IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Estate of 

AMALIA P. FERARA,

the FERARA LIVING TRUST, 

the IVAN FERARA FAMILY TRUST,

and the AMALIA FERARA TRUST.

_____________________________

DIANA M. FERARA, as the 

Personal Representative of 

the Estate of Amalia Ferara, and as 

Trustee of the Ivan Ferara Living

Trust, the Ferara Family Trust,

and the Amalia Ferara Trust,

 Respondent,

v.

ALICIA K. FERARA, 

ALBERT E. FERARA, 

KRISTY L. FERARA, 

NANCY S. FERARA, and 

JOHNNY T. FERARA, 

Appellants. 

 No. 83404-5-I

DIVISION ONE 

ORDER DENYING MOTION

FOR RECONSIDERATION AND 

WITHDRAWING AND 

SUBSTITUTING OPINION 

Appellants Kristy Ferara, Nancy Ferara, and Johnny Ferara filed a motion to 

reconsider the opinion filed on September 5, 2023, in the above case. Respondent 

Diana Ferara filed an answer opposing the motion to reconsider and seeking 

additional fees and costs. 

The panel has determined that Appellants’ motion for reconsideration should 

be denied. Respondent’s request for fees and costs is denied. The panel has also 
No. 83404-5-I/2 

2 

determined that the opinion in the above-entitled case filed on September 5, 2023 

should be withdrawn and a substitute published opinion be filed. 

Now, therefore, it is hereby

ORDERED that the opinion filed on September 5, 2023, is withdrawn and a 

substitute published opinion shall be filed.
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Estate of 

AMALIA P. FERARA,

the FERARA LIVING TRUST, 

the IVAN FERARA FAMILY TRUST,

and the AMALIA FERARA TRUST.

_____________________________

DIANA M. FERARA, as the 

Personal Representative of 

the Estate of Amalia Ferara, and as 

Trustee of the Ivan Ferara Living

Trust, the Ferara Family Trust,

and the Amalia Ferara Trust,

 Respondent,

v.

ALICIA K. FERARA, 

ALBERT E. FERARA, 

KRISTY L. FERARA, 

NANCY S. FERARA, and 

JOHNNY T. FERARA, 

Appellants.

No. 83404-5-I

DIVISION ONE

PUBLISHED OPINION

CHUNG, J. — When two of her siblings would not accept the distribution of 

a property as directed by a family trust, trustee Diana Ferara petitioned under 

TEDRA1 to compel the distribution. Her siblings filed a counterclaim for breach of 

fiduciary duty, in part based on alleged mismanagement of the trust property. 

After determining that the siblings failed to proffer admissible evidence under CR 

 1 Trust and Estate Dispute Resolution Act (TEDRA), ch. 11.96A RCW.
No. 83404-5-I/2

2

56(e), the trial court granted Diana’s motion for summary judgment and 

dismissed the counterclaim. The court also ordered the two siblings to accept 

their distribution or be deemed to have constructively disclaimed their interest in 

the property and awarded costs and fees to Diana. Diana’s siblings appeal.

Statements that are not based on personal knowledge do not satisfy CR 

56(e). Nor are documents automatically rendered admissible if the party moving 

for summary judgment submits them with its motion without proper supporting 

affidavits. Finally, the court’s order of constructive disclaimer by two of the 

beneficiaries of their interests in a trust asset was within its broad authority under 

TEDRA “to proceed with such administration and settlement in any manner and 

way that to the court seems right and proper,” RCW 11.96A.020(2), as it did not 

supersede the disclaimer statute, RCW 11.86.031, and it was consistent with the 

trustors’ intent. Therefore, the trial court did not err in granting Diana’s motion for 

summary judgment on her TEDRA petition. We affirm. 

FACTS

Ivan and Amalia Ferara created the Ferara Living Trust. The Living Trust 

was funded with four properties: one in Bellevue, one in Duvall, and two in San 

Pedro, California, at 729 and 735 West 22nd Street (the 729 Property and 735 

Property, or the Properties). The Living Trust provided that, on the death of either 

parent, its assets were to be apportioned between a trust bearing the surviving 

parent’s name and the Ivan Ferara Family Trust. The Living Trust nominated Ivan 

and Amalia’s daughter Diana as successor trustee for these two trusts and for 
No. 83404-5-I/3

3

the Living Trust, with their daughter Kristy as the next in line.

2 The Living Trust 

specified that, upon the death of the surviving parent, the Bellevue property “shall

be distributed” to Albert, the Duvall property to Nancy and Johnny, the 729 

Property to Diana and Nancy, and the 735 Property to Alicia and Kristy. 

When Ivan died in 2016, per the terms of the Living Trust, Amalia became 

its trustee. Amalia resigned her role as trustee of the Living Trust and declined to 

serve as trustee of the Family Trust and the Amalia P. Ferara Trust. Diana 

accepted the role of trustee of the three trusts. As trustee, in 2016, Diana had the 

two trust properties in California inspected by a local realtor and hired a property 

management company to manage them. 

When Amalia died in February 2020, Diana distributed the properties to 

the trust’s beneficiaries. Kristy and Alicia, however, refused to accept distribution 

of the 735 Property until it was returned to “a good and reasonable condition.” 

They commissioned an inspection report of the 735 Property in August 2020 by 

Frank Overbeek (the Overbeek Report). 

Diana filed a TEDRA petition in December 2020 to require Kristy and 

Alicia to either accept transfer of title to the 735 Property or be deemed to have 

disclaimed their interest in it. She also requested costs and fees. 

 2 There were six Ferara children: Alicia, Albert, Kristy, Diana, Nancy, and Johnny. 

Because the parties share a surname, we use their first names for clarity, as did the parties’

briefing. Albert is not a party to this litigation. Alicia was a party to the litigation below. She 

withdrew from this appeal prior to passing away in October 2022.
No. 83404-5-I/4

4

Four of Diana’s five siblings counterclaimed against her, including a claim 

that Diana breached her fiduciary duty to keep the property in good condition.3

The Siblings’ response to Diana’s TEDRA petition attached a 2017 inspection 

report Diana requested from the property management company of both the 

upper and lower rental units at the 735 Property (the 2017 Inspections), and the 

Overbeek Report. However, there was no declaration or affidavit attesting to 

either the 2017 Inspections or the Overbeek Report. Instead, each sibling signed 

a “verification statement,” stating each had personal knowledge of the contents of 

the response “as they pertain to myself and the matters discussed” and verifying 

that the response’s factual statements “concerning myself, my activities, my 

knowledge and my intentions are true” under penalty of perjury. 

The Siblings moved for partial summary judgment on their TEDRA 

defenses, counterclaims, and request for costs and fees. Diana moved for 

summary judgment dismissing the Siblings’ counterclaims and ordering Kristy 

and Alicia to accept the 735 Property or disclaim their interest in it, and for costs 

and fees. In support of her motion, Diana submitted an expert declaration stating 

that she had satisfied her fiduciary duties, a declaration from a real estate agent 

who inspected the 729 and 735 Properties in 2016 and again in 2021, and a 

declaration from the property management company she hired to manage the

Properties. Also filed as exhibits to her attorney’s declaration were her Siblings’

answers to her interrogatories, which stated they “incorporated” the Siblings’ 

 3 Appellants’ briefing refers to these four—Alicia, Kristy, Nancy, and Johnny—as the 

Siblings. We do the same.
No. 83404-5-I/5

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TEDRA response and verified counterclaims and “attach[ed]” copies of both the 

2017 Inspections and the Overbeek Report. The Siblings’ response to Diana’s 

summary judgment motion, in turn, also purported to “incorporate and attach”

their verified TEDRA counterclaims, the 2017 Inspections, the Overbeek Report, 

and their attorney’s letter to Diana.

At an October 2021 hearing on both Diana’s and her Siblings’ summary 

judgment motions, the trial court rejected the Siblings’ claim that it lacked 

jurisdiction over the California property and lacked the authority to order 

constructive disclaimer of Kristy’s and Alicia’s interest in the 735 Property. 

Further, the court denied the Siblings’ breach of fiduciary duty counterclaim and 

granted Diana’s motion to dismiss all the Siblings’ counterclaims. Finally, the 

court ordered Kristy and Alicia to accept transfer of title to the 735 Property within 

30 days or be deemed to have disclaimed their interest in it. 

Diana later moved for fees and costs, which the court awarded to her, to 

be paid by the Siblings. The Siblings timely appeal.

DISCUSSION

The Siblings assign error to the trial court’s ruling that the Overbeek 

Report and other evidence was inadmissible, its dismissal of their claim that 

Diana breached her fiduciary duties, its order of the constructive disclaimer of 

Kristy and Alicia’s interest in the 735 Property, and its award of attorney fees to 

Diana.4

 4 The Siblings assign error only to the court’s award of attorney fees, not costs, which 

were also awarded to Diana. 
No. 83404-5-I/6

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On appeal of an order granting summary judgment, we review de novo 

whether “the pleadings, depositions, answers to interrogatories, and admissions 

on file, together with the affidavits, if any, show that there is no genuine issue as 

to any material fact and that the moving party is entitled to a judgment as a 

matter of law.” CR 56(c); see Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 

552, 192 P.3d 886 (2008). We view all facts and reasonable inferences in the 

light most favorable to the nonmoving party. Elcon Constr., Inc. v. E. Wash. 

Univ., 174 Wn.2d 157, 164, 273 P.3d 965 (2012). “ ‘[B]are assertions that a 

genuine material issue exists’ do not constitute facts sufficient to defeat a motion 

for summary judgment.” SentinelC3, Inc. v. Hunt, 181 Wn.2d 127, 140, 331 P.3d 

40 (2014) (quoting Trimble v. Wash. State Univ., 140 Wn.2d 88, 92-93, 993 P.2d 

259 (2000)). “Instead, an affidavit opposing summary judgment must (1) be made 

on the affiant’s personal knowledge, (2) be supported by facts admissible in 

evidence, and (3) show that the affiant is competent to testify to the matters 

therein.” Id. (citing CR 56(e)).

I. Admissibility of Evidence Supporting Summary Judgment Motions

The Siblings argue that the evidence they submitted to establish a 

question of material fact regarding a breach of fiduciary duty—i.e., evidence of 

the poor condition of the 735 Property—was admissible on two grounds. They 

argue it was admissible, first, because it was based on their personal knowledge 

and sworn under penalty of perjury and, second, because Diana attached it to 

her motion for summary judgment. We disagree with both arguments.
No. 83404-5-I/7

7

A. Personal knowledge and authentication requirements

The Siblings argue that the evidence they rely on to support their motion

for partial summary judgment and to oppose Diana’s motion for summary 

judgment was admissible because it was based on personal knowledge and 

sworn under penalty of perjury. Specifically, they claim because their

counterclaim complaint was “verified” through accompanying verification 

statements, the statements of facts in the counterclaim, as well as exhibits 

attached to their complaint, were admissible.5

CR 56(e) specifies the acceptable methods for presenting facts for 

consideration at the summary judgment stage:

(e) Form of Affidavits; Further Testimony; Defense Required. 

Supporting and opposing affidavits shall be made on personal 

knowledge, shall set forth such facts as would be admissible in 

evidence, and shall show affirmatively that the affiant is competent 

to testify to the matters stated therein. Sworn or certified copies of 

all papers or parts thereof referred to in an affidavit shall be 

attached thereto or served therewith. The court may permit 

affidavits to be supplemented or opposed by depositions, answers 

to interrogatories, or further affidavits. . . .

(Boldface omitted.)

