Citation s and pin point citations are based on the Westlaw online version of the cited material. IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON In the Matter of the Estate of David Edward Williams, deceased, ROBERT JOSEPH WILLIAMS , a Washington resident; AMY RENEE PETRUCCI, a California resident; WARREN SWANSON, a Washington resident; and BEVERLY PAULSEN,

Appellant s ,
v. ANNA SCHEMSTAD , Personal Representative of the ESTATE OF DAVID EDWARD WILLIAMS,

Respondent

. )

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 80398

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DIVISION ONE UNPUBLISHED OPINION

H AZELRIGG , J.

— Acting in his capacity as personal representative for his mother’s estate, David E. Williams executed a personal representative’s deed after conveyance of the family home to his brother and him by her will. The personal representative deed included language in the caption that referenced joint tenancy between the brothers, but their mother’s will conveyed the property to the m as
tenants in common. Upon David W illiam’s death , his estate initiated a n action seeking declaratory relief and to quiet title to his inte rest in the property under the Trust and Estate Dispute Resolution A ct (TEDRA) 1

. A t the initial hearing on the

1 Ch. 11.96A RCW.No. 80398

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TEDRA petition, the trial court determin ed that the personal representative’s deed contained a scrivener’s error and reformed the deed to conform with the ir mother’s
will. Robert Williams argues the court improperly reformed the deed and that the TEDRA proceeding should have been dismissed based on insufficient evidence of the brothers’ intent

. We disagree and affirm.

FACTS
Marie Williams 2 died in June 2015 and left the family home to her two sons , David and Robert, in her will. Specifically , the will provided, “I give, d evise and bequea th all o f my property, real , personal and mixed to my children, DAVID
EDWARD WILLIAMS and ROBERT JOSEPH WILLIAMS, share and share alike, per stirpes .” David Williams was appoint ed as personal representative of Marie’s
estate. In July 2015 , David executed a personal representative’s deed which stated the following: GRANTOR: DAVID E. WlLLIAMS, Personal Representative of the ESTATE OF MARIE C. WILLIAMS, deceased, under Whatcom C ounty Probate No. 15

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- 8, GRANTEE(S) DAVID E. WlLLIAMS AND ROBERT J. WILLIAMS as joint tenants with right of survivorship

. . . . THE GRANTOR, DAVID E. WILLIAMS, as the duly appointed and ac t ing personal representative of the ESTATE OF MARIE C. WlLLIAMS, deceased, Whatcom County Superior Court Cause No. 1 5

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- 8, and not in Grantor’ s individual capacity, hereby grants and confirms to DAVID E. WILLIAMS and ROBERT J. WILLIAMS, Grantees, distrbutes the real property commonly known as 2705 Utter Street, Bellingham, Whatcom County, Washington.

2 For clarity, we refer to the parties by their first names. No disrespect is intended.No. 80398

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- David died testate on May 13, 2019. Anna Schemstad serves as David’s appointed personal representative. David’s will was admitted to probate in Whatcom County Superior Court

. Schemstad, acting in her capacity as personal representative for David’s estate (the Esta te), filed a TEDRA action on behalf of the Estate seeking declaratory relief

. The Estate sought a ruling to determine that , irrespective of any contrary language in the personal representative deed David had executed, the property was held by David and Ro bert as tenants in common. If, as the Estate asserted, David’s interest was that of a tenant in common, then it was an asset of the Estate, subject to distribution under his will. As such, the Estate also sought judgment and an order quieting title in David’s half interest in the property and reformation of the deed to conform with Marie’s bequest. The Estate requested that this relief be granted at the initial TEDRA hearing set in August 2019. In support of the TEDRA petition, the Estate argued that Marie had conveyed the property to Robert and David as tenants in common under her will and, as such, the conveyance vested in Robert and David immediately upon Marie’s death. The Estate explained that since the purpose of the perso nal representative’s deed was merely to pap e r the title which had already vested , any discrepancy between the deed and will was a mistake subject to reformation. Additionally , the Estate argued regardless of whether a mistake existed, the deed was insuffi cient to create a joint tenancy as a matter of law, therefore David and Robert’s respective interest s remained a tenancy in common.No. 80398

