INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON

No. 68354-3-1 DIVISION ONE

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, • o —i O XT CP In re the Estate of Leora M. Givens, Deceased. ROY ANTHONY GIVENS, Appellant,

v. RHONDA MARY BROWN, Respondent. FILED: August 12. 2013

Cox, J. — A court's paramount duty in construing a testamentary 

### instrument is togive effectto themaker's intent.1 Thatintentmust begathered from the instrument as a whole and specific provisions must be construed in light ofthe entire document.2 Here, Leora Givens made a 2003 testamentary trust that is unambiguous on which of two agreements forthe sale of her stock in a corporation was to control at the time of her death. Specifically, the Stock Redemption Agreement, dated January 2004, controlled because itwas "finalized." The agreement had 1In re Estate ofRiemcke, 80 Wn.2d 722, 728, 497 P.2d 1319 (1972). 2 Id.No. 68354-3-1/2 

### been executed by all parties and the sale of stock closed prior to her death. Roy Givens, one ofLeora's adult children, presents arguments to the contrary in this 

### appeal. These are whollyunpersuasive. Moreover, the trial court correctly decided that Leora was not competent when she executed a transfer-on-death 

### agreement for a nonprobate asset. We affirm the trial court in all respects. Leora and Rocelius Givens had seven children.3 Rocelius and a business partner started a company called Pantrol, Inc. in 1974. In 1988, Rocelius retired from Pantrol but continued receiving compensation as a consultant. 

### Roy worked full time for Pantrol after he graduated from college. None of the Givens's other children had a similar relationship to Pantrol. 

### In 1989, Roy purchased 49 percent ofPantrol's stock from Rocelius's 

### business partner. At the time, Rocelius and Leora owned the majority interest of 51 percent. 

### Ten years later, Rocelius and Leora gifted 2 percent ofPantrol's stock to 

### Roy. As a result, he then owned the majority interest in Pantrol. In2000, Rocelius, Leora, and Roy signed a Stock Cross-Purchase 

### Agreement. This agreement gave Roy and his wife the first option to buy the entire 49 percent ofstock in Pantrol that Leora and Rocelius then owned, upon the death ofboth. The maximum price was $1 million. In 2001, Rocelius died. After his death, Leora continued to receive Rocelius's consultant compensation from Pantrol even though she never worked
there.
We adopt the naming conventions ofthe parties for clarity.No. 68354-3-1/3 

### In 2003, Leora and Roybegan to negotiate a Stock Redemption 

### Agreement. Itappears this was intended to replace the oldagreementfor the sale of the minority interest in Pantrol. Itfurther appears that the new agreement
was not finalized as of July 2003. 

### Unbeknownst to Roy, Leora executed a pour-over will and living trust that month. The trust instrument is dated July 7, 2003. The instrument expressly references the Stock Redemption Agreement. The trust instrument further states, "I intentionally and with due 

### deliberation do not leave any portion of the rest, remainder, and residue of my estate to ROY ANTONY [sic] GIVENS, due to his interest in PANTROL, Inc." 

### On January 1, 2004, Leora sold her minority interestto Pantrol for $1 million by way of the Stock Redemption Agreement. This purchase price was paid byretiring alloutstanding debt owed by Leora to the corporation in the approximate amount exceeding $378,000 and the execution of a promissory note of over $621,000 by the corporation to Leora forthe deferred balance. The 

### agreement expressly provided that it"shall take precedence" over the 2000 Stock Cross-Purchase Agreement. In 2005, Leora suffered a stroke. In 2006, she moved into The Gardens at Town Square, an assisted living facility, in Bellevue. Leora lived inthe unitthat provided care to residents with dementia. On January 24, 2006, Leora was admitted to Northwest Hospital's 

### geropsychiatry unitbecause of"delusions, aggressive and intrusive behavior andNo. 68354-3-1/4 physical care intolerance." On February 13, 2006, Leora was discharged from
this unit and returned to The Gardens. One day after her discharge, Leora appears to have signed a transfer-ondeath account agreement dated February 14, 2006 for her accounts with Ameriprise Financial. In this agreement, she designated that all of her living children would be beneficiaries of her accounts upon her death. 

### Leora died on May 1, 2010. The will was probated and the King County Superior Court appointed Rhonda Brown, one ofLeora's daughters, as the personal representative of Leora's estate. Inearly 2011, Roy petitioned underthe Trust and Estate Dispute Resolution Act of2000 ("TEDRA") for certain relief. He requested thatthe court enforce the transfer-on-death account agreement dated February 14, 2006 so that he could share in the accounts with his siblings. He also sought an 

### interpretation ofLeora's living trust instrumentto the end that payments under the Stock Redemption Agreement be made to him, not the estate. The trial court denied both requests. Itdecided that Leora was not 

### competentwhen she signed the transfer-on-death account agreement. Further, itconcluded that the trust instrumentwas unambiguous. Roy was not entitled to 

### payments under the promissory note. Specifically, the courtdecided that "Mrs. Givens was no longer a shareholder; she was a creditor of Pantrol and the income stream to which she was entitled passes under paragraph 5.1(b), as partNo. 68354-3-1/5 

### ofthe residue of herestate."4 The court also deniedboth parties' requests for attorney fees under TEDRA. Roy then moved for reconsideration and a new trial, which the trial court denied. Roy appeals. STANDARD OF REVIEW Roy argues that the TEDRA proceeding in this case was akin to a summaryjudgment proceeding and ail issues should be reviewed de novo. He is
wrong.Under TEDRA, the trial court has "fulland ample power and authority
. . . to administer and settle
. . . [a]ll matters concerning the estates and assets of incapacitated, missing, and deceased persons, including matters involving 

### nonprobate assets . . . ."5 At aTEDRA "initial hearing," the hearing must be "on the merits to resolve all issues offact and all issues of law" unless "requested 

### otherwise by a party."6 Further, "[a]ny party may movethecourt... for summary judgment, inthe original petition, answer, response, or reply, or in a separate 

### motion, or at any othertime."7 AtTEDRA proceedings, thetestimony of 

### witnesses may beby affidavit.8

4Clerk's Papers at 422. 5RCW11.96A.020(1)(a). 6RCW11.96A.100(8). 7RCW11.96A.100(9). 8RCW11.96A.100(7).No. 68354-3-1/6 Here, Roy petitioned for relief under TEDRA. He asked the trial court to determine Leora's testamentary intent and to uphold the beneficiary designation for her transfer-on-death account. At the initial hearing, the parties agreed that the trial court could decide these two issues based only on a written record. Given the parties' agreement, it is difficult to understand the argument that Roy now makes that the proceeding below was for summaryjudgment. Summaryjudgments are not designed to resolve conflicting factual assertions. Rather, they are intended to determine whether there are any genuine issues of material fact for trial. Here, there were conflicting declarations over Leora's competence to execute the agreement regarding disposition ofthe nonprobate asset. The trial court thus made findings of fact and conclusions of law. In so doing, the trial court necessarily weighed conflicting evidence for some ofthe issues in this 

### case. Accordingly, we review anyfindings offactfor substantialevidence.9 And

we review the "'trial court's conclusions of law de novo to see ifthey are 

### supported bythetrial court's findings offact.'"10 Roy argues for a de novo standard of review based on a mischaracterization ofthe proceeding below. As we already explained, he asked the trial court to determine disputed issues. That is what the court did.

