                                                                             COURT OF APPEALS
                                                                                   DIVISION 11

                                                                            2015. AUG 1. 8 AM 9: 02
                                                                            STATE or WASWNGTON
                                      8Y
   IN THE COURT OF APPEALS OF THE STATE OF                                                   MWMON

                                               DIVISION II

In the Matter of the Estate of                                                No. 46441 - 1 - II


RAY MERLE BURTON


VICTOR WHITE,
                                   Appellant,


       MA

                                                                         PUBLISHED OPINION
RICHARD DIDRICKSEN,




      MAXA, P. J. —    Victor White. appeals the trial court' s order declaring that Ray Burton died

intestate. RCW 11. 12. 020( l) states that wills must be signed by the testator and attested by two

witnesses to be valid. White submitted evidence that Burton drafted and signed a document

leaving his entire estate to White. The document was signed by one witness, but subsequently

was lost. Burton later drafted"a second, purportedly similar, document leaving his entire estate

to White. That document was signed by a different witness. Richard Didricksen, Burton' s

legal heir,   challenges   the validity   of the   document   under   RCW 11. 12. 020( 1).   White argues that


because two witnesses attested to Burton' s testamentary intent to leave his estate to White, the

documents together constituted a validly executed will under both strict compliance and

substantial compliance      theories.
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         We hold that Burton' s testamentary documents do not constitute a valid will because

 Burton did not strictly comply with the requirement in RCW 11. 12. 020( l) that two witnesses

 attest to a will. We also hold that even assuming the substantial compliance doctrine applies to

 RCW 11. 12. 020( 1),   Burton did not substantially comply with the attestation requirement.

 Accordingly, we affirm the trial court' s order declaring that Burton died intestate.'

                                              FACTS


         Burton was a successful businessman with substantial assets, including two gold mines

and a number of collectible cars. He allegedly was estranged from his living relatives and

considered himself without family. Beginning in 2011, White helped the elderly Burton with a

variety of tasks around his home. At some point, Burton allegedly began to prepare White to

take over his business dealings after he died. Burton was hospitalized for pneumonia in 2013,

and after his release White became his caretaker. Burton also received home nurse visits, and

later hospice care. Throughout this time, Burton apparently had no will.

         Shortly before he died, Burton handwrote and signed a document in red ink that was

witnessed and signed by Lisa Erickson, a nurse. Erickson stated in a declaration that the

document was for the purpose of Burton leaving his property to White. However, Erickson

provided no testimony regarding the actual language used in that document, and she does not

know what happened to the document.




1 Didricksen also asks us to remand for ruling on several unresolved evidentiary objections.
Because we affirm the trial court on other grounds, we need not and do not resolve those
objections.
46441 - 1 - II




             The day before he died, Burton handwrote another testamentary statement, again in red

ink, on a blank portion of a preprinted healthcare directive form. He apparently needed some

assistance from another nurse, Shirley Outson, to complete the writing. The final statement,

which is difficult to read, appears to state:

                   2]
             Thank [    Victor White       remain   my     caretaker   til I   go   to sleep/ die.   The transfer of

             Gold Mines Montecarlo and Black Hawk One, all my collector cars and real estate
             located at 36619 Mountain Hwy E, Eatonville, WA 98320. I wish all my worldly
             possessions to go to Victor White.


Clerk'   s   Papers    at   13. Burton. signed the form below the statement, as did Outson. But no other


witness signed the document.


             Burton died on January 25, 2014. White petitioned the trial court to recognize Burton' s

statement on the healthcare directive form as his will and to name White as personal

representative of Burton' s estate. Didricksen, Burton' s cousin and legal heir, moved for an order

declaring that Burton died intestate. The trial court granted Didricksen' s motion, finding that

Burton had not executed a valid will and therefore had died intestate. White moved for

reconsideration, which the trial court denied. In denying White' s motion for reconsideration, the

trial court noted that White was free to pursue other legal remedies.


             White appeals the trial court' s order declaring that Burton died intestate and its denial of

his motion to reconsider that order.




2 The exact word Burton used is difficult to decipher. Didricksen interprets the writing as stating
  That Victor White           remain    my   caretaker,"   Br. of Resp' t at 3 ( emphasis added), while White
interprets the writing          as   stating " Thank Victor White       remain      my   caretaker."   Br. of Appellant at
12 ( emphasis added).
46441 -1 - II




                                                    ANALYSIS


A.          STRICT COMPLIANCE WITH TWO WITNESs REQUIREMENT


            White argues that the trial court erred by concluding that Burton died intestate because

Burton complied with the requirements of RCW 11. 12. 020( l) and executed a valid will by

creating two equivalent documents, each witnessed by a different person. We disagree.3
                 Standard of Review


            White challenges the trial court' s legal conclusion that Burton' s testamentary documents

did   not   comply   with   RCW 11. 12. 020( 1).   We review a trial court' s conclusions of law de novo.

In   re   Estate of Jones, 152 Wn.2d 1, 8- 9, 93 P. 3d 147 ( 2004). We also review questions of


statutory interpretation de novo. Id.

