### 2015 JUN -8 An 9=50

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON In the Matter ofthe Estate of VERNON D. HANNAH, Deceased. T. BERNELL HANNAH, surviving spouse, Appellant,

CHRISTINE CHAN, Personal Representative ofthe Estate of VERNON D. HANNAH,

### Respondent. No. 72307-3-1 DIVISION ONE

UNPUBLISHED OPINION

FILED: June 8, 2015 Schindler, J. —Vernon D. Hannah and T. Bernell Hannah were married for 

### nearly 30 years. Vernon died on November 5, 2012.1 The court admitted hiswill to probate and appointed a personal representative. Bernell appeals dismissal of her petition for an award in lieu ofhomestead. Because the undisputed record establishes 

### that Bernell timelyfiled the petition for an award in lieu ofhomestead and served the 

### personal representative of the estate but, at the direction of the San Juan CountyClerk, filed the petitionunderthe probate cause of action, and there is no showing of prejudice, we reverse. We refer to Vernon D. Hannah and T. Bernell Hannah by their first names for clarity.No. 72307-3-1/2

FACTS The material facts are not indispute. Vernon and Bernell Hannah married in 1983. In2002, Vernon executed a "TrustAgreement" creating the "Vernon D. Hannah Trust." The TrustAgreement appoints Vernon as "sole Trustee" but states that if he "is at any time unable or unwilling to act, then Trustor appoints CHRISTINE M. CHAN as sole Trustee hereunder." The TrustAgreement provided that upon Vernon's death, the Trustee "shall distribute all trust income" to Bernell "at least annually" and distribute to her "so much ofthe principal ofthe Trust, ifany, as Trustee shall deem reasonably required for her maintenance and support, in health and reasonable comfort, but first taking into account all other income and assets available to her." The TrustAgreement also designated a parcel of real property to be "distributed to the San Juan Preservation Trust." The TrustAgreement stated the "remainder ofthe Trust Corpus
... shall continue to be held in trust for the remainder ofthe lifetime ofTrustor's spouse, T. BERNELL HANNAH." 

### In2005, Vernon amended the TrustAgreement and executed his "LastWill and Testament." The amended Trust Agreement provides that "[d]uring her lifetime, the Trustor's spouse, T. Bernell Hannah, shall be entitled to continue to reside atthe 

### residence owned by the Trust. . . without payment of rent, foras long as she wishes to do so." The will appoints Christine Chan as the personal representative ofthe estate 

### and designates Chan and her spouse as the remainderbeneficiaries.2

2Vernon appointed his "goodfriend, PETERCHAN, as myalternate Personal Representative" in the event Christine Chan is "unable or unwilling to act."No. 72307-3-1/3 Vernon died on November 5, 2012. The personal representative commenced a 

### probate action and filedthe Last Will and Testament; San Juan County Superior Court Cause Number 12-4-05075-7. The court authorized Chan to "administer the estate without the further intervention ofthe Court." On March 14, 2014, Bernell's attorney notified the personal representative ofthe
estate ofthe intent "to seek an Award in Lieu of Homestead and an Increase ofthe same." The e-mail states, in pertinent part: While [Bernell] is more than willing to resolve this matter informally, we are preparing a Petition for an Order ofAward in Lieu of Homestead and Petition for an Order Increasing the Award in Lieu of Homestead and Declaration in Supportthat we will be filing with the Court shortly; they must be filed by May 5, 2014 to preserve our client's rights inthat regard. In response, the attorney for the personal representative stated that Chan was "preparing a settlement proposal" and asked the attorney to "postpone preparation of your Petition until you and your client have had an opportunity to review and discuss our proposal." On April 11, Bernell filed a "Petition for an Order Increasing the Award in Lieu of Homestead and Declaration in Support (Pursuant to RCW 11.54.040(4)(a))" in the probate proceeding; San Juan County Superior Court Cause Number 12-4-05075-7. On April 30, Chan's attorney sent a letter informing Bernell's attorney that "[t]he petition can be brought before the court as part of a regular civil action or a proceeding 

### underthe [Trust and Estate Dispute Resolution Act (TEDRA)] statute
- 11.96A.010 et seq., but not under the existing probate case." The letter also states that Chan's 

### attorney is "not authorized to accept service on Christine Chan as personal representative or as trustee."No. 72307-3-1/4 

### On May 5, Bernell's attorney called the San Juan County Superior Court Clerk to ask "whether a new filing would be required" to comply with TEDRA. The Court Clerk told the attorney that "no fee would be required" and that the petition should be filed underthe existing probate cause number. On May 5, the attorney filed a "Petition for Award in Lieu of Homestead and Declaration in Support- TEDRA" and a "Petition for
an Order Increasing the Award in Lieu ofHomestead and Declaration in SupportTEDRA" under RCW 11.54.010 and RCW 11.96A.010. The Clerk filed the petitions underthe existing probate cause number. Bernell personally served Chan with a
summons and the TEDRA petitions that same day, May 5. 

### The petition states Vernon died on November 5, 2012 and the petition was filed within 18 months ofthe date ofdecedent's death. In her declaration, Bernell states that 

### "since my husband's death on November 5, 2012 and through March 2014,1 have 

### received a total ofjust $13,500.00 in direct distributions." Bernell states she wants to "remain in my home" and be able to pay the cost of"in-home care" and requests an order increasing the award in lieu of homestead. 

### On May 6, Chan's attorney called the San Juan County Superior Court Clerk and "suggested the petitions had to be filed in a newfile." On May 7, the Clerk learned TEDRA had been amended in 2013 and called Bernell's attorney "to advise that a 

### separate ca[u]se numberwould be assigned and that a filing fee would be needed." Bernell's attorney delivered the filing fee "immediately" that day. The Clerk's Office crossed out the May 5filing stamp, crossed out the probate cause number, added a May 7 filing stamp, and added new cause number 14-4-05030-3.No. 72307-3-1/5 On May 21, Chan filed a motion to dismiss the petitions. Chan argued the petitions were barred by the 18-month statute oflimitations under RCW 11.54.010 because Bernell did not file the petitions as a new action under TEDRA until May 7. The court dismissed the petitions with prejudice. The courtfound that when Bernell filed the petitions underthe probate cause number on May 5, she was "acting at the direction ofthe Court Clerk." The courtfound that two days later on May 7, "the Court Clerk contacted Petitionerto explain that she had been misadvised, and 

### requested payment of a newfiling fee." The court concluded the petitions had to be filed "as a new action" under TEDRA on May 5 "within eighteen months ofthe date of
decedent's death." ANALYSIS Bernell contends that under RCW 4.16.170 and CR 3, the service of process on 

### May 5, 2014 tolled the statutory requirementto file a petitionwithin 18 months of Vernon's death. We disagree. 

### We reviewquestions ofstatutory construction de novo. In re Estate of Haviland, 177 Wn.2d 68, 75, 301 P.3d 31 (2013); In re Estate ofStover. 178 Wn. App. 550, 556, 

### 315 P.3d 579 (2013). When interpreting a statutory provision, our primary objective is to ascertain the intent of the legislature. Haviland. 177Wn.2d at 75-76; Stover. 178Wn. 

### App. at 556. We must give effect to the plain language of a statute as an expression of legislative intentifit is subject to only one reasonable interpretation. Haviland, 177 Wn.2d at 75-76; Stover. 178 Wn. App. at 556. We discern the plain meaning of a 

### statutoryprovision based on the meaning of the language, the context of the statute inNo. 72307-3-1/6 

### which that provision is found, related provisions, and the statutory scheme as a whole. Stover, 178 Wn. App. at 556. 

### Under RCW 11.54.010(1), a surviving spouse "may petition the court for an 

### awardfrom the property of the decedent."3 Apetition for an award in lieu ofhomestead must be filed within 18 months ofthe decedent's death. RCW 11.54.010(3)(a). RCW 11.54.010(3) states, in pertinent part: 

### The court may not make this award unless the petition forthe award is filed before the earliest of: 

### (a) Eighteen monthsfrom the date of the decedent's death ifwithin twelve months ofthe decedent's death either: 

### (i) Apersonal representative has been appointed; or 

### (ii) A noticeagent has filed a declaration and oath as requiredin RCW 11.42.010(3)(a)(ii). 

### In 2013, the legislatureamended RCW 11.96A.090to require that under the 

### Trust and Estate Dispute Resolution Act (TEDRA), chapter 11.96A RCW, a proceeding "must be commenced as a new action." Laws of 2013, ch. 246, § 2; RCW 

### 11.96A.090(2). "Unless rules ofcourtrequire" otherwise, aTEDRA action "isto be commenced byfiling a petition with the court." RCW 11.96A. 100(1). 

### In general, acivil action may be"commenced" eitherbyfiling orby service of process, "whicheveroccursfirst." RCW4.16.170; CR 3. Butajudicial proceeding 

### involving atrustor an estate underTitle 11 RCW is a "special proceeding" that "controls] overanyinconsistentprovision ofthecivil rules." RCW 11.96A.090(1). Therefore, the statutory requirementthat aTEDRA action must becommenced "by 

## filing" controls. RCW 11.96A.100(1); seealso RCW 11.96A.090(4) ("The procedural
3The "basicaward" is$125,000. RCW 11.54.020; RCW6.13.030(2). The basic award of 

### $125,000 "maybeincreased" ifthecourtfinds thatthe surviving spouse's "presentand reasonably 

### anticipatedfuture needs
. . .with respectto basicmaintenanceand supportwill nototherwisebeprovided forfrom otherresources, and thattheaward would notbeinconsistentwith thedecedent's intentions." RCW 11.54.020, .040(1).No. 72307-3-1/7 

### rules of courtapplytojudicial proceedings under thistitle only to the extent that they are consistentwith this title."). Bernell's reliance on In re Estate of Kordon. 157 Wn.2d 206, 

### 137 P.3d 16 (2006), is misplaced. The language of the will contests statute the Supreme Court addressed in Kordon is inapposite. See Kordon. 157 Wn.2d at 213 (interpreting former RCW 11.24.010 (1994)). 

