                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                         February 6, 2018

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II
    FRANK PORTMANN,                                                 No. 49563-5-II

                                  Appellant,

           v.
                                                                PUBLISHED OPINION
    SALLY HERARD, in her capacity as
    Personal Representative of the Estate of
    Donald Lewis Cross,

                                  Respondent.


          MAXA, A.C.J. – Frank Portmann appeals the trial court’s order granting summary

judgment in favor of Sally Herard, acting as personal representative of the estate of Donald

Cross, in his Trust and Estate Dispute Resolution Act (TEDRA)1 action. Portmann initiated the

TEDRA action to specifically enforce the distribution of the remainder of the estate in Cross’s

1998 will and to invalidate inconsistent portions of Cross’s 2010 will.

          The issue in this case is whether Cross and his life partner Glen Morse agreed to execute

“mutual wills” in 1998 that became irrevocable after Morse’s death in 2000. Portmann, the son

of Morse’s niece and a beneficiary under Cross’s 1998 will, claims that Cross and Morse had an

oral agreement to execute mutual wills. Herard claims that there was no agreement to execute

mutual wills and that Cross was free to change his will after Morse’s death. The trial court

struck portions of a declaration made by Eric Pickle, the husband of Cross’s niece, about



1
    Ch. 11.96A RCW.
No. 49563-5-II


statements Cross and Morse made to him. The court then ruled that Portmann had failed to

create a genuine question of material fact regarding the existence of an oral agreement between

Cross and Morse to execute mutual wills.

       We hold that (1) the trial court did not err in striking as hearsay the portion of Pickle’s

declaration stating that Cross and Morse had told him that they had agreed to bequeath half of

the survivor’s remainder estate to the other’s family members, to the extent that the declaration

was offered to establish the existence of an agreement to execute mutual wills; and (2) the trial

court did not err in granting summary judgment because the evidence Portmann submitted did

not create an issue of material fact on whether Cross and Morse entered into an agreement to

execute mutual wills.

       Accordingly, we affirm the trial court’s order granting summary judgment. We also

exercise our discretion under RCW 11.96A.150 to award attorney fees on appeal to Herard.

                                              FACTS

Execution of Wills

       Cross and Morse were domestic partners beginning in the 1960s, and owned multiple

properties together. They executed separate wills with the assistance of attorney Gaylerd

Masters in both 1992 and 1995. The wills had similar provisions and generally provided that

upon the death of the testator, the remainder of the estate would pass to the surviving partner.

The wills also provided that upon the survivor’s death, the remainder of the survivor’s estate

would be divided between Cross’s family members and Morse’s family members.

       In January 1998, Cross executed a revised will that Masters drafted. The will provided

that if Morse predeceased Cross, certain specific distributions would be made and the reminder

of the estate would be distributed one-fourth to Cross’s sister Herard, one-fourth to Cross’s sister




                                                 2
No. 49563-5-II


Donna Warter, and one-half equally among Morse’s sister Minnie Campbell, Campbell’s

daughter Darlene Portmann, and Portmann’s sons Eric and Frank.

          On the same day that Cross executed his revised will, Masters also had drafted a revised

will for Morse. But Morse wanted to think more about the beneficiaries of his will, and so he did

not execute a revised will at that time.

          In September 1998, Morse executed a revised will that Masters again drafted. This will

was different than the draft will Masters had prepared in January 1998. The will made specific

bequests to Campbell, Darlene, Eric and Frank, and left the remainder of the estate to Cross. If

Cross predeceased Morse, the will provided a specific bequest of paintings and sculptures and

that the remainder would be divided one-half equally among Campbell, Darlene, Eric and Frank,

and one-half equally between Herard and Warter.

Morse’s Death and Cross’s Revised Wills

          Morse died in 2000. His property was distributed according to the bequests in his 1998

will, under which Cross received the remainder of the estate after the specific distributions.

          Cross executed revised wills in 2002 and 2005, each reducing the size of the bequests to

Morse’s family. In October 2010, Cross executed another revised will that left his entire estate

to Herard, with no bequests to any of Morse’s family members.2 Masters drafted all of these

wills.

          Cross died in 2015, and his October 2010 will was admitted to probate.




2
    Cross executed another revised will six days later that made an immaterial correction.



                                                  3
No. 49563-5-II


TEDRA Petition

       Portmann filed a TEDRA petition against Herard, as the personal representative of

Cross’s estate, to specifically enforce Cross’s 1998 will. Portmann alleged that Cross and Morse

agreed with each other that if one predeceased the other, the survivor would divide the remainder

of the survivor’s estate between their two families, and that their 1998 wills were an expression

of this agreement. Portmann claimed that the 1998 wills were mutual wills that could not be

unilaterally revoked. He sought an order directing Herard to distribute Cross’s estate in

accordance with the 1998 will.

       Herard moved for summary judgment. In support of her motion, Herard presented a

declaration by Masters. Masters stated that he discussed the concept of mutual wills with Cross

and Morse. He also stated that if Cross and Morse had told him that they wanted a mutual will,

he would have included language to that effect in the wills and would not have agreed to draft

revised wills for Cross after Morse’s death.

       Masters further stated:

       After updating their wills several times and hearing their different intentions each
       time, I am absolutely sure that they did not intend to prepare mutual wills. They
       were very adamant and it was important to each of them to be free to do as they
       pleased with their resources – especially after one of them passed away. Neither of
       them made any statements that they wanted mutual wills or wanted to enter into a
       contract not to change their wills.

Clerk’s Papers (CP) at 112. Masters concluded that “I am sure that Mr. Morse and Mr. Cross

never had any intent to lock each other into mutual wills.” CP at 113.

       In response, Portmann submitted several declarations, including a declaration by Pickle,

the husband of Warter’s daughter Sherrie (Cross’s niece). Pickle stated that he and his wife were

close to Cross and Morse, and that Pickle had reviewed Cross’s 1998 will. Pickle stated:




                                                4
No. 49563-5-II


       In subsequent conversations, [Cross] and [Morse] emphasized to Sherrie and me
       the fundamental feature of their agreement in their plan: half of the survivor’s estate
       going to the other’s family members. Both men told us that this was their
       agreement.

CP at 254. Pickle concluded that ever since Cross made a new will in January 1998,

       [I]t has always been clear in my mind that [Cross] and [Morse] had a well-thought-
       out end-of-life plan. Each partner would leave his estate to the other, and the
       survivor would be free to use the money and property as he wished. Upon the
       survivor’s death, the remainder of the estate would be divided in half, with half
       going to [Morse’s] family and half going to [Cross’s] family.

CP at 255.

       Herard filed a motion to strike Pickle’s declaration on the ground that the declaration was

inadmissible under RCW 5.60.030, the “deadman’s statute.” The trial court granted the motion

to strike specific paragraphs that contained purported statements of Cross and Morse, ruling that

such statements were inadmissible under RCW 5.60.030 and also as hearsay.

       The trial court then granted summary judgment in favor of Herard and dismissed

Portmann’s TEDRA petition. The court subsequently awarded reasonable attorney fees to

Herard.

       Portmann appeals the trial court’s order granting summary judgment.

                                           ANALYSIS

       This case involves a narrow issue: whether Cross and Morse entered into an oral

agreement to execute mutual wills that became irrevocable when one of them died. If they did,

Cross could not change his 1998 will after Morse’s death. If they did not, Cross was free to

change his 1998 will. Because the trial court granted summary judgment in favor of Herard, the

question on appeal is whether there was sufficient evidence to create a genuine issue of material

fact regarding the existence of an agreement to execute mutual wills. We hold that the evidence

did not show a genuine issue of material fact.



                                                 5
No. 49563-5-II


A.      STANDARD OF REVIEW

        We review a trial court’s order granting summary judgment de novo. Zonnebloem, LLC

v. Blue Bay Holdings, LLC, 200 Wn. App. 178, 182, 401 P.3d 468 (2017). We view the

evidence in the light most favorable to the nonmoving party and draw all reasonable inferences

in that party’s favor. Id. Summary judgment is appropriate where there is “no genuine issue as

to any material fact” and “the moving party is entitled to a judgment as a matter of law.” CR

56(c). A genuine issue of material fact exists if the evidence is sufficient for a reasonable jury to

find in favor of the nonmoving party. Zonnebloem, 200 Wn. App. at 182-83. A factual issue

may be determined on summary judgment if reasonable minds can reach only one conclusion on

that issue. Id. at 183.

        If a moving defendant shows the absence of any evidence supporting the plaintiff’s claim,

the burden shifts to the plaintiff to show a genuine issue of material fact. Id. To meet this

burden, the plaintiff must present specific facts that demonstrate an issue of fact. Id. A

nonmoving party cannot rely on conclusory statements or conjecture. Elcon Constr., Inc. v. E.

Wash. Univ., 174 Wn.2d 157, 169, 273 P.3d 965 (2012).

B.      EXISTENCE OF AGREEMENT TO EXECUTE MUTUAL WILLS

        Portmann argues that the trial court erred in granting summary judgment to Herard

because Pickle’s declaration and all the surrounding circumstances established a genuine issue of

material fact as to whether Cross and Morse had an oral agreement to execute mutual wills.

        We hold that the trial court properly excluded as hearsay the material portion of Pickle’s

declaration. And we hold that although the evidence may have shown that Cross had a present

intention and plan to devise half of his remaining estate to Morse’s family members when he




                                                  6
No. 49563-5-II


executed his 1998 will, the evidence did not create a question of fact as to whether Cross and

Morse had an actual agreement to execute mutual wills. Therefore, we affirm the trial court.

       1.   Legal Principles

       Mutual wills are two wills that are “executed pursuant to an agreement between two

individuals as to the manner of the ultimate disposition of their property after both are deceased.”

Newell v. Ayers, 23 Wn. App. 767, 769, 598 P.2d 3 (1979). Mutual wills are created when “two

parties make an agreement as to the manner of the disposition of their property after both are

deceased and to make mutual wills to carry such agreement into effect.” In re Estate of

Richardson, 11 Wn. App. 758, 760, 525 P.2d 816 (1974) (footnote omitted).

       The legal effect of mutual wills is that when one of the individuals dies and the survivor

accepts the benefits conferred by the deceased’s will, the survivor is bound to dispose of his or

her property as previously agreed. Newell, 23 Wn. App. at 769. In other words, upon the death

of the testator of one mutual will, the agreed distribution in the second mutual will becomes

irrevocable.3 See Prince v. Prince, 64 Wash. 552, 557-58, 117 P. 255 (1911). And “[w]hen such

contracts exist they impose fixed obligations which will be specifically enforced.” Richardson,

11 Wn. App. at 760-61.

       By contrast, “reciprocal wills” are two wills that are similar or identical but are executed

“with no intention that the wills shall be mutual in the sense that neither will can be revoked.”

Auger v. Shideler, 23 Wn.2d 505, 509, 161 P.2d 200 (1945). “[R]eciprocal wills, although

executed simultaneously, do not in themselves constitute evidence of a contract to execute




3
  While both parties are alive, the agreed distribution can be revoked under certain
circumstances. See Allen v. Dillard, 15 Wn.2d 35, 51, 129 P.2d 813 (1942).



                                                 7
No. 49563-5-II


[mutual] wills and keep them in effect.” Dahlgren v. Blomeen, 49 Wn.2d 47, 50, 298 P.2d 479

(1956).

          An agreement to execute mutual wills can be expressed in the wills themselves. Newell,

23 Wn. App. at 770; Richardson, 11 Wn. App. at 761. Such an agreement also can be oral.

Arnold v. Beckman, 74 Wn.2d 836, 839-40, 447 P.2d 184 (1968); see also Cook v. Cook, 80

Wn.2d 642, 644, 497 P.2d 584 (1972) (stating that an agreement to devise can be oral). Whether

the parties entered into an agreement to execute mutual wills generally is a question of fact.

Newell, 23 Wn. App. at 769.

          However, oral agreements to devise “are not favored, are regarded with suspicion, and

will be enforced only upon the strongest evidence.” Cook, 80 Wn.2d at 644. As a result, the

Supreme Court has stated that to avoid summary judgment, a party claiming the existence of an

agreement to devise must present “substantial evidence objectively manifesting that the decedent

recognized the agreement as existing during his lifetime.” Id. at 646. In addition, the court

adopted a “high probability” standard of proof at trial – the evidence must establish to a high

probability that the claimed agreement existed. Id.

