## 20l«iHAV-o AH 8=56 INTHE COURTOFAPPEALS OF THE STATE OF WASHINGTON In the Matter ofthe Estate of MICHELLE RENEEWESTER, Deceased. PASTOR ARVIN and BARBARA WESTER, husband and wife, Respondents,

SAMANTHA G. TOWNSON, individually, and as Trustee ofthe 

### Michelle R. WesterLiving Trust, Appellant. NO. 69845-1-1 DIVISION ONE
UNPUBLISHED OPINION

FILED: May 5, 2014 

### Leach, J. —SamanthaTownson appeals atrial courtdecision invalidating
a living trust and a quitclaimdeed conveying the trustor's home to the trust. The 

### trial court found that the trustor-grantor, Michelle Wester, lacked the requisite capacity to sign these documents. Townson challenges many of the trial court's findings of fact and conclusions oflaw. Townson also appeals the trial court's denial of her request for a jurytrial and various evidentiary rulings. Townson contends that as Wester's attorney-in-fact, she had the authority to place property in the trust, even though the trust instrument Wester signed did not identify the property Wester intended to fund the trust. Finally, Townson contends that the trial court should have created a constructive trust.NO. 69845-1-1/2


### Because substantial evidence supports the trialcourt's finding thatWester 

### lacked capacity and thatfinding supports the court's conclusionthat the trust and quitclaim deed were notvalid, we affirm the trial court's decision. Townson has failed topreservethe jurytrial issue forappellate review. Andbecausethe issue of capacity is dispositive, we decline to reach the remaining issues Townson raises. Exercising our discretion under RCW 11.96A.150, we award Arvin and BarbaraWestertheircosts and reasonable attorneyfees on appeal. FACTS 

### In July 2009, decedent Michelle Wester was diagnosed with cancer. At that time, she and Samantha Townson lived together in a committed intimate 

### relationship.1 Townson's twominor children lived with them. Townsonworked
as a receptionist for attorney Keith Bode. Shortly after Wester's diagnosis, a 

### paralegal at Bode's office prepared drafts of a last will and testament and a 

### power ofattorney for Wester. The draft will named Wester's brothersTimothy and Richard as trustee and successor trustee of the testamentary trust, which


### 1 Townson avers that she and Wester lived together in a committed 

### intimate relationship from before 2006 until Wester's death in 2010. Arvin and BarbaraWesterconceded attrialthatthey "don'tdisputethefactthatthere was a 

### relationship thatcould be characterized as committed and intimate in the sense that our court's [sic] have been using it." At the beginning oftrial and in its 

### findings and conclusions, the court dismissed without prejudice Townson's counterclaim alleging a committed and intimate relationship and after trial 

### granted theWesters' motion for reconsideration, striking the words "was in a committed intimate relationshipwith Michelleand" fromfinding of fact 1.2. -2-NO. 69845-1-1/3

was to be for the benefit of Townson's children. The power of attorney named 

### Timothyas attorney-in-fact.2 Westerdid notexecuteeitherofthesedocuments. On January 6, 2010, after learning that her cancer had progressed 

### significantly, Wester met with Bode for the purpose of having him prepare her estate planning documents and a power of attorney. At that time, Wester executed a durable power of attorney naming Townson as her attorney-in-fact. 

### This power of attorney became effective only upon receipt by Townson of a "Certificate of Physician": a written determination ofWester's incompetency or 

### disability made by Wester's primary care physician or "some other qualified person with actual knowledge" of her condition. At the time of her meetingwith Bode, Wester was "emotionally distraught and physically weakened" but competent. 

### OnJanuary 7, 2010, Westerwas hospitalized forsymptoms related to her
cancer. The hospital released her the next day but then readmitted her on 

### January 10, 2010, after Townson observed "a significant and abrupt change in her mental status and signs ofsignificantconfusion." 

