        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 In the Matter of the Estate of David            )           No. 80398-1-I
 Edward Williams, deceased,                      )
                                                 )           DIVISION ONE
 ROBERT JOSEPH WILLIAMS, a                       )
 Washington resident; AMY RENEE                  )           UNPUBLISHED OPINION
 PETRUCCI, a California resident;                )
 WARREN SWANSON, a Washington                    )
 resident; and BEVERLY PAULSEN,                  )
                                                 )
                         Appellants,             )
                                                 )
                 v.                              )
                                                 )
 ANNA SCHEMSTAD, Personal                        )
 Representative of the ESTATE OF                 )
 DAVID EDWARD WILLIAMS,                          )
                                                 )
                         Respondent.             )
                                                 )

       HAZELRIGG, J. — Acting in his capacity as personal representative for his

mother’s estate, David E. Williams executed a personal representative’s deed after

conveyance of the family home to his brother and him by her will. The personal

representative deed included language in the caption that referenced joint tenancy

between the brothers, but their mother’s will conveyed the property to them as

tenants in common. Upon David William’s death, his estate initiated an action

seeking declaratory relief and to quiet title to his interest in the property under the

Trust and Estate Dispute Resolution Act (TEDRA)1. At the initial hearing on the


       1   Ch. 11.96A RCW.


  Citations and pinpoint citations are based on the Westlaw online version of the cited material.
No. 80398-1-I/2


TEDRA petition, the trial court determined that the personal representative’s deed

contained a scrivener’s error and reformed the deed to conform with their mother’s

will. Robert Williams argues the court improperly reformed the deed and that the

TEDRA proceeding should have been dismissed based on insufficient evidence of

the brothers’ intent. We disagree and affirm.


                                                FACTS

       Marie Williams2 died in June 2015 and left the family home to her two sons,

David and Robert, in her will. Specifically, the will provided, “I give, devise and

bequeath all of my property, real, personal and mixed to my children, DAVID

EDWARD WILLIAMS and ROBERT JOSEPH WILLIAMS, share and share alike,

per stirpes.” David Williams was appointed as personal representative of Marie’s

estate. In July 2015, David executed a personal representative’s deed which

stated the following:

       GRANTOR: DAVID E. WlLLIAMS, Personal Representative of the
       ESTATE OF MARIE C. WILLIAMS, deceased, under Whatcom
       County Probate No. 15-4-00322-8,

       GRANTEE(S) DAVID E. WlLLIAMS AND ROBERT J. WILLIAMS as
       joint tenants with right of survivorship
       ....
               THE GRANTOR, DAVID E. WILLIAMS, as the duly appointed
       and acting personal representative of the ESTATE OF MARIE C.
       WlLLIAMS, deceased, Whatcom County Superior Court Cause No.
       15-4-00322-8, and not in Grantor’s individual capacity, hereby grants
       and confirms to DAVID E. WILLIAMS and ROBERT J. WILLIAMS,
       Grantees, distrbutes the real property commonly known as 2705
       Utter Street, Bellingham, Whatcom County, Washington.




       2   For clarity, we refer to the parties by their first names. No disrespect is intended.


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      David died testate on May 13, 2019. Anna Schemstad serves as David’s

appointed personal representative.      David’s will was admitted to probate in

Whatcom County Superior Court. Schemstad, acting in her capacity as personal

representative for David’s estate (the Estate), filed a TEDRA action on behalf of

the Estate seeking declaratory relief. The Estate sought a ruling to determine that,

irrespective of any contrary language in the personal representative deed David

had executed, the property was held by David and Robert as tenants in common.

If, as the Estate asserted, David’s interest was that of a tenant in common, then it

was an asset of the Estate, subject to distribution under his will. As such, the

Estate also sought judgment and an order quieting title in David’s half interest in

the property and reformation of the deed to conform with Marie’s bequest. The

Estate requested that this relief be granted at the initial TEDRA hearing set in

August 2019.

      In support of the TEDRA petition, the Estate argued that Marie had

conveyed the property to Robert and David as tenants in common under her will

and, as such, the conveyance vested in Robert and David immediately upon

Marie’s death.    The Estate explained that since the purpose of the personal

representative’s deed was merely to paper the title which had already vested, any

discrepancy between the deed and will was a mistake subject to reformation.

