                                                                                          FILED
                                                                                 GUOURT OF APPEALS
                                                                                         DIVISM- ii

                                                                                2013 NOV - 5       AV 8* 58
                                                                                  6 I E OF WAStili3GT0N

                                                                                 9Y_
                                                                                              PUT




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                     DIVISION II


KITSAP BANK, a Washington Financial                                        No. 43282 -0 -II
Institution,


                                        Plaintiff,


          V.



GAIL DENLEY, as PERSONAL                                              PUBLISHED OPINION
REPRESENTATIVE OF THE
CONSOLIDATED ESTATES OF HELEN M.
CORRELL AND JAMES F. CORRELL,

                                        Appellant,


CHARLENA M. LANTERNO,


                                        Respondent,


BANK OF AMERICA, a Washington
Financial Institution,


                                        Defendant.


          WORSWICK, C. J. —         The Estate of Helen Correll (the Estate) challenges Charlena


Lanterno' s ownership of the funds from Helen Correll' s checking account for which Lanterno

was named the payable on death ( POD) beneficiary based on a claim of undue influence. The

trial   court granted   Lanterno'   s   summary judgment   motion.   Because the trial   court   properly
No. 43282 -0 -II



determined that Lanterno was entitled to summary judgment as to the undue influence claim and

did not abuse its discretion in awarding Lanterno costs and attorney fees, we affirm.

                                                FACTS


        In 1993, Lanterno was employed at Washington Mutual Bank (now J. P. Morgan Chase)

where Correll was a customer. Correll and Lanterno became close friends because of the support

Correll provided Lanterno after Lanterno' s husband died. From 1999 to 2011, Lanterno and

Correll had dinner approximately once a week and lunch on weekends. Lanterno also regularly

visited Correll at her home.


        Correll also maintained accounts at the Silverdale branch of Kitsap Bank. In November

2010, April Ihde, a senior financial service representative for Kitsap Bank, spoke to Correll over

the phone. During the call, Correll told Ihde that she wanted.to change the beneficiaries to her

Kitsap Bank accounts because she wanted to make sure that the money was left to her friends
whom she considered her family. Ihde told Correll what information the bank would need to

change the beneficiaries on her accounts.

        In December 2010, Ihde received a hand written letter from Correll in the mail. The

letter stated that the prior beneficiary of the account, Correll' s brother, Blaine Wiseman, should

be removed and the beneficiary should be changed to Lanterno. The letter contained Lanterno' s

 address, phone number, date of birth, and social security number. After receiving the letter, Ihde

 called Correll to confirm that she wanted Lanterno to be named the beneficiary of her account.

 Correll confirmed her request. Ihde noted that during the conversation Correll was of sound

 mind and was clear about her request. Correll reiterated that " she wanted to make sure that none

 of her family members received her money, and she wanted to make sure that it was left for her
 friends that have been there for her."   Clerk' s Papers ( CP) at 94.

                                                    2
No. 43282 -0 -II


         In December 2010, Lanterno dropped off a folder of documents at Kitsap Bank for

Correll. The folder contained deposit slips, signature cards, and POD designations for three

other of Correll' s friends; however, Lanterno did not know the content of the documents at the

time that she delivered the folder. At the same time, Lanterno dropped off a $ 400,000 check for

Correll. Three hundred sixty -five thousand dollars was deposited into the Kitsap Bank account

for which Lanterno was the POD beneficiary. The remainder of the money was split between
                          1
three   other accounts.




         In January 2011, attorney John Mitchell prepared a new will for Correll. Mitchell also

prepared a durable power of attorney designating Lanterno as Correll' s attorney in fact. Mitchell

and his legal assistant met with Correll in person to sign the documents. At the time Mitchell

met with    Correll he   observed, "   She was completely coherent, knew exactly what she was doing."

CP at 81.


          Correll died   on   February   23, 2011.   In April, Gail Denley, the personal representative of

the Estate, informed Lanterno that she was the POD beneficiary of Correll' s account. Until that

time, Lanterno did not know that she was the designated beneficiary of Correll' s account. On

 April 8, Lanterno met with Ihde about the account. Kitsap Bank issued Lanterno a cashier' s

 check for the balance of the account: a little more than $400, 000. Lanterno deposited the funds

 into her personal Bank of America checking account.