9Petters v. Williamson &Assocs., Inc., 151 Wn. App. 154, 163, 210P.3d 1048 (2009). 10Id at 164 (quoting Bingham v. Lechner, 111 Wn. App. 118, 127, 45 P.3d 562 (2002)).No. 68354-3-1/7 Additionally, Roy relies on two unpublished cases to support his argument. This violates RAP 10.4(h) and GR 14.1. Neither has precedential value because they are unpublished. TESTAMENTARY INTENT Roy argues that the trial court erred when itdetermined that the trust was unambiguous. He contends that itwas Leora's intent to leave her interest in Pantrol as well as her right to receive payments underthe Pantrol promissory note to him. He is wrong on both counts. When construing a testamentary instrument, this court's paramount duty is 

### togive effectto themaker's intent.11 That intent must begatheredfrom the instrument as a whole and specific provisions must be construed in light ofthe entire document.12 Ifpossible, this courtwill determine the intent at the time ofthe instrument's execution from the language ofthe instrument itselfand the 

### surrounding circumstances.13 "Thetestator is presumedto befamiliarwith the 

### 'surrounding circumstances' thatcould affectthe [instrument's] construction."14 "When, after reading the [testamentary instrument] in its entirety, any uncertainty arises about the testator's intent, extrinsic evidence, including

11 Riemcke. 80 Wn.2d at 728. 12 Id. 13 In re Estate of Price, 73 Wn. App. 745, 754, 871 P.2d 1079(1994): In re Estate of Beraau. 103 Wn.2d 431, 436, 693 P.2d 703 (1985).

14 Price, 73 Wn. App. at 754.No. 68354-3-1/8 

### testimony ofthe drafter, may beadmitted toexplain and resolvetheambiguity."15 The terms of a trust instrument are ambiguous ifthey are susceptible to more 

### than one meaning.16 

### In general, testamentary intentis aquestion offact.17 Butinterpreting a specific provision in a trust instrument is a question of law that this court reviews de novo.18 Here, the trial court correctly determined that the trust instrument is unambiguous. Subsection (a) of Article 5 states: Having spoken with [my six other children], Iwish for the following to occur at my death: Ifatthe time ofmy death the StockRedemption Agreementbetween PANTROL, inc. andmyselfhas notbeen finalized, thereby invoking the 2000 Stock Cross-Purchase Agreement, Ileave any interest in PANTROL, Inc. that Imay own 

### orthatmay bedistributed tomy estateto ROYANTHONY GIVENS.1"1 This provision is conditioned on the Stock Redemption Agreement notbeing finalized at the time of her death. Because this agreement was finalized prior to Leora's death, this condition was not met. Thus, the remaining part of subsection (a) does not apply.

15 Inre Estate ofMelt, 105 Wn.2d 518, 524, 716 P.2d 836 (1986). 16Waits v. Hamlin, 55 Wn. App. 193, 200, 776 P.2d 1003 (1989). 17 Eisenbach v. Schneider, 140 Wn. App. 641, 651, 166 P.3d 858 (2007). 16 Inre Estate ofCurry, 98 Wn. App. 107, 112-13, 988 P.2d 505 (1999). 19 Clerk's Papers at 400 (emphasis added).

8No. 68354-3-1/9 Under the Stock Redemption Agreement, Pantrol purchased Leora's 49 percent minority interest in Pantrol for $1 million. Thus, she had no interest in Pantrol at the time of her death. The sale was closed priorto Leora's death and allthat was leftwas her right to receive payments underthe note that Pantrol executed for the deferred balance ofthe purchase price. Simply stated, as ofher death, Leora had no ownership interest in Pantrol to leave Roy or anyone else. As the trial court correctly concluded, after Leora closed the sale of her shares to Pantrol, evidenced by the Stock Redemption Agreement, she "was no 

### longera shareholder."20 "[Leora] was acreditorofPantrol and theincome stream to which she was entitled passes under paragraph 5.1(b), as part ofthe residue of her estate."21 Subsection (b) ofthe trust instrument explains that all ofLeora's children, 

### exceptfor Roy, would equally share the residue of her estate. This subsection further provides: Iintentionally and with due deliberation do not leave any 