          The “high probability” standard applies to the existence of an oral agreement to execute

mutual wills. Newell, 23 Wn. App. at 769. This standard is the same as the more familiar “clear,

cogent, and convincing evidence” standard. In re Welfare of Sego, 82 Wn.2d 736, 739, 513 P.2d

831 (1973).

          Where a party is required to prove a fact by clear, cogent, and convincing evidence, we

incorporate that standard of proof in our assessment of the evidence on summary judgment.

Kitsap Bank v. Denley, 177 Wn. App. 559, 569, 312 P.3d 711 (2013). To avoid summary

judgment, the nonmoving party must present sufficient evidence to establish with “high




                                                  8
No. 49563-5-II


probability” the fact at issue. Id. at 569-70; see also In re Estate of Reilly, 78 Wn.2d 623, 640,

479 P.2d 1 (1970) (stating that “[e]vidence which is ‘substantial’ to support a preponderance

may not be sufficient to support the clear, cogent, and convincing” standard).

       2.    Admissibility of Pickle Declaration

       Initially, Portmann argues that the trial court erred in striking portions of Pickle’s

declaration. We hold that to the extent it was offered to establish the existence of an agreement

to execute mutual wills, Pickle’s statement that Cross and Morse told him that they had agreed to

bequeath half of the survivor’s remainder estate to the other’s family members was inadmissible

hearsay.4

       Evidence offered in opposition to a summary judgment motion must be admissible.

SentinelC3, Inc. v. Hunt, 181 Wn.2d 127, 141, 331 P.3d 40 (2014). Ordinarily, evidentiary

rulings are reviewed for an abuse of discretion. Mutual of Enumclaw Ins. Co. v. Gregg Roofing,

Inc., 178 Wn. App. 702, 728, 315 P.3d 1143 (2013). But we review de novo a trial court’s

evidentiary rulings made in conjunction with a summary judgment motion. Parks v. Fink, 173

Wn. App. 366, 375, 293 P.3d 1275 (2013).

       Hearsay is defined in ER 801(c) as “a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove the truth of the matter



4
  However, the trial court did err in striking portions of Pickle’s declaration under RCW
5.60.030, the deadman’s statute. RCW 5.60.030 bars the testimony of a “party in interest” –
someone who stands to gain or lose in the pending litigation. In re Estate of Miller, 134 Wn.
App. 885, 893, 143 P.3d 315 (2006). Pickle’s wife was a party in interest because she was a
successor to Warter, a devisee in Cross’s 1998 will. But RCW 5.60.030 would not preclude
Pickle from testifying regarding an interest that would be his wife’s separate property. Diel v.
Beekman, 7 Wn. App. 139, 152-53, 499 P.2d 37 (1972), overruled on other grounds by Chaplin
v. Sanders, 100 Wn.2d 853, 676 P.2d 431 (1984). Under RCW 26.16.010, any property devised
to one spouse constitutes separate property. Nevertheless, this error is harmless because the trial
court properly excluded the one material portion of Pickle’s declaration as hearsay.



                                                   9
No. 49563-5-II


asserted.” ER 802 states that hearsay is inadmissible unless a specific exception allows it. In

paragraph 8 of his declaration, Pickle stated:

       In subsequent conversations, [Cross] and [Morse] emphasized to Sherrie and me
       the fundamental feature of their agreement in their plan: half of the survivor’s estate
       going to the other’s family members. Both men told us that this was their
       agreement.

CP at 254. This statement clearly was hearsay if Portmann offered it to prove the truth of the

matter that Portmann claims Pickle asserted – that Cross and Morse had an agreement to execute

mutual wills. As a result, the statement was inadmissible under ER 802 unless a specific

exception applies.5

       Portmann argues that Pickle’s declaration was admissible under the exception for state of

mind or intent in ER 803(a)(3). ER 803(a)(3) provides an exception for

       [a] statement of the declarant’s then existing state of mind, emotion, sensation, or
       physical condition (such as intent, plan, motive, design, mental feeling, pain, and
       bodily health), but not including a statement of memory or belief to prove the fact
       remembered or believed unless it relates to the execution, revocation, identification,
       or terms of declarant’s will.