          On April 14, Denley contacted Kitsap Bank and alleged that the funds in the checking

 account were improperly distributed to Lanterno because of fraud. Based on this allegation of




 1
     The Estate does   not challenge     the POD beneficiaries to these three   additional accounts.
No. 43282 -0 -II


                                                                                                                02

fraud,            Bank filed               for       temporary                   order under   RCW 30. 22. 21
         Kitsap                a motion          a                 restraining


enjoining release of the funds, and later filed a complaint requesting a permanent restraining

order. All parties stipulated to a restraining order freezing the funds until " authorized or directed

by   a court of proper   jurisdiction."    CP at 20. Lanterno filed an answer to Kitsap Bank' s

complaint. The Estate filed an answer and cross claim against Lanterno alleging a claim of

undue influence.


          Lanterno filed a motion for summary judgment alleging she was entitled to have the

permanent restraining order dismissed and an order declaring that she was the legal owner of the

funds because the Estate' s claim to the funds was time barred by the statute of limitations in

RCW 11. 11. 070 and the Estate' s undue influence claim failed as a matter of law. The Estate

responded that RCW 11. 11. 070' s time bar did not apply and there were genuine issues of




2
    RCW 30. 22. 210 provides,
           1)   Nothing contained in this chapter shall be deemed to require any financial
          institution to make any payment from an account to a depositor, or any trust or
          P. O.D. account beneficiary, or any over person claiming an interest in ally MUM
          deposited in the account, if the financial institution has actual knowledge of the
          existence of a dispute between the depositors, beneficiaries, or other persons
          concerning their respective rights of ownerships to the funds contained in, or
          proposed to be withdrawn, or previously withdrawn from the account, or in the
          event the financial institution is otherwise uncertain as to who is entitled to the
          funds    pursuant    to   the   contract     of   deposit.     In any such case, the financial
          institution may, without liability, notify, in writing, all depositors, beneficiaries,
          or other persons claiming an interest in the account of either its uncertainty as to
          who is entitled to the distributions or the existence of any dispute, and may also,
          without liability, refuse to disburse any funds contained in the account to any
          depositor, and /or trust or P. O.D. account beneficiary thereof, and /or other persons
          claiming an interest therein, until such time as either:
                  a) All such depositors and /or beneficiaries have consented, in writing, to
          the requested payment; or

                     b) The payment is authorized or directed by a court of proper jurisdiction.

                                                               M
No. 43282 -0 -II



material fact related to whether the designation of Lanterno as the designated POD beneficiary

was void because of undue influence.

            The trial court granted Lanterno' s motion for summary judgment, ruling that the Estate' s

claim was time barred by RCW 11. 11. 070 and, alternatively, ruling that the Estate' s undue

influence     claim   failed   as a matter of   law.3     The order dissolved the permanent restraining order

and declared that Lanterno was the legal owner of the funds. The trial court also awarded

Lanterno attorney fees under RCW 11. 96A. 150. The Estate appeals.
                                                          ANALYSIS


                         I. SUMMARY JUDGMENT STANDARD FOR UNDUE INFLUENCE

            We   review a   trial   court' s order   granting summary judgment de    novo.   Torgerson v. One


Lincoln Tower, LLC, 166 Wn.2d 510, 517, 210 P. 3d 318 ( 2009).                  Summary judgment is

appropriate if the pleadings, affidavits, depositions, and admissions on file demonstrate the

absence of any genuine issues of material fact, and the moving party is entitled to judgment as a
matter of     law. CR 56( c).        A material fact is one on which the outcome of the litigation depends

in whole or in part. Atherton Condo. Apartment -Owners Ass' n Bd. ofDirs. v. Blume Dev. Co.,

 115 Wn.2d 506, 516, 799 P. 2d 250 ( 1990).


            In a summary judgment motion, the moving party bears the initial burden of showing the

absence of an issue of material fact. See, e. g., LaPlante v. State, 85 Wn.2d 154, 158, 531 P. 2d



3 Lantern concedes that the trial court erred by applying RCW 11. 11. 070 to the present case.
 RCW 11. 11. 070 applies to " superwills" which purport to distribute nonprobate assets through a
 will. RCW 11. 11. 070 prevents the beneficiary designated in the will from making a claim
 against a beneficiary designated in the nonprobate asset. Because Correll' s will does not
 designate a competing beneficiary to the nonprobate POD account, RCW 11. 11. 070 does not
 apply to the Estate' s claim. Lanterno' s concession is proper and we accept it. Accordingly, we
 do   not   further   address   the applicability    of   RCW 11. 11. 070.
No. 43282 -0 -II



299 ( 1975). "          If the moving party is a defendant and meets this initial showing, then the inquiry

shifts to the party with the burden of proof at trial, the plaintiff. If, at this point the plaintiff `fails

to make a showing sufficient to establish the existence of an element essential to that party' s

case, and on which                that party      will   bear the burden       of proof at   trial,' then the trial court should



grant   the   motion."            Young v. Key          Pharm. Inc., 112 Wn.2d 216, 225, 770 P. 2d 182 ( 1989)


 footnote      omitted) (         quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L.

Ed. 2d 265 ( 1986)). "[               A] complete failure of proof concerning an essential element of the

nonmoving party'              s case   necessarily         renders all other      facts immaterial."     Celotex, 477 U. S. at 323.


         The general principles of summary judgment are supplemented by additional principles

when a party claims undue influence. The determination of undue influence is a mixed question

of fact and law. In re Trust and Estate ofMelter, 167 Wn. App. 285, 300, 273 P. 3d 991 ( 2012).

In Melter, Division Three of this court stated,


                  When a challenged factual finding is required to be proved at trial by
          clear, cogent, and convincing evidence, we incorporate that standard of proof in
          conducting              substantial evidence review.                 A party claiming undue influence must
          prove         it   by    clear, cogent, and
                                                  convincing In re Estate of Eubank, 50
                                                                                evidence.

          Wn. App.                                 When such a finding is appealed, the
                              611, 619, 749 P. 2d 691 ( 1988).
          question to be resolved is not merely whether there is substantial evidence to
          support it but whether there is substantial evidence in light of the " highly

          probable"           test.     Welfare of Sego, 82 Wn.2d 736, 739, 513 P. 2d 831 ( 1973);
                                       In   re

              In   re   Estate of Riley, 78 Wn.2d 623, 640, 479 P. 2d 1 ( 1970)] ( recognizing that
               e] vidence          which         is `   substantial'    to support a preponderance may not be
          sufficient          to   support       the    clear, cogent, and      convincing"      standard).   We still view
          the evidence and all reasonable inferences in the light most favorable to the
          prevailing party, Woody v. Stapp, 146 Wn. App. 16, 22, 189 P. 3d 807 ( 2008) and,
          as in all matters, defer to the trier of fact on issues of credibility.

 167 Wn. App.            at   301 (   second alteration         in   original).   The same principle applies to summary


judgment, and the party bearing the burden to prove the undue influence claim at trial must

 present sufficient evidence to make it highly probable that the undue influence claim will prevail


                                                                           2
No. 43282 -0 -II


at   trial. In   re   Estate of Jones, 170 Wn.   App.   594, 603 -04, 287 P. 3d 610 ( 2012). A trial court


may grant a summary judgment motion to dismiss if no rational trier of fact, viewing the
evidence in the light most favorable to the nonmoving party, could find clear, cogent, and

convincing evidence on each element. In re Dependency ofC.B., 61 Wn. App. 280, 285, 810
P. 2d 518 ( 1991).


           Here, the Estate bears the burden of proving undue influence by clear, cogent, and

convincing evidence; Lanterno does not bear the burden of disproving the Estate' s claim of

undue influence. Jones, 170 Wn. App. at 606. The Estate argues that it has presented facts

establishing a presumption of undue influence, and that the presumption of undue influence is
sufficient to defeat a motion for summary judgment. We disagree. No rational trier of fact could

find clear, cogent, and convincing evidence establishing a presumption of undue influence. And

even assuming the Estate had presented a presumption of undue influence, that presumption was

not sufficient to defeat summary judgment because the presumption was effectively rebutted.

We affirm the trial court' s order on summary judgment.

                                      II. PRESUMPTION OF UNDUE INFLUENCE


            Undue influence involves unfair persuasion that seriously impairs the free and

 competent exercise of judgment."           Jones, 170 Wn. App. at 606 ( citing In re Infant Child Perry,

 31 Wn.     App.      268, 272 -73, 641 P. 2d 178 ( 1982)).       The court applies the rules for undue influence


 articulated      in the Restatement ( Second) of Contracts § 177 ( 198 1) in will and gifts situations.


 Jones, 170 Wn. App. at 606 -07. Based on the principles of the Restatement, courts have
 determined that certain circumstances give rise to a rebuttable presumption of undue influence.

 Jones, 170 Wn. App. at 608 -09. The three most significant factors that can create a rebuttable

 presumption of undue influence are ( 1) a confidential or fiduciary relationship between the

                                                              7
No. 43282 -0 -II



beneficiary    and   the testator, ( 2)   the beneficiary' s active participation in the transaction, and ( 3)

whether the beneficiary received an unusually large part of the estate. Melter, 167 Wn. App. at

298 ( quoting Dean       v.   Jordan, 194 Wash. 661, 671 -72, 79 P. 2d 331 ( 1938)).         Although these


three factors are the most important, the court should also consider additional factors such as the

age and mental or physical health of the testator, the nature of the relationship, the opportunity

for exerting undue influence, and the naturalness of the will. Melter, 167 Wn. App. at 298

 quoting Dean, 194 Wash. at 671 -72).

        The Estate argues that it has met all three factors necessary to establish a presumption of

undue influence. First, the Estate argues that Lantern ( 1) had a confidential and fiduciary

relationship   with    Correll because Lanterno       was   her banker   and   friend, (2) participated in the


transaction because she delivered the. signature card and $ 400, 000 check to the bank, and ( 3)

received a disproportionately large portion of Correll' s estate.

A. Confidential or Fiduciary Relationship

        The current case law regarding the presumption of undue influence as it relates to will

and trust matters does not clearly distinguish between confidential and fiduciary relationships.

Rather than determine whether the relationship is confidential or fiduciary, courts often examine

whether the relationship gave the beneficiary the opportunity to influence the decisions of the

testator. See Melter, 167 Wn. App. at 306 -07; Jones, 170 Wn. App. at 608 -09; Liebergesell v.

Evans, 93 Wn.2d 881, 890, 613 P. 2d 1170 ( 1980);              McCutcheon v. Brownfield, 2 Wn. App. 348,

 356 -57, 467 P. 2d 868 ( 1970). While this approach seems to comport with the underlying


 principles of undue influence, it is not the test developed by our Supreme Court. Our Supreme

 Court has specifically stated that confidential or fiduciary relationships may give rise to the

 presumption of undue          influence. Dean, 194 Wash.       at   672. Therefore,   we   take this opportunity
No. 43282 -0 -II



to clarify the definition of both confidential relationships and fiduciary relationships to better
distinguish between the two.


             Confidential relationships generally arise from personal relationships; in contrast,

fiduciary relationships arise from professional relationships. Here, the Estate argues that
Lanterno and Correll had both a confidential and a fiduciary relationship. If a confidential

relationship existed between Lanterno and Correll, it would arise from their ongoing friendship.
If a fiduciary relationship existed between Lanterno and .Correll, it would arise from Lanterno' s

job as a bank teller at the Chase bank while Correll maintained accounts there. We examine each

alleged relationship between Lanterno and Correll in turn.

                 1.   Confidential Relationship

             The Estate argues that Lanterno had a confidential relationship with Correll because

Lanterno was a close friend of Correll' s. Although Lanterno was Correll' s close friend, a

friendship, on its own, does not establish a confidential relationship. Based on the record, the
Estate has not presented evidence that establishes the friendship between Lanterno and Correll

was a confidential relationship.


                      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. "'   McCutcheon, 2 Wn.


                  357 ( quoting RESTATEMENT ( FIRST)            OF   RESTITUTION § 166d ( 1937).              Family relationships
 App.       at




 are particularly likely to create confidential relationships. McCutcheon, 2 Wn. App. at 357.
 Other factors are also considered when determining whether a confidential relationship existed

 between the parties. For example, courts have found confidential relationships between family

 members when the testator lived with the beneficiary, was dependent on the beneficiary, or was

                         or   physically   vulnerable.   See,   e. g.,   Melter, 167 Wn.      App.    at   290 -91, 307
 emotionally
No. 43282 -0 -II



 confidential relationship existed when decedent lived with her son, was dependent on him
because she was unable to live alone, and was in a vulnerable emotional state due to the recent

deaths   of   her daughter   and   husband);   Jones, 170 Wn. App. at 607 -08 ( confidential relationship

assumed to exist between decedent and her sons because the decedent was distraught by the

recent death of her husband and dependent on her sons to run the family farming operation).

         The Estate has demonstrated that Correll considered Lanterno family and believed that

Lanterno would act in her best interests. Ihde testified that Correll decided to change the

beneficiaries on her POD accounts because she wanted to leave her money to the friends she

considered family, including Lanterno. And it appears that Correll believed that Lanterno would
act in her best interests because she designated Lanterno her attorney in fact. However, these

two facts are not sufficient to establish a confidential relationship considering the other facts

regarding Lanterno' s relationship with Correll. There is no evidence that Correll was in a
particularly vulnerable state, either emotionally or physically. Correll lived by herself and was

capable of managing her affairs. Although Lanterno saw Correll regularly, they were together

for brief periods once or twice a week. During the time they spent together, Lanterno and

 Correll watched television or talked about hobbies and mutual interests such as Correll' s dolls.

 There is not clear, cogent, and convincing evidence in the record that would allow a rational trier

 of fact to find a confidential relationship between Lanterno and Correll.

          2. Fiduciary Relationship

          The Estate also argues that there was a fiduciary relationship between Correll and

 Lanterno because Lanterno was a banker at the bank in which Correll maintained some of her

 accounts. However, neither party nor the applicable case law provides an appropriate definition

 of fiduciary relationship for the purposes of an undue influence claim. The definition of
                                                          10
No. 43282 -0 -II



 fiduciary relationship" appears to differ, depending on the cause of action. Therefore, we begin
our analysis by defining a fiduciary relationship for the purposes of an undue influence claim.

Principles of undue influence are derived from both contract law and tort law.

         We first examine the definition of fiduciary relationship that governs contract disputes.

See Jones, 170 Wn.         App.   at   607. In    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. "'
Liebergesell, 93 Wn. 2d       at   889 -90 ( quoting RESTATEMENT ( FIRST)                      OF CONTRACTS § 472(       1)(   c)




 1932)).    A fiduciary relationship arises as a matter of law in certain relationships such as

attorney and client, doctor and patient, or trustee and beneficiary; but a fiduciary relationship
       also arise   from   particular    facts. Liebergesell, 93 Wn.2d                  at   890 -91. Furthermore, an undue
may


influence    claim arises when "`        the result was produced by means that seriously impaired the free

and competent exercise of judgment.                   "' Jones, 170 Wn.          App.   at   607 ( emphasis   added) (   quoting


RESTATEMENT ( SECOND) OF CONTRACTS § 177,                         cmt.     b)). Therefore, it is not sufficient for a


fiduciary relationship to exist between the parties; the fiduciary relationship must exist in relation
to the asset which is the subject of the undue influence claim.

           Here, the Estate claims that a fiduciary relationship existed between Lantern and Correll

because Lanten was a bank teller at the Chase bank where Correll maintained some of her

 accounts until she transferred her money into the POD accounts at Kitsap Bank. Bank tellers do

 not, as a matter of law, enter into fiduciary relationships with their customers. Annechino v.

 Worthy,    162 Wn.    App.   138, 142 -43, 252 P. 3d 415 ( 2011) (                citing Liebergesell, 93 Wn.2d at 889),

                                        2012). " As a general rule, participants in a business
 aff'd, 175 Wn. 2d 630. 290 P. 3d 126 (


 transaction   deal   at arm' s    length   and   do    not enter   into   a   fiduciary relationship."       Annechino, 162


 Wn.               143 ( citing Liebergesell, 93 Wn. 2d             at   889).    This general rule applies to transactions
       App.   at



                                                                  11
No. 43282 -0 -II


between a bank and a depositor, but a " quasi- fiduciary relationship" may arise under special

circumstances.     Annechino, 162 Wn.   App.   at   143 ( citing Tokarz   v.   Fed. Frontier Savings & Loan


Ass' n, 33 Wn.          456, 459, 656 P. 2d 1089 ( 1982); Liebergesell, 93 Wn.2d         at   890). To
                 App.

establish a fiduciary relationship in banking transactions there must be evidence establishing that

the transaction " involved more trust and confidence than a typical arm' s length transaction."

Annechino, 162 Wn. App. at 146.

