        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 INDIRA RAI-CHOUDHURY,                                 No. 78696-2-1

                                 Appellant,            DIVISION ONE
                 V.
                                                       UNPUBLISHED OPINION
 STEPHANIE INSLEE, in her official
 capacity as personal representative of
 the Estate of Margaret Rai-Choudhury,

                                  Respondent.          FILED: October 21, 2019


        CHUN, J. — In the year before her death, Margaret Rai-Choudhury

executed a will excluding her daughter, Indira Rai-Choudhury, as a beneficiary.

Indiral challenges the will, claiming that an insane delusion materially affected

Margaret's disposition of her property. Indira additionally claims the trial court

abused its discretion by denying her motion for reconsideration and CR 56(f)

motion for a continuance, and she requests fees on appeal. Indira does not raise

an issue of fact as to whether an insane delusion caused Margaret to disinherit

her. And she fails to show that the trial court manifestly abused its discretion in

denying her CR 56(f) motion. Additionally, she does not adequately brief

whether the trial court erred by denying her motion for reconsideration.

Accordingly, we affirm and decline to award fees on appeal.




       1 For clarity, we use first names when referring to members of the Rai-Choudhury family.
We intend no disrespect.
No. 78696-2-1/2


                                      I. BACKGROUND

        In 1999, Margaret executed a Last Will and Testament that included Indira

as a beneficiary.

        Margaret suffered a mild closed head injury after she fell from a stepstool

in April 2015.

        In early May 2015, Margaret told a social worker that Indira suggested to

her that "sher21 was being followed, her phone was bugged and she needed to

receive calls on her cell phone not her land line." Margaret believed that Indira's

"odd behavior" suggested she was having a "meltdown." Margaret also harbored

suspicions about the intentions of her husband, Prosenjit Rai-Choudhury (Jit);

after sensing a mild gas leak, she questioned whether he tried to kill her. She

feared that Indira may also have "monetary motives" because she heard Jit

telling Indira that he planned to bequeath her his assets.

        Then, on May 11, 2015, Margaret went to the hospital for treatment for a

cat bite. A nurse reported that Margaret reported abuse and expressed concerns

about Jit and Indira. The nurse also stated that Margaret appeared distrusfful of

the nurse.

        A few days later, Jit contacted the hospital with concerns about Margaret.

Jit said that he and Indira were worried about Margaret's cognitive status

because she had uncharacteristically left town after her hospitalization for the cat

bite. Jit further stated that he feared prescribed medications were negatively



        2 The social worker's note does not make clear whether Margaret was referring to herself
or her daughter.


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affecting Margaret. Jit said that when Margaret was returning home from a trip to

Canada on May 1, Margaret said she thought the CIA was tracking Indira and

that a car was following Jit and Margaret. Margaret then stopped speaking to

Indira until a few days before she passed away.

       Margaret filed a petition for dissolution of her marriage to Jit on July 9,

2015. Because of her plans to divorce, Margaret wanted to update her estate

plans. Margaret told her estate attorney, Steve Avery, that she did not want Jit or

Indira to have any portion of her estate or any power over her person or property

during her lifetime. Margaret executed her new will on July 21, 2015. The new

will gave her estate to a friend, Linda Borland; the University of British Columbia

(UBC); and her eldest grandson, Khashon:
                                    ARTICLE 2
                                      GIFTS
      2.1 SPECIFIC BEQUESTS:
            I give to LINDA BORLAND of Bellingham, Washington ten
      thousand dollars ($10,000.00).
      2.2 ESTATE RESIDUE: I give, devise and bequeath the rest,
      remainder and residue of my estate, of whatsoever nature and
      wheresoever situated to the following:
      Fifty percent (50%) shall pass to the University of British Columbia
      (UBC) to be awarded as scholarships to medical students at UBC
      who are Canadian citizens, have financial need, and have a desire
      to help the poor.
      Fifty percent(50%) shall pass to the then-trustee of the KHASHON
      HASELRIG Grandchild's Trust for the benefit of my grandson
      KHASHON HASELRIG to be distributed pursuant to Article 3 below.
      If KHASHON HASELRIG does not survive me, his share shall pass
      to the University of British Columbia to be awarded as scholarships
      to medical students at UBC who are Canadian citizens, have
      financial need, and have a desire to help the poor.