Thus, “an affidavit opposing summary judgment must (1) be made on the 

affiant’s personal knowledge, (2) be supported by facts admissible in evidence, 

 5 In response to Diana’s question asking the Siblings to set forth all facts relating to 

breach of fiduciary duty, the Siblings’ interrogatory answers refer to their verified counterclaim, as 

well as to a November 2020 letter sent by their attorney to Diana’s attorney that was also 

attached to their TEDRA response. To the extent the Siblings argue that their discovery 

responses provide substantive evidence and to the extent the discovery responses rely in turn on 

the admissibility of the statements in, and exhibits attached to, the “verified” counterclaim, our 

analysis need not separately address the Siblings’ discovery responses.
No. 83404-5-I/8

8

and (3) show that the affiant is competent to testify to the matters therein.” 

SentinelC3, 181 Wn.2d at 140 (citing CR 56(e)).

Separate from the requirement in CR 56(e) that supporting affidavits must 

be made on personal knowledge, ER 901 requires that documents be authentic. 

Int’l Ultimate, Inc. v. St. Paul Fire & Marine Ins. Co., 122 Wn. App. 736, 745-46, 

87 P.3d 774 (2004). “Authentication is a threshold requirement designed to 

assure that evidence is what it purports to be. ER 901 sets forth a number of 

ways that evidence may comply with the rule. For example, the rule allows 

documents to be admitted based on the testimony of witnesses with knowledge.”

Id. at 746-47 (footnotes omitted).

The Siblings’ counterclaim, contained in their response to Diana’s TEDRA 

petition, alleges that Diana breached her fiduciary duty by failing to maintain the 

735 Property in good and reasonable condition. Along with making factual 

allegations, the counterclaim attached as exhibits the 2017 Inspections and the 

Overbeek Report, which both contain photos. The Siblings contend that their 

verification statements establish they have personal knowledge of the factual 

statements in their counterclaim and its attached exhibits. 

The Siblings’ counterclaim repeats verbatim some statements from the

Overbeek Report and summarizes others. For example, it asserts, “on 

information and belief,” that the 735 Property lacks the certificate of occupancy 

required in California for a rental property. Further, the counterclaim “assert[s]” 

that Diana failed to maintain the 735 Property in a good and reasonable 
No. 83404-5-I/9

9

condition, and concludes that Diana “has breached” her fiduciary duty. And it

alleges Diana “may” have exposed the property to “potential” criminal liability. 

Each Sibling’s verification statement for the counterclaim states:

I, [Sibling], declare:

I am a Respondent and Counter Petitioner in the above 

referenced matter. I have read the foregoing RESPONSE TO 

TEDRA PETITION, MOTION TO DISMISS TEDRA PETITION AND 

COUNTERCLAIM TO TEDRA PETITION and know the contents 

thereof.

I have personal knowledge of the information contained 

therein as they pertain to myself and the matters discussed. If 

called upon to testify, I would competently testify as to the matters 

as stated above.

I verify under penalty of perjury under the laws of the United 

States of America and the States therein that the factual statements 

in this RESPONSE TO TEDRA PETITION, MOTION TO DISMISS 

TEDRA PETITION AND COUNTERCLAIM TO TEDRA PETITION 

concerning myself, my activities, my knowledge and my intentions

are true and correct to the best of my knowledge and belief.

While each Sibling claims to “have personal knowledge of the information 

[as it pertains] to myself and the matters discussed” in their response, the record 

before the court on summary judgment contained no declarations from the 

people who conducted the inspections, prepared the reports, and had personal 

knowledge of the information in the reports, such as Scott Colette of Harbor 

Property Management or Frank Overbeek of Bona Fide Home Inspections. The 

Siblings have not themselves demonstrated that they have the requisite firsthand 

knowledge or observations. “[L]ay witness opinion testimony must be based on 

firsthand knowledge or observation.” SentinelC3, 181 Wn.2d at 142 (explaining 

that lay opinions based solely on consultations with experts whose reports are 

not authenticated cannot be considered on summary judgment). Because neither 
No. 83404-5-I/10

10

the 2017 Inspections nor the Overbeek Report was based on the Siblings’ 

personal knowledge, the Siblings’ “verification” statements did not render them 

admissible. 

Likewise, the photographs contained within those reports cannot be 

authenticated by the Siblings’ verification statements. A party may authenticate a 

photograph by “evidence sufficient to support a finding that the matter in question 

is what its proponent claims”—for example, the testimony of a witness with 

knowledge. ER 901(a), (b)(1). The witness need not be the photographer or have 

been present when the picture was taken, but “the proponent must put forward a 

witness ‘able to give some indication as to when, where, and under what 

circumstances the photograph was taken, and that the photograph accurately 

portrays the subject illustrated.’ ” State v. Sapp, 182 Wn. App. 910, 914-15, 332 

P.3d 1058 (2014) (quoting State v. Newman, 4 Wn. App. 588, 593, 484 P.2d 473 

(1971)). Thus, for example, in Sapp, the court held that the victim’s grandmother

could authenticate the photographs and video recordings depicting sexual abuse, 

based on her prior personal knowledge of the people and places depicted and 

the grandchild’s age. Id. at 913, 916. 

Here, however, the Siblings’ verification statements do not establish that 

any of them took the photographs or were present when the photos were taken. 

Nor, unlike in Sapp, is there evidence establishing the Siblings had prior personal 

knowledge sufficient to establish when, where, and under what circumstances 

the photographs were taken, as is required to authenticate them under ER 
No. 83404-5-I/11

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901(b)(1).

6 Therefore, the Siblings’ general verification statements are not 

sufficient to authenticate the photos included in the 2017 Inspections or 

Overbeek Report, so those photos were also not admissible.

