IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Estate of

BERTW. HOOK, I No. 73102-5-1

Deceased. I DIVISION ONE

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JAMES ATKINSON, crv r-fc:

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) PUBLISHED OPINION 5c

ESTATE OF BERTW. HOOK, JERRY CO

HOOK, Personal Representative, ) FILED: May 9, 2016 o

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Respondent.

Becker, J. — A will is not "executed" under RCW 11.12.020 until the

occurrence of the 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 in Washington. Therefore, the will was executed inWashington, not in Arizona.

The will is not valid in Washington because the second witness did not sign in the

testator's presence.

At issue is an order granting summary judgment. To review an order

granting summary judgment, we engage in the same inquiry as the trial court.

We will not resolve factual issues but rather must determine if a genuine issue

exists as to any material fact. All inferences are construed in the light most
No. 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 in Arizona 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 of 77, Bert underwent heart surgery in

Spokane, Washington. After three weeks in an inpatient rehabilitation center,

Bert was discharged to stay with Jerry in western Washington. Within a few

days, Bert wanted to leave. Bert asked James Atkinson, a longtime friend who

was then in Arizona, to come and get him. Atkinson drove up from Arizona with

another friend, Anna Levitte. They took Bert to 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.

In January 2012, Bert prepared a new written will, which we will refer to 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, Bert went 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 in Arizona. 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 under Arizona law, a will signed by a

testator is valid if it is also signed by two witnesses within a reasonable time. On

March 29, 2012, Levitte traveled to Spokane and signed the Atkinson will.

On April 4, 2012, Atkinson filed a petition in the superior court of San Juan

County contesting the 1988 will on the basis that the Atkinson will expressly

revoked the 1988 will. Atkinson moved for withdrawal of the letters testamentary

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

On April 17, 2012, Atkinson filed an action in Arizona to probate the

Atkinson will.

On July 6, 2012, the San Juan County court entered an order accepting

the parties' stipulation that the "facial validity" of the Atkinson will 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 that Washington was Bert Hook's domicile at the

time of his death. As a result of this 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 summary judgment,

arguing that the Atkinson will was invalid under Arizona law because Darland

signed the will as a notary, not as a witness, and Levitte did not sign it within a

reasonable time of witnessing Bert Hook's signature. On July 26, 2013, the trial

court denied this motion, finding there were factual issues with respect to

whether the Atkinson will was validly executed under Arizona law.

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

summary judgment. This time he argued that the will was invalid under

Washington law. He asked the court to 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 Atkinson will was

executed in Washington, not Arizona, and its admission to probate was

dependent upon compliance with the formalities of Washington law, not Arizona

law. Because the Atkinson will is plainly invalid under Washington law, the court

dismissed Atkinson's will contest with prejudice. As a result, the letters

testamentary issued to Jerry Hook remain in effect and Bert Hook's estate will be

probated under the 1988 will. Atkinson appeals.
No. 73102-5-1/5

MEANING OF "EXECUTED"

Atkinson contends that the Atkinson will was executed in Arizona, is valid

under Arizona law, and must be given effect in Washington 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 of wills—foreign wills. (1) Every will shall be in

writing signed by the testator or by some other person under the

testator's direction in the testator's presence, and shall be attested

by two or more competent witnesses, by subscribing their names to

the will, or by signing an affidavit that complies with RCW

11.20.020(2), while in the presence of the testator and at the

testator's direction or request: PROVIDED, That a last will and

testament, executed in the mode prescribed by the law of the place

where executed or of the testator's domicile, either at the time of

the will's execution or at the time of the testator's death, shall be

deemed to be legally executed, and shall be of the same force and

effect as if executed in the mode prescribed by the laws of this

state.

(2) This section shall be applied to all wills, whenever

executed, including those subject to pending probate proceedings.

RCW 11.12.020.

The Atkinson will was not attested to by Levitte, the second witness, in the

presence of Bert Hook.1 For this reason, the Atkinson will does not satisfy the

formalities required of Washington wills by the first part of RCW 11.12.020(1).

Unless the proviso for foreign wills applies, the Atkinson will cannot be given

effect.

