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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,

Appellants,

v.

ANNA SCHEMSTAD, Personal 

Representative of the ESTATE OF 

DAVID EDWARD WILLIAMS,

Respondent.

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No. 80398-1-I

DIVISION ONE

UNPUBLISHED OPINION

HAZELRIGG, 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 them as 

tenants in common. Upon David William’s death, his estate initiated an action 

seeking declaratory relief and to quiet title to his interest in the property under the 

Trust and Estate Dispute Resolution Act (TEDRA)1. At the initial hearing on the 

 

1 Ch. 11.96A RCW.
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TEDRA petition, the trial court determined that the personal representative’s deed 

contained a scrivener’s error and reformed the deed to conform with their 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 Williams2 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, devise and 

bequeath all of 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 appointed 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 

County Probate No. 15-4-00322-8,

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 acting personal representative of the ESTATE OF MARIE C.

WlLLIAMS, deceased, Whatcom County Superior Court Cause No. 

15-4-00322-8, 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.
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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 Estate), 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 Robert 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 personal 

representative’s deed was merely to paper 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 insufficient to create a joint tenancy as a matter of law, therefore David and 

Robert’s respective interests remained a tenancy in common.
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In response, Robert argued that the personal representative’s deed was a 

testamentary bequest by David to his brother. Robert attempted to offer testimony 

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 personal 

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 tenants 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 primary contention is that the deed was facially 

valid, created a joint tenancy, and cannot be reformed absent evidence of intent 

from the parties to the deed.

“[R]eformation is an equitable remedy reviewed for abuse of discretion.” 

Glepco, LLC v. Reinstra, 175 Wn. App. 545, 563, 307 P.3d 744 (2013). “A trial 
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court abuses its discretion if its 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 joint 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 

Merrick v. Peterson, 25 Wn. App. 248, 258, 606 P.2d 700 (1980)). Further, our 

state supreme court 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 Olson, 87 Wn.2d 855, 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 between her sons. This argument is not 

well taken. When Marie died, her will expressly provided the following, “I give, 

devise and bequeath all of my property, real, personal and mixed to my children, 

DAVID EDWARD WILLIAMS and ROBERT JOSEPH WILLIAMS, share and 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 that Robert and David were tenants in common.
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Robert argues 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 

County Probate No. 15-4-00322-8,

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 acting personal representative of the ESTATE OF MARIE C. 

WlLLIAMS, deceased, Whatcom County Superior Court Cause No. 

15-4-00322-8, and not in Grantor’s individual capacity, hereby grants 

and confirms to DAVID E. WILLIAMS and ROBERT J. WILLIAMS, 

Grantees, distributes the real property commonly known as 2705 

Utter Street, Bellingham, Whatcom County, Washington.

The personal representative’s deed was merely an instrument to paper the title 

that had already legally vested 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 conforms with 

Marie’s will. See Glepco, 175 Wn. App. at 554-55. “To establish either 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 disputes. See In re Estate 

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 (11th ed. 
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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 predeceases 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 estate. 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 deed 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 individual 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 discrepancies 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 acting

personal representative of the ESTATE OF MARIE C. WlLLIAMS, deceased,
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Whatcom County Superior Court Cause No. 15-4-00322-8, and not in Grantor’s

individual capacity.” Acting as personal representative for Marie’s estate, David

was in a third party capacity 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 brothers 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 

that she was bequeathing the property to the bothers as joint tenants with rights of 

survivorship. Id. The record is clear that regardless of scrivener’s error, the 

personal representative’s deed was ineffectual under statute to create a joint 

tenancy between David and Robert. The trial court did not abuse its discretion in 

reforming the deed to conform with Marie’s will.3

II. Attorney Fees

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 from the assets 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 the 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.
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We grant the Estate’s request and award attorney fees and costs on appeal, 

provided it complies with RAP 18.1.

Affirmed.

WE CONCUR: