 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


                                                  No. 78922-8-1

 In re Matter of the Estate of                    DIVISION ONE

 EARL M. HOLMES                                   UNPUBLISHED OPINION


                                                  FILED: November 4, 2019


      ANDRUS, J. — Earl Holmes executed a will that explicitly disinherited his
relatives but failed to identity to whom he wished to bequeath his property. Dexter

and Joanie Self, Holmes's friends and the personal representatives of his estate,

contend Holmes intended to bequeath his entire estate to them. Individuals

claiming to be Holmes's distant relatives argue that they should take by way of the

laws of intestacy. Finding Holmes's will ambiguous, the trial court relied on the

content of a letter purportedly written by the attorney who drafted the will to find

that Holmes intended the Selfs to be the sole beneficiaries of his estate. The

relatives challenge the trial court's jurisdiction as well as its reliance on this

extrinsic evidence to supply a missing term in Holmes's will.

       We conclude that (1) the trial court had subject matter jurisdiction over the

will dispute between the Selfs and Holmes's relatives;(2) notice to the department

of revenue was not statutorily required because it had not been established that

Holmes died without being survived by any person entitled to his estate; (3) the

trial court erred in deeming the will ambiguous;(4) RCW 11.96A.125 provides the
No. 78922-8-1/2

trial court with the authority to reform a will in the case of a mistake of fact or law;

(5) the trial court erred in concluding that the attorney's letter, without more, is

admissible to establish the intent of the testator; and (6) remand is necessary for

the trial court to determine if there is sufficient admissible evidence to warrant

reformation of the will under RCW 11.96A.125.

                                           FACTS

       Earl Holmes executed his will on September 24, 2012. Article II provides:

                                 IDENTIFICATION OF FAMILY

       I have no immediate family now living and have no deceased
       children.

       Except as hereinafter provided, I make no bequest or devise to any
       person nor for the descendants of any persons who may survive me.

Despite the "except as hereinafter provided" language, there was no subsequent

provision making a bequest to anyone. Holmes nominated his friends, Dexter and

Joanie Self, as co-personal representatives of his estate.' Holmes signed the will

in the presence of two witnesses, including William Allen, whom the Selfs contend

drafted the will.

       Holmes died on December 9, 2015,just over three years after executing the

will. A week later, the Selfs submitted Holmes's will to probate. In February 2017,

several individuals claiming to be related to Holmes (Relatives) appeared and

requested notification of certain probate matters under RCW 11.28.240.

       In January 2018, in response to a motion filed by the Relatives, the Selfs

filed a status report as to their administration of Holmes's estate. They attached a


       I According to the representations of their attorney at a January 2018 hearing, the Selfs
were also the decedent's neighbors who took care of him "for a long time."


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No. 78922-8-1/3

letter purportedly sent to Holmes by Allen (the Allen Letter). The SeIfs' attorney

represented that his clients found the letter while sorting through the decedent's

property. They contended that the envelope in which the Allen Letter arrived was

postmarked a week before Holmes executed the will.2 The Allen Letter referenced

an enclosed draft of the will and stated, in relevant part:

       Let me know if there are any mistakes in the will or if you have some
       changes. Do you have anyone as an alternate to inherit from you if
       Dexter and Joanie happen to die before you do?

      If you do have an alternate, we can put that in the will now. If not,
      you could change your will in the future if you do want to add
      someone else or make any other change.

The SeIfs alleged that they found a copy of the will, bearing a header designating

it as a draft, with the letter. The draft appears to be identical to the will Holmes

later executed.

       The SeIfs filed a subsequent motion for declaratory judgment, seeking an

order declaring them to be the sole beneficiaries of the Holmes Estate. The SeIfs

argued that because Holmes's will was ambiguous, the court could consider the

Allen Letter as extrinsic evidence of Holmes's intent. The SeIfs maintained that

when the will was read together with the Allen Letter, it was clear that they were

the sole intended beneficiaries under the will.