As evidence of their counterclaim, the Siblings also point to a letter from 

their attorney, which alleges, inter alia, that “it is an obvious conclusion” that 

differences between the photos in the 2017 Inspections and the Overbeek Report 

show Diana “clearly failed ‘to ensure that the properties are maintained in their 

historic condition.’ ” This letter was provided in response to Diana’s discovery 

requests, and the Siblings’ discovery responses were “sworn under penalty of 

perjury as true and correct.” However, at most, this attestation establishes only 

that the attorney letter is what it purports to be—i.e., a letter from their attorney. 

Their attestation does not establish that the Siblings have personal knowledge of 

the facts discussed in the attorney letter. Thus, the information discussed in the 

attorney letter also is not admissible as substantive evidence of the counterclaim.

The Siblings also contend that because Diana had originally provided the 

2017 Inspections in her responses to their discovery requests, those documents 

are therefore authenticated. They cite International Ultimate, which held that 

“authentication may be satisfied when the party challenging the document 

originally provided it through discovery,” 122 Wn. App. at 748, but they overstate 

its import. The fact that a document was produced in discovery does not 

 6 The 735 Property was a rental property not in the Siblings’ possession, and there is no 

evidence in the record to establish the Siblings’ prior personal knowledge of the 729 or 735 

Properties. Kristy lives in Georgia, Johnny lives in Florida, and Nancy lives in Washington State. 

Only Alicia lived in California.
No. 83404-5-I/12

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automatically render it self-authenticating. Rather, distinguishing the 

requirements of CR 56(e) and ER 901, the court in International Ultimate

explained, “If the documents are properly authenticated and are not excluded 

because of hearsay, then an attorney may rely on them in a summary judgment 

motion regardless of any lack of personal knowledge.” Id. at 746. In other words, 

a party may use documents produced in discovery in a summary judgment 

proceeding “ ‘if appropriately authenticated by affidavit or declaration.’ ” Id. at 

747-48 (internal quotation marks omitted) (quoting Carson Harbor Vill., Ltd. v.

Unocal Corp., 287 F. Supp. 2d 1118, 1134 n.64 (C.D. Cal. 2003)). Therefore, in

International Ultimate and in Carson Harbor Village, documents were admissible 

for purposes of summary judgment because the party offering the documents 

had submitted a declaration that the documents were true and correct copies of 

the documents produced by the opposing party during discovery.

By contrast, here, the Siblings did not submit any declarations or 

affidavits, by their attorney or otherwise, to establish that the documents at issue

were provided by Diana in response to discovery. Instead, the documents were 

simply attached as exhibits to the Siblings’ response to Diana’s summary 

judgment motion. Because they were not properly authenticated as Diana’s 

discovery responses, they were not admissible for purposes of summary 

judgment, and the trial court properly declined to consider them on that basis.

We conclude that without declarations or affidavits establishing either the 

Siblings’ personal knowledge of the contents of the 2017 Inspections and 

Overbeek Report or their photographs, or that Diana provided the 2017 
No. 83404-5-I/13

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Inspections in discovery responses, this evidence does not satisfy the CR 56(e) 

standard for admissibility in a summary judgment proceeding.

B. Siblings’ evidence submitted with Diana’s motion

In the alternative, the Siblings argue the evidence they submitted in 

support of their counterclaims7 was admissible because Diana submitted the 

same evidence with her motion for summary judgment. Therefore, the Siblings 

argue, they “had no reason to present additional affidavits” or other evidence 

because Diana’s choice “necessarily admits . . . the facts” and “waive[s] any 

defect[ ] in the admissibility” of their evidence. We disagree that a moving party 

renders evidence admissible under CR 56(e) by including documents in their 

summary judgment pleadings.

A party against whom a claim is asserted “may move with or without 

supporting affidavits for a summary judgment in such party’s favor.” CR 56(b). 

Then, the adverse party defending against the motion has the burden of setting

forth specific facts showing that there is a genuine issue for trial with admissible 

evidence. CR 56(e); Young v. Key Pharms., Inc., 112 Wn.2d 216, 225, 770 P.2d 

182 (1989) (after moving party points to absence of genuine issue of fact, “then 

the inquiry shifts to the party with the burden of proof at trial”). “ ‘[B]are assertions 

that a genuine material issue exists’ do not constitute facts sufficient to defeat a 

 7 Appellants refer to the evidence that they submitted as “the Siblings’ evidence.” We do 

the same to distinguish it from other evidence in the summary judgment record that only Diana 

submitted. 
No. 83404-5-I/14

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motion for summary judgment.” SentinelC3, 181 Wn.2d at 140 (quoting Trimble, 

140 Wn.2d at 92-93). 

Here, Diana and the Siblings filed cross motions for summary judgment on 

the Siblings’ counterclaim. In support of her motion, Diana’s attorney signed, 

under penalty of perjury, a declaration attesting that attached as exhibits were 

true and correct copies of the Siblings’ responses to Diana’s discovery requests, 

as well as Diana’s responses to the Siblings’ discovery requests. The Siblings’ 

discovery responses included their verified counterclaim, their interrogatory 

answers that incorporate their counterclaim, their attorney’s letter to Diana, the 

2017 Inspections, and the Overbeek Report. 

The Siblings contend that even if their submissions of this information did 

not satisfy CR 56(e), the same evidence became admissible because Diana

provided this information in support of her cross motion for summary judgment. 