### portion of the rest, remainder, and residue of myestate to ROY 

### ANTONY [sic] GIVENS, due tohis interestin PANTROL, Inc.1221 Leora's intent is clear based on the language ofthe trust instrument and the 

### surrounding circumstances. Leora did not leave any portion of the residue of her estate to Roy.

20 id at 422. 21 id 22 Id. at 401.No. 68354-3-1/10 

### Roy argues that he is entitled to receive the payments on the deferred balance ofthe sale to Pantrol, which is evidenced by the promissory note. One problem with this argument is that he fails to point to any language inthe trust instrumentthat entitles him, as opposed to the estate, to such payments. By 

### conflatingthe stock sold to Pantrol withthe payments due on the promissory note, he attempts to ignore the difference between the two. The trial court correctly rejected this argument. 

### Roy contends that the trust instrument's statementthat Leora had spoken with her six other children about her intentions regarding subsection (a) reveals 

### herintenttogive a bequesttoRoy.23 He asserts that "acommon sense interpretation" ofthat statement is that "she wanted them to understand her 

### bequesttoRoy Anthony."24 He contends that"itwould make little sense thatshe 

### needed them to understand orapprove his disinheritance."25 The better reading of the trust is that she wished to explain which 

### agreement would control the terms and conditions of her sale of the minority interest in Pantrol, the 2000 agreement or the 2004 agreement that succeeded it. Ineither event, itwas Leora's intentthat Roy would receive the benefit of "any interest in Pantrol" that she might own at her death. But she had no such interest at the time of her death because she had previously sold it to Pantrol in 2004. 23 Appellant's Briefat 18; see also Clerk's Papers at 400 (stating insubsection (a), "Having spoken with MARSHA MARIE MARSH, SHARON ANN GIVENS, RHONDA MARY BROWN, BRENDA IRENE GIVENS, CRAIG FRANCIS GIVENS, TERRI ELIZABETH GIVENS, Iwish for the following to occur at my death "). 24 Appellant's Briefat 18. 25 Id
10No. 68354-3-1/11 

### Royasserts that the conditional part of the sentence, "ifat the time of my death, the Stock Redemption Agreement.
. . has not [been] finalized," cannot be 

### read in isolation from the"laterexpressedintent" in the same sentence.26 It is unclear what such "later expressed intent" means. What is clear is that the plain words ofLeora's trust instrument state that this sentence is conditionedon the Stock Redemption Agreement not being "finalized" as of her death. Because the Stock Redemption Agreement was fully executed and performed at closing ofthe sale ofstock, the express condition of the trust instrument did not arise. CAPACITY TO CONTRACT Roy next argues thatthere was not clear, cogent, and convincing evidence to rebut the presumption that Leora was competent to execute the 

### transfer-on-death account agreement dated February 14, 2006 for her Ameriprise accounts. He is wrong again. Transfer-on-Death AccountAgreement Without citation to any relevant authority, Roy asserts that the transfer-ondeath account agreement is analogous to a will. Incontrast, the estate argues that the agreement is a contract. We agree with the estate. 

### Apayable-on-death ortransfer-on-death account is one way to transfer 

### property atdeath.27 This type ofaccount is"established during the lifetime ofthe decedent according to the rules of the [financial] institution so that on the death of

26 Appellant's Briefat 20. 27 26 Cheryl C. Mitchell and Ferd H. Mitchell, Washington Practice: Elder Law and Practice § 2:35 (2d ed. 2012).
11No. 68354-3-1/12 

### thedecedent, thefunds arethen payable as described."28 Generally, this type of asset passes outside ofprobate.29 Here, the transfer-on-death account agreement is a contractwith the financial institution. It is not analogous to a will for several reasons. First, this is


### an agreement between Leora and Ameriprise, and it is subjectto Ameriprise's rules. Second, Leora signed this agreement withoutthe formalities required of 

### wills. Third, unlike wills, this type ofassetgenerally passesoutside ofprobate.30 In sum, whether Leora had the capacity to enterthis agreement should be analyzed under contract law. Capacity 

### Roy argues that the estate failed to present clear, cogent, and convincing evidence to rebut the presumption that Leora had capacity when she signed the transfer-on-death account agreement. He asserts that this court should either find that Leora had capacity to sign the agreement or remand this issue for a full evidentiary hearing. We disagree. 