            If the plain meaning of a statute is unambiguous, we apply that plain meaning as an

expression of legislative intent without considering extrinsic sources. Jametsky v. Olsen, 179

Wn.2d 756, 762, 317 P. 3d 1003 ( 2014).            We give words their usual and ordinary meaning and

interpret them in the context of the statute in which they appear. Lake v. Woodcreek

Homeowners Ass' n, 169 Wn.2d 516, 526, 243 P. 3d 1283 ( 2010).


            2.   No Strict Compliance


            RCW 11. 12. 020( l) requires that a will meet three basic formalities:


            Every will shall be [ 1 ] in writing [ 2] signed by the testator or by some other person
            under the testator' s direction in the testator' s presence, and shall be [ 3] attested by
            two or more competent witnesses, by subscribing their names to the will, or by



3 As a threshold matter, Didricksen argues that White's appeal is untimely because White has
pending before the trial court related claims based on an alleged contract to devise. However,
White asserted no contract claims in his petition, and the trial court expressly did not consider
such claims. Accordingly, White' s appeal is timely.
                                                         M
46441 - 1 - II




            signing   an affidavit   that   complies   with RCW    11. 20. 020( 2), while in the presence
            of the testator and at the testator' s direction or request.


Emphasis added).4 Attestation by two witnesses always is required, and Washington does not

recognize " holographic" wills.5 In re Brown' s Estate, 101 Wash. 314, 317, 172 P. 247 ( 1918).

            White argues that the healthcare directive document is a valid will that complies with the


two witness requirement. But that document was signed by only one witness. Therefore, on its

face the document does not comply with RCW 11. 12. 020( 1).

            However, White argues that two witnesses did attest to Burton' s will. White claims that


they attested to the will in counterparts, separately signing two counterpart documents describing

the same testamentary gift. White notes that nothing in RCW 11. 12. 020( l) prohibits executing a

will in counterparts and that no Washington cases address this situation.


            Even if we assume that witnesses can attest to a will in counterparts, the facts here show

that Burton' s witnesses did not sign counterpart documents. A " counterpart" is " one of two


corresponding         copies of a   legal instrument;"   a synonym   is " duplicate." WEBSTER' S THIRD NEW


INT'   L   DICTIONARY, 520 ( 2002). Here, there is no evidence that Burton prepared duplicative


copies of any testamentary document. The witnesses stated that the two handwritten




4
    Only nuncupative       wills —   restricted to members of the armed forces or merchant marine and
testamentary      gifts of personal     property amounting to $ 1, 000 or less — are exempt from some of
these formality requirements. RCW 11. 12. 025.

5 A holographic will is a will handwritten, dated, and signed by the testator that may be validated
on the basis of the testator' s handwriting rather than any witness attestations. See In re Bauer' s
Estate, 5 Wn.2d 165, 171, 105 P. 2d 11 ( 1940).            In his petition to the trial court, White
characterized the healthcare directive document as a holographic will. However, he does not
argue on appeal that the document was valid as a holographic will and appears to recognize that
Washington        courts will not give effect     to such wills.
46441 - 1 - II




testamentary documents both left Burton' s entire estate to White, but neither witness stated that

the documents were identical. Having one witness sign one testamentary document and having

another witness sign a different testamentary document does not constitute signing one document

in counterparts.


          White also argues that the two documents must be viewed as a single integrated


document that was signed by two witnesses. However, even if we assume that these documents

somehow formed a single will, there were no witnesses that signed that will. Erickson and


Outson each signed a portion of the will, but neither witnessed the " integrated" document.

          Without evidence that two witnesses signed the same document, or at least identical


duplicates of that document, White cannot show that Burton complied with RCW 11. 12. 020( 1).

Because only      one witness signed     the healthcare       directive document —the only testamentary


writing   signed   by   Burton in the   record — we hold that Burton did not.strictly comply with the two

witness requirement in RCW 11. 12. 020( 1).


B.        SUBSTANTIAL COMPLIANCE


          White argues that even if Burton did not strictly comply with the two witness requirement

in RCW 11: 12. 020( 1),        we should conclude that he executed a valid will because he substantially

complied with that requirement. We disagree.


                 Legal Principles


          Under the substantial compliance doctrine a party complies with statutory requirements

by " satisfaction   of   the   substance essential   to the   purpose of   the   statute."   Crosby v. Spokane

County,    137 Wn.2d 296, 302, 971 P. 2d 32 ( 1999);              accord In re Santore, 28 Wn. App. 319, 327,

623 P. 24 702 ( 1981).         Courts may invoke the doctrine where a party has " substantially complied


                                                              0
46441 - 1 - II




with   the   requirements crucial     to the underlying design intended         by   the     legislature." Murphy v.


Campbell Inv. Co., 79 Wn.2d 417, 422, 486 P. 2d 1080 ( 1971).                   However, some statutes are not


susceptible to substantial compliance. See, e. g., Medina v. Pub. Utility Dist. No. I ofBenton

County,      147 Wn.2d 303, 317- 18, 53 P. 3d 993 ( 2002) ( failure          to comply with a statutory time

limitation cannot be considered substantial compliance with the statute).