       The Relatives opposed the motion, arguing that in light of the will provision

disinheriting any descendants, RCW 11.08.170 required the SeIfs to notify the

department of revenue that Holmes's property might escheat to the state and that




       2 The   last two digits of the year are obscured on the postmark.


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No. 78922-8-1/4

this notice was jurisdictional.3 They also contended that, based on documentation

of their familial relationship with Holmes,the court should declare that Holmes died

intestate and that the Relatives were presumptive beneficiaries under the intestacy

statute, RCW 11.04.015. The Relatives argued that the court could not consider

the Allen Letter as evidence of Holmes's intent because the will was not

ambiguous, Finally, they argued the Allen Letter was inadmissible because it was

unauthenticated.

       The court deemed the will ambiguous, considered the Allen Letter in

resolving the question of Holmes's intent, and entered an order declaring the Selfs

to be the "sole beneficiaries" of Holmes's estate. The court did not rule on the

Relatives' jurisdictional challenge under RCW 11.08.170. The Relatives appeal.

                                          ANALYSIS

   A. Subject Matter Jurisdiction and RCW 11.08.170

   The Relatives first contend the trial court lacked subject matter jurisdiction

under RCW 11.08.170 to consider the Selfs' motion for declaratory relief. Whether

a court has subject matter jurisdiction is a question of law reviewed de novo. ZDI

Gaming Inc. v. State ex rel. Wash. State Gambling Comm'n, 173 VVn.2d 608, 624,

268 P.3d 929, 937 (2012). The term "subject matter jurisdiction" refers to the

power of a court to hear a case. Id. The subject matter jurisdiction of the superior

courts comes from either the Washington Constitution or the state legislature.

WASH. CONST. art. IV, § 6 (establishing jurisdiction of superior courts and

authorizing jurisdiction "as may be prescribed by law"). Id. at 624-25.


         3 The Relatives also argued that the court should treat the Selfs' motion as a time-barred
petition to contest the will under RCW 11.24.010. They have abandoned this argument on appeal.


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No. 78922-8-1/5

       RCW 11.08.140 provides that whenever a person dies leaving property in

the state without being survived by any person entitled to the property, the property

"shall be designated escheat property." Under RCW 11.08.160, the department of

revenue has jurisdiction over escheat property and may institute any proceeding

necessary to handle the property. RCW 11.08.170 provides:

      Escheat property may be probated under the provisions of the
      probate laws of this state. Whenever such probate proceedings are
      instituted . . . the petitioner shall promptly notify the department of
      revenue in writing thereof . . . Thereafter, the department of revenue
      shall be served with written notice at least twenty days prior to any
      hearing on proceedings involving the valuation or sale of property,
      on any petition for the allowance of fees, and on all interim reports,
      final accounts or petitions for the determination of heirship. . . .
      Failure to furnish such notice shall be deemed jurisdictional and
      any order of the court entered without such notice shall be void.
      (Emphasis added).

       The Relatives argue that because Holmes died intestate, they are entitled

to inherit his estate and the trial court lacked subject matter jurisdiction to deny

their claim of heirship under this statute because the Selfs failed to notify the

department of revenue of their motion for declaratory relief.

       This argument fails for the simple reason that Holmes did not die intestate.

The Relatives could be deemed heirs under the laws of intestacy only if Holmes's

will were declared invalid. See In re Estate of Becker, 177 Wn.2d 242, 247, 298

P.3d 720(2013)(if will is invalid, estate will be distributed either pursuant to laws

of intestacy or pursuant to prior will). The escheat property statute would be

triggered and require notice to the department of revenue only upon a declaration

of the will's invalidity. Because neither the Selfs nor the Relatives sought a




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No. 78922-8-1/6

declaration of the will's invalidity within four months of it being admitted into probate

as required by RCW 11.24.010, RCW 11.08.170 does not apply.

       The Trust and Estate Dispute Resolution Act (TEDRA), chapter 11.96A

RCW, provides for judicial resolution of estate disputes. RCW 11.96A.010. Under

RCW 11.96A.040, superior courts have original subject matter jurisdiction over the

probate of wills and the administration of estates of deceased individuals. This

statute clearly confers subject matter jurisdiction to a trial court to resolve the Selfs'

motion for declaratory judgment.         The Relatives' subject matter jurisdiction

challenge fails.

   B. Interpretation or Reformation of Holmes's Will

       The Relatives next argue that the trial court erred in "rewriting" Holmes's will

and basing its decision on an unauthenticated letter. We conclude that the trial

court erred in concluding that Holmes's will was ambiguous and that the Allen

Letter was admissible without testimony as to its authenticity. However, we also

conclude that the trial court has the statutory authority under RCW 11.96A.125 to

reform Holmes's will if sufficient admissible evidence were provided to

demonstrate the testator's intent by clear, cogent, and convincing evidence.

       The interpretation of a will, including the determination of whether a will

contains an ambiguity, is a question of law subject to de novo review. In re Estate

of Bernard, 182 Wn. App. 692, 704, 332 P.3d 480 (2014). We construe a will to

give effect to the testator's intent as of the time of the will's execution. In re Estate

of Berpau, 103 Wn.2d 431,435-36,693 P.2d 703(1985). The court must ascertain

the testator's intent from the four corners of the will. Beroau, 103 Wn.2d at 435; In



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No. 78922-8-1/7

re Estate of Price, 73 Wn. App. 745, 754, 871 P.2d 1079 (1994). Under the

established common law rule, extrinsic evidence is admissible to explain the

language in the will only if there is ambiguity as to the testator's intent. Bergau,

103 Wn.2d at 436-37; In re Estate of Sherry, 158 Wn. App. 69, 82; 240 P.3d 1182

(2010). The terms of a testamentary document are ambiguous if the language is

susceptible to more than one reasonable interpretation. Waits v. Hamlin, 55 Wn.

App. 193, 200, 776 P.2d 1003 (1989). And while a court may consider extrinsic

evidence to resolve an ambiguity regarding the settlor's intent, it may not consider

such evidence to import an intention into the instrument that is not expressed

therein. See In re Estate of Curry, 98 Wn. App. 107, 113, 988 P.2d 505 (1999).

       The trial court erred in concluding that Holmes's will is ambiguous. As it

acknowledged, "there is a pretty glaring omission" in the will because Holmes did

not indicate to whom his estate was bequeathed. An omitted provision is not the

same as an ambiguous one. As the will is currently written, the language is not

susceptible to two different interpretations.

       But failing to provide the identity of a beneficiary in a will does not

necessarily render the will invalid. RCW 11.96A.125 allows a court to reform even

an unambiguous will in certain situations:

       The terms of a will or trust, even if unambiguous, may be reformed
       by judicial proceedings under this chapter to conform the terms to
       the intention of the testator or trustor if it is proved by clear, cogent,
       and convincing evidence that both the intent of the testator or trustor
       and the terms of the will or trust were affected by a mistake of fact or
       law, whether in expression or inducement. This does not limit the
       ability to reform the will or trust using the binding nonjudicial
       procedures of RCW 11.96A.220.




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No. 78922-8-1/8

      The SeIfs presented the Allen Letter to support their claim that Holmes

intended to bequeath his estate to them. But the Allen Letter, submitted without

any testimony as to its origin, was not properly authenticated under ER 901.

Ordinarily, we review evidentiary rulings for an abuse of discretion.      Mut. of

Enumclaw Ins. Co. v. Gregg Roofing, Inc., 178 Wn. App. 702, 728, 315 P.3d 1143

(2013). Because the trial court was asked to rule as a matter of law and did not

conduct an evidentiary hearing, the procedure here was analogous to summary

judgment proceedings and the appropriate standards of review are those

applicable to summary judgments. See Brinkerhoff v. Campbell,99 Wn.App.692,

994 P.2d 911 (2000)(applying summary judgment review standards to trial court's

ruling enforcing settlement agreement). In conjunction with a summary judgment

motion, we review a trial court's evidentiary rulings de novo. Parks v. Fink, 173

Wn. App. 366, 375, 293 P.3d 1275 (2013). Whether we apply the abuse of

discretion or de novo standard of review, our conclusion is the same—the Allen

Letter, in its current form, is inadmissible because it was not properly

authenticated.

       Authentication is a threshold requirement designed to assure that evidence

is what it purports to be. In re Det. of H.N., 188 Wn. App. 744, 751, 355 P.3d 294

(2015). "The requirement of authentication or identification as a condition

precedent to admissibility is satisfied by evidence sufficient to support a finding

that the matter in question is what its proponent claims." ER 901(a). The

proponent of evidence "must make only a prima facie showing of authenticity for

purposes of establishing admissibility" and can meet this burden by showing



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No. 78922-8-1/9

"'enough proof for a reasonable fact finder to find in favor of authenticity." H.N.,

188 Wn. App. at 751 (quoting State v. Payne, 117 Wn. App. 99, 108, 69 P.3d 889

(2003)).

       ER 901(b) provides illustrative examples of how to establish the authenticity

of a document:

      (1) Testimony of Witness with Knowledge. Testimony that a matter
      is what it is claimed to be.

      (2) Nonexpert Opinion on Handwriting. Nonexpert opinion as to the
      genuineness of handwriting, based upon familiarity not acquired for
      purposes of the litigation.



      (4) Distinctive Characteristics and the Like. Appearance, contents,
      substance, internal patterns, or other distinctive characteristics,
      taken in conjunction with circumstances.

ER 901(b). In this case, neither of the Selfs testified how, when or where they

located the Allen Letter or why they concluded that Holmes received the letter from

Allen just days before he executed his will. There was no testimony from any

person who might have personal knowledge of the letter, Allen's purported legal

work for Holmes, Allen's letterhead or signature, or even Allen's status as an

attorney in Washington on the date the letter was mailed to Holmes.

       The trial court appeared to conclude that the Allen Letter was adequately

authenticated based on the circumstances surrounding the execution of the will:

       But there is strong evidence that Mr. Allen was the attorney on this
       case. He was one of the witnesses to the will, which was signed —
       which was entered — well, it was signed just a week after this letter,
       so it's clear to me that there was — that they were in the process of
       finalizing the will and getting things in order for it to be signed.

       So I do find that there is reliability of this — of this document such that
       it's appropriately used for extrinsic evidence.

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No. 78922-8-1/10

Certainly, authenticity may be shown by circumstantial evidence. Payne, 117 Wn.

App. at 109. But no witness established, through sworn testimony, that Allen was

a practicing attorney and there is nothing on the face of the letter or the will that

establishes this fact. The SeIfs simply attached the letter and envelope to their

motion, without any accompanying declaration or affidavit identifying the author or

his role in the will drafting process.

       At the hearing, the SeIfs cited ER 904 as a basis to admit the letter. But ER

904 is designed to expedite the admission of documentary evidence at trial. Miller

v. Arctic Alaska Fisheries Corp., 133 Wn.2d 250, 258, 944 P.2d 1005(1997). The

rule gives a trial court discretion to deem certain documents authentic if the party

opposing the document's admission fails to object in accordance with the timing

provisions of the rule. ER 904(a), (c). ER 904 does not require the trial court to

admit documents offered under that rule; rather it allows the court to exercise its

traditional discretion to address a party's evidentiary objection. Miller, 133 Wn.2d

at 259. Because the Relatives objected to the Allen Letter's authenticity, ER 904

does not provide an independent basis for overcoming the requirements of

ER 901.

        Because the SeIfs offered no testimony or other evidence to authenticate

the Allen Letter or the envelope in which it was purportedly mailed under

ER 901(b), the letter was inadmissible and the trial court erred by relying upon it.4




        4   The Relatives also contest on appeal that the Allen Letter constitutes inadmissible
hearsay. Because this evidentiary objection was not raised below, we refuse to consider it on
appeal. See RAP 2.5(a)(appellate courts will generally refuse to consider a claim of error raised
for the first time on appeal)


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No. 78922-8-1/11

       We reverse the declaratory judgment because the trial court did not apply

the correct standard in evaluating Holmes's will and erred in considering the Allen

Letter without additional testimony to authenticate it. We      reject the   Relatives'

request to declare that Holmes died intestate because ROW 11.96A.125 may allow
                                                                       ,
the trial court to reform the will to reflect Holmes's intent. We therefore remand for

further proceedings consistent with this opinion.




WE CONCUR:




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