### To have capacity to contract, a party must "possess! ] sufficient mind or
reason to enable him to comprehend the nature, terms, and effect of the contract 

### in issue."31 Whether a party had capacityto contract is a question offact

28 id 29 id 30 See id. 31 Page v. Prudential Life Ins. Co. of Am.. 12Wn.2d101, 109, 120 P.2d 527 (1942).

12No. 68354-3-1/13 

### determined at thetime ofthetransaction.32 Further, the law presumes that a 

### party has capacitytocontract.33 This presumption can berebutted only by clear, cogent, andconvincing evidence.34 "When a challenged factual finding is required to be proved attrial by 

### clear, cogent, and convincing evidence, we incorporate that standard of proof in 

### conducting substantial evidence review."35 In otherwords, when afactual finding is challenged, "the question to be resolved is not merely whetherthere is substantial evidence to support it but whetherthere is substantial evidence in 

### lightofthe'highly probable' test."36 Here, the trial court concluded that the evidence demonstrated that Leora 

### lacked capacity when she signed the transfer-on-death account agreement. The court principally relied on a summary that explained Leora's diagnosis when she
was discharged from Northwest Hospital's geropsychiatry unit. The date of 

### discharge stated in the summary was one day before Leora signed the transferon-death account agreement. Other evidence before the court included a declaration from Dr. Eric Schendel, Leora's treating physician at Northwest 

### Hospital and a declaration from Karen Ingrassia, Leora's nurse at The Gardens.

32 ]d 33 Id 34 Id 35 Inre Melter, 167 Wn. App. 285, 301, 273 P.3d 991 (2012). 36 \&
13No. 68354-3-1/14 

### In opposition, Roy presented evidence from Dr. John Tran, a doctorwho was not Leora's treating physician and only reviewed her medical records. Inthe discharge summary, Dr. Schendel gave the followingdiagnosis: Axis I. Dementia with delusions and ABD. H/O depression. Axis II. Deferred. Axis III. H/O CVA and TIA, hypertension, H/O DVT, H/O recurrent UTI, recurrent shingles (resolved). Axis IV. Stressors severe. Axis V. GAF estimated at 15.[37] In its written order, the trial court referred to the American Psychiatric 

### Association's Diagnostic and Statistical Manual (DSM-IV-TR).38 Thecourt used thismanual todefine "Axis V. GAF estimated at 15."39 The court quoted the DSM-IV-TR to explain that "'Axis V is for reporting the clinician'sjudgmentof the 

### individual's overall level offunctioning' excluding physical limitations."40 The courtalso used themanual to verifythat a score of15wasoutof100.41 The discharge summary also described Leora's behavior: 

### Behaviorally patient was quite inappropriate in the beginning, disrobing in public, agitated and delusional, at one time believing that a male staffwas her husband, at anothertime believing she 

### was having a baby. Gradually her behavior improved, although 

### there remained atendencyto sun-down in theevening.1421
37 Clerk's Papers at 285. 38 Id at 421. 39 Id. 40 id at 421 (quoting American PsychiatricAssociation, Diagnostic and Statistical Manual ofMental Disorders: DSM-IV-TR (4th rev. ed. 2000)). 41 ]d 42 Id. at 284.

14No. 68354-3-1/15 In Dr. Schendel's declaration, he testified that "[gjiven Ms. Givens' dementia and especially the nature of her delusions, it is my professional opinion that she was unable to manage her affairs or herfunds in her own best interest."43 Nurse Ingrassia, Leora's nurse at The Gardens, testified inher declaration that Givens was admitted to Northwest Hospital's geropsychiatry unit because 

### she was aggressivetoward staff.44 When she returned from the hospital, her aggressive behavior lessened but "[h]ersevere memory loss, her unawareness, 

### and her inability to understand remainedjustas extreme . . . ."45 Roy submitted a declaration from Dr. Tran to support his position that there was not enough evidence to prove that Leora lacked capacity when she 

### signed the transfer-on-death account agreement. But, as noted above, Dr. Tran's opinion was based on his review ofLeora's medical records. He was not her treating physician. 

### In sum, afterweighing the evidence, the trialcourt did not err in concluding that this evidence showed by the clear, cogent, and convincing standard of proof that Leora lacked capacity when she signed the transfer-on-death account agreement. 

### Royargues that the trial court did not rule on objections to extrinsic evidence or identify any evidence on which it relied. Butthere was no

43 \& at 332. 44 ]d at 327. 45 ]d at 328.
15No. 68354-3-1/16 

### requirement for it to do so. We presume that the trial court did not rely on 

### inadmissible evidence in making its decision.46 Moreover, as the estate points out, in its written order, the trial court stated, "Each side submitted affidavits concerning various peoples' observations of Mrs. Givens, many of which were properly objected to because they violate the 

### dead man's statute."47 While the trial courtdid notspecifically identify the parts ofthe testimony it did not consider, this statement is sufficient to evidence the court property ruled on evidentiary issues. No more is required. 

### Roy contends that the trial court relied on improper independent research when itlooked to the DSM-IV-TR to define "Axis 5. GAF estimated at 15." Roy made the same argument in his motion for reconsideration. 

### In its order denying this motion, the trial court specifically addressed this argument: Ofparticular note is the argumentthat the court engaged in irregularity in referencing DSM-IV-TR in its order. However, the decedent's medical records were part ofthe material submitted by the petitioner [Roy] insupport of his original motion. Those 

### records, submitted by petitioner and discussed during argument in the hearing, contain the Axis V diagnosis inthe discharge 

### summary, which by definitionreferences the current edition of the DSM
.... Reference to the DSM IV TR is not referring to a learned treatise not cited by the parties; it is akin to a reference to 

### Webster'sDictionary.1481 Roy makes three arguments whythe trial court's reliance on the DSM-IVTR was improper. But they are not persuasive. 46 State v. Read. 147 Wn.2d 238, 245, 53 P.3d 26 (2002). 47 Clerk's Papers at 421. 48 ]d at 469.

16No. 68354-3-1/17 First, Roy cites Lockwood v. AC & S. Inc. to assert that "[ojnlyoutside 

### research thatdoes notprejudice aparty ispermissible."49 But Lockwood 

### involved ajurorintroducing "novel evidence" intojurydeliberations.50 Referencing the definition of a term found in admissible evidence is not akin to "novel evidence." Second, Roy argues that underthe learned treatise exception to the hearsay rule, a trial court cannot "consider any aspect of a learned treatise until 

### properfoundation and submittal hasbeen made by counsel."51 Butthis hearsay exception applies when a learned treatise is "called to the attention of an expert witness upon cross examination or relied upon by the expertwitness in direct 

### examination."52 Here, Dr. Schendel did not call attention to the DSM-IV-TR in his declaration. The reference to this manual was contained in the discharge 

### summary that Roy himselfpresented to the court. Thus, itappears that this evidentiary ruling does not apply to the order's citation to this manual. 

### Third, Roy argues thatthe trial court cannot "take judicial notice of medical 

### diagnostictools to reach its conclusion" underER 201.53 ButER 201 "governs only judicial notice ofadjudicative facts." An adjudicative fact is one that helps

49 Appellant'sBriefat 29 (citing Lockwood v. AC &S, Inc., 44 Wn.App. 330, 722 P.2d 826 (1986)). 50 Lockwood. 44 Wn. App. at 357. 51 Appellant'sBriefat 29 (citing ER803(a)(18)). 52ER803(a)(18). 53 Appellant'sBriefat 29 (citing ER201).

17No. 68354-3-1/18 

## "explain who did what, when, where, how, and with what motive and intent."54 "In short, an adjudicative fact is the sort of fact that is normally determined by the 

### jury."55 Thedefinition of"Axis 5. GAF 15" isnotthe type offactdetermined by a jury.56 Thus, thedefinition isnot an adjudicativefact that atrial courtcould take judicial notice of under ER 201. 

### Roy also challenges the content ofDr. Schendel's and Nurse Ingrassia's declarations. These challenges make no difference in the outcome of this case. 

### First, Royasserts that the Dr. Schendel's declaration was not admissible because he had "no independent recollection oftreating Leora Givens." ButDr. Schendel also testified that he referred to his records regarding Leora, including 

### his discharge summary, to give hisopinion about Leora's ability to manage her affairs. Thus, he had a basis for his opinion. 

### Second, Roy contends thatDr. Schendelfailed to identify a timeframe of hisopinion, specify the basis of her release, and address any periods of Leora's lucidity. While Dr. Schendel's declaration does notcontain this information, the discharge summary identified the time frame for Leora's diagnosis. The discharge summary further explained Leora's improvement regarding her 

### aggressivebehavior and thatLeora had a "tendencyto sun-down in theevening."

54 5 Karl B.Tegland, Washington Practice: Evidence Law and Practice § 201.2 (5th ed. 2012). 55 id 56 See id.
18No. 68354-3-1/19 Third, Roy argues that Nurse Ingrassia's testimony that Leora was incapacitated since her stroke ignored the fact that Leora had made decisions about her health care and executed a willafter her stroke. While this may be true, Nurse Ingrassia also testified that Leora's "dementia progressed" after her stroke, which led to her admittance to Northwest Hospital. In sum, the trial court properly determined that there was clear, cogent, and convincing evidence to rebutthe presumption that Leora had capacity when she signed the transfer-on-death account agreement. Roy's arguments fail. WAIVER OF EVIDENTIARY HEARING Roy argues that he did not waive his right to an evidentiary hearing ifthis
matter is remanded on either issue. Because there is no reason to remand, we need not decide this issue. ATTORNEY FEES The estate argues thatwe should award the personal representative attorney fees under TEDRA. We agree. Under RCW 11.96A.150(1), "any court on an appeal may, in its discretion, 

### order costs, including reasonable attorneys' fees, to be awarded to any party: (a) From any party to the proceedings . . . ." "In exercising its discretion underthis section, the court may consider any and allfactors that itdeems to be relevant and appropriate, which factors may but need not include whetherthe litigation benefits the estate or trust involved."57

57 RCW 11.96A.150(1).
19No. 68354-3-1/20 

### First, this litigation obviously benefits the estate by establishing that Roy is not entitled to any ofthe payments due underthe promissory note executed to Leora by Pantrol. On that basis alone, fees are awardable. Second, while the trial court concluded that fees were not awardable for that phase ofthe litigation, we take a different view regarding fees on appeal. 

### Roy's challenge to the trialcourt's reading of the trust had no reasonable basis for being reversed. The trust is unambiguous. Andthe trial court's determination that Leora was not competent when she signed the agreement is wellsupported 

### by this record. Underthese circumstances, and in view of the diminishment of the estate bythe expenditure offees and costs by this appeal, we deem itproper to award fees to the estate, subject to its compliance withthe RAPs to establish

amounts. We affirmthe trial court in all respects and award fees to the estate, 

### subjectto its compliance with the RAPs to establish amounts. 

# db(.J.

WE CONCUR: 

# /-/<y

20