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No. 78696-2-1/4


The will did not provide for Indira or Jehan, Margaret's other grandson. Two

witnesses attested to the will and declared that Margaret appeared to be of

sound mind and not under any duress or undue influence.

        Margaret and Jit finalized their divorce in April 2016. On November 25,

2016, Margaret passed away. Indira filed a complaint on March 20, 2017, to

invalidate Margaret's will based on lack of capacity.

       Stephanie Inslee, the personal representative of Margaret's estate

(Estate), filed a motion for summary judgment on April 9, 2018. The Estate

presented declarations from various people in Margaret's life. One from William

Tuttle, Margaret's financial adviser since 2011, provided that, in his opinion,

"Margaret understood her finances, and knew at all times the nature and extent

of her property and investments as well as her relationships, or lack thereof, with

family members." Tuttle stated that since 2011, Margaret had expressed that

she did not want Indira to inherit any money from her.

       Inslee also submitted declarations from Gregory Kosanke, Margaret's

divorce lawyer, and Avery, her estate attorney, which provided that they knew

Margaret to be of sound mind and not suffering from any delusions. Both

attorneys stated that Margaret told them she did not want to leave an inheritance

for Indira.

       Finally, the Estate supported its motion for summary judgment with

declarations from Debbie Norrish and Borland. Norrish, Margaret's niece, said

she spoke with Margaret on the phone approximately once a week and was

never concerned for Margaret's capacity or cognitive abilities. Norrish provided


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No. 78696-2-1/5


that Margaret had said on several occasions that she did not want Indira to have

any control over her money after she died. Borland, a good friend, lived with

Margaret at the time she executed her will and stated that she also never had

concern for Margaret's capacity or cognitive abilities. Borland further stated that

Margaret's decision to not leave any inheritance to Indira was consistent with

conversations she had had with Margaret in the years prior to Margaret's divorce.

       Indira filed a response to the motion for summary judgment on May 2,

2018. To argue a genuine issue of material fact precluded summary judgment,

Indira pointed to Margaret designating her as a beneficiary in the 1999 will.

Indira claimed that she and her mother had had a good relationship—that they

would speak every few days and give loving notes and cards to each other. After

Margaret's hospitalization in May 2015, however, Indira said Margaret stopped

speaking to her. Indira claimed that Margaret's divorce from Jit, her thoughts that

the CIA was tracking her, and her uncharacteristically leaving town demonstrated

that she was suffering from delusions that caused her to act impulsively. Indira

said Margaret incorrectly believed that she and her younger son, Jehan, had

drug addiction problems. Indira said Margaret also falsely believed that

Margaret's brothers had attended UBC. Indira, however, did not submit any

evidence that directly challenged Tuttle and Borland's declarations that Margaret

had stated she wanted to exclude Indira from her will in the years prior to 2015.

      On May 3, 2018, Indira filed a Second Amended Complaint alleging that

Margaret was under an insane delusion when she executed her July 2015 will

and that the will was a product of undue influence.


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No. 78696-2-1/6


        During a motion hearing on May 11,2018, Indira asked the court fora

continuance to conduct further discovery. The court granted a continuance, but

limited discovery to deposing Avery, Margaret's estate attorney, and to obtaining

additional medical records.

        About a month later, on June 15, 2018, the trial court held a hearing on

the summary judgment motion. Indira presented Avery's deposition, additional

medical records, and an expert report opining that Margaret's delusions directly

contributed to her decision to disinherit Indira. The court noted that the report did

not include a proper attestation or comply with ER 703 and refused to consider it.

The court determined the evidence failed to establish an issue of fact as to

whether an insane delusion caused Margaret to disinherit Indira or whether

anyone unduly influenced her.3 The court granted the Estate's motion for

summary judgment.

        Ten days later, on June 25, 2018, Indira moved for reconsideration of the

court's order granting summary judgment. In addition to asking the court to

reconsider its summary judgment ruling, Indira asked it to consider the expert

report and to grant a continuance under CR 56(f) to allow additional discovery.

The court denied Indira's motion for reconsideration.

        Indira appeals.




        3 On appeal, Indira's briefing addresses only the trial court's decision regarding the
alleged insane delusion.


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No. 78696-2-1/7


                                    II. ANALYSIS

    A. Summary Judgment

       Indira argues she presented evidence to establish an issue of material fact

regarding whether Margaret suffered from an insane delusion when she

executed her July 2015 will. The Estate argues Indira did not submit admissible

evidence to raise such an issue of fact. We determine the trial court did not err

by granting summary judgment for the Estate.

       "We review de novo a trial court's decision to grant summary judgment."

Modumetal, Inc. v. Xtalic Corp., 4 Wn. App. 2d 810, 822, 425 P.3d 871 (2018).

Courts grant summary judgment if no genuine issue exists as to any material

fact. Modumetal, Inc., 4 Wn. App. 2d at 822. We draw all facts and reasonable

inferences in "the light most favorable to the nonmoving party." Modumetal, Inc.,

4 Wn. App. 2d at 822. A court should grant summary judgment if reasonable

people could reach only one conclusion. Modumetal, Inc., 4 Wn. App. 2d at

822-23.

       "Where a will, rational on its face, is shown to have been executed in legal

form, the law presumes that the testator had testamentary capacity and that the

will speaks [their] wishes." In re Meagher's Estate, 60 Wn.2d 691, 692, 375 P.2d

148 (1962). The party challenging the will bears the burden of establishing

invalidity by clear, cogent, and convincing evidence. Meagher, 60 Wn.2d at 692.

When determining whether a party meets this burden in the context of summary

judgment, we "must determine whether, viewing the evidence in the light most

favorable to the nonmoving party, a rational trier of fact could find that the


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No. 78696-2-1/8


nonmoving party supported [their] claim with clear, cogent, and convincing

evidence." Woody v. Stapp, 146 Wn. App. 16, 22, 189 P.3d 807(2008). A party

presents clear, cogent, and convincing evidence when they show the ultimate

fact in issue to be highly probable. In re Estate of Watlack, 88 Wn. App. 603,

610, 945 P.2d 1154 (1997).

       But a court may invalidate a will if a party shows by clear, cogent, and

convincing evidence that at the time the testator executed the will, they suffered

under an insane delusion that materially affected the disposition of the will.

Watlack, 88 Wn. App. at 609-10. Regarding what constitutes an insane delusion,

Division Three of this court has stated as follows:
       An "insane delusion" is not well defined by case law. It has been
       defined as a false belief, which would be incredible in the same
       circumstances to the victim if [they] were of sound mind, and from
       which [they] cannot be dissuaded by any evidence or argument. It
       was later described as a condition of such "aberration as indicates
       an unsound or deranged condition of the mental faculties . . . ." A
       belief resulting from a process of reasoning from existing facts will
       not be an insane delusion, regardless of whether the reasoning is
       imperfect or the conclusion illogical.
Watlack, 88 Wn. App. at 610 (internal citation omitted). Thus,"[a] prejudice or

dislike that a testator might have for a relative is not ground for setting aside a

will unless the prejudice and dislike cannot be explained on any other ground

than that of an insane delusion." In re Trust & Estate of Me!ter, 167 Wn. App.

285, 312, 273 P.3d 991 (2012). On appeal, Indira seems to claim that Margaret

suffered from an insane delusion because Margaret(1) believed the CIA was

tracking her, and (2) stopped talking to Indira in May 2015.




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No. 78696-2-1/9


        First, as to delusions about the CIA, Indira presents evidence of Margaret

having paranoia and beliefs regarding the CIA around May 2015. Margaret,

however, did not execute her will until July and Indira did not submit any

evidence to suggest that such delusions existed at the time Margaret executed

her July 2015 will. Indira also fails to explain how any delusions about the CIA

would cause Margaret to disinherit her.