1 It is assumed for purposes of summary judgment that the signature of

Darland, the notary, is one attestation by a competent witness.
No. 73102-5-1/6

Under the proviso, a will "executed in the mode prescribed by the law of

the place where executed" will be given effect in Washington. For example, a

holographic will is effective in Washington if it is valid in the state of the 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 in Washington because it

is valid in Arizona. The Arizona statute requires two witnesses for execution, but

it does not require that the witnesses sign in the presence of the testator.

Witnesses need only sign "within a reasonable time" after witnessing 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. In writing.

2. Signed by the testator or in the testator's name by some

other individual in the testator's conscious presence and by the

testator's direction.

3. Signed by at least two people, each of whom signed

within a reasonable time after that person witnessed either the

signing of the will as described in paragraph 2 or the testator's

acknowledgment of that signature or acknowledgment of the 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 of the document that are not in the

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 of Jung, 210 Ariz. 202, 203,

109 P.3d 97 (Ariz. Ct. App. 2005). It requires "only that the signature be affixed

within a reasonable time of witnessing the testator's signature or

acknowledgment." Estate of Jung, 210 Ariz, at 207.
No. 73102-5-1/7

Ifthe validity of the Atkinson will is assessed under the Arizona statute

quoted above, as Atkinson contends itshould be, summary judgment was

improperly granted. Levitte signed the will 45 days after she witnessed the

signing of the 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.

But the proviso for foreign wills in RCW 11.12.020(1) allows the validity of

the Atkinson will to be assessed under the Arizona statute only ifArizona was the

"place where executed." The preliminary and dispositive issue, then, is the

meaning of the 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 in Arizona on February 13, 2012, when Bert Hook signed it in the

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 out the legislature's intent,

and ifthe statute's meaning is plain on its face, then the court must give effect to

that plain meaning as an expression of legislative intent. Dep't of Ecology v.

Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002). Examination of

the statute in which the provision at issue is found, as well as related statutes or

other provisions of the same act in which the provision is found, is appropriate as

part of the determination whether a plain meaning can be ascertained. Dep't of

Ecology, 146Wn.2d at 10: see also Estate of Black. 153Wn.2d at 164. The

statutory context must be taken into account. Dep't of Ecology. 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 effect that

"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 it does not go far enough to support Atkinson's

assertion that a testator's signature on a will is enough by itself to execute the

will.

The trial court concluded that the execution of a document means

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

By this reasoning, a will is not "executed" until the occurrence of the last formal

act necessary to make the will valid. We agree and hold that the meaning of the

word "executed" in RCW 11.12.020 comprises the acts of the witnesses as well

as the act of the testator.

That this is the plain meaning of "executed" in RCW 11.12.020 is

demonstrated by examining a related statute, RCW 11.20.070(1). In the 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, it was clear that the lost will had been signed

by the testator, but itwas unclear whether the document had been signed by

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No. 73102-5-1/9

more than one attesting witness. The court held that proof of a signature by a

second attesting witness was required to complete the formalities of execution.

Estate of Black, 153 Wn.2d at 166.

The formalities of execution 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 in Arizona, could not be a valid or legal instrument under

Washington or Arizona law until it had the signatures of two witnesses. The

signature of the second witness was placed on the Atkinson will on March 29,

2012, when Levitte signed it in Spokane. The trial court reasoned that while

"significant acts toward the execution" of the Atkinson will occurred in Arizona, it

"only became an executed document when Ms. Levitte signed it and she signed

it in Washington."

We affirm the trial court's reasoning. Because Arizona was not the "place

where executed," RCW 11.12.020(1), the proviso in the 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 in the presence of Bert Hook and at his direction or request.

The Atkinson will cannot be admitted to probate in Washington either as a foreign

will or as a Washington will.

Atkinson opposes this result with the argument that Bert Hook's last

wishes expressed in the Atkinson will may not be defeated by a technical

construction of the term "executed." He derives this argument from In re Estate
No. 73102-5-1/10

of Elliott. 22 Wn.2d 334, 351, 156 P.2d 427 (1945). In that case, the court

stressed the importance of carrying out the expressed will of the testator.

"Courts will not, by technical rules of statutory or other legal

construction, defeat the right of the testator to have effect given to

the latest expression 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 of the persons whose duty it was to present the

codicil for probate. It is not their rights which are taken away, but

the right of the testator to have his will carried out."

Estate of Elliott, 22 Wn.2d at 351, quoting In re Estate of Bronson. 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 of context. Read in full, Estate of Elliott shows that a court will not

concern itself with carrying out a testator's wishes expressed in a will unless it is

first established that the 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 later will 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

that the statute of limitations for a will contest is inapplicable when a later will is

offered. A court of probate "has inherent authority at any time, while an estate is

still open, to admit to probate a later will than that theretofore probated." Estate

of Elliott. 22 Wn.2d at 361.

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No. 73102-5-1/11

In reaching 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

will be sustained whenever possible." Estate of Elliott. 22 Wn.2d at 350. The

intent of the testator is "'a fundamental maxim, the first and greatest rule, the

sovereign guide, the polar star, in giving effect to a will.'" Estate of Elliott, 22

Wn.2d at 351, citing John R. Rood, A Treatise on the Law of Wills, § 413, at

352 (2d ed. 1926). But the court qualified these statements by adding that "the

instrument must, of course, first be admitted to probate" and the court will give

effect to "the latest and final expression of the 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 of executing a will in

compliance with RCW 11.12.020. In Estate of Elliott, it was undisputed that the

competing wills were both properly executed. That is not the case here.

Because the Atkinson will was not properly executed, it cannot be admitted to

probate within the established rules of law in Washington. Therefore, the wishes

of Bert Hook expressed therein will not be given effect.

LETTERS TESTAMENTARY

In April 2012, 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 follow the Atkinson will rather

than the 1988 will. Atkinson argues that the letters testamentary should be

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No. 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

argument was not raised below in connection with the request to revoke the

letters testamentary and is unsupported by citation to relevant authority, we do

not consider it.

COUNTERCLAIMS

When Jerry Hook filed an answer to Atkinson's will contest petition, he

asserted counterclaims based on allegations that Atkinson abused and financially

exploited Bert Hook, a vulnerable adult. Atkinson moved to dismiss the

counterclaims for lack of personal jurisdiction. The trial court denied the motion

to dismiss. Atkinson contends the trial court erred by asserting in personam

jurisdiction over him for the purpose of hearing the counterclaims.

As Jerry Hook points out, the denial of the motion to dismiss the

counterclaims for lack of personal jurisdiction is not an appealable final order

under RAP 2.2(a). The counterclaims are still pending in the superior court.

Jerry Hook nevertheless joins Atkinson in asking this court to decide the issue of

personal jurisdiction, an issue that is not properly before this court on direct

appeal, to avoid a second appeal. As a basis for discretionary review, Jerry

Hook invokes RAP 1.2(a) ("rules will be liberally interpreted to promote justice

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

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No. 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 of attorney fees on appeal under

RCW 11.96A.150(1). Jerry Hook additionally asks for fees under RCW

11.24.050.

When Atkinson's will contest petition was dismissed in the trial court, it

was not apparent that Atkinson had a right to an immediate appeal. The trial

court refused to enter findings 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 request for attorney fees in the trial court. Later,

however, this court allowed Atkinson to proceed with a direct appeal, having

determined that the order dismissing the will contest was an appealable final

order under RAP 2.2(a). See Estate of Barnard. 182 Wn. App. 692, 728, 332

P.3d 480. review denied. 339 P.2d 634 (2014).

The attorney fee statutes cited by the parties allow the court to exercise

considerable discretion. The trial court, being more fully acquainted with the

entire case and the parties, is in a better position than this court to exercise that

discretion. Because of the posture of the present case, the trial court has not yet

had the opportunity to consider whether an award of attorney fees to either party

is appropriate. Under these circumstances, we decline to award attorney fees on

appeal to either party and instead defer to the trial court. On remand, the trial

court may hear requests for attorney fees, including fees for this appeal.

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No. 73102-5-1/14

Affirmed and remanded for further proceedings consistent with this

opinion.

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WE CONCUR:

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