### Underthe plain language of TEDRA and RCW 11.54.010(3), Bernell was required to "commence[ ]. . . a new action" by "filing a petition with the court" within 18 months ofVernon's death. RCW 11.96A.090(2),
.100(1). The court did not err in concluding that timely service ofprocess on the personal representative did not tollthe statutory filing requirement. Because Bernell did not pay a filingfee and commence a new action under TEDRA until May 7, Chan contends the court did not err in dismissing the petitions. As
a general rule, an action "is not filed . . . until the filingfee is paid." Margetan v. Superior Chair Craft Co.. 92 Wn. App. 240, 246-47, 963 P.2d 907 (1998). But that rule does not apply when the Court Clerk "[mjistakenly" accepts and files a petition withoutthe required fee. Margetan. 92 Wn. App. at 246-47. Here, as in In re Estate ofCrane. 15 Wn. App. 161, 548 P.2d 585 (1976), the 

### "county clerk accepted and filedthe petition underthe probate cause number" without requiring payment of a new filing fee. Crane. 15 Wn. App. at 161-62. We held the 

### "clerk's oversight infailing to collect [the] fee did not deprive the court of jurisdiction" because the statutes did not "expressly refer[ ] to payment ofthe fee as a jurisdictional requirement." Crane 15 Wn. App. at 164-65.No. 72307-3-1/8 

### Likewise, in McWhorter v. Bush. 7 Wn. Add. 831, 832, 502 P.2d 1224(1972), plaintiffs filed creditor's claims "inthe existing probate" action but "should have filed separate civil actions and paid the required filing fees." We held that "any error resulting from this failure to file separate actions was harmless" because the defendant was not prejudiced. McWhorter. 7 Wn. App. at 833. We concluded that because the plaintiffs filed their claims inthe probate action within the limitations period, the defendant "received proper notice thereof and his "substantial rights, therefore, have been completely protected." McWhorter, 7 Wn. App. at 832-33. Here, the undisputed record establishes that the Clerk mistakenly accepted and filed the petition for an award in lieu of homestead and the petition for an order increasing the award underthe probate cause number. On May 5, 2014, Bernell's attorney called the Clerk's Office and asked "whether a new filingwould be required since it would be filed as a TEDRA." The Clerk "checked in the RCWs" and called the 

### attorney back to "advise that no fee would be required and that the petitions would be filed inthe same ca[u]se number as the probate." Bernell's attorney filedthe petitions laterthat day under the existing probate cause number. On May 7, the Clerk realized that "TEDRAs had to be a new file, with a filing fee," and "immediately" called Bernell's 

### attorney "toadvise that a separate ca[u]se numberwould be assigned and that a filing fee would be needed." The Clerk told the attorney that "itwas my error and that Iwould place a notation inthe file so as to avoid any issue whetherthe petitions had been timely filed, and Idid so." 

### Below and on appeal, Chan does not assert any prejudice from Bernell's failure 

### tofile the petitions under a new cause number on May 5, nor can she. The undisputed

8No. 72307-3-1/9 

### record does not support prejudice. There is no dispute that Bernell served Chan with the summons and petitions on May 5. The unchallenged findings state the petitions 

### Chan received on May 5 "specificallyreferenced the Trust &Estate Dispute Resolution Act (TEDRA')." The court concluded there was no prejudice but ruled that it did not have authority to "consider notions ofinjustice, inconvenience, hardship or equity." We disagree. The purpose ofan award in lieu of homestead is to protect and provide for the decedent's surviving spouse "as a measure offairness." In re Estate of Garwood, 109 Wn. App. 811, 813-14, 38 P.3d 362 (2002). "The law favors awards in lieu of homestead as a matter of right" ifthe statutory requirements governing the award are met. Garwood. 109 Wn. App. at 814. Under RCW 11.96A.080(2), TEDRA "shall not supersede, but shall supplement, any otherwise applicable provisions and procedures." If"inany case or under any 

### circumstance" a TEDRA provision is "inapplicable, insufficient, or doubtful," the court has "full power and authority to proceed with such administration and settlement in any


### manner and way thatto the court seems right and proper." RCW 11.96A.020(2). 

### We reverse the order dismissing the petitionswith prejudice and remand.4 

# S^&;^p.g,,

WE CONCUR:

^.
4Wedeny^BerneH's request foran award of attorneyfees on appeal underROW 11.96A.150. 9