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- In response, Robert argued that the personal representative’s deed was a testamentary bequest by David to his brother. Robe rt attempted to offer testimon y as to conversations he alleged that he had with David about this bequest, which the trial court refused to consider

. Further, Robert asked the court to order the testimony of the attorney who had helped David prepare the pe rsonal representative’s deed in order to indicate there was no mistake in the deed. However, the trial court denied this request

. The trial court concluded that , contrary to the language contained in the caption to the personal representative’s deed, at the time of David’s death, David and Robert held the family home as tenan ts in common and David’s interest in the property was thereby an asset in his estate. The trial court granted the TEDRA petition , reforming the deed and quieting title to David’s interest in the property in favor of the Estate . Robert timely appealed to this court.

ANALYSIS
I. Reformation of the Personal Representative’s Deed
Robert first argues that the trial court erred in reforming the personal representative’s deed. Robert’s p rimary contention is that the deed was facially valid , created a joint tenancy , and can not be reformed absent evidence of intent from the parties to the deed. “[R]eformation is an equitable remedy reviewed for abuse of discretion.” G lepco , LLC v. Reinstra , 175 Wn. App. 545, 563, 307 P.3d 744 (2013). “A trialNo. 80398

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court abuses its discretion if it s decision rests unreasonable or untenable grounds.” In re Estate of Evans , 181 Wn. App. 436, 451, 326 P.3d 755 (2014). In Washington, the default rule is that when two or more people co

- own property , it is held as tenants in common. RCW 64.28.020. A joint tenancy however, may be created through an express written agreement by the owner or owners of property

. RCW 64.28.010

. The statute and case law both reinforce the need for the “ ‘ four unities of time, title, interest and possession ’ ” to all be present for a join t tenancy to be established under the law. Id. ; In re Domestic P’ship of Walsh v. Reynolds , 183 Wn. App. 830, 853

- 54, 335 P.3d 984 (2014) (quoting Merric k v. Peterson , 25 Wn. App. 248, 258, 606 P.2d 700 (1980))

. Further, our

s tate s upreme c ourt has held that a third party cannot create a joint tenancy. Lambert v. Peoples Nat’l Bank of Wash. , 89 Wn.2d 646, 650, 574 P.2d 738 (1978); In re Estate of Ols o n , 87 Wn.2d 85 5, 858

- 60, 557 P.2d 302 (1976). Robert argues that his brother was able to create a valid joint tenancy while acting as the personal representative of their mother’s estate , despite the fact that her will did not provide for joint tenancy betw een her sons

. This argument is not well taken. When Marie died , her will expressly provided the following , “I g ive, devise and bequeath all of my property, real , personal and mixed to my children,
DAVID EDWARD WILLIAMS and ROBERT JOSEPH WILLIAMS, share a nd share alike, per stirpes .” This language established a tenancy in common between Robert and David which vested immediately by operation of law upon their mother Marie’s death. See RCW 11.04.250. Robert does not dispute that Marie’s will established t hat Robert and David were tenants in common

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- Robert argue s that his brother’s subsequent execution of the personal representative’s deed created a valid tenancy in common. We disagree

. The personal representative’s deed was captioned as follows : GRANTOR: DAVID E. WlLLIAMS, Personal Representative of the ESTATE OF MARIE C. WILLIAMS, deceased, under Whatcom C ounty Probate No. 15

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- 8, GRANTEE(S) DAVID E. WlLLIAMS AND ROBERT J. WILLIAMS as joint tenants with right of survivorship [.] The body of the deed then provided:

THE GRANTOR, DAVID E. WILLIAMS, as the duly appointed and ac t ing personal representative of the ESTATE OF MARIE C. WlLLIAMS, deceased, Whatcom County Superior Court Cause No. 15

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- 8, and not in Grantor ’ s individual capacity, her eby grants and confirms to DAVID E. WILLIAMS and ROBERT J. WILLIAMS, Grantees, distr i butes the real property commonly known as 2705 Utter Street, Bellingham, Whatcom County, Washington.
The p ersonal r epresentative’s deed was merely an instrument to paper the title that had already legal ly vest ed by operation of law