        For the purposes of the Estate' s claim that Lanterno had a fiduciary relationship with

Correll, by virtue of Lanterno working at Correll' s bank, the Estate has not produced any
evidence other than the fact that Lanterno worked at the same bank at which Correll maintained

some of her accounts. There is no evidence that Lanterno managed Correll' s bank accounts in a

manner that would demonstrate that Correll expected Lanterno to act in her best interests when

managing her money. See Liebergesell, 93 Wn.2d at 889 -90. And although Lanterno worked at

a bank where Correll maintained some accounts, she did not work at the bank where the POD

account was located.


        Furthermore, the personal friendship between Lanterno and Correll does not establish a

fiduciary relationship between Lanterno and Correll. For the purposes of establishing a fiduciary

relationship, Lanterno and Correll would have to have a professional relationship that involved
trust and confidence. Here, the Estate has not presented evidence that Lanterno and Correll had a

professional relationship that would lead Correll to believe that Lanterno would manage her bank
 accounts or deposits or act in her best interests when conducting her banking transactions.

        The Estate has not presented any evidence that Lanterno acted in any way other than a

 bank teller; therefore, any banking transactions between Lanterno and Correll would be
 considered " arm' s length" business transactions which do not alone establish a fiduciary

                                                       12
No. 43282 -0 -II



relationship. See Annechino, 162 Wn. App. at 147 -48. Accordingly, the Estate has not presented

clear, cogent, and convincing evidence from which a rational trier of fact could find a fiduciary

relationship existed between Lanterno and Correll.

B. Participation in the Transaction


           The Estate also argues that Lanterno participated in the transaction. Based on the facts

presented in the record, there are two ways that Lanterno could have participated in the

               4
transaction.       Either ( 1) Lanterno directly participated in the transaction designating her the POD

beneficiary of the account, or (2) Lanterno participated in the transaction by delivering the
 400, 000 check to the bank. There is no evidence that Lanterno actually participated in the

transaction designating her as the POD beneficiary for Correll' s account. And delivering the

     400, 000 to the bank is not sufficient evidence to establish a presumption of undue influence.

Because the Estate has presented clear, cogent, and convincing evidence that establishes nothing

more than Lanterno' s minimal participation in the bank deposit, no rational trier of fact could

find that Lanterno participated in the transaction establishing her as the beneficiary of the POD

account by clear, cogent, and convincing evidence. `

           The transaction changing the beneficiary on Correll' s POD account was initiated by a

handwritten letter from Correll with her instructions to designate Lanterno as the POD

beneficiary of the account. Then Ihde spoke directly with Correll to confirm her request and

instructions. The record does not contain clear, cogent, and convincing evidence from which a




 4
     The Estate also argues that its handwriting analyst' s declaration creates a genuine issue of
 material fact as to whether Lanterno participated in the transaction. However, the handwriting
 analyst averred only that he was unable to determine whether Correll' s signature on the
 documents was genuine. There was no evidence that any of the handwriting on the check was
 Lantern' s. The handwriting analyst' s declaration does not establish any material fact.
                                                      13
No. 43282 -0 -II



rational trier of fact could find that Lanterno participated in the transaction designating her as the

beneficiary of Correll' s POD account.

        The Estate also argues that Lanterno participated in the transaction because she delivered

the $ 400, 000 check and other related documents to the bank. Even if we disregarded Lanterno' s

uncontroverted declaration that she was not aware of the contents of the documents she delivered

to the bank, Lanterno' s minimal participation in the transaction is insufficient to support a

presumption of undue influence. 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. See, e. g., In re Estate ofHaviland, 162 Wn.

App.   548, 555 -56, 255 P. 3d 854 ( 2011) (   decedent' s wife participated in transaction by advising

decedent' s attorney about the changes decedent wanted to make to his will, wrote the letter

dictating the terms of the new will, and accompanied decedent to his attorney' s office to sign the

new will);   Doty   v.   Anderson, 17 Wn.   App.   464, 468, 563 P. 2d 1307 ( 1977) ( beneficiary


participated in the transaction because beneficiary personally signed the signature cards

designating her as the joint tenant on decedent' s bank account and was at the bank with the

decedent   when she changed      the designation    on   the   account).   Here, Lanterno was surprised about


the amount of money in the POD bank account and there is uncontested evidence that Lanterno

was unaware that she had been named the beneficiary of the account until Denley informed her.

Combined with the fact that Lanterno did not know the contents of the documents she delivered

to the bank and the fact that Lanterno never signed documents related to the change of POD

beneficiary on the account, no rational trier of fact could find clear, cogent, and convincing

 evidence establishing that Lanterno participated in the transaction.



                                                         14
No. 43282 -0 -II



C.   Unusually Large or Disproportionate Benefit

        Finally, the Estate argues that Lanterno received a disproportionate amount of Correll' s
estate. However, there is no evidence in the record to support that assertion. We agree that

 400,000 is a significant amount of money; however, we cannot determine whether this is a

disproportionately large portion of Correll' s estate because the Estate presented no evidence of

the entire value of the estate.


         A presumption of undue influence requires, at a minimum, that the party attempting to

prove undue influence shows the existence of a confidential - fiduciary relationship, the
                                                            or

beneficiary participated in the transaction, and the beneficiary received a disproportionate or

unnaturally large portion of the estate. We hold that a presumption of undue influence can be
based on either a confidential or fiduciary relationship. Confidential relationships are created

through personal relationships, such as family relationships or friendships, but require evidence

demonstrating that the relationship has placed the beneficiary in a position to overcome the

decedent' s independent judgment. In contrast, a fiduciary relationship is a professional

relationship in which the decedent believes that the beneficiary is acting in the decedent' s best
 interests.


         Here, no rational trier of fact could find clear, cogent, and convincing evidence


 establishing either a confidential relationship or a fiduciary relationship existed between
 Lantern and Correll. In addition, no rational trier of fact could find clear, cogent, and

 convincing evidence establishing that Lanterno participated in the transaction or received a

 disproportionate amount of Correll' s estate. Accordingly, the Estate failed to establish a

 presumption of undue influence.




                                                  15
No. 43282 -0 -II


                       III. PRESUMPTION SUFFICIENT TO DEFEAT SUMMARY JUDGMENT

         Even if we assumed that the Estate presented sufficient evidence to create a presumption


of undue influence, the presumption is not sufficient to defeat a motion for summary judgment.

 An undue influence claim must include more than merely the presumption that can arise from a

confidential     relationship."   Jones, 170 Wn. App. at 609. Although a presumption may be

sufficient for a trial court to grant or deny a motion for summary judgment, the presumption may

be rebutted by evidence. Jones, 170 Wn. App. 610. Where a party is unable to present evidence

of more than a confidential relationship, or where the presumption of undue influence is

effectively rebutted by additional evidence, the presumption of undue influence is not sufficient
to defeat a motion for summary judgment. Jones, 170 Wn. App. at 610.

          Here, Lanterno has effectively rebutted the presumption of undue influence with a

significant amount of evidence demonstrating that Correll was acting independently at the time

she designate Lanterno as the beneficiary of the payable on death account. Ihde spoke to Correll

on the phone twice, and each time Correll clearly stated her desire to leave her money to her

friends rather than her family. Ihde also stated that after receiving. Correll' s written instructions

changing the designated beneficiary of the account, she confirmed the instructions with Correll
and Correll was of sound mind. In addition, Correll' s attorney testified that Correll knew exactly

what she was doing at the time she signed her new will and designated Lanterno her attorney in
 fact. The Estate has presented no evidence suggesting that Correll was incompetent or incapable

 of   handling   her   own affairs.   Jones, 170 Wn.   App.   at   611. "   Presumptions must give way in light

 of evidence."      Jones, 170 Wn. App. at 611 ( citing In re Marriage ofAkon, 160 Wn. App. 48, 62,

 248 P. 3d 94 ( 2011)).      Because the evidence presented was contrary to the presumption of undue




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influence, the trial court properly granted Lanterno' s motion for summary judgment. Jones, 170

Wn. App. at 611.

                                                       IV. ATTORNEY FEES


          The trial court granted Lanterno attorney fees under RCW 11. 96A. 150. Lanterno also

asks us   for   appellate   attorney fees        under     RCW 11. 96A. 150     and   RAP 18. 1.   The Estate argues


that the trial court erred by granting Lanterno attorney fees and that Lanterno is not entitled to

attorney fees on appeal because RCW 11. 96A. 150 does not apply to this case.

          To determine whether the trial court properly awarded attorney fees, we apply a dual

standard of review.         Gander       v.   Yeager, 167 Wn.       App. 638,   647, 282 P. 3d 1100 ( 2012). We


review the initial determination of whether there is legal basis to award attorney fees de novo.

Gander, 167 Wn. App. at 646 ( citing Unifund CCR Partners v. Sunde, 163 Wn. App. 473, 483-
84, 260 P. 3d 915 ( 2011)).            If there is    a   legal basis for awarding attorney fees, "   we review a




discretionary decision to award or deny attorney fees and the reasonableness of any attorney fee
award     for   an abuse of    discretion."          Gander, 167 Wn. App. at 647.

          When a question of law requires interpretation of a statute, our objective is to carry out

the legislature'    s   intent.    Sprint Spectrum, LP v. Dep' t ofRevenue, 174 Wn. App. 645, 658, 302

P. 3d 1280 ( 2013) (      citing Lake v. Woodcreek Homeowners Ass' n, 169 Wn.2d 516, 526, 243 P. 3d
 1283 ( 2010)).      We begin          with    the   statute' s plain   meaning.   Sprint, 174 Wn. App. at 658 ( citing

Lake, 169 Wn.2d           at   526). "        We discern the plain meaning from the ordinary meaning of the

 language at issue, the statute' s context, related provisions, and the statutory scheme as a whole."


 Sprint, 174 Wn.         App.     at   658 ( citing Lake, 169 Wn.2d           at   526).   When a statute' s language is


 unambiguous, we determine the legislature' s intent from the plain language of the statute alone.




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No. 43282 -0 -II


Sprint, 174 Wn.        App.   at   658 ( citing Waste Mgmt. of Seattle, Inc.        v.   Util. &   Transp. Comm' n, 123

Wn.2d 621, 629, 869 P. 2d 1034 ( 1994)).


          RCW 11. 96A. 150 provides,


            1) 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....

                   2) This section applies to all proceedings governed by this title, including
          but not limited to proceedings involving trusts, decedent' s estates and properties,
          and guardianship matters.


Ch. 11. 96A RCW          applies      to "[   a] ll   matters   concerning the   estates   and assets of ...     deceased


persons,    including    matters      involving       nonprobate assets."     RCW 11. 96A.020( 1)(     a).   By definition,

this includes "[     t] he determination of any question arising in the administration of an estate or

trust   or with respect    to any     nonprobate asset."         RCW 11. 96A.030( 2)( c).


          The Estate argues that RCW 11. 96A. 150 does not apply because this is not a

 proceeding"       under   RCW 11. 96A. 150.              The Estate relies on the fact that this case was initiated


                Bank               RCW 30. 22. 210.         However,             former RCW 11. 96A.090( 2) ( 1999)
by Kitsap              under                                            under




  a] judicial proceeding under this title may be commenced as a new action or as an action

incidental to an existing judicial proceeding relating to the same trust or estate or nonprobate

asset." (   Emphasis     added.)       Here, Kitsap Bank initiated the action under RCW 30. 22.210 because

of the dispute over the legal ownership of the funds of Correll' s POD bank account; once the

Estate filed its cross claim alleging undue influence, the original proceeding became a matter

 concerning the nonprobate asset under ch. 11. 96A RCW. See In re the Estate ofBurks, 124 Wn.

App.     327, 333, 100 P. 3d 328 ( 2004) (              applying RCW 11. 96A. 150 to determine whether a party

 was entitled to attorney fees in a dispute over the ownership of funds from a POD account).


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        Because the attorney fees provisions in RCW 11. 96A. 150 apply to this case, we review

the trial   court' s award of     attorney fees for   an abuse of   discretion. In re Wash. Builders Benefit


Trust, 173 Wn.      App.   34, 84 -85, 293 P. 3d 1206,    review    denied, 177 Wn.2d 1018 ( 2013). " A trial


court abuses its discretion if its decision to award or deny attorney fees under RCW I l.96A. 150

is manifestly     unreasonable or     based   on untenable grounds or reasons."        Wash. Builders, 173 Wn.


App.   at   85.   In this case, the trial court did not abuse its discretion when it awarded Lanterno

                                                                            issues               in this   case.   See
attorney fees because there         were not                       unique            presented
                                               any particularly


Burks, 124 Wn.        App.   at   333.   Furthermore, we also grant Lanterno' s request for reasonable


attorney fees on appeal in an amount to be determined by a commissioner of this court.

            We affirm.




                                                            WOI SWICK, C. J.




                                                          Q1