(Emphasis added.)6

       To the extent that Pickle’s statement reflects Cross’s and Morse’s state of mind – their

existing intent and plan that if one predeceased the other, half of the survivor’s remainder estate

would be bequeathed to the other’s family members – ER 803(a)(3) applies. But whether Cross



5
  Other hearsay statements in Pickle’s declaration included Cross and Morse telling Pickle that
Herard had questioned Cross about his will , that they were upset by Herard’s probing , and that
they wanted nobody to frustrate their estate plans. We do not address the admissibility of these
statements because they were not material to whether Cross and Morse had an oral agreement to
execute mutual wills.
6
  The clause that expressly addresses certain issues regarding a will is inapplicable here because
the “execution, revocation, identification, or terms” of Cross’s will are not at issue. The issue is
the existence of an oral agreement to execute mutual wills.



                                                 10
No. 49563-5-II


and Morse intended to enter into an agreement is not the issue here. Portmann was required to

produce evidence that they actually entered into an agreement to execute mutual wills.

Therefore, if Pickle’s statement was admissible under ER 803(a)(3) it would not be sufficient to

create a genuine issue of material fact.

        The material issue here is whether Cross and Morse actually entered into an agreement to

execute mutual wills. ER 803(a)(3) does not apply to Pickle’s statement that Cross and Morse

told him that they had an agreement to distribute their estates if offered to prove the existence of

such an agreement. The existence of an agreement does not involve Cross’s or Morse’s existing

state of mind, intent, or plan.

        Accordingly, we hold that although paragraph 8 of Pickle’s declaration may have been

admissible under ER 803(a)(3) to show Cross’s and Morse’s intent, that paragraph was

inadmissible hearsay regarding the existence of an agreement to execute mutual wills.

        3.   Mutual Will Analysis

        Portmann argues that several pieces of evidence created a genuine issue of fact

precluding summary judgment. But particularly under the high probability standard, this

evidence does not create a genuine issue of fact on the only material issue – whether Cross and

Morse actually had an agreement to execute irrevocable mutual wills that would distribute half of

the survivor’s residual estate to the other’s family members.

        First, Portmann argues that Pickle’s declaration establishes that Cross and Morse had an

agreement to execute mutual wills. As stated above, we hold that Pickle’s statement that Cross

and Morse told him that they had an agreement regarding the distribution of their estates is

inadmissible hearsay to the extent offered to prove the existence of a prior agreement to execute

mutual wills. And although Pickle’s statements may be admissible to show Cross’s and Morse’s




                                                 11
No. 49563-5-II


intent, an intent to devise their estates in a certain manner is not sufficient to create a genuine

issue of fact that they actually entered into an agreement to execute mutual wills.

       In any event, Pickle’s statement regarding an “agreement” provided evidence only that

Cross and Morse had an agreement to distribute their estates, not that they had an agreement to

execute irrevocable mutual wills.

       The other statements Pickle recounts are not material to this issue. Pickle’s claim that “it

has always been clear in my mind” that Cross and Morse had a plan to have the survivor

distribute half of the remainder of his estate to the other’s family members, does not create a

genuine issue of material fact. CP at 255. What Pickle believed is not relevant to whether Cross

and Morse actually had an agreement to execute mutual wills.

       Second, Portmann argues that the similarity between Cross’s will and Morse’s will

supported a reasonable inference that they were mutual wills. However, although similar wills

could be mutual wills, they also could be nonbinding reciprocal wills. See Dahlgren, 49 Wn.2d

at 50; Auger, 23 Wn.2d at 509. The difference between the two kinds of wills is that mutual

wills require the existence of an agreement as to the manner of the disposition of their property

after both are deceased. Newell, 23 Wn. App. at 769. The existence of such an agreement

cannot be inferred solely from the similarity of the wills. Dahlgren, 49 Wn.2d at 50 (stating that

“reciprocal wills, although executed simultaneously, do not in themselves constitute evidence of

a contract to execute such wills and keep them in effect.”).

       Third, Portmann argues that the fact that both 1998 wills contained separate provisions

that would be invoked only if the other died first showed that Cross and Morse intended their

wills to be mutual. He claims that if the parties had not agreed to mutual wills, these provisions

would be superfluous. But these provisions show only the intent of both Cross and Morse in




                                                  12
No. 49563-5-II


1998 that half of the survivor’s residual estate would be distributed to the other’s family

members. They do not show whether Cross and Morse had entered into an agreement to execute

mutual wills to implement that intent. See Cook, 80 Wn.2d at 648 (stating that the testator’s

statements were “just as readily explained as an expression of his then intentions, rather than as a

recognition of an existing agreement”).

       Fourth, Portmann argues that the existence of an agreement to execute mutual wills was

supported by the growing relationship between Cross and Morse, the increasing interaction with

each other’s families, and the trend of their 1992, 1995, and 1998 wills. These circumstances

might reflect the intent of Cross and Morse in 1998 that half of the survivor’s residual estate

would be distributed to the other’s family members. But they do not show whether Cross and

Morse had entered into an agreement to execute mutual wills.

       Fifth, Portmann argues that the fact that Cross and Morse had started owning property as

joint tenants with right of survivorship rather than tenants in common created an inference that

this new ownership structure was partial consideration for an agreement to execute mutual wills.

Although this development technically could constitute consideration for an agreement, it does

not show whether Cross and Morse in fact entered into an agreement to execute mutual wills.

       Sixth, Portmann argues that the fact that Cross left some money to Morse’s family

members in his 2002 and 2005 wills before leaving them out of his 2010 wills shows that Cross

recognized some legal obligation to Morse. But this argument is nothing more than speculation.

At most, the provisions of Cross’s 2002 and 2005 wills showed his intent at that time to

distribute some of his estate to Morse’s family members.

       None of Portmann’s evidence creates a genuine issue of fact that Cross and Morse had an

agreement to execute mutual wills that would distribute half of the survivor’s residual estate to




                                                 13
No. 49563-5-II


the other’s family members under a preponderance of the evidence standard, much less under the

highly probable standard. The evidence shows only that both Cross and Morse had the intent in

1998 to provide for such a distribution.

       Further, other strong evidence shows that Cross and Morse did not have an agreement to

execute mutual wills. Their wills did not include any provisions stating that they were mutual

wills or that they were irrevocable upon the first death. The wills were not executed at the same

time; Morse declined to sign a revised will when Cross did sign a revised will and Morse finally

signed a different will nine months later. And Masters emphasized that if Cross and Morse had

told him that they wanted a mutual will, he would have included language to that effect in the

wills and would not have agreed to draft revised wills for Cross after Morse’s death.

       Portmann submitted evidence showing that Cross and Morse may have had an intent in

1998 that the survivor would leave half of his residual estate to the other’s family members. But

Portmann’s evidence did not create a genuine issue of fact under the high probability standard

that Cross and Morse actually entered into an agreement to execute mutual wills to implement

that intent. Accordingly, we hold that the trial court did not err in granting summary judgment in

favor of Herard.7

C.     ATTORNEY FEES ON APPEAL

       Herard requests that we award reasonable attorney fees to her on appeal. RCW

11.96A.150(1) states that an appellate court, in its discretion, may award attorney fees to any

party “in such amount and in such manner as the court determines to be equitable” based on “any




7
 Portmann also requests that we vacate the trial court’s award of attorney fees to Herard. But he
does not claim that the trial court erred in awarding attorney fees if summary judgment was
proper. Therefore, we need not address this issue.



                                                14
No. 49563-5-II


and all factors that it deems to be relevant and appropriate.” This statute gives an appellate court

broad discretion regarding the award of attorney fees in relation to the resolution of trust and

estate disputes. In re Estate of Mower, 193 Wn. App. 706, 727, 374 P.3d 180, review denied,

186 Wn.2d 1031 (2016).

       Portmann challenged a facially valid will based on an allegation that Cross and Morse

agreed to execute mutual wills even though oral agreements to devise “are not favored, are

regarded with suspicion, and will be enforced only upon the strongest evidence.” Cook, 80

Wn.2d at 644. Portmann presented no such evidence. Accordingly, we exercise our discretion

and award attorney fees on appeal to Herard.

                                          CONCLUSION

       We affirm the trial court’s order granting summary judgment in favor of Herard. In

addition, we award attorney fees on appeal to Herard under RCW 11.96A.150.



                                                      MAXA, A.C.J.



 We concur:



JOHANSON, J.




SUTTON, J.




                                                 15
