IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON In the Matter ofthe Estate of BERTW. HOOK, I No. 73102-5-1 Deceased. I DIVISION ONE

o JAMES ATKINSON, crv r-fc: 

### ^12 Appellant, -< i «JD >•-" - •-

v. 2*. ) PUBLISHED OPINION 5c ESTATE OF BERTW. HOOK, JERRY CO HOOK, Personal Representative, ) FILED: May 9, 2016 o en 2T< Respondent. Becker, J. — Awill is not "executed" under RCW 11.12.020 untilthe


### occurrence ofthe last formal act necessary to make the will valid. Here, although the testator and one witness signed a will in Arizona, the second witness signed 

### it inWashington. Therefore, the will was executed inWashington, not in Arizona. The will is not valid inWashington because the second witness did not sign in the testator's presence. 

### Atissue is an ordergranting summaryjudgment. To review an order 

### granting summaryjudgment, we engage in the same inquiry as the trial court. We willnot resolve factual issues but rather must determine if a genuine issue 

### exists as to any material fact. All inferences are construed in the light mostNo. 73102-5-1/2
favorable to the nonmoving party. In re Estate of Black, 153Wn.2d 152, 160-61, 102 P.3d 796 (2004). The will in question was signed inArizona by Bert Hook shortly before his death. Bert Hook was an unmarried man with no children. He maintained a residence in eastern Washington. He usually spent winters in a small town in Arizona. In 1988, Bert executed a valid Washington will, and in 1999, he added

a valid codicil. These documents, which we will refer to as "the 1988 will," devised all of Bert's estate to Jerry Hook, his older brother and only sibling. Jerry
was designated as personal representative. In September 2011, at the age of77, Bert underwent heart surgery in Spokane, Washington. Afterthree weeks in an inpatient rehabilitation center, Bert was discharged to stay with Jerry inwestern Washington. Within a few days, Bertwanted to leave. Bert asked James Atkinson, a longtime friend who
was then inArizona, to come and get him. Atkinson drove up from Arizona with anotherfriend, Anna Levitte. They took Bertto eastern Washington to help him close up his residence. The three then departed for Arizona, where Bert had his
own residence in a rural airpark. InJanuary 2012, Bert prepared a new written will, which we will referto as "the Atkinson will." The Atkinson will revokes the 1988 will and names Atkinson
as the personal representative. The beneficiaries include Atkinson, Levitte, Jerry Hook, and several other individuals.No. 73102-5-1/3
On February 13, 2012, Bertwent with Levitte to the office of Linda 

### Darland, a notary public. Levitte and Darland watched Bert sign the Atkinson will. Darland then signed the will and applied her notary seal. 

### On February 18, 2012, Bert Hook committed suicide inArizona. Atkinson notified Jerry Hook and informed him that Bert had made a new will. Atkinson contacted David Boswell, Bert's attorney in Spokane, about 

### probating the Atkinson will. Atkinson and Levitte drove to Spokane on February 27, left the Atkinson will with Boswell for his review, and returned to Arizona. 

### On March 9, 2012, Jerry Hook petitioned the San Juan County Superior Court for an order admitting the 1988 will to probate. The petition was granted, and the court issued letters testamentary to Jerry Hook on March 12. Meanwhile, Boswell discovered that underArizona law, a will signed by a 

### testator is validifit is also signed by twowitnesses within a reasonable time. On March 29, 2012, Levitte traveled to Spokane and signed the Atkinson will. 

