IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

In the Matter of the Estate of

MARGARET D. HILL

Deceased.

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No. 37733-4-III

UNPUBLISHED OPINION

STAAB, J. — On July 6, 1963, Margaret and Silvester1 Hill married, blending their 

two families. In 2003, they executed reciprocal wills leaving everything to each other 

with the alternate residual divided equally among their collective five children. After 

Silvester’s death, Margaret revised her will to essentially disinherit her stepson Martin

Hill and reduce the gift to her son Billy Hill. After Margaret’s death, Martin2challenged 

her last will as void, claiming that the reciprocal wills were mutual wills and thereby 

irrevocable. The trial court granted the Estate’s motion for summary judgment, holding 

that Martin’s evidence failed to raise a genuine issue as to whether the spouses intended 

to enter into an agreement to create mutual wills. Martin appeals.

 

1 Silvester’s name has different spellings throughout the record. We adopt the 

spelling used in his marriage certificate.

2 Because several of the family members have the same last name, we refer to 

them using their first name. No disrespect is intended. 

FILED

OCTOBER 28, 2021 

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 37733-4-III

In re Estate of Hill

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We affirm the trial court’s summary judgment in favor of the Estate. Because the 

wills were reciprocal and not mutual, Margaret was free to change the terms of her will at 

any time.

FACTS

Because this case was decided on summary judgment, we consider the following 

facts in a light most favorable to Martin as the non-moving party. Margaret Hill and 

Silvester Hill married in 1963, blending their families from prior marriages to include 

Margaret’s three biological children Debra Delong, Jerry Smith, and Larry Smith, and 

Silvester’s biological son Martin Hill. The couple had one child together, Billy Hill.

In 1974, Margaret and Silvester executed and recorded a standard three-prong 

community property agreement (CPA). The CPA provided that all property of either 

spouse was immediately declared to be community property. Upon the death of either 

spouse, title to all community property would immediately vest in fee simple in the 

surviving spouse. The CPA was recorded with the Okanogan County Auditor. There is 

no evidence that the CPA was explicitly revoked in writing. 

Prior to his marriage to Margaret, Silvester owned three pieces of real property 

deeded in his name alone. Shortly after recording the CPA, Silvester executed and 

recorded deeds adding Margaret’s name to two of these parcels. Title to the third parcel 

remained in Silvester’s name.
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During their marriage, Silvester unilaterally executed and modified his own will at 

least two times, once in 1984 and again in 1993. In 2003, attorney James R. Thomas 

drafted new wills for both Silvester and Margaret. All of Silvester’s prior wills were 

revoked when he executed his final will in 2003. The 2003 wills were identical in 

content, with the only distinction being the named spouse/testator/testatrix. The identical 

wills named each other as primary executor with Jerry Smith, Margaret’s son, the first 

alternative and Billy Hill, the couples’ son, as a second alternative executor. The residue 

of the estate was bequeathed entirely to the surviving spouse. In the event of no 

surviving spouse, the alternate residue disposition provided that the estate would be 

divided equally among the five children, with specific instructions for distribution. The 

2003 wills do not mention or revoke the previously executed community property 

agreement. 

Silvester died on May 26, 2004, after 41 years of marriage to Margaret. Margaret 

did not probate Silvester’s will but instead used his death certificate to transfer the real 

estate into her name. Nearly three years later, in 2007, Margaret executed a new will, 

revoking her 2003 will. The new will named Jerry and Larry co-personal representatives. 

Other than personal property specifically disposed of the 2007 will left Martin $200.00 

and nothing else. Margaret bequeathed Billy $20,000.00 while acknowledging that he 

had already received 27 acres of land from Silvester and herself. She left Debra 

$20,000.00. All remaining real property was split between Jerry and Larry with the 
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condition that the two parcels of land be sold if necessary to make her cash distributions 

to the other children.

After Margaret died in 2019, her 2007 will was admitted into probate and her son, 

Jerry, was appointed estate administrator. Martin filed a petition to contest Margaret’s 

2007 will alleging that the 2007 will was invalid because the 2003 wills were irrevocable 

mutual wills. The estate filed for summary judgment, asserting there was no evidence of 

an agreement to draft mutual wills. 

Martin responded to the motion for summary judgment by submitting extrinsic 

evidence in an attempt to demonstrate that the 2003 wills were mutual wills. Both Martin 

and his half-brother Billy submitted declarations. In his declaration, Martin asserted his 

“understanding” of the contents of the 2003 wills was that when Margaret died the estate 

would be distributed “to all five children.” CP at 110-111. Billy asserted that Silvester 

told him that “the new [2003] wills would vest all property, both Silvester’s separate 

property and his and Margaret’s joint property together and that it would be split between 

the five children.” CP at 123. Billy also claims that Silvester told him that Margaret 

wanted Larry and Jerry to be the executors but that Silvester did not, “so they 

compromised, each choosing one.” Id. Billy indicates that he “understood” that Silvester 

agreed to include his separate property in the 2003 will and that Margaret agreed that 

their community property would be split between all five children. Id. 
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Billy’s declaration also describes his conversation with Silvester shortly before 

Silvester passed away. During this discussion, Billy claims Silvester was distraught and 

said “‘they,’ who [Billy] took to mean Margaret and Larry, had talked [Silvester] into 

‘signing something [he] shouldn’t have signed.’” Clerk’s Papers (CP) at 125. Billy also 

claims that Silvester told him that Silvester intended for all the property to be split 

between the five children and that “he was concerned that after his death this would not 

happen and that he wanted it very clear what his desire was with regards to his and

Margaret’s property.” Id. Billy claims that Silvester told him that “he did not want Larry 

to come into exclusive possession of the ‘fields, house, and waterfront property.’” Id. 

Billy speculates that Silvester “clearly understood that by executing the 2003 Will that 

this would cause his desired benefits to be in place, even if he died before Margaret.” Id.

During the summary judgment hearing, Martin attempted to admit a file note 

allegedly written by Thomas Benner, the drafter of Silvester’s 1993 will. The note 

indicated that Mr. Benner spent considerable time in 1993 advising Silvester of 

community and separate property issues, and noted that Silvester understood the 

concepts. While the note suggests that Benner was aware of Silvester’s real estate

holdings, there is no mention of the community property agreement. The note was 

unsworn and the trial court excluded it as unsworn hearsay. Attorney James Thomas, the 

drafter of the 2003 wills, died in March 2013 and was thus unable to testify regarding the 

intentions of either spousal decedent in 2003.
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The trial court granted summary judgment in favor of the estate. The court noted 

there was no evidence of Margaret’s intent to enter into a contract to create mutual wills. 

The trial court found the 2003 wills were reciprocal and Martin’s evidence failed to meet 

the “high probability” burden of proving an agreement to draft mutual wills.

Martin appeals. 

ANALYSIS

On appeal, Martin raises a somewhat circular argument. He claims that the 2003 

wills were mutual wills that effectively revoked the 1974 community property agreement. 

If the CPA was revoked, Margaret could not take title to real property under the CPA, but 

instead was required to probate Silvester’s estate under the 2003 will. By probating 

Silvester’s estate, Margaret could be said to have accepted the benefits of the mutual will 

and would thereby be precluded from changing her will. 

This circle of logic breaks down however, because there is no evidence that the 

spouses, particularly Margaret, manifested a mutual intent to enter into a contract to 

create mutual wills. While the parties disagree about the admissibility of most of 

Martin’s proposed evidence, we find Martin’s evidence insufficient to overcome his 

burden on summary judgment and therefore do not address the admissibility issue. 

Moreover, because we affirm the trial court’s judgment, holding that the wills were 

reciprocal and not mutual, we do not need to decide whether the parties’ earlier 

community property agreement was rescinded. Whether Margaret obtained title to 
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property by way of the CPA or Silvester’s 2003 will, she was not prohibited from 

changing the testamentary disposition of her own will. 

A. STANDARD OF REVIEW

A trial court’s order granting summary judgment is reviewed de novo. Higgins v. 

Stafford, 123 Wn.2d 160, 168, 866 P.2d 31 (1994). Summary judgment is appropriate if 

the record and all reasonable inferences drawn in favor of the non-moving party 

demonstrate the absence of any genuine issues of material fact, that a reasonable fact 

finder could only reach one conclusion, and the moving party is entitled to judgment as a 

matter of law. CR 56(c); Higgins, 123 Wn.2d at 168-69. If the moving party meets the 

initial burden of showing the absence of an issue of material fact, the burden shifts to the 

non-moving party to make a showing sufficient to establish the elements of their case at 

trial. Kitsap Bank v. Denley, 177 Wn. App. 559, 568-69, 312 P.3d 711 (2013). A 

material fact is one on which the outcome of the litigation depends in whole or in part. 

Id. If the non-moving party fails to provide proof of an essential element of their case, 

then all other facts are rendered immaterial, and the motion should be granted. Id.

B. RECIPROCAL AND MUTUAL WILLS

“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.’” Portmann v. Herard, 2 Wn. App. 2d 452, 461, 409 P.3d 1199 (2018) 

(quoting Newell v. Ayers, 23 Wn. App. 767, 769, 598 P.2d 3 (1979)). “The legal effect of 
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mutual wills is that when one of the individuals dies and the survivor accepts the benefits 

conferred by the deceased’s [mutual] will, the survivor is bound to dispose of his or her 

property as previously agreed.” Id. (citing Newell, 23 Wn. App. at 769). When the 

benefits of a mutual will are accepted, the agreement becomes irrevocable, and the 

second mutual will cannot be changed. Id. These fixed obligations will be specifically 

enforced. In re the Estate of Richardson, 11 Wn. App. 758, 760-61, 525 P.2d 816 (1974). 

“Reciprocal wills” on the other hand, are similar or identical wills without an 

agreement to restrict the other from changing his or her will at a future date. Auger v.

Shideler, 23 Wn.2d 505, 509, 161 P.2d 200 (1945). 

In this case, Martin argues that the 2003 wills signed by Silvester and Margaret 

were mutual wills, not simply reciprocal wills. Whether the parties entered into a 

contract to devise is a question of fact. Newell, 23 Wn. App. at 769-70. An agreement to 

execute mutual wills is usually expressed within the will itself. See Id. at 770. Martin 

acknowledges that the 2003 wills do not provide express provisions for mutual wills. 

This is not necessarily fatal, but proof of an oral contract to devise requires the 

production of “very strong” substantial evidence that manifests the existence of the 

contract to devise to a high probability as fact. Cook v. Cook, 80 Wn.2d 642, 644-47, 497 

P.2d 584 (1972). Oral contracts to devise are not favored despite being occasionally 

recognized in equity. Portmann, 2 Wn. App. 2d at 462. Since Martin’s burden of proof 

at trial is akin to a burden of clear, cogent and convincing evidence, we incorporate this 
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standard on summary judgment. Id. at 462-63. As the non-moving party, Martin must 

present significant evidence to demonstrate a high probability that his claim will prevail 

at trial. Id. He may not rely on speculation or mere conclusory claims that facts are 

contrary. Meyer v. Univ. of Wash., 105 Wn.2d 847, 852, 719 P.2d 98 (1986).

To establish an oral contract to devise, Martin must produce substantial evidence 

to raise an issue of material fact on three elements: (1) mutual intent to create a contract 

to devise and recognition of formation, (2) performance of the contract terms as 

consideration, and (3) reliance on the agreement. Cook, 80 Wn.2d at 645-47 (citing 

Jennings v. D’Hooghe, 25 Wn.2d 702, 706, 172 P.2d 189 (1946)). Conjecture and 

statements of intention alone do not necessarily support the existence of an express 

contract to devise. Id. at 644-45. Additionally, intentions to devise do not necessarily 

support the formation or existence of intentions to contract to devise. Id. at 648. 

In this case, Martin argues there is significant evidence of an oral contract to 

create mutual wills. First, he contends that the provisions of the 2003 wills infer an 

agreement to create mutual wills. He points out that the 2003 wills were identical in most 

respects, drafted by the same attorney and signed on the same date. While these 

circumstances clearly demonstrate reciprocal wills, it does not follow that they evince 

mutual wills. “[R]eciprocal wills, although executed simultaneously, do not in 

themselves constitute evidence of a contract to execute [mutual] wills and keep them in 

effect.” Dahlgren v. Blomeen, 49 Wn.2d 47, 50, 298 P.2d 479 (1956).
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Martin also points to concessions allegedly made by Margaret and Silvester as 

evidence of a specifically negotiated agreement to create mutual wills. He cites Auger in 

support of this argument. In Auger, the attorney who drafted the decedents’ wills 

testified that the decedents were clear on their intent to create mutual wills despite the 

lack of such recitals in the documents. Auger, 23 Wn.2d at 510. Specifically, the 

attorney testified that the wife was adamant that the grandchildren of her deceased son 

receive his proportionate share of inheritance and would not sign the will without this 

provision. In addition, the wills devised life estates to the other spouse contingent upon 

remaining unmarried. Although the wills did not specifically identify an agreement to 

create mutual wills, the attorney’s testimony of their clear intent to do so was sufficient to 

overcome the presumption disfavoring parol evidence of a contract to devise. The court 

found that the mutual promises constituted the consideration for the agreement. 

In this case, Martin argues that concessions made by Silvester and Margaret in 

their 2003 wills provide consideration for an agreement to create mutual wills.3 But 

consideration is irrelevant if there is no evidence of their mutually-manifested intentions 

to create non-revocable wills. See Portmann, 2 Wn. App. 2d at 467 (evidence 

 

3 At the motion on summary judgment, Martin produced a file note from the 

attorney who drafted Silvester’s 1993 will. The note is ambiguous and irrelevant. While 

it indicates that the attorney discussed concepts of separate and community property with 

Silvester, it does not acknowledge the community property agreement. Nor does the note 

have any relevance to Silvester’s intentions ten years later when he drafted a new will. 

Since we find the note unpersuasive, we need not answer the Estate’s hearsay objection. 
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demonstrating consideration for an agreement to execute mutual wills did not 

demonstrate intent to enter into such an agreement). Demonstrating that each spouse 

made concessions is not evidence that Margaret manifested an intent to create mutual 

wills, much less evidence that makes it “highly probable” that such a fact could be proved

at trial. See Kitsap, 177 Wn. App. at 569-70. 

Martin also suggests that if the wills were merely reciprocal, and failed to rescind 

the CPA, then the wills were essentially useless because there would not be a residual 

estate to transfer. However, as pointed out by the Estate, this argument fails to recognize 

the alternate residual bequest clause that would become effective when the second spouse 

died. See Portmann, 2 Wn. App. 2d at 466-67 (alternate residual clauses in reciprocal 

wills were not evidence of testator’s intention to enter into an agreement to execute 

mutual wills). 

Martin also contends that the circumstances surrounding the execution of the 2003 

wills are further evidence of Silvester and Margaret’s intentions to create mutual wills. 

After executing a community property agreement in 1974, Martin points out that 

Silvester retitled two parcels of land as community property while retaining sole title to a 

third parcel. In 1984 and again in 1993, Silvester unilaterally executed wills that 

contradicted the community property agreement by devising this property to his sons. 

The provisions of his 2003 will were significantly different from Silvester’s prior wills, 

and Martin argues that both spouses made concessions on property for their natural-born 
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children so that the total estate would be divided equally among the five children. He 

also points to evidence suggesting that Silvester and Margaret negotiated the executors 

for each will and eventually compromised on the surviving spouse, then Margaret’s son, 

Jerry Smith, and then Billy Hill. Martin contends that Silvester would not have signed 

the 2003 will without the compromise on named executors.4 Silvester allegedly told 

Billy that the 2003 wills would combine all of the property and then divide it equally 

among the five children.

This evidence is insufficient to overcome the presumption of reciprocal wills and 

demonstrate a parol agreement to devise mutual wills. Indeed, even Martin’s evidence 

calls into question Silvester’s understanding and intentions. In his declaration for 

summary judgment, Billy testifies that he heard Silvester expressing doubt on his 

deathbed about being talked into “signing something [he] shouldn’t have signed.” CP at 

125. This statement, if true, suggests that Silvester knew and understood that the wills 

were revocable. Silvester’s statement seems to indicate that Silvester was distressed 

because he did not believe the wills would accomplish his goal. Even assuming that the 

evidence suggests that Silvester intended to create identical wills, it does not demonstrate 

the intention by both spouses to enter into an agreement to devise mutual wills. In other 

 

4 Martin cites a declaration from Billy Hill in support of this claim. While Billy 

Hill’s declaration claims that Silvester discussed the alleged compromise on naming 

executors, there is nothing in the declaration or the record to support the assertion that 

Silvester would not have signed the will without this compromise.
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words, there is no evidence of Margaret’s intentions, and Silvester’s intentions do not 

provide evidence of an agreement between Silvester and Margaret. 

At best, the evidence presented by Martin demonstrates that in 2003 Margaret and 

Silvester intended to create identical wills. The evidence fails to raise a material issue of 

fact, under the heightened standard of review, as to whether there was an agreement to 

create mutual wills. The wills were reciprocal but there is no evidence that they were 

mutual. Thus, Margaret was free to change the terms of her own will at any time. Where 

the wills are merely reciprocal, they do not undermine the community property 

agreement, rendering it unnecessary for this court to address the validity of that 

document.

C. ISSUE 2: ATTORNEY FEES

The Estate requests attorney fees, contending that Martin’s appeal is frivolous. 

Generally, TEDRA5 provision at 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 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 (2016). We 

exercise our discretion and decline to award fees to the estate. 
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Affirmed.

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to 

RCW 2.06.040.

_________________________________

Staab, J.

WE CONCUR:

_________________________________

Fearing, J.

_________________________________

Siddoway, A.C.J.

 

5 Trust and Estate Dispute Resolution Act, ch. 11.96A RCW.