Additionally, the Estate argued regardless of whether a mistake existed, the deed

was insufficient to create a joint tenancy as a matter of law, therefore David and

Robert’s respective interests remained a tenancy in common.




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       In response, Robert argued that the personal representative’s deed was a

testamentary bequest by David to his brother. Robert attempted to offer testimony

as to conversations he alleged that he had with David about this bequest, which

the trial court refused to consider. Further, Robert asked the court to order the

testimony of the attorney who had helped David prepare the personal

representative’s deed in order to indicate there was no mistake in the deed.

However, the trial court denied this request.

       The trial court concluded that, contrary to the language contained in the

caption to the personal representative’s deed, at the time of David’s death, David

and Robert held the family home as tenants in common and David’s interest in the

property was thereby an asset in his estate. The trial court granted the TEDRA

petition, reforming the deed and quieting title to David’s interest in the property in

favor of the Estate. Robert timely appealed to this court.



                                     ANALYSIS

I.     Reformation of the Personal Representative’s Deed

       Robert first argues that the trial court erred in reforming the personal

representative’s deed. Robert’s primary contention is that the deed was facially

valid, created a joint tenancy, and cannot be reformed absent evidence of intent

from the parties to the deed.

       “[R]eformation is an equitable remedy reviewed for abuse of discretion.”

Glepco, LLC v. Reinstra, 175 Wn. App. 545, 563, 307 P.3d 744 (2013). “A trial




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court abuses its discretion if its decision rests unreasonable or untenable grounds.”

In re Estate of Evans, 181 Wn. App. 436, 451, 326 P.3d 755 (2014).

       In Washington, the default rule is that when two or more people co-own

property, it is held as tenants in common. RCW 64.28.020. A joint tenancy

however, may be created through an express written agreement by the owner or

owners of property. RCW 64.28.010. The statute and case law both reinforce the

need for the “‘four unities of time, title, interest and possession’” to all be present

for a joint tenancy to be established under the law. Id.; In re Domestic P’ship of

Walsh v. Reynolds, 183 Wn. App. 830, 853-54, 335 P.3d 984 (2014) (quoting

Merrick v. Peterson, 25 Wn. App. 248, 258, 606 P.2d 700 (1980)). Further, our

state supreme court has held that a third party cannot create a joint tenancy.

Lambert v. Peoples Nat’l Bank of Wash., 89 Wn.2d 646, 650, 574 P.2d 738 (1978);

In re Estate of Olson, 87 Wn.2d 855, 858-60, 557 P.2d 302 (1976).

       Robert argues that his brother was able to create a valid joint tenancy while

acting as the personal representative of their mother’s estate, despite the fact that

her will did not provide for joint tenancy between her sons. This argument is not

well taken. When Marie died, her will expressly provided the following, “I give,

devise and bequeath all of my property, real, personal and mixed to my children,

DAVID EDWARD WILLIAMS and ROBERT JOSEPH WILLIAMS, share and share

alike, per stirpes.” This language established a tenancy in common between

Robert and David which vested immediately by operation of law upon their mother

Marie’s death. See RCW 11.04.250. Robert does not dispute that Marie’s will

established that Robert and David were tenants in common.




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      Robert argues that his brother’s subsequent execution of the personal

representative’s deed created a valid tenancy in common. We disagree. The

personal representative’s deed was captioned as follows:

      GRANTOR: DAVID E. WlLLIAMS, Personal Representative of the
      ESTATE OF MARIE C. WILLIAMS, deceased, under Whatcom
      County Probate No. 15-4-00322-8,

      GRANTEE(S) DAVID E. WlLLIAMS AND ROBERT J. WILLIAMS as
      joint tenants with right of survivorship[.]

The body of the deed then provided:

             THE GRANTOR, DAVID E. WILLIAMS, as the duly appointed
      and acting personal representative of the ESTATE OF MARIE C.
      WlLLIAMS, deceased, Whatcom County Superior Court Cause No.
      15-4-00322-8, and not in Grantor’s individual capacity, hereby grants
      and confirms to DAVID E. WILLIAMS and ROBERT J. WILLIAMS,
      Grantees, distributes the real property commonly known as 2705
      Utter Street, Bellingham, Whatcom County, Washington.

The personal representative’s deed was merely an instrument to paper the title

that had already legally vested by operation of law. See RCW 11.04.250.

      The trial court has the equitable authority to reform the deed to correct this

scrivener’s error such that the personal representative’s deed conforms with

Marie’s will. See Glepco, 175 Wn. App. at 554-55. “To establish either mutual

mistake or scrivener’s error, it must be shown that the parties to the instrument

possessed the same intentions.” Id. at 561. Here, the inquiry only goes to Marie’s

intentions as expressed in her will, which neither party disputes. See In re Estate

of Frank, 146 Wn. App. 309, 318, 326-27, 189 P.3d 834 (2008). The will clearly

intended to create a tenancy in common.

      “Per stirpes” means “proportionately divided between beneficiaries

according to their deceased ancestor’s share.” Black’s Law Dictionary (11 th ed.



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2019). If a parent bequeaths property to two sons in equal shares and uses the

phrase per stirpes, then each son receives the same share in the bequeathed

property. If one son predeceases the parent, his share passes to his own heirs,

rather than to the surviving son. See Erienbach v. Estate of Thompson, 90 Wn.

App. 846, 851, 954 P.2d 350 (1998).           The will language gave Robert no

survivorship interest in David’s share of the real estate. As such, it was proper for

the trial court to exercise its equitable powers to correct the scrivener’s error to

bring the personal representative’s deed in line with the intentions conveyed by

Marie in her will.

       Further, the personal representative’s deed was insufficient under

Washington law to create a joint tenancy between Robert and David. The primary

defect is that the deed expressly states that David was acting in his capacity as

personal representative of Marie William’s estate, not in his individual capacity.

This discrepancy supports our determination that the trial court properly concluded

that a scrivener’s error occurred preventing the personal representative’s deed

from conforming with Marie’s will and that reformation was appropriate.

       We agree with the respondent that regardless of scrivener’s error, the trial

court could properly quiet title to the property on the alternative basis that the

personal representative’s deed was insufficient to establish a joint tenancy, despite

any discrepancies between Marie’s will and the deed. A third party is legally unable

to establish a joint tenancy. Lambert, 89 Wn.2d at 650. The deed specifically

states “THE GRANTOR, DAVID E. WILLIAMS, as the duly appointed and acting

personal representative of the ESTATE OF MARIE C. WlLLIAMS, deceased,




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Whatcom County Superior Court Cause No. 15-4-00322-8, and not in Grantor’s

individual capacity.” Acting as personal representative for Marie’s estate, David

was in a third party capacity to the title action.

        Additionally, David could not unilaterally create a joint tenancy in either his

individual or personal representative capacity.                  RCW 64.28.010 sets out two

methods by which the brothers could have become joint tenants.                               First, the

brothers could have both conveyed the property to themselves in a separate deed,

subsequent to the personal representative’s deed, as joint tenants with rights of

survivorship. See RCW 64.28.010. Second, Marie’s will could have established

that she was bequeathing the property to the bothers as joint tenants with rights of

survivorship. Id. The record is clear that regardless of scrivener’s error, the

personal representative’s deed was ineffectual under statute to create a joint

tenancy between David and Robert. The trial court did not abuse its discretion in

reforming the deed to conform with Marie’s will.3


II.     Attorney Fees

        The Estate requests an award of attorney fees and costs under RCW

11.96A.150 and RAP 18.1. TEDRA allows appellate courts to exercise discretion

to award costs and reasonable attorneys’ fees to a party to the proceedings. RCW

11.96A.150. The statute allows an award to come from another party to the

proceeding or from the assets of the estate or trust involved in the proceeding. Id.


         3 Robert argues that the trial court erred by not dismissing the TEDRA action because the

Estate failed to demonstrate David’s intent when he executed the deed. Dismissal of the TEDRA
petition was not required under these facts where, contrary to the assertions of appellant,
evidence existed to support the critical party’s intent: the will itself clearly expressed Marie’s intent
that her sons take title as tenants in common. Robert or David’s intent is immaterial.


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We grant the Estate’s request and award attorney fees and costs on appeal,

provided it complies with RAP 18.1.

      Affirmed.




WE CONCUR:




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