. See RCW 11.04.250

. The trial court has the equitable authority to reform the deed to correct this scrivener’s error such that the personal representative’s deed conform s with Marie’s will. See G lepco , 175 Wn. App. at 554

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. “To establish eit her mutual mistake or scrivener’ s error, it must be shown that the parties to the instrument possessed the same intentions.” Id

. at 561. Here, the inquiry only goes to Marie’s intentions as expressed in her will , which neither party dispute s

. See In re E state of Frank , 146 Wn. App. 309, 318, 326

- 27, 189 P.3d 834 (2008). The will clearly intended to create a tenancy in common

. “Per stirpes” means “proportionately divided between beneficiaries according to their deceased ancestor’s share.” Black’s Law Dictionary (11 th ed.No. 80398

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2019). If a parent bequeaths property to two sons in equal shares and uses the phrase per stirpes , then each son receives the same share in the bequeathed property. If one son predecea ses the parent, his share passes to his own heirs, rather than to the surviving son. See Erienbach v. Estate of Thompson , 90 Wn. App. 846, 851, 954 P.2d 350 (1998). The will language gave Robert no survivorship interest in David’s share of the real estat e. As such, it was proper for the trial court to exercise its equitable powers to correct the scrivener’s error to bring the personal representative’s deed in line with the intentions conveyed by Marie in her will. Further, the personal representative’s d eed was insufficient under Washington law to create a joint tenancy between Robert and David. The primary defect is that the deed expressly states that David was acting in his capacity as personal representative of Marie William’s estate, not in his indiv idual capacity. This discrepancy supports our determination that the trial court properly concluded that a scrivener’s error occurred preventing the personal representative’s deed from conforming with Marie’s will and that reformation was appropriate.
We agree with the respondent that regardless of scrivener’s error , the trial court could properly quiet title to the property on the alternative basis that the personal representative’s deed was insufficient to establish a joint tenancy , despite any discrepan cies between Marie’s will and the deed. A third party is legally unable to establish a joint tenancy. Lambert , 89 Wn.2d at 650

. The deed specifically states “ THE GRANTOR, DAVID E. WILLIAMS, as the duly appointed and ac t ing personal representative of the ESTATE OF MARIE C. WlLLIAMS, deceased,No. 80398

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Whatcom County Superior Court Cause No. 1 5

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- 8, and not in Grantor’ s individual capacity .” Acting as personal representative for Marie’s estate, David

was in a third party capacit y to the title action

. Additionally, David could not unilaterally create a joint tenancy in either his individual or personal representative capacity

. RCW 64.28.010 sets out two methods by which the br o thers could have become joint tenants. First, the brothers could have both conveyed the property to themselves in a separate deed, subsequent to the personal representative’s deed , as joint tenants with rights of survivorship

. See RCW 64.28.010. Second , Marie’s will could have established tha t she was bequeathing the property to the bothers as joint tenants with rights of survivorship. Id. The record is clear that r egardless of scrivener’s error, the personal representative ’ s deed was ineffectual under statute to create a joint tenancy betwe en David and Robert. The trial court did not abuse its discretion in reform ing the deed to conform with Marie’s will. 3

II. Attorney F ees The Estate requests an award of attorney fees and costs under RCW 11.96A.150 and RAP 18.1. TEDRA allows appellate courts to exercise discretion to award costs and reasonable attorneys ’ fees to a party to the proceedings. RCW 11.96A.150. The statute allows an award to come from another party to the proceeding or fr o m the ass e ts of the estate or trust involved in the proceeding. Id.

3 Robert argues that the trial court erred by not dismissing the TEDRA action because the Estate failed to demonstrate David’s intent when he executed the deed. Dismissal of the TEDRA petition was not required under these facts where, contrary to the assertions of appellant, evidence existed to support t he critical party’s intent: the will itself clearly expressed Marie’s intent that her sons take title as tenants in common. Robert or David’s intent is immaterial.No. 80398

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We grant th e Estate’s request and award attorney fees and costs on appeal , provided it complies with RAP 18.1

. Affirmed.

WE CONCUR: