    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 In the Matter of the Estate of
                                                        No. 70210-6-1
 CALVIN H. EVANS SR.,                                   (consolidated with No.
                                                        70193-2-1 & No. 70317-0-1)

 SHARON EADEN, VICKI SANSING, and                       DIVISION ONE
 KENNETH EVANS,
                                                        PUBLISHED OPINION
        Respondents/Cross Appellants
                                                                                 r--3       t.; i <\


                      v.
                                                                                             m.


 ESTATE OF CALVIN H. EVANS SR.
                                                                                   ro


       Appellant/Cross Respondent,

 LINDSAY EVANS, CORY EVANS, JESSE
                                                                                        o
 EVANS, and CALVIN EVANS III,

        Respondents/Cross Respondents.                  FILED: May 27, 2014


      Appelwick, J. —Washington's antilapse statute, RCW 11.12.110, applies when a

beneficiary under a will is deemed to have predeceased the testator, because he or she

financially abused the testator under chapter 11.84 RCW.      In this case, the testator's

intent did not overcome the presumed application of the antilapse statute. The trial court

did not abuse its discretion in awarding attorney fees to both competing beneficiary

groups and assessing those fees against the Estate. We affirm.
No. 70210-6-1/2




                                          FACTS


      Calvin H. Evans, Sr. (Cal Sr.) was born on March 8,1933. At the time of his death,

Cal Sr. was no longer married and had four children: Kenneth Evans, Vicki Sansing,

Sharon Eaden, and Calvin H. Evans, Jr. (Cal Jr.).1

       Cal Sr. suffered from a medical condition called polycythemia, which results in a

thickening of the blood. He had his first stroke related to the condition in 2000.

       In 2003, Cal Sr. purchased a 40 acre ranch in Sultan, Washington. Soon after he

purchased another 70 acre parcel nearby. Cal Sr. requested that Cal Jr. and his family

move to the ranch to help care for him. They did so in early 2005.

       In March 2005, Cal Sr. was hospitalized for another stroke and was diagnosed with

dementia secondary to the stroke. Cal Sr.'s health continued to decline over the course

of the year. His teeth began falling out and he lost substantial weight. Cal Jr. observed

forgetfulness and memory loss in his father.

       While living on the Sultan ranch, Cal Jr. made several large purchases using his

father's money. For instance, Cal Jr. used $20,000 of Cal Sr.'s money to purchase a

dump truck. He borrowed another $75,000 from his father to make improvements to the

ranch. He also spent $15,000 of his father's money to buy a park model mobile home.

       On December 28, 2005, Sharon filed a guardianship petition in Snohomish County

alleging that Cal Sr. was incapacitated and needed a guardian. An order appointing a

guardian ad litem was entered the same day. Cal Sr. did not want to be subject to a

guardianship and was upset with Sharon for filing the petition.


       1We refer to the parties by their first names to avoid confusion. No disrespect is
intended.
No. 70210-6-1/3




       Early in 2006, Cal Jr. and his wife prepared a will for Cal Sr. The will left Cal Sr.'s

Sultan ranch and his Cessna airplane to Cal Jr. The will divided Cal Sr.'s remaining real

properties equally between Vicki and Kenneth, but not Sharon. It left only $25,000 to

Sharon. The residue of Cal Sr.'s estate was to be placed in trust. Every year on the

anniversary of his death, the trustee was to disburse $10,000 to Cal Sr.'s children,

excluding Sharon, and $5,000 to each of his grandchildren.

       The will was witnessed and executed on March 7, 2006. Cal Sr.'s attorney Charles

Diesen and Diesen's law partner Carol Johnson questioned Cal Sr. privately and believed

he had testamentary capacity. The will named Diesen as personal representative of the

"Estate."


       Cal Sr. died on April 5, 2011. By that time, the only real property he still owned

was the Sultan ranch. The rest had been sold to pay for his care.

       On April 29, 2011, Cal Sr.'s will was filed with the trial court, along with a petition

to admit the will to probate and appoint Diesen as personal representative of Cal Sr.'s

Estate. The court did so on the same day following an ex parte proceeding.

       On July 14, 2011, three of Cal Sr.'s children—Sharon, Kenneth, and Vicki

(collectively Eaden)—filed a petition under the Trust and Estate Dispute Resolution Act

(TEDRA), chapter 11.96A RCW. Eaden's petition challenged the validity of Cal Sr.'s will

and sought a declaration of rights pursuant to RCW 11.84.020. Eaden argued that Cal

Sr. lacked testamentary capacity at the time he made the will and was acting under

fraudulent representations and undue influence from Cal Jr. Eaden also asserted that

Cal Jr. was a financial abuser, because he participated in the willful and unlawful financial

exploitation of his father, a vulnerable adult under RCW 74.34.020. Therefore, Eaden
No. 70210-6-1/4




argued, Cal Jr. should be treated as predeceased under RCW 11.84.020 and the Estate

should pass to Cal Sr.'s three other children.

       On May 31, 2012, the trial court upheld the will, denying Eaden's request to declare

Cal Sr.'s will invalid due to lack of testamentary capacity and undue influence by Cal Jr.

However, the trial court held Cal Jr. to be an abuser under RCW 11.84.010(1), finding

that he financially exploited Cal Sr. Therefore, the trial court deemed Cal Jr. to have

predeceased Cal Sr. Cal Jr. was accordingly disinherited and ordered to "take nothing

from the Estate by devise or legacy, or by laws of descent and distribution." The trial

court entered extensive findings of fact and conclusions of law on the same day. That

decision was not appealed.

       On September 12, 2012, Eaden filed a second TEDRA petition requesting that the

trial court not apply Washington's antilapse statute, RCW 11.12.110, in favor of Cal Jr.'s

children—Lindsey Evans, Cory Evans, Jesse Evans, and Calvin Evans III.              Eaden

acknowledged that the antilapse statute would ordinarily apply when a beneficiary

predeceases the testator, but argued that applying it here would be contrary to Cal Sr.'s

testamentary intent. Therefore, Eaden argued that any bequests made to Cal Jr. should

pass to the residue of the Estate, rather than to Cal Jr.'s children.

       On January 25, 2013, Cal Jr.'s children requested an award of attorney fees,

against either Eaden or the Estate. On February 11, 2013, Eaden requested attorney

fees under RCW 11.96A.150(1) for the second TEDRA petition. They asked that the fees

be assessed against the Estate, because the litigation involved all beneficiaries to the

Estate.
No. 70210-6-1/5




       On March 12, 2013, the trial court denied Eaden's second TEDRA petition and

held that the antilapse statute applied:

             3.     The slayer/abuser statute, RCW 11.84.020, is clear on its face
       and does not preclude the issue of the abuser inheriting under the anti-lapse
       statute;

             4.     The anti-lapse statute, RCW 11.12.110, is clear on its face
       and applies to circumstances of financial abuse in the same manner as it
       would in a case of a slayer;

              5.     The residuary trust created by Calvin Evan Sr.'s Will cannot
       be construed as an expression of the testator's intent sufficient to avoid the
       application of the anti-lapse statute;

             6.     The Petitioner's Petition for Declaration of Rights of
       Beneficiaries Re: Non-Application of Anti-Lapse Statute Under Chapter
       11.94A RCW (TEDRA) is DENIED; and

              7.     The children of Calvin Evans, Jr., shall inherit his bequests of
       the ranch and the units of membership in the C & C Aviation LLC by reason
       of the application of the anti-lapse statute.

The trial court also held that Diesen, the Estate's personal representative, had standing

to appear and urge the application of the antilapse statute to the bequests made to Cal

Jr.


       The trial court granted both parties' request for attorney fees and ordered the fees

to be paid by the Estate.

       The Estate appeals the trial court's award of fees to Eaden and the court's

assessment of both fee awards against the Estate. Eaden cross appeals the denial of

the second TEDRA petition, challenging the court's application of the antilapse statute to

the abuser statute.
No. 70210-6-1/6




                                      DISCUSSION


  I.   Application of the Antilapse Statute

       Eaden argues that the trial court erred in holding, as a matter of law, that

Washington's antilapse statute applies to bequests to persons deemed to have

predeceased the testator because of financial abuse under chapter 11.84 RCW. Instead,

Eaden advocates for an equitable exception to the antilapse statute in which courts

consider whether applying the statute benefits the abuser; prevents disinheritance of an

entire branch of the testator's family; offends the decedent's overall testamentary plan by

exacerbating the effect of abuse on that plan; and results in the loss caused by the abuse

to fall only or disproportionately on the beneficiaries other than the abuser's issue. Eaden

also argues that it would be an abuse of discretion to apply the antilapse statute here,

because all elements of this equitable exception are met.2

       Simply put, we must decide whether the antilapse statute is triggered when a

beneficiary is found to be a financial abuser and deemed to predecease the testator under

chapter 11.84 RCW. This is an issue of first impression in Washington. If yes, we must

then determine whether Cal Sr.'s testamentary intent overcomes the rebuttable

presumption that the antilapse statute applies.

       Statutory interpretation is a question of law that we review de novo. State v. Gray,

174 Wn.2d 920, 926, 280 P.3d 1110 (2012). Our primary duty in construing a statute is

to ascertain and carry out the legislature's intent. Lake v. Woodcreek Homeowners Ass'n,

169 Wn.2d 516, 526, 243 P.3d 1283 (2010).             Statutory interpretation begins with the


       2 Eaden's motion to dismiss the Estate as a party to the antilapse cross appeal,
dated October 14, 2013, is denied.


                                                  6
No. 70210-6-1/7




statute's plain meaning, which we discern from the ordinary meaning of the language

used in the context of the entire statute, related statutory provisions, and the statutory

scheme as a whole. ]d. Ifthe statute's meaning is unambiguous, our inquiry is at an end.

State v. Armendariz. 160 Wn.2d 106,110,156 P.3d 201 (2007). Conversely, a statute is

ambiguous when it is susceptible to two or more reasonable interpretations, but not

merely because different interpretations are possible. In re Pet, of Aston. 161 Wn. App.

824, 842, 251 P.3d 917 (2011), review denied. 173 Wn.2d 1031, 277 P.3d 668 (2012).

   A. Antilapse Statute Triggered by Abuser Statute

        Washington's antilapse statute provides for statutory succession when a named

heir predeceases the testator of a will. RCW 11.12.110. The statute specifies, in relevant

part:

                Unless otherwise provided, when any property shall be given under
        a will, or under a trust of which the decedent is a grantor and which by its
        terms becomes irrevocable upon or before the grantor's death, to any issue
        of a grandparent of the decedent and that issue dies before the decedent,
        or dies before that issue's interest is no longer subject to a contingency,
        leaving descendants who survive the decedent, those descendants shall
        take that property as the predeceased issue would have done if the
        predeceased issue had survived the decedent.

Id. (emphasis added).

        The antilapse statute reflects a legislative determination that, as a matter of public

policy, when the testator fails to provide for the possibility that his consanguineous

beneficiary will predecease him, the lineal descendants of the beneficiary take his or her

share. In re Estate of Rehwinkel. 71 Wn. App. 827, 829, 862 P.2d 639 (1993). At common

law, testamentary gifts lapse if a beneficiary predeceased the testator. In re Estate of

Niehenke. 117 Wn.2d 631, 638, 818 P.2d 1324 (1991).             The legislature enacted the
No. 70210-6-1/8




antilapse statute to prevent this, in derogation of the common law. |d. "This is said to be

a recognition of a natural and instinctive concern for the welfare of those in a testator's

bloodline." In re Estate of Allmond. 10 Wn. App. 869, 871, 520 P.2d 1388 (1974).

       Under chapter 11.84 RCW—the slayer statute—a slayer cannot benefit from the

death of the decedent. RCW 11.84.020. The chapter is to "be construed broadly to effect

the policy of this state that no person shall be allowed to profit by his or her own wrong,

wherever committed." RCW 11.84.900. In July 2009, the legislature expanded the scope

of the slayer statute to include financial abusers as well as slayers. Laws of 2009, ch.

525, §§ 1-17. "Abuser" is defined as "any person who participates, either as a principal

or an accessory before the fact, in the willful and unlawful financial exploitation of a

vulnerable adult." RCW 11.84.010(1).

       The statute provides for the disposition of property if a beneficiary is found to be a

slayer or abuser. RCW 11.84.020 specifies that "[n]o slayer or abuser shall in any way

acquire any property or receive any benefit as the result of the death of the decedent, but

such property shall pass as provided in the sections following." (Emphasis added.) The

following section in the statute provides that "[t]he slayer or abuser shall be deemed to

have predeceased the decedent as to property which would have passed from the

decedent or his or her estate to the slayer or abuser." RCW 11.84.030 (emphasis added).

RCW 11.84.040 then states that "[property which would have passed to or for the benefit

of the slayer or abuser by devise or legacy from the decedent shall be distributed as if he

or she had predeceased the decedent." (Emphasis added.)

       This statutory language is unambiguous and provides an express method for

distributing an abuser's inheritance. If a beneficiary is found to be an abuser, he or she


                                                 8
No. 70210-6-1/9




is deemed to predecease the testator. RCW 11.84.030. Any property or benefit to the

abuser must then be distributed as if the abuser predeceased the decedent.3 RCW

11.84.040.   The antilapse statute then provides for the division of property when a

beneficiary predeceases the testator. RCW 11.12.110. Nothing in the abuser statute

indicates that the term predecease means anything different than it does in the antilapse

statute. Thus, the abuser statute's consistent use of the term "predecease" triggers the

antilapse statute, even though the antilapse statute is not explicitly referenced.

       Furthermore, the legislature is presumed to know the law in the area in which it is

legislating. Wvnn v. Earin. 163 Wn.2d 361, 371, 181 P.3d 806 (2008). The legislature is

likewise presumed to enact laws with full knowledge of existing laws. Jametskvv. Olsen.

179 Wn.2d 756, 766, 317 P.3d 1003 (2014). We can presume that the legislature knew

that treating an abuser as predeceased would trigger the antilapse statute.             The

legislature could have specified that the abuser's descendants were also disinherited. It

did not do so.


       Legislative history supports our conclusion that the legislature intended for the

antilapse statute to apply. The slayer statute was adopted in 1955. Laws of 1955, ch.

141. The final bill signed into law was practically a verbatim copy of a model slayer statute

proposed by John Wade in 1936.          J. Gordon Gose & Joseph W. Hawley, Probate

        3 Except, RCW 11.84.170(2) gives trial courts discretion to allow an abuser, but
not a slayer, "to acquire or receive an interest in property or any other benefit described
in this chapter in any manner the court deems equitable." In doing so, the court may
consider (1) various elements of the decedent's dispositive scheme; (2) the decedent's
likely intent given the totality of the circumstances; and (3) the degree of harm resulting
from the abuser's financial exploitation of the decedent. RCW 11.84.170(2). The trial
court did not do so here, nor did Cal Jr. appeal from that decision. The discretion granted
in RCW 11.84.170(2) further suggests that, by contrast, courts have no discretion in
whether the antilapse statute is triggered by the abuser statute.
No. 70210-6-1/10




Legislation Enacted by the 1955 Session of the Washington Legislature. 31 Wash. L. Rev.

22, 26 (1956); see also John W. Wade, Acguisition of Property bv Willfully Killing

Another—A Statutory Solution. 49 Harv. L. Rev. 715 (1936).         However, section 4 of

Wade's model statute expressly provided that the antilapse statute did not apply, with the

result that property did not pass to the slayer's issue. Wade, Acguisition, supra, at 727.

The Washington legislature did not include Wade's section 4 in the slayer statute.

Compare Laws of 1955, ch. 141, §§ 2-3, wjth Wade, Acguisition. supra, at 727. By not

specifically precluding application of the antilapse statute, the Washington legislature

mandated that the slayer be treated as if he or she predeceased the decedent, allowing

children of slayers to take the slayer's share by substitution.

       The Washington Supreme Court in Haviland explained that the abuser statute

regulates the receipt of benefits. In re Estate of Haviland, 177 Wn.2d 68, 76, 301 P.3d

31 (2013). The statute is not intended to be penal. See id.; see also Armstrong v. Bray,

64 Wn. App. 736, 741, 826 P.2d 706 (1992). The Haviland court noted that the "financial

abuse slayer statutes only affect those persons who both abuse a vulnerable adult and

are beneficiaries of the abused person." 177 Wn.2d at 76. The innocent descendants of

the slayer or abuser do not meet this criteria.

       In the context of slayers, the Washington Supreme Court recognized that most

states have been "reluctant to extend the rule beyond the slayer and deny the slayer's

heirs from taking directly from the victim's estate." In re Estate of Kissinger, 166 Wn.2d

120, 126, 206 P.3d 665 (2009). This reluctance generally rests on the notion of fairness

to innocent persons. Mary Louise Fellows, The Slaver Rule: Not Solely a Matter of Eouitv,

71 Iowa L. Rev. 489, 495 (1986). In her law review article, Fellows points out that the


                                                  10
No. 70210-6-1/11




purpose of the antilapse statute is to imply a devise to further the testator's intent, jd. at

530. The antilapse statute "should not be viewed differently than a provision in the victim's

will for an alternative taker to the slayer; therefore, extending the fiction of the slayer's

death to the antilapse statute seems correct." jd. She likewise notes that "[wjhen the

slayer does not have the right to control the disposition" of the testator's estate, "any

indirect benefit that results from allowing the natural objects of the slayer's bounty to take

from the victim's estate does not warrant disqualifying these innocent persons." jd. at

495.


       Despite Eaden's attempt to distinguish slayers and abusers, the legislature did not

do so, and instead addressed them together in a single statutory scheme. Washington's

abuser statute prevents the abuser from controlling disposition of the testator's estate.

The abuser is cut off from any direct benefit or inheritance, except as provided in RCW

11.84.170(2). Therefore, as Fellows argues, any incidental benefit to the abuser does

not warrant denying benefits to the abuser's innocent heirs.

       We hold that Washington's antilapse statute, RCW 11.12.110, applies when a

beneficiary under a will is deemed to have predeceased the testator, because he or she

financially abused the testator under chapter 11.84 RCW.

   B. Antilapse Application to the Facts of this Case

       Once the antilapse statute is triggered, there is a presumption in favor of its

application. However, its application is not absolute. It can be rebutted by the testator's

clear intent to preclude operation of the antilapse statute.

       In determining whether the antilapse statute applies, the paramount duty of the

court is to give effect to the testator's intent. Rehwinkel, 71 Wn. App. at 830. Such


                                                 11
No. 70210-6-1/12




intention must, if possible, be ascertained from the language of the will in its entirety. ]cL

The party opposing its operation bears the burden of showing that it does not apply. Id.

All doubts are to be resolved in favor of the statute's operation, which is to be liberally

construed. Id.


       The intent on the part of the testator to preclude operation of the antilapse statute

must be clearly shown, jd. Where the testator uses words of survivorship indicating an

intention that the devisee shall take the gift only if he or she survives the testator, the

antilapse statute does not apply. Id. at 831. The statute likewise does not apply if the

testator provides for an alternative disposition. IcL at 830.

       In Kvande, the testator bequeathed the balance and residue of his estate "'for the

use and purpose to help maintain and care'" for his sister Olga, who predeceased him.

In re Estate of Kvande, 74 Wn. App. 65, 66-67, 871 P.2d 669 (1994). The appellate court

held that this indicated the testator's intent to condition Olga's gift on her survival, with no

intent for the gift pass on to Olga's son. jU at 69. This precluded operation of the

antilapse statute. Id.

       Similarly, the appellate court held in Rehwinkel that bequests in the testator's will

"'to those of the following who are living at the time of my death'" demonstrated a clear

intent to preclude application of the antilapse statute.        71 Wn. App. at 831. Such

survivorship language manifests a testator's intent that named beneficiaries take under

the will only if they survive the testator. jU at 833; see also Niehenke, 117 Wn.2d at 641

(applying antilapse statute where there was no "clear manifestation of the testator's

intention to condition the gift on [the beneficiary's] survival").




                                                   12
No. 70210-6-1/13




       There is no clear intent in Cal Sr.'s will to preclude application of the antilapse

statute or to disinherit Cal Jr.'s descendants. In fact, the opposite is true. Cal Sr.'s will

included the following three provisions:

                                             VI.
              I give, devise and bequeath my interest in the Cessna 310 123DE
       airplane and six (6) parcels of real estate owned by me in Snohomish
       County, Washington to my son, Calvin H. Evans Jr. . . .

                                            VII.
              Igive, devise and bequeath all of the remaining real estate owned by
       me in two(2) equal portions to Vicki Ann Sansing and Kenneth Lee Evans.

                                            VIM.
              All of the rest, residue and remainder of my estate including bank
       accounts, securities or annuities, I give in trust with Frontier Bank with
       directions that on the first anniversary of my death and on each year after,
       the Trustee disburse $10,000 to each of three(3) of my children, Vicky Ann
       Sansing, Calvin H. Evans, Jr., and Kenneth Lee Evans and $5,000 to each
       of my grandchildren. If any beneficiary should die during the administration
       of the trust and before the trust is exhausted, their bequest shall be
       disbursed to their heirs.

       Cal Sr. did not condition inheritance on the survival of Cal Jr. or the survival of any

other beneficiaries. Rather, the final sentence of Section VIII suggests that Cal Sr. wanted

the antilapse statute to apply. If any beneficiaries died before the trust was exhausted,

he wanted their bequest to pass to their heirs. Given this language, applying the antilapse

statute gives effect to Cal Sr.'s intent to provide for his heirs and their descendants.

Eaden is correct that Cal Jr.'s children would not be completely disinherited ifthe antilapse

statute did notapply. However, they have failed to show any intent by Cal Sr. to preclude
operation of the antilapse statute. We therefore hold that the trial court properly applied

the antilapse statute here.




                                                   13
No. 70210-6-1/14




 II.      Trial Court Attorney Fees Award

          The Estate argues that the trial court erred in awarding Eaden attorney fees and

costs under RCW 11.96A.150, because they were not the prevailing party in the TEDRA

action.     The Estate acknowledges that RCW 11.96A.150 gives the trial court broad

discretion to award attorney fees. Nevertheless, the Estate contends that awarding fees

to the losing party is manifestly unreasonable.

          The Estate argues that even if the trial court properly awarded fees to Eaden, it

erred in assessing both fee awards against the Estate. The Estate contends that the

dispute here was solely between two competing classes of beneficiaries and therefore

could not result in a substantial benefit to the Estate.4

          RCW 11.96A. 150(1) 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.

We review a trial court's award of fees under RCW 11.96A.150 for abuse of discretion.

In re Estate of Black, 153 Wn.2d 152, 173, 102 P.3d 796 (2004). Atrial court abuses its




       4 Eaden argues that the Estate's appeal of the attorney fees award should be
dismissed, because the Estate is not an aggrieved party under RAP 3.1. We decline to
hold that an estate cannot be an aggrieved party for purposes of challenging fee awards.
However, in this particular case, the benefit to the Estate from a challenge to the fee
award eludes us.


                                                   14
No. 70210-6-1/15




discretion if its decision rests on unreasonable or untenable grounds. Dix v. ICT Grp.,

Inc., 160 Wn.2d 826, 833, 161 P.3d 1016 (2007).

       RCW 11.96A. 150(1) allows a court to consider any relevant factor, including

whether a case presents novel or unique issues. In re Guardianship of Lamb, 173 Wn.2d

173, 198, 265 P.3d 876 (2011).        The statute does not limit fee awards to only the

prevailing party. Rather, it states that the court may award fees to "any party" from the

"assets of the estate." RCW 11.96A. 150(1). This is precisely the situation here.

       The Estate argues that the touchstone of an attorney fees award from an estate is

whether the litigation resulted in a substantial benefit to the estate. In re Estate of Black,

116 Wn. App. 476, 490, 66 P.3d 670 (2003), affd, 152 Wn.2d 152. In Niehenke, the

Washington Supreme Court held that it is inappropriate to assess fees against an estate

when the litigation benefits only certain rival beneficiaries to the estate. 117 Wn.2d at

648. Such an award would unfairly penalize the beneficiaries not involved in the litigation.

14

       However, the legislature amended RCW 11.96A.150(1) in 2007 to add the

sentence, "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." Laws of 2007, ch.

475, § 5 (emphasis added). Based on this amendment, the continuing vitality of the

substantial benefit requirement is questionable.

       Furthermore, the Niehenke court did not hold that attorney fees could never be

appropriately awarded against an estate. 117 Wn.2d at 648. Where all the beneficiaries

to an estate are involved in a dispute, the trial court may award both sides fees from the


                                                 15
No. 70210-6-1/16



estate, because the litigation resolves the rights of all. Black, 116 Wn. App. at 491; see

a|so In re Estate of Watlack. 88 Wn. App. 603, 612-13, 945 P.2d 1154 (1997). Thus,

where both sides advance reasonable, good faith arguments in support of their respective

positions, the trial court may assess fees against the estate, so that all the contesting

parties bear the costs of the dispute. Black, 116 Wn. App. at 491.

        Based on the plain language of RCW 11.96A. 150(1) and well-established case

law, the trial court properly awarded fees to both parties and assessed those fees against

the Estate.   The will named Cal Sr.'s four children as beneficiaries: Sharon Eaden,

Kenneth Evans, Vicki Sansing, and Calvin H. Evans, Jr. The dispute here was between

Cal Jr., his heirs, and Cal Sr.'s three remaining children—all the beneficiaries to Cal Sr.'s

estate. The litigation resolved all of their respective rights. Awarding fees against the

Estate does not unfairly penalize any absent beneficiaries, because all the beneficiaries

to the Estate participated in the dispute. The concerns expressed by the Niehenke court

do not apply here. Moreover, Eaden raised a novel issue of law regarding the application

of the antilapse statute to the financial abuser statute. This was a reasonable, good faith

argument.

        The trial court followed the language of RCW 11.96A. 150. Therefore, we hold that

the trial court did not abuse its discretion in awarding fees to both sides and assessing

those fees against the Estate.

 III.   Eaden's Motion to Strike


        Eaden moved to strike two portions of the clerk's papers, pages 290-95 and 530-

70, both transcripts of the trial court's oral decisions in the first and second TEDRA




                                                16
No. 70210-6-1/17




petitions. Eaden argues that clerk's papers must be limited to written decisions of the trial

court, because the Estate does not assert that the court's written orders are incomplete.

       RAP 9.1(c) specifies that clerk's papers include "the pleadings, orders, and other

papers filed with the clerk of the trial court." RAP 9.6(b)(1)(C) explains that the clerk's

papers shall include "any written order or ruling not attached to the notice of appeal."

Eaden argues that the RAPs nowhere provide for oral decisions to be included in the

clerk's papers. Motion to Strike, 3-4. An oral decision has no final or binding effect unless

formally incorporated into the findings, conclusions, and judgment. Grieco v. Wilson. 144

Wn. App. 865, 872, 184 P.3d 668 (2008), aff'd by In re Custody of E.A.T.W, 168 Wn.2d

335, 227 P.3d 1284 (2010). In Grieco, we granted a motion to strike a transcript of the

oral decision supplementing written findings when the superior court's written order was

not incomplete and did not need clarification, jd. at 871-72.

       Here, the trial court's written orders in the first and second TEDRA petition are

complete and do not need clarification. The trial court did not formally incorporate its oral

decisions into its written orders. To the extent that these transcripts conflict with the

written orders, they have not been considered here.5




       5 See Engstrom v. Goodman, 166 Wn. App. 905, 909 n.2, 271 P.3d 959 (2012)
("[A] motion to strike is typically not necessary to point out evidence and issues a litigant
believes this court should not consider. No one at the Court of Appeals goes through the
record or the briefs with a stamp or scissors to prevent the judges who are hearing the
case from seeing material deemed irrelevant or prejudicial. So long as there is an
opportunity (as there was here) to include argument in the party's brief, the brief is the
appropriate vehicle for pointing out allegedly extraneous materials—not a separate
motion to strike."), review denied, 175 Wn.2d 1004, 285 P.3d 884 (2012).


                                                17
No. 70210-6-1/18



IV.   Attorney Fees on Appeal

       Eaden and Cal Jr.'s children both request their reasonable attorney fees and costs

on appeal pursuant to RCW 11.96A.150(1) and RAP 18.1(a). RCW 11.96A.150(1) allows

for a discretionary award of attorney fees to any party, against any party or against the

Estate, at both the trial court and appellate court level. We deny the request for fees by

Cal Jr.'s children.   We grant Eaden's request only for reasonable fees and costs

associated with defending the Estate's appeal of the trial court's attorney fees award.

This award shall be assessed against the Estate.

      We affirm.




WE CONCUR:




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