6-II


here. Patricia’ s decision to fund the trust with only half of her and Walter’ s combined assets, as

well as her subsequent gifts of a substantial portion of those assets to her own chosen devisees,

amounts to an attempt to avoid the distribution formula to which she consented under the

Agreement and mutual wills.

       Under the terms of the Agreement and mutual wills, Patricia may draw on the trust for

her maintenance, as described above, and may dispose of a share of the combined assets equal to

 her percentage of relative ownership as . . . she chooses,” including, presumably, by inter vivos

gift. CP at 282. To remain consistent with the Agreement and wills, however, any such gift

must necessarily reduce the devise that ultimately passes to Patricia’ s daughters upon her death

through her percentage of relative ownership.

       With respect to the Forsberg-Fisher property, we hold the gifts void. Walter had

testamentary power over that property, which he held as separate property prior to his death. It

should thus have formed part of the trust corpus, which the trustee could distribute only if the

trust income, after due consideration of other resources available to Patricia, proved insufficient

 to provide for her health, support and maintenance in her accustomed manner of living.” CP at

306.

       The cash gifts are less problematic because, at the time of Walter’ s death, Patricia held as

her separate property liquid assets well in excess of the amounts given. So long as they

ultimately reduce the amount passing to the daughters of Patricia’ s first marriage, the cash gifts

are not plainly inconsistent with the Agreement and mutual wills. That is, the cash gifts may

qualify as a proper exercise of Patricia’ s power to dispose of her percentage of relative

ownership under the Agreement and mutual wills. We leave it to the sound discretion of the trial

court to determine the propriety of these gifts on remand.



                                                 25
No. 46251-6-II


                                        IV. ATTORNEY FEES

       Pauline contends that this court should reverse the trial court’ s award of attorney fees to

Patricia, noting that the court failed to enter findings of fact and conclusions of law and arguing

that this court thus does not have an adequate record upon which to review the award. Pauline

further contends that the trial court erred in denying her fee request.

       The relevant fee shifting provision provides:

       Either the superior court or any court on an appeal may, in its discretion, order
       costs, including reasonable attorneys’ fees, to be awarded to any party: (a) From
       any party to the proceedings; ( b) from the assets of the estate or trust involved in
       the proceedings; or ( c) from any nonprobate asset that is the subject of the
       proceedings. The court may order the costs, including reasonable attorneys’ fees,
       to be paid in such amount and in such manner as the court determines to be
       equitable. In exercising its discretion under this section, the court may consider
       any and all factors that it deems to be relevant and appropriate, which factors may
       but need not include whether the litigation benefits the estate or trust involved.

RCW 11.96A.150(1). Because we hold that Patricia improperly attempted to avoid her

obligations under the Agreement and mutual wills, thereby requiring Pauline to initiate this

action to enforce her rights, we reverse the trial court’ s fee award. We leave it to the trial court

to determine whether to award fees to Pauline on remand.

       Both Pauline and Patricia also request fees on appeal, citing RCW 11.96A.150(1). Under

RAP 18.1(a), we may grant attorney’ s fees on appeal if authorized by applicable law. Because

Pauline prevails, and because Patricia’ s improper actions forced Pauline to litigate this appeal,

we grant Pauline’ s request under RCW 11.96A.150(1). For the same reasons, we deny Patricia’ s

request for fees on appeal.

                                           CONCLUSION

       We reverse the trial court’ s grant of summary judgment to Patricia. We remand for entry

of partial summary judgment in favor of Pauline setting aside the transfer of the Forsberg-Fisher


                                                  26
No. 46251-6-II


property to Patricia’ s daughters and sons-in-law and enjoining Patricia from further gifts

inconsistent with the Agreement and mutual wills as interpreted in this opinion, and for further

consideration, consistently with this opinion, of Pauline’ s other claims. We also reverse the trial

court’ s attorney fee award to Patricia and grant Pauline’ s request for fees on appeal.

       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 pursuant to RCW 2.06.040, it

is so ordered.




                                                      BJORGEN, J.

 We concur:




JOHANSON, C.J.




SUTTON, J.




                                                 27