        Second, as to Margaret not speaking to Indira, viewing the evidence in the

light most favorable to Indira, she and her mother had a good relationship.4 They

expressed love for each other on the phone and through emails and cards.

Indeed, Margaret included Indira in the will she executed in 1999. But in May

2015, Margaret stopped speaking to Indira. Jit also said that Margaret stopped

talking to Indira in May 2015 without any apparent reason.

        Though the evidence shows a deterioration of Indira's relationship with her

mother in May 2015, Indira fails to raise an issue of fact as to whether an insane

delusion affected the disposition in Margaret's July 2015 will. Indira does not

point to any specific false belief that Margaret had that could constitute an insane

delusion.5 For example, while a court may invalidate a will because a testator,

          4 Citing RCW 5.60.030, the Estate suggests that the panel cannot consider evidence
provided on this issue through Indira, an interested party. Though the Estate objected to Indira's
declarations below, the court considered them when deciding the summary judgment motion.
The Estate did not cross-appeal this issue. Accordingly, we do not address the issue of whether
the trial court properly considered the declarations. See State v. Sims, 171 Wn.2d 436, 441-42,
256 P.3d 285(2011)(holding the State could not challenge the criminal defendant's sentence as
a whole when it did not cross-appeal and the defendant appealed only a single sentencing
condition).
          5 Based on Tuttle's declaration, Indira asserts that Margaret disinherited her and Jehan
because Margaret believed they had addiction issues. But the record indicates Margaret held this
belief the entire time the financial advisor represented her, which dated back to 2011. Thus, this
evidence also does not raise an issue of fact as to whether Margaret began to suffer from an
insane delusion in May 2015 that affected her July 2015 will.


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No. 78696-2-1110


due to an insane delusion, falsely believes a child has wronged them, Indira does

not indicate how Margaret believed that Indira had wronged her. See Watlack,

88 Wn. App. at 610-11 (upholding court order invalidating will because father had

insane delusion that his child had stolen money from him); In re Klein's Estate,

28 Wn.2d 456, 472, 183 P.2d 518(1947)(upholding court order invalidating will

because mother had insane delusion that daughter tried to kill her). Indira
                                                        r
presents evidence that Margaret stopped speaking to her around May 2015; this

does not raise an issue as to whether Margaret suffered from an insane delusion.

        Accordingly, we determine Indira fails to meet her burden to raise an issue

of fact as to whether a rational trier of fact could find that the Margaret suffered

from an insane delusion that affected the disposition in her July 2015 will. The

trial court did not err by dismissing the claim on summary judgment.6




         6 At the summary judgment hearing, the court refused to consider an expert medical
opinion that Indira submitted because it did not include a proper attestation and did not meet
ER 703's standards. At the hearing on Indira's motion for reconsideration, the trial court stated
that it was "inclined to disallow" the new expert report that Indira submitted with proper attestation
and complying with ER 703. The court then went on to note that, even if it did consider the
report, Indira still failed to present evidence that raised an issue as to whether Margaret suffered
from an insane delusion at the time she executed her July 2015 will. Accordingly, it denied her
motion for reconsideration.
          In the argument section of her brief, Indira does not discuss the medical opinion and her
only discussion of the motion for reconsideration provides the standard of review. Because Indira
does not adequately brief whether the trial court erred by not considering the expert medical
opinion or by denying her motion for reconsideration, we do not address these issues. See
RAP 10.3 (requiring the written argument to contain "citations to legal authority and references to
relevant parts of the record"); Greensun Grp.. LLC v. City of Bellevue, 7 Wn. App. 2d 754, 780
n.11, 436 P.3d 397(2019)(noting a party abandons assignments of error that they do not argue
in their brief).


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No. 78696-2-1/11


    B. CR 56(f) Motion for a Continuance

        Indira next contends that the trial court manifestly abused its discretion by

denying her motion for a continuance under CR 56(f).7 We conclude the trial

court did not manifestly abuse its discretion.

        We review a trial court's denial of a motion for continuance for a manifest

abuse of discretion. Gross v. Sunding, 139 Wn. App. 54, 67-68, 161 P.3d 380

(2007). "A decision is manifestly unreasonable if the court, despite applying the

correct legal standard to the supported facts, adopts a view that no reasonable

[judge] would take, and arrives at a decision outside the range of acceptable

choices." State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638(2003)(internal

quotation marks and citations omitted).

        A trial court may deny a party's motion for a continuance under CR 56(f) if

"`(1) the requesting party does not offer a good reason for the delay in obtaining

the desired evidence;(2) the requesting party does not state what evidence

would be established through the additional discovery; or (3) the desired

evidence will not raise a genuine issue of material fact." Gross, 139 Wn. App. at

68 (quoting Turner v. Kohler, 54 Wn. App. 688, 693, 775 P.2d 474 (1989)).



        7 Although not argued by the Estate, we note that Indira's CR 56(f) motion may have
been untimely. It appears Indira untimely filed the motion because she did so after the court had
granted summary judgment. Because CR 56(f) enables a court to "refuse the application for
judgment or may order a continuance" to permit additional discovery before it rules, the rule likely
requires a party to make their CR 56(f) motion prior to the court ruling on summary judgment.
        Additionally, Indira originally moved for a continuance under CR 56(f) on May 11, 2018.
She then again requested a continuance under CR 56(1) in her motion for reconsideration. As
this second request sought a continuance to obtain the same discovery, the second request
essentially constituted a motion for reconsideration of the court's May 11, 2018 ruling. Because
Indira made this motion for reconsideration more than 10 days after the court ruled on her original
request, the motion appears untimely on this ground as well. CR 59(b).


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No. 78696-2-1/12


       When Indira first requested the continuance in May 2018, the court

granted it for her to obtain medical records and depose Margaret's estate

attorney. It, however, did not permit her to depose Margaret's neighbors, her

counselor, or two people prepared to state that Indira and Jehan were not drug

users. The court disallowed this discovery because it believed that this additional

evidence would not "shed light on [Margaret's] condition at the time she was

preparing and signing her will."

       Indira claims the additional discovery would show that the neighbor

believed Margaret disinheriting Indira was contrary to Margaret's feelings, that

Indira was not a drug user, and would provide information on Margaret's

relationship with Indira before, during, and after May 2015. The court believed

that the evidence would not have sufficient value for establishing an insane

delusion or showing a link between that delusion and Margaret's disposition of

her property. Given that the evidence would not shed light on Margaret's medical

state or her beliefs regarding her will at the time she executed it, the court's

determination was reasonable. Accordingly, the trial court did not manifestly

abuse its discretion by denying Indira's motion for a continuance.

   C. Fees on Appeal

       Indira requests fees on appeal pursuant to RCW 11.96A.150. We deny

the request.

       Under RCW 11.96A.150(1) and (2), appellate courts have the discretion to

award costs and reasonable attorney fees in estate proceedings, including to the

nonprevailing party. In re JoHy's Estate, 3 Wn.2d 615, 628, 101 P.2d 995(1940)


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No. 78696-2-1/13


(awarding fees to the nonprevailing party). The court may award fees to any

party "in such amount and in such manner as the court determines to be

equitable." RCW 11.96A.150(c). "The award may be paid by a party from the

estate assets or from a nonprobate asset that is the subject of the proceedings."

In re Estate of Burks, 124 Wn. App. 327, 333, 100 P.3d 328(2004)(citing RCW

11.96A.150(1)(a)-(c)). But awards against the estate are inappropriate where an

attorney renders their services solely for the benefit of certain parties and not for

the benefit of the estate, even though the litigation may incidentally benefit the

estate by deciding adverse claims. In re Estate of Niehenke, 117 Wn.2d 631,

648, 818 P.2d 1324 (1991).

       This case did not include all the beneficiaries of Margaret's will and

Indira's attorney's services only benefitted her. Thus, to award Indira attorney

fees from the estate would inappropriately require the uninvolved beneficiaries to

fund her litigating costs. See Niehenke, 117 Wn.2d at 648. We decline to award

Indira fees on appeal.

      Affirmed.




WE CONCUR:




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