### On the morning of January 13, 2010, at Townson's request, one of Wester's "primary, treating physicians," Dr. William Lombard, signed a "Certificate ofPhysician." In the certificate, Dr. Lombard certified that Wester 2 The power of attorney named brothers Richard and Jonathan as alternate attorneys-in-fact. -3-NO. 69845-1-1/4

was "physically and/or mentally disabled or incapacitated inthat she is incapable of managing her own affairs." The signed certificate provided documentation required by the powerofattorneyfor Townson to act as Wester's attorney-in-fact. Later that same day, Bode visited Wester in her hospital room, bringing 

### estate planning documents for her signature. These documents, prepared after theirmeeting on January 6, included a living trust agreement, a quitclaim deed, a last will and testament, and a health-care directive. Wester's brother, Rick Wester, was in the room during Bode's visit, which lasted 45 minutes to an hour. 

### Westersigned the trustagreement and the quitclaim deed, but an urgent medical 

### need interrupted the meeting and forced Bode's departure before Wester signed the other documents. Bode notarized Wester's signature on the trust agreement 

### and quitclaim deed, and the deed was recorded on January 14, 2010. 

### The living trust agreement named Townson as successortrustee and sole beneficiary. The agreement provided for funding the trust with "the separate 

### property ofTrustor itemized on Schedule "A," attached hereto and incorporated herein by this reference." When Bode and Wester met on January 6, 2010, Schedule "A" was blank. On January 13, when Bode broughtthe documents to Wester at the hospital for her signature, Schedule "A" was still blank. About 

### January 15, 2010, Townson prepared and signed as Wester's attorney-in-fact a 

### list of property to be included on Schedule "A" and delivered this to Bode. This
-4-NO. 69845-1-1/5

list included the real property described in the quitclaim deed that Wester signed
on January 13. On January 16, 2010, Westerdied. On July 14, 2010, Arvin and Barbara Wester, Michelle Wester's parents, filed a petition forjudicial reliefunderthe Trustand Estate Dispute Resolution Act (TEDRA), chapter 11.96A RCW, alleging lack of testamentary capacity and undue influence. On July 16, 2012, the trial court entered an order denying Townson's requestfor a jury trial. Trial followed on December 18-20, 2012. The court found that because of her grave condition and heavy medication, Wester lacked the requisite capacity when she signed the trust 

### agreement and deed on January 13, 2010. Because no property was listed on Schedule "A" of the trust agreement when Wester signed it, the court also 

### concluded that the agreement was incomplete and therefore invalid and unenforceable. The court voided the trust and the quitclaim deed. The court dismissed Townson's counterclaim, which alleged a committed intimate relationship, withoutprejudice. The courtfound no undue influence. Townson appeals. STANDARD OF REVIEW Under TEDRA, the trial court has "full and ample power and 

### authority
... to administer and settle
. . . [a]ll matters concerning the estates and assets of incapacitated, missing, and deceased persons, including mattersNO. 69845-1-1/6 

### involving nonprobate assets."3 This court reviews the trial court's findings and conclusions by determining if substantial evidence supports the trial court's 

### findings of fact and ifthose findings supportthe trial court's conclusions oflaw.4 Substantial evidence exists if it is sufficient to persuade a fair-minded, rational 

### person ofthe truth ofthe matter asserted.5 Unchallenged findings of fact are 

### verities on appeal.6 This court reviews conclusions of law de novo7 and a trial court's denial of a motion for reconsideration for abuse of discretion.8 A court abuses its discretion when its decision is manifestly unreasonable orbased upon 

### untenable grounds orreasons.9 ANALYSIS Preliminarily, we address Townson's challenge to the trial court's denial of herrequestfor a jury trial. Townson does notargue orcite authority insupportof hercontention thatthe trial courterred. Because she does not adequately argue 

### this issue, we decline to consider it under RAP 10.3.10 Ifwe addressed this issue, Townson would not prevail on the merits. First, no right to a jury trial 

### 3RCW11.96A.020(1)(a). 4State v. Ross, 106Wn. App. 876, 880, 26 P.3d 298 (2001). 5State v. Lew, 156Wn.2d 709, 733, 132 P.3d 1076 (2006). 6State v. Hill. 123Wn.2d 641, 644, 870 P.2d 313 (1994). 7State v. Acrev. 148Wn.2d 738, 745, 64 P.3d 594 (2003). 8Brinnon Grp. v. Jefferson County, 159Wn. App. 446, 485, 245 P.3d 789 

### (2011) (citing Lillyv. Lynch. 88 Wn. App. 306, 321, 945 P.2d 727 (1997)). 9State ex rel. Carroll v. Junker. 79 Wn.2d 12, 26, 482 P.2d 775 (1971). 

### 10 RAP 10.3(a)(4), (6); see also Kadoranian v. Bellinqham Police Dep't. 119Wn.2d 178, 191, 829 P.2d 1061 (1992). -6-NO. 69845-1-1/7


### exists where the action is one inequity.11 In cases involving equitable and legal issues, "the trial court has been vested with wide discretion to allow a jury on 

### some, none, or all issues."12 This is consistent with the legislative intent expressed inTEDRAthat courts have plenary powerto settle all matters relating to trusts and estates "in any manner and way that to the court seems right and 

### proper."13 Although Townson raises a numberofissues and assigns errorto many of the trial court'sfindings and conclusions, wefind dispositivethe issue ofWester's capacity on January 13, 2010: the date she signed the trust and quitclaim deed. Townson contends thatthe trial courterred indetermining thatWesterlacked the required capacity. 

### Inre EstateofBottqer14 sets out the testfortestamentarycapacity: [A] person is possessed of testamentary capacity ifat the time he assumes to execute a will he has sufficient mind and memory to understand the transaction in which he is then engaged, to comprehend generally the nature and extent ofthe property which constitutes his estate and ofwhich he is contemplating disposition, and to recollectthe objects of his bounty. 

### A person must have the same capacity to create, amend, revoke, or add property to a revocable trust. A court presumes the validity of a document 11 S.P.C.S.. Inc. v. Lockheed Shipbuilding &Constr. Co.. 29Wn. App. 930, 933,631 P.2d 999 (1981). 12 S.P.C.S.. 29 Wn. App. at934. 

### 13RCW11.96A.020(2). 14 14 Wn.2d 676, 685, 129 P.2d 518 (1942). -7-NO. 69845-1-1/8


### "rational on its face," and a challenger must produce clear, cogent, and 

### convincing evidence to overcome this presumption.15 Evidence challenging testamentary capacity may consistoftestimonyfrom medical providers, attesting 

### witnesses, and lay witnesses.16 The Washington Supreme Court has held that courts should give special consideration to the opinion of the attending 

### physician.17 Inthis case, the court heard testimony from Bode, who notarized Wester's signatures on the trust and deed, from lay witnesses including Townson, Wester's parents, and brother Rick, and from attending physician Lombard. Bode did not speakto Lombard, take any notes from his meeting with Wester, or
use any standard protocol to assess Wester's capacity, but testified thatWester "understood the nature and extent of what she was doing" and that signing the documents was "hervoluntary act." Rick testified that Wester's condition was worse on January 13 than the day before: "[Mjost of the time she was sleeping or when she was somewhat


### 15 Bottqer. 14 Wn.2d at 685-86; Inre Estate ofEubank. 50 Wn. App. 611, 617, 749P.2d691 (1988). 

### 16 Eubank. 50 Wn. App. at 618. 17 Eubank. 50 Wn. App. at 618 (citing In re Estate ofReillv. 78 Wn.2d 623, 653, 479 P.2d 1 (1970); Groff v. Dep't of Labor & Indus.. 65 Wn.2d 35, 45, 395 P.2d 633 (1964)). Townson contends that the trial court should have excluded 

### Lombard's testimony on physician-patientprivilege grounds, but the authority she cites does not supportthis contention or address the role that medical testimony has long played intrust and estate disputes. -8-NO. 69845-1-1/9

awake she'd seemed to be quite agitated
.... [Mjostofthe time she didn'ttalk at 

### that point or share anything with us." He was present inWester's room during Bode's visit and testified that Bode spent most ofthe time "trying to rouse her enough to get her to sign papers." Bode did not have Wester read, or read to her, the trust agreement or deed. When asked how Wester reacted to Bode's questions, Rick answered, "She never spoke, never really acknowledged who
was there. Whetheror not she knew itwas him, Ihonestly don'tknow." Lombard testified that the effects of Wester's condition had an "additive effect" that caused cognitive issues and that intravenous morphine and a "significantthough appropriate dose" ofthe antipsychotic drug Haloperidol "would impair one'sjudgment." When asked whether he had an opinion about whether Wester "was capable of understanding legal documents such as a trust orwillor something that affected her legal rights and responsibilities, on January 13, 2010," Lombard replied, "Based on my reading of the progress note and what I said, Idon't know how that could be possible ifsomeone is combative, confused and is sedated with Haloperidol." Though Lombard testified that such delirium 

### "does notoriously fluctuate," he stated that his "recollection and impression" was that "[Wester] had a delirium which was continuous from the time she came in the hospital until she died" and that he "did not ever during this hospital stay personally observe lucidity or clearing ofhercognitive capacity."NO. 69845-1-1/10



### Mere illness or prescription medication is insufficient evidence to prove 

### incapacity.18 But here, the record includes overwhelming evidence ofend-stage
cancerthat affected the brain, significant doses of narcotics and antipsychotics, and testimony that ittook a largely unresponsive Wester at least 45 minutes to sign two documents. Clear, cogent, and convincing evidence supports the trial court's finding thatWesterwas unable atthat time to understand the transaction, comprehend generally the nature and extent of her property, and recollect the 

### objects ofherbounty.19 In turn, thesefindings supportthe court's conclusion that Wester lacked the required mental and physical capacityto execute the trust and quitclaim deed. Townson raises additional issues: the trial court's exclusion of Bode's testimony concerning what Wester told him about her wishes, the court's admission of Lombard's testimony, Townson's authority to fund the trust, and constructive trust. Because we conclude that the trial court correctly found that Wester lacked testamentary capacity and thus thatthe documents she signed on January 13, 2010, are invalid, we need not reach these issues.

18 In re Estate of Mikelson. 41 Wn.2d 97, 99, 247 P.2d 540 (1952); In re Estate of Larsen. 191 Wash. 257, 262, 71 P.2d 47 (1937). 19 See Rennie v. Wash. Trust Co.. 149 Wash. 357, 357-59, 270 P. 1031 (1928). -10-NO. 69845-1-1/11
Attorney Fees 

### Arvin and Barbara Wester request attorney fees on appeal underTEDRA 

### and RAP 18.9(a), arguing that Townson's appeal is frivolous. This court has broad discretion under TEDRA to award attorney fees and costs inany Title 11 

### RCW action.20 Exercising that discretion, we award appellate costs and 

### reasonable attorney fees to Arvin and Barbara Wester, contingent upon their compliancewith RAP 14.4(a) and 18.1(d). CONCLUSION 

### Because substantial evidence supports the trialcourt's finding ofWester's 

### incapacity and thosefindingssupportthe court's conclusions of law and its decision voiding the trust and quitclaim deed, we affirm and award Arvin and BarbaraWestertheircosts and reasonable attorneyfees on appeal. 

# A~^ J,

WE CONCUR: 

# SDz -£<?/>—. CvvJT

20 RCW 11.96A.150; In reWash. Builders Benefit Trust. 173 Wn. App. 34, 

### 84,293 P.3d 1206, reviewdenied. 177 Wn.2d 1018 (2013); In re Guardianship of Matthews. 156 Wn. App. 201, 213, 232 P.3d 1140(2010). -11-