### OnApril 4, 2012, Atkinsonfiled a petition in the superiorcourt ofSan Juan County contesting the 1988 will on the basis that the Atkinsonwill expressly revoked the 1988 will. Atkinson moved for withdrawal ofthe letters testamentary 

### that had been issued to Jerry Hook. The trial court denied this motion. 

### OnApril 17, 2012, Atkinsonfiled an action in Arizona to probate the
Atkinson will. 

### On July 6, 2012, the San Juan County courtentered an order accepting the parties' stipulation that the "facial validity" of the Atkinsonwill would be determined under Arizona law.No. 73102-5-1/4 On April 26, 2013, after an evidentiary hearing, the San Juan County court entered an order determining thatWashington was Bert Hook's domicile atthe time of his death. As a result ofthis determination, which is unchallenged on appeal, the Arizona court stayed the probate action commenced by Atkinson and 

### eventually dismissed it. See Ariz. Rev. Stat. § 14-3202. On May 24, 2013, Jerry Hook moved for partial summaryjudgment, 

### arguing thatthe Atkinson will was invalidunderArizona law because Darland signed the will as a notary, not as a witness, and Levitte did not sign it within a reasonable time ofwitnessing Bert Hook's signature. On July 26, 2013, the trial court denied this motion, finding there were factual issues with respect to whetherthe Atkinson will was validly executed underArizona law. 

### On February 12, 2014, Jerry Hook filed a second motion for partial 

### summaryjudgment. This time he argued that the will was invalid under Washington law. He asked the courtto vacate the stipulation to Arizona law. The court denied the motion. Jerry Hook moved for reconsideration. On July 11, 

### 2014, the court granted reconsideration and ruled that the Atkinsonwill was executed inWashington, not Arizona, and its admission to probate was 

### dependent upon compliance withthe formalities ofWashington law, not Arizona law. Because the Atkinson will is plainly invalid underWashington law, the court dismissed Atkinson's will contestwith prejudice. As a result, the letters 

### testamentary issued to Jerry Hook remain in effect and Bert Hook's estate will be probated underthe 1988 will. Atkinson appeals.No. 73102-5-1/5

MEANING OF "EXECUTED" Atkinson contends that the Atkinson will was executed in Arizona, is valid underArizona law, and must be given effect inWashington as the last expression of Bert Hook's wishes. The starting point is Washington's Statute of Wills, RCW 11.12.020. This statute "describes the proper execution of all wills." Estate of Black, 153 Wn.2d
at 164.Requisites ofwills—foreign wills. (1) Every will shall be in writing signed by the testator or by some other person underthe testator's direction inthe testator's presence, and shall be attested 

### by two or more competentwitnesses, by subscribing their names to the will, or by signing an affidavit that complies with RCW 11.20.020(2), while inthe presence ofthe testator and at the testator's direction or request: PROVIDED, That a lastwilland testament, executed inthe mode prescribed by the law ofthe place where executed or ofthe testator's domicile, either at the time of the will's execution or at the time ofthe testator's death, shall be 

### deemed to be legally executed, and shall be ofthe same force and effect as ifexecuted inthe mode prescribed by the laws ofthis state. 

### (2) This section shall be applied to allwills, whenever executed, including those subjectto pending probate proceedings. RCW 11.12.020. The Atkinson will was not attested to by Levitte, the second witness, inthe 

### presence of Bert Hook.1 For this reason, the Atkinson will does not satisfy the formalities required ofWashington wills bythe firstpart of RCW 11.12.020(1). Unless the proviso for foreign willsapplies, the Atkinson will cannot be given effect.


### 1It is assumed for purposes ofsummaryjudgmentthatthe signature of Darland, the notary, is one attestation by a competentwitness.No. 73102-5-1/6 

### Underthe proviso, a will "executed inthe mode prescribed by the law of the place where executed" will be given effect inWashington. Forexample, a holographic will is effective inWashington if it is valid inthe state ofthe testator's domicile. In re Weqlev's Estate. 65 Wn.2d 689, 690, 399 P.2d 326 (1965). Atkinson contends the will is legally enforceable inWashington because it is valid in Arizona. The Arizona statute requires two witnesses for execution, but itdoes not require thatthe witnesses sign inthe presence ofthe testator. Witnesses need only sign "within a reasonable time" afterwitnessing the testator's signature or acknowledgement. Execution; witnessed wills; holographic wills A. Except as provided in §§ 14-2503, 14-2506 and 14-2513, a will shall be: 1. Inwriting. 2. Signed by the testator or inthe testator's name by some other individual inthe testator's conscious presence and by the testator's direction. 3. Signed by at leasttwo people, each ofwhom signed within a reasonable time afterthat person witnessed eitherthe 

### signing ofthe will as described inparagraph 2 orthe testator's acknowledgment ofthat signature or acknowledgment ofthe will. B. Intent that the document constitute the testator's will can 

### be established by extrinsic evidence, including, for holographic wills under § 14-2503, portions ofthe documentthat are not inthe testator's handwriting. 

### Ariz. Rev. Stat. Ann. § 14-2502. As construed by an Arizona appellate court, the Arizona statute "does not preclude a witness from signing a testamentary document after the testator has died." In re Estate ofJung, 210 Ariz. 202, 203, 

### 109 P.3d 97 (Ariz. Ct. App. 2005). Itrequires "onlythatthe signature be affixed within a reasonable time ofwitnessing the testator's signature or 

### acknowledgment." Estate ofJung, 210 Ariz, at 207.No. 73102-5-1/7
Ifthe validity ofthe Atkinson will is assessed underthe Arizona statute 

### quoted above, as Atkinson contends itshould be, summaryjudgmentwas improperly granted. Levitte signed the will 45 days after she witnessed the 

### signing ofthe will by Bert Hook. Conceivably, further proceedings would determine that 45 days is "within a reasonable time" and that the signatures of Levitte and Darland satisfy the Arizona statute. 

### Butthe proviso for foreign wills in RCW 11.12.020(1) allows the validity of the Atkinson will to be assessed underthe Arizona statute only ifArizona was the "place where executed." The preliminary and dispositive issue, then, is the meaning ofthe word "executed" as used in RCW 11.12.020. Atkinson contends a will is "executed" once the testator has signed it. He claims the Atkinson will
was executed inArizona on February 13, 2012, when Bert Hook signed it inthe presence of Levitte and Darland. The meaning of a statute is a question of law reviewed de novo. The court's fundamental objective is to ascertain and carry outthe legislature's intent, and ifthe statute's meaning is plain on its face, then the court must give effectto that plain meaning as an expression oflegislative intent. Dep't of Ecology v. Campbell &Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002). Examination of the statute inwhich the provision at issue is found, as well as related statutes or other provisions ofthe same act inwhich the provision is found, is appropriate as 

### part ofthe determination whether a plain meaning can be ascertained. Dep't of Ecology, 146Wn.2d at 10: see also Estate ofBlack. 153Wn.2d at 164. The statutory context must be taken into account. Dep't ofEcology. 146 Wn.2d at 11.No. 73102-5-1/8 

### Where the legislature has not defined a term, we may look to dictionary definitions. Cornu-Labat v. Hosp. Dist. No. 2 Grant County. 177 Wn.2d 221. 231- 32, 298 P.3d 741 (2013). Both parties cite dictionary definitions to the effectthat "execute" means to make a document valid or legal by signing. See, e.g., Black's Law Dictionary 689 (10th ed. 2014) ("To make (a legal document) valid by signing; to bring (a legal document) into its final, legally enforceable form"). That definition is useful, but itdoes not go far enough to supportAtkinson's assertion that a testator's signature on a will is enough by itselfto execute the will. The trial court concluded that the execution ofa document means 

### completing all ofthe steps necessary to make the document a legal instrument. 

### By this reasoning, a will is not "executed" untilthe occurrence ofthe last formal act necessary to make the will valid. We agree and hold thatthe meaning ofthe word "executed" in RCW 11.12.020 comprises the acts ofthe witnesses as well

as the act ofthe testator. 

### Thatthis is the plain meaning of"executed" in RCW 11.12.020 is 

### demonstrated by examining a related statute, RCW 11.20.070(1). Inthe case of 

### a lost or destroyed will, "the court may take proof of the execution and validity of the will and establish it, notice to all persons interested having been first given." 

### RCW 11.12.070(1). The use of RCW 11.12.020 is required to determine whether 

### a lost will was properly executed under RCW 11.20.070. Estate of Black. 153 Wn.2d at 164. In Estate of Black, itwas clearthat the lost willhad been signed 

### by the testator, but itwas unclearwhetherthe document had been signed by

8No. 73102-5-1/9



### more than one attesting witness. The court held that proofof a signature by a second attesting witness was required to complete the formalities ofexecution. Estate of Black, 153 Wn.2d at 166. The formalities ofexecution under both Washington and Arizona law include two witnesses who have either "attested" or "signed" the will. RCW 11.12.020(1); Ariz. Rev. Stat. Ann. § 14-2502(3). The Atkinson will, although signed by Bert Hook inArizona, could not be a valid or legal instrument under Washington or Arizona law until ithad the signatures of two witnesses. The 

### signature ofthe second witness was placed on the Atkinson will on March 29, 2012, when Levitte signed it inSpokane. The trial court reasoned that while "significant acts toward the execution" ofthe Atkinson will occurred inArizona, it 

### "onlybecame an executed documentwhen Ms. Levitte signed itand she signed it inWashington." We affirm the trial court's reasoning. Because Arizona was not the "place 

### where executed," RCW 11.12.020(1), the proviso inthe statute for foreign wills 

### does not apply. The Atkinson will is a Washington will, not a foreign will. As a Washington will, it is invalid. There is no second witness who attested to the Atkinson will while inthe presence of Bert Hook and at his direction or request. The Atkinson will cannotbe admitted to probate inWashington either as a foreign willor as a Washington will. 

### Atkinson opposes this resultwith the argumentthat Bert Hook's last 

### wishes expressed inthe Atkinson will may not be defeated by a technical construction ofthe term "executed." He derives this argumentfrom In re EstateNo. 73102-5-1/10
of Elliott. 22 Wn.2d 334, 351, 156 P.2d 427 (1945). Inthat case, the court stressed the importance of carrying outthe expressed will ofthe testator. "Courts will not, by technical rules of statutory or other legal construction, defeatthe right ofthe testatorto have effectgiven to the latestexpression of his testamentary wishes." "Statutes should not be construed so as to defeat the will of the testator, unless such construction be absolutely required. Neither should the will of a testator be defeated, as here, by the carelessness ofthe persons whose duty itwas to presentthe codicil for probate. It is nottheir rights which are taken away, but the right ofthe testatorto have his will carried out." 

### Estate of Elliott, 22 Wn.2d at 351, quoting Inre Estate ofBronson. 185 Wash. 536, 549-50, 55 P.2d 1075 (1936) (Beals, J., dissenting). See also RCW 11.12.230 (courts must have "due regard" for the testator's intent). Atkinson's reliance on Estate of Elliott is misplaced. He quotes the above 

### passage out ofcontext. Read infull, Estate ofElliott shows that a courtwill not
concern itself with carrying out a testator's wishes expressed in a will unless it is first established thatthe will is properly executed and admissible in probate. In Estate of Elliott, more than seven months after the decedent's first will


### was admitted to probate, the appellant petitioned to have a laterwill admitted to 

### probate. The trial court rejected the appellant's petition because itwas outside the statute of limitations for a will contest. The Supreme Court reversed, holding thatthe statute of limitations for a will contest is inapplicable when a laterwill is 

### offered. Acourt ofprobate "has inherent authority at any time, while an estate is 

### still open, to admit to probate a later will than thattheretofore probated." Estate of Elliott. 22 Wn.2d at 361.

10No. 73102-5-1/11


### Inreaching that conclusion, the court said that "the right to dispose of one's property by will is not only a valuable right but is one assured by law, and willbe sustained whenever possible." Estate of Elliott. 22 Wn.2d at 350. The intentofthe testator is "'a fundamental maxim, the first and greatest rule, the sovereign guide, the polar star, in giving effectto a will.'" Estate of Elliott, 22 Wn.2d at 351, citing John R. Rood, ATreatise onthe Law ofWills, § 413, at 352 (2d ed. 1926). But the court qualified these statements by adding that "the instrument must, ofcourse, firstbe admitted to probate" and the courtwill give effectto "the latest and final expression ofthe decedent's testamentary wishes, if such result can be obtained within the established rules oflaw." Estate of Elliott, 22 Wn.2d at 351 (emphasis added). The established rules of law include the formalities ofexecuting a will in compliance with RCW 11.12.020. In Estate of Elliott, itwas undisputed that the competing wills were both properly executed. That is notthe case here. Because the Atkinson will was not properly executed, itcannot be admitted to 