They argue that when the moving party chooses to present the nonmoving 

party’s evidence, that choice “comes with consequences: namely, that . . . the 

nonmoving party’s evidence is admissible and should be considered.” The 

Siblings cite two cases for this proposition, Bates v. Grace United Methodist 

Church, 12 Wn. App. 111, 529 P.2d 466 (1974), and Klossner v. San Juan 

County, 21 Wn. App. 689, 586 P.2d 899 (1978) (plurality opinion), aff’d, 93 

Wn.2d 42, 605 P.2d 330 (1980). But neither case supports the proposition that 

merely attaching information to a motion for summary judgment satisfies the 

requirements of CR 56(e).
No. 83404-5-I/15

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In Bates, the defendant supported his motion for summary judgment 

“exclusively” with the plaintiff’s deposition. 12 Wn. App. at 112. By doing so, “the 

defendant was essentially declaring that he had no dispute with any of the 

material facts asserted in that deposition, and that even if all the material facts 

therein were assumed to be true, the defendant was entitled to judgment as a 

matter of law.” Id. at 115. The plaintiff also relied exclusively on his own 

deposition in opposition to the motion. Id. at 112. The court reasoned that “the 

nonmoving party may not successfully oppose the motion by nakedly asserting 

that there are unresolved factual questions,” but must set forth specific facts 

showing a genuine issue of material fact. Id. at 115. The record “did not disclose 

that the parties were ‘disputing’ any material issue of fact that would establish the 

defendant’s negligence,” so summary judgment was properly granted. Id. at 116. 

Thus, Bates does not stand for the general proposition that if a moving party 

includes any evidence with its motion, it concedes that it is admissible. Here, 

unlike the defendant in Bates, Diana submitted her own evidence. She did not 

rely exclusively on “the Siblings’ evidence” but, rather, explicitly challenged its 

admissibility.8

In Klossner, the wife of a man who was killed driving on a San Juan 

County road sued the county for negligence. 21 Wn. App. at 690. In moving for 

summary judgment, the county relied solely on Klossner’s answers to 

 8 The Siblings contend Diana first challenged the Siblings’ evidence as inadmissible in 

her reply brief below, too late for the Siblings to respond adequately. Regardless, the trial court 

did hear argument and considered the issue below. We review the trial court’s grant of summary 

judgment de novo, Ranger Ins. Co., 164 Wn.2d at 552, and the issue of admissibility has been 

fully briefed on appeal, so it is appropriate for our consideration.
No. 83404-5-I/16

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interrogatories, which “describe[d] in detail the action of the truck during the 

accident and the effect of the road’s defects on the path of the truck.” Id. at 691-

92. But the interrogatories were silent regarding whether her answers were 

based on her personal knowledge. Id. at 692. This court reversed the summary 

judgment dismissal, reasoning that by relying solely on Klossner’s answers to 

support its motion, the county admitted her answers and all reasonable 

inferences therefrom, including an inference of negligence. Id. at 693-94. Two 

judges concurred only in the result because Klossner’s answers “demonstrate[d] 

on their face that they were based on hearsay,” and thus were inadmissible 

under CR 56(e) and could not provide the factual basis for determining liability as 

a matter of law. Id. at 696 (Andersen, A.C.J., concurring in result, with James, J., 

concurring in result separately at 697).

The Washington Supreme Court affirmed, but on different grounds. The 

county relied on Klossner’s interrogatory answers to establish the nonexistence 

of an eyewitness to the accident, but also contended Klossner could not use the 

same documents to establish a material issue of fact because they were not 

based on her personal knowledge. 93 Wn.2d at 45. The court stated that the 

county “may not have it both ways. Indeed, it may not have it either way, for none 

of the documents satisfies CR 56(e).” Id. Because Klossner’s interrogatory 

answers were not made on personal knowledge, nor did they establish she was 

competent to testify to the matters stated, they were inadmissible for summary 

judgment purposes. Id.
No. 83404-5-I/17

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While the Siblings argue that by presenting their evidence, Diana 

“admitted” that evidence, Klossner does not support this conclusion. Unlike the 

moving party in Klossner, Diana has presented other admissible evidence 

establishing that there is no material issue of fact. Moreover, Klossner reinforces 

the rule that in the absence of personal knowledge, evidence does not satisfy CR 

56(e) and may not be considered by a court on summary judgment. Here, by 

including the Siblings’ discovery responses in the summary judgment record, 

Diana did not thereby concede admissibility under CR 56(e), nor did she render 

the responses admissible. 

As the nonmoving party opposing Diana’s motion for summary judgment,

it was the Siblings’ burden to set forth specific facts with admissible evidence 

showing a genuine issue for trial. CR 56(e); SentinelC3, 181 Wn.2d at 140. 

Because the Siblings did not set forth admissible evidence based on personal 

knowledge and because documents are not rendered admissible as evidence 

solely because the moving party filed them with a motion for summary judgment, 

the court did not err by excluding the Siblings’ evidence from consideration in 

summary judgment proceedings.

II. Breach of Fiduciary Duty

On appeal, the Siblings claim that Diana breached her fiduciary duty in 

several ways: (1) mismanaging the 729 and 735 Properties, resulting in defects 

that could expose the beneficiaries to potential liability upon taking ownership, (2) 

proceeding with a distribution plan and treating the transfer of the 729 Property 

differently than the transfer of the 735 Property, and (3) failing to keep 
No. 83404-5-I/18

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beneficiaries informed about the trust, failing to provide an accounting, and 

refusing to make reasonable arrangements for beneficiaries to review trust 

documents.

9 As the summary judgment record shows no genuine issue of 

material fact, the trial court did not err in dismissing the Siblings’ counterclaim of 

breach of fiduciary duty. 

A trustee owes the beneficiaries of the trust the highest degree of good 

faith, care, loyalty, and integrity. In re Marriage of Petrie, 105 Wn. App. 268, 275, 

19 P.3d 443 (2001) (internal quotation marks omitted) (quoting Esmieu v. 

Schrag, 88 Wn.2d 490, 498, 563 P.2d 203 (1977)). Washington courts have 

defined a trustee’s duty of care, skill, and diligence to be that degree of care, 

skill, and diligence that an ordinary prudent person exercises in similar affairs.

Cook v. Brateng, 158 Wn. App. 777, 785, 262 P.3d 1228 (2010) (citing In re 

Nontestamentary Tr. of Parks, 39 Wn.2d 763, 767, 238 P.2d 1205 (1951)).

A. Mismanagement of properties

Regarding property, a trustee owes a general duty to use reasonable care 

and skill to make the trust property productive through leasing or managing it to 

generate income. Conserv. Nw. v. Franz, 199 Wn.2d 813, 829-30, 514 P.3d 174

(2022) (citing RESTATEMENT (SECOND) OF TRUSTS § 181 & cmt. a (AM. L. INST.

1959). “Waste” is an unreasonable or improper use, abuse, mismanagement, or 

 9 Diana notes that the Siblings’ counterclaim has varied over the course of litigation. In 

their counterclaim, the Siblings initially alleged Diana breached her fiduciary duty by “failing to 

maintain Trust and Estate assets in good and reasonable condition,” attempting to transfer 

property that was “not reasonably maintained,” failing to provide an accounting, and “attempting 

to disinherit” beneficiaries. In their motion for partial summary judgment, the Siblings alleged 

breach through “forced disclaimer of interest in inheritance” regarding the 735 Property. 
No. 83404-5-I/19

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omission of a duty touching real estate by one rightfully in possession that results 

in its substantial injury. Graffell v. Honeysuckle, 30 Wn.2d 390, 398, 191 P.2d 

858 (1948). If a trust gives the trustee discretion with respect to the management 

of the trust property, exercise of that discretion is subject to the court’s control 

only when it is necessary to prevent an abuse of that discretion. Conserv. Nw., 

199 Wn.2d at 830 (citing RESTATEMENT (SECOND) OF TRUSTS § 187 & cmt. a). 

In this case, while her mother, Amalia, was alive, the trusts obligated 

Diana to generate rental income, invading the principal if necessary, and 

expressly permitted her to hire agents without liability for their omissions or 

neglect. To establish that she had satisfied her duty to use reasonable care in 

managing the 729 and 735 Properties to generate rental income, Diana

submitted her own sworn declaration that she “responded in a timely manner to 

maintenance and repair requests” at the 729 and 735 Properties. She hired a 

professional property management company, Harbor Property Management, to, 

among other purposes, “abide by all applicable California rental laws,” address 

“needed repairs and maintenance issues,” and “[c]oordinate the services above 

to minimize expenses and lost rent.” She maintained voluminous records, 45 

binders full, to “prove that I have done everything in my power to maintain the 

properties, not let them fall into disrepair, and to avoid waste.”10

 10 In support of her summary judgment motion, Diana also submitted her interrogatory 

responses, which included a detailed narrative of the expenses paid for maintenance work and 

the income produced by those two properties. On appeal, the Siblings challenge Diana’s answers 

to their interrogatories as not signed under penalty of perjury. Generally, issues not raised below 

may not be raised on appeal. See RAP 2.5(a); Roberson v. Perez, 156 Wn.2d 33, 39, 123 P.3d 

844 (2005). Regardless, even without the information in Diana’s interrogatory responses, the 

other evidence in the summary judgment record is sufficient to support the court’s grant of 
No. 83404-5-I/20

20

The summary judgment record also contains the sworn declaration of a 

local real estate agent, Gustavo Cardenas, who toured both properties in 2016 

and 2021. Cardenas’s declaration attached photos of the 729 Property at the 

time he toured it, but he took no photos of the 735 Property because that 

property was occupied by a long-term tenant. As to both properties, the real 

estate agent states that the properties showed “no deferred maintenance” but 

“will need a deep cleaning and new paint.” 

Finally, the record contains the sworn declaration of Harbor Property 

Management’s managing broker, Scott Colette, which attached his letter stating 

that Diana “always asked for estimates” and expressing his view “that the overall 

condition of the property and the intended us [sic] an income producing 

investment has improved considerably” over the time his company had been 

maintaining the properties.11

By contrast, as discussed above, the record does not contain admissible 

evidence of mismanagement, much less that the Siblings would be exposed to 

liability under California rental law, other than the Siblings’ “ ‘bare assertions.’ ” 

SentinelC3, 181 Wn.2d at 140 (quoting Trimble, 140 Wn.2d at 93). Therefore, we 

 

Diana’s motion for summary judgment dismissing the Siblings’ counterclaim that Diana 

mismanaged the properties.

11 The record also includes a report from Diana’s expert, attorney Mark Vohr, concluding 

that Diana “clearly met her fiduciary duty” to generate income for her mother and that “nothing in 

the trust documents” supports the Siblings’ contention that the two properties must be refurbished 

before being transferred to them. The Siblings challenged the expert on multiple grounds, 

including Diana’s failure to disclose him as an expert and their lack of opportunity to depose him. 

Like the trial court, we determine it unnecessary to rely on the expert report to determine the 

summary judgment record establishes no genuine issue of material fact as to the claimed breach 

of fiduciary duty.
No. 83404-5-I/21

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conclude no admissible evidence supports the Siblings’ claim that Diana 

breached her fiduciary duty by exposing them to potential liability upon their 

taking ownership of the 735 Property.

B. Distribution plan for transfer of 729 Property and 735 Property

The Siblings claim that Diana “had a duty to treat the Siblings equally,” 

and that she breached this duty because she distributed the 729 Property to 

herself and Nancy but “treated Kristy and Alicia differently by filing the TEDRA 

petition to force them to accept the 735 Property.” However, the Siblings provide 

no legal authority for their argument, and they point to no provision of the trust

supporting a duty to treat siblings equally.