          2.     Substantial Compliance and RCW 11. 12. 020( l)


          Washington courts have not applied the substantial compliance doctrine to the


requirements of         RCW 11. 12. 020( 1).   The only Washington case that even. mentions substantial

compliance with regard to RCW 11. 12. 020( l) is In Re Estate ofRicketts, 54 Wn. App. 221, 773

P. 2d 93 ( 1989).        In that case, the two witnesses to a will codicil did not subscribe their names to

the   codicil,   but instead    signed an affidavit   that   was stapled   to it. Id.   at   221.   It was undisputed


that this procedure did not strictly conform with the requirements of the version of RCW

11. 12. 020( l) then in effect.6 Id. at 222. But the proponent of the will cited to a number of cases

approving probate of wills despite irregularities in the placement of witnesses' signatures. Id. at

223.


          The court in Ricketts discussed an Oklahoma case in which a will was admitted to


probate when the testator signed at the end of the will near the bottom of the page and the


subscribing witnesses signed on the following page. Id. The court stated that the record in that

case " show[ ed] much more substantial compliance with the requirements for execution than here

present."      Id. at 224.




6 The legislature subsequently amended RCW 11. 12. 020( l) to allow this procedure. See LAWS
OF    1990,    ch.   79, § 1.

                                                              7
46441 - 1 - II




         Ricketts could be interpreted as accepting the notion that a testator can comply with RCW

11. 12. 020( l) through substantial compliance. However, the court did not specifically address

that issue and in fact did not find substantial compliance. Instead, the court applied the


requirements of RCW 11. 12. 020( l) and reversed the trial court' s decision to admit the codicil to

probate. Id. at 225.


          Regardless of the significance of Ricketts, in order to assess the merits of the present case


we assume without deciding that the substantial compliance doctrine applies to RCW

11. 12. 020( 1).


                   Substantial Compliance with Will Validity Provisions

          Even assuming that substantial compliance is sufficient to satisfy the two witness

requirement of       RCW 11. 12. 020( 1),      Didricksen argues that there was no substantial compliance


here. We agree.


          The deficiency with Burton' s testamentary documents was more than merely technical or

procedural. The fundamental problem is that only Erickson saw and witnessed the first

document and only Outson saw and witnessed the second, different document. If Erickson and

Outson had seen an identical document but both signatures for some reason were not on that


document, White' s substantial compliance argument might be more compelling. But the fact

that Erickson and Outson signed different documents precludes any finding of substantial

compliance of the requirement in RCW 11. 12. 020( l) that two witnesses attest to the will.


          Applying substantial compliance here also would work against the purposes of RCW

 11. 12. 020. The statutory purposes underlying the formality requirements of the statute are " to

ensure    that the testator   has   a   definite   and complete   intention to dispose   of   his   or   her property   and
46441 - 1 - II




to prevent, as far as possible, fraud, perjury, mistake and the chance of one instrument being

substituted      for   another."     In re Estate ofMalloy, 134 Wn.2d 316, 322- 23, 949 P. 2d 804 ( 1998).

Here, the   risk of mistake —if not           fraud —would       be high if we allowed probate of a testamentary

document signed by only one witness when the second " witness" never saw that document.

          We hold that under the facts of this case, Burton' s healthcare directive document did not


substantially comply with RCW 11. 12. 020( 1).

C.        ATTORNEY FEES


          Didricksen requests an award of reasonable attorney fees under the Trust and Estate

Dispute Resolution Act (TEDRA), chapter 11. 96A RCW. We decline to award Didricksen


attorney fees.

          Under RCW 11. 96A. 150, we have discretion to award reasonable attorney fees in cases

involving a decedent' s estate. See Kitsap Bank v. Denley, 177 Wn. App. 559, 580- 81, 582, 312

P. 3d 711 ( 2013).        Although this is not a TEDRA case, the TEDRA attorney fee provision applies

to " `[ a] ll matters concerning the           estates and assets of...     deceased   persons.' "   Id. (quoting

RCW 11. 96A.020( 1)(          a)).    In exercising our discretion, we " may consider any and all factors that

 we]   deem to be        relevant and appropriate."        RCW 11. 96A. 150( 1).


          Here, the evidence suggests that White is acting to enforce Burton' s testamentary intent.

And this is      not a   frivolous    appeal —   it raises a novel issue of law. Such appeals should not be


discouraged by awarding attorney fees to an opponent if the court decides the issue in that

opponent' s      favor.    Cf.Bale     v.   Allison, 173 Wn.     App.   435, 461, 294 P. 3d 789 ( 2013) (   declining to

award    attorney fees      on appeal       because the   case   involved   a unique   issue). Under the


circumstances, we do not award Didricksen attorney fees on appeal.


                                                                 E
46441 -1 - II




         We affirm the trial court' s order declaring that Burton died intestate.




                                                                             114
                                                                 MAXA, t




We concur:




  A--4*";(.- I. -
 SUTTON, J.
                       1




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