### probate within the established rules of law inWashington. Therefore, the wishes of Bert Hook expressed therein willnot be given effect. LETTERS TESTAMENTARY In April2012, the trial court denied Atkinson's motion to revoke the letters 

### testamentary that appointed Jerry Hook as the personal representative of Bert Hook's estate. The basis for the motion was Atkinson's assertion that the 

### appointment of a personal representative should followthe Atkinson will rather than the 1988 will. Atkinson argues thatthe letters testamentary should be

11No. 73102-5-1/12
revoked because Jerry Hook was deceitful to the trial court. The alleged deceit is that when Jerry Hook submitted the 1988 will to probate, he did not disclose to the court that Atkinson had told him there was a more recent will. Because this argumentwas not raised below inconnection with the requestto revoke the letters testamentary and is unsupported by citation to relevant authority, we do
not consider it. COUNTERCLAIMS When Jerry Hookfiled an answerto Atkinson's will contest petition, he asserted counterclaims based on allegations thatAtkinson abused and financially exploited Bert Hook, a vulnerable adult. Atkinson moved to dismiss the counterclaims for lack ofpersonaljurisdiction. The trial courtdenied the motion to dismiss. Atkinson contends the trial court erred by asserting in personam 

### jurisdiction over him for the purpose ofhearing the counterclaims. As Jerry Hook points out, the denial ofthe motion to dismiss the counterclaims for lack of personaljurisdiction is not an appealable final order under RAP 2.2(a). The counterclaims are still pending inthe superior court. 

### Jerry Hookneverthelessjoins Atkinson in asking this court to decide the issue of personaljurisdiction, an issue that is not properly before this courton direct 

### appeal, to avoid a second appeal. As a basis fordiscretionary review, Jerry Hook invokes RAP 1.2(a) ("rules willbe liberally interpreted to promotejustice and facilitate the decision of cases on the merits"). 

### Discretionary review is not granted under RAP 1.2(a). The criteria for 

### discretionary review are stated in RAP 2.3(b). Neither party has addressed RAP

12No. 73102-5-1/13 2.3(b). We decline to review the order denying the motion to dismiss Jerry Hook's counterclaims. ATTORNEY FEE REQUESTS Both parties have requested an award ofattorney fees on appeal under 

### RCW 11.96A.150(1). Jerry Hook additionally asks forfees under RCW 11.24.050. When Atkinson's will contest petition was dismissed inthe trial court, it


### was not apparentthatAtkinson had a right to an immediate appeal. The trial court refused to enterfindings under CR 54(b) and denied certification for 

### discretionary review under RAP 2.3(b)(4). Presumably because the case had not ended, neither party made a requestfor attorney fees inthe trial court. Later, however, this court allowed Atkinson to proceed with a direct appeal, having 

### determined thatthe orderdismissing the will contestwas an appealable final order under RAP 2.2(a). See Estate ofBarnard. 182 Wn. App. 692, 728, 332 P.3d 480. review denied. 339 P.2d 634 (2014). 

### The attorney fee statutes cited bythe parties allowthe court to exercise considerable discretion. The trial court, being more fully acquainted with the 

### entire case and the parties, is in a betterposition than this court to exercise that discretion. Because ofthe posture ofthe present case, the trial court has not yet 

### had the opportunity to considerwhether an award ofattorney fees to either party 

### is appropriate. Underthese circumstances, we decline to award attorneyfees on appeal to eitherparty and instead defer to the trial court. On remand, thetrial court may hear requests forattorney fees, includingfees for this appeal.

13No. 73102-5-1/14
Affirmed and remanded for further proceedings consistentwith this opinion. 

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WE CONCUR: 

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