Rather, regarding the properties, the trust states, “The Trustee shall 

distribute the lots and residences described below as follows”: the 735 Property 

“shall be distributed to KRISTY L. FERARA and ALICIA K. FERARA in equal 

shares if they are then living,” and the 729 Property “shall be distributed to 

DIANA M. FERARA and NANCY S. FERARA in equal shares if they are then 

living . . . .” No trust provision required the trustee to retain the 735 Property 

indefinitely or to undertake any improvements to it. Accordingly, Diana did not 

breach her fiduciary duty by filing a TEDRA petition seeking to distribute the 729 

Property when Kristy and Alicia refused to accept it. To the contrary, in so doing, 

Diana was fulfilling her obligation as trustee to distribute assets in accordance

with the trust’s directives. Thus, the evidence establishes no triable issue as to 

whether Diana’s actions in distributing any of the trust properties breached her 

fiduciary duties, including the duty of impartiality under RCW 11.98.078.
No. 83404-5-I/22

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C. Providing information to beneficiaries

The Siblings also argue that Diana breached her fiduciary duty because 

they “endure[d] delay and costs” trying to obtain information regarding the trust. 

Below, the Siblings conceded that Diana provided an accounting for the trust. On

appeal, they argue that a genuine issue exists because “[e]ven though [they] 

eventually received the documents, they should not have had to endure the delay 

and costs that Diana imposed on them.” 

The trial court dismissed the Siblings’ demand for an accounting as moot,

and, as to Diana’s alleged “failure to provide regular accounting,” it held that

there was no genuine issue of material fact. We likewise conclude no admissible 

evidence sets forth specific facts showing a genuine issue for trial regarding the 

Siblings’ claim that Diana breached her fiduciary duties by imposing delay and 

costs on the Siblings in their pursuit of information regarding the trust’s operation. 

As discussed above, viewed in the light most favorable to the Siblings, no 

admissible evidence creates a question of fact as to whether Diana committed 

waste at either the 729 or the 735 Property, abused her discretion by hiring a 

property management company to manage them, or exposed the Siblings to 

potential liability as California landlords. Further, Diana did not breach her 

fiduciary duty by filing a TEDRA petition in order to distribute the 735 Property. 

Finally, the Siblings have not raised a genuine issue that Diana breached her 

fiduciary duty by allegedly imposing delay and costs on the Siblings in their 

pursuit of documents regarding the trust’s operations. Therefore, the court 
No. 83404-5-I/23

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properly granted Diana’s motion for summary judgment dismissing the Siblings’ 

claim of breach of fiduciary duty.

III. Constructive Disclaimer

The Siblings also appeal the court’s order requiring two of the Siblings, 

Kristy and Alicia, to accept transfer of title to the 735 Property within 30 days or 

be deemed to have disclaimed their interest in it. Below, the court noted that 

neither party cited authority for or against constructive disclaimer and

acknowledged that it “has considerable equitable powers” under RCW 

11.96A.020. On appeal, the Siblings concede that the trial court had the authority

to order Kristy and Alicia to execute documents effectuating the transfer of 

property located in another state to them,

12 but nevertheless contend it erred.

The Siblings argue that the court abused its discretion because even if 

had the power to order the transfer of the 735 Property to Kristy and Alicia, “there 

is no statute or case law that grants a trial court the authority to constructively 

disclaim a beneficiary’s interest in a specific bequest.” Br. of Appellant at 55. The 

Siblings also argue that the court’s constructive disclaimer order was contrary to 

Ivan and Amalia’s intent that Kristy and Alicia personally inherit the 735 

Property.13

 12 See OneWest Bank, FSB v. Erickson, 185 Wn.2d 43, 61, 367 P.3d 1063 (2016) (trial 

court has power to “ ‘indirectly act upon real estate in another State’ ” through its in personam

jurisdiction over the parties (quoting Fall v. Eastin, 215 U.S. 1, 8, 30 S. Ct. 3, 54 L. Ed. 65 (1909)); 

In re Marriage of Kowalewski, 163 Wn.2d 542, 547, 182 P.3d 959 (2008) (trial court may 

“exercise its coercive powers” to order the parties to do that which the court cannot do directly,

namely, transfer title to out-of-state real property).

13 The Siblings also argue for the first time on appeal that if they prevail on their 

counterclaim for breach of fiduciary duty, then the court’s order would be inequitable because it 

would force them to accept ownership and attendant liability for mismanaged property. Given that 
No. 83404-5-I/24

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TEDRA provides for the resolution of probate matters through nonjudicial 

dispute resolution methods, such as mediation, arbitration, and agreement. RCW 

11.96A.010. Under TEDRA, superior courts have original subject matter 

jurisdiction over trusts “and all matters relating to trusts.” RCW 11.96A.040(2).

Regarding the settlement of trusts, the court “has full power and authority to 

proceed . . . in any manner and way that to the court seems right and proper, all 

to the end that the matters be expeditiously administered and settled by the 

court.” RCW 11.96A.020(2).14 Nonetheless, TEDRA’s provisions “shall not 

supersede, but shall supplement, any otherwise applicable provisions and 

procedures.” RCW 11.96A.080(2); In re Est. of Harder, 185 Wn. App. 378, 384, 

341 P.3d 342 (2015). “TEDRA does not independently give trial courts authority 

when there is another statute” on point. In re Est. of Rathbone, 190 Wn.2d 332, 

345, 412 P.3d 1283 (2018). 

The Siblings argue that a different statute, RCW 11.86.031, controls the 

disclaimer of an interest, so a court cannot order “constructive disclaimer” 

 

the Siblings fail to establish a question of fact as to their claim of breach of fiduciary duty, we 

reject this argument.

14 The statute states in relevant part:

(1) It is the intent of the legislature that the courts shall have full and ample power 

and authority under this title to administer and settle:

....

(b) All trusts and trust matters.

(2) If this title should in any case or under any circumstance be inapplicable, 

insufficient, or doubtful with reference to the administration and settlement of the 

matters listed in subsection (1) of this section, the court nevertheless has full 

power and authority to proceed with such administration and settlement in any 

manner and way that to the court seems right and proper, all to the end that the 

matters be expeditiously administered and settled by the court. 

RCW 11.96A.020.
No. 83404-5-I/25

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because it would be contrary to that statute. They claim that because RCW 

11.86.031 sets “strict requirements and limitations for disclaimers,” there is “no 

room” for the possibility of constructive disclaimer. 

Chapter 11.86 RCW authorizes beneficiaries to disclaim an interest and 

sets out specific parameters for how they may do so. RCW 11.86.021, .031. But 

the statute sets limits only on how a beneficiary would affirmatively disclaim an 

interest; it does not divest the court of its equitable powers under TEDRA.15

Rather, chapter 11.86 RCW anticipates judicial process. For example, RCW 

11.86.051(1)(c) anticipates that an interest may not be disclaimed if sold “or 

otherwise disposed of pursuant to judicial process.” Thus, the court’s order of 

constructive disclaimer under TEDRA—i.e., pursuant to judicial process—

supplemented chapter 11.86 RCW, rather than conflicted with it.

As for the Siblings’ argument that ordering constructive disclaimer was 

contrary to Ivan and Amalia’s intent, while they are correct that a court’s 

“paramount duty in construing wills is to give effect to the testator’s intent,” In re

Est. of Riemcke, 80 Wn.2d 722, 728, 497 P.2d 1319 (1972), the court-ordered

 15 Diana cites Norris v. Norris as precedent for disclaimer by operation of law, 25 Wn. 

App. 290, 297, 605 P.2d 1296 (1980). In Norris, a surviving husband, acting as executor of his 

first wife’s prior will, elected to probate the will and accepted its benefits; therefore, he 

“disclaimed, by operation of law,” his rights under a community property agreement executed 

after the will. However, Norris does not shed light on the issue here regarding the interplay of 

TEDRA and the disclaimer statute, ch. 11.86 RCW, as the disclaimer statute was not in effect at 

the time of the wife’s death, Norris, 25 Wn. App. at 297, and the case also predates the 

enactment of TEDRA by two decades. Further, as the Siblings note, on subsequent review by the 

Washington Supreme Court, while the Court of Appeals decision cited by Diana was affirmed, the 

reasoning was different. The Supreme Court held that the husband’s probate of the will was an 

election of the provisions of the will over the community property agreement, and while that 

agreement “could and should have been determined in the probate of [the wife’s] estate, res 

judicata prevents the court from now reexamining the distribution in light of the community 

property agreement.” Norris v. Norris, 95 Wn.2d 124, 130-31, 622 P.2d 816 (1980).
No. 83404-5-I/26

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disclaimer here is not contrary to the testator’s intent. The Siblings rely on 

Rathbone, 190 Wn.2d at 347, in which the court vacated a trial court’s order 

construing a nonintervention will with a no contest clause. “Generally, a superior 

court’s authority when dealing with nonintervention wills is statutorily limited.” Id.

at 339 (citing In re Est. of Jones, 152 Wn.2d 1, 9, 93 P.3d 147 (2004)). The 

Rathbone court determined that TEDRA did not independently give the trial court 

authority to construe a nonintervention will because to do so was contrary to the 

testator’s clear intent that her personal representative, not the courts, should 

construe her will. Id. at 346-47.

But Rathbone is inapposite; here, there is no nonintervention will at issue. 

Instead, RCW 11.86.041 prescribes that a disclaimer has the same legal effect 

as a beneficiary predeceasing the surviving trustor. See generally In re Est. of 

Baird, 131 Wn.2d 514, 519, 933 P.2d 1031 (1997) (a proper disclaimer passes 

the disclaimed interest as if the disclaiming beneficiary predeceased the date of 

the transfer of the interest (quoting RCW 11.86.041(1))). Here, the trustors’ intent 

is clear that if either Kristy or Alicia predeceases the other, then the 735 Property 

is to descend first to the living descendants of the deceased person, then to the 

other beneficiary, then to the other beneficiary’s living descendant, and then to 

the trustors’ living descendants.16 Thus, in the event of a disclaimer, the 735 

 16 The trust specifies that the 735 Property

shall be distributed to KRISTY L. FERARA and ALICIA K. FERARA in equal 

shares if they are then living, and if either KRISTY or ALICIA is then deceased, 

such deceased beneficiary’s share shall be distributed to her then living 

descendants by right of representation, and if she has no descendants then 

living, her share shall be distributed to the other beneficiary named in this section 
No. 83404-5-I/27

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Property does not go to the initially named beneficiary. That the disclaimer 

occurs by operation of law does not render the transfer contrary to the trustors’ 

intent.

TEDRA gives courts broad authority to “proceed with such administration 

and settlement in any manner and way that to the court seems right and proper, 

all to the end that the matters be expeditiously administered and settled by the 

court.” RCW 11.96A.020(2). When a beneficiary does not accept a distribution, a 

court’s order of constructive disclaimer as an alternative to that inaction is a 

reasonable exercise of the court’s authority to proceed with the expeditious 

administration and settlement of a trust’s assets.

Therefore, we conclude the court’s order of constructive disclaimer was 

within its equitable power and supplemented, without superseding, chapter 11.86 

RCW, which authorizes disclaimer by a beneficiary. Moreover, the court’s order 

was not contrary to the trustors’ intent because, as with other disclaimers, the 

effect was that the property would pass in accordance with the trust’s provisions

in the event of a predeceasing beneficiary.

IV. Fees and Costs

Below, the trial court ordered the Siblings to pay costs and fees of 

$73,341.45 to Diana under RCW 11.96A.150 after hearing motions from both 

sides and entering findings of fact and conclusions of law. 

 

6.1(b) if she is then living, and if she is not then living, to the other beneficiary’s 

then living descendants by right of representation, and if the other beneficiary 

has no descendants then living, to Trustors’ then living descendants by right of 

representation.
No. 83404-5-I/28

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Under TEDRA’s attorney fees award provisions, the trial court has 

discretion to award fees and other costs to any party in an estate dispute 

proceeding governed by Title 11 RCW. RCW 11.96A.150. RCW 11.96A.150(1)

applies not only to trial courts but also to “any court on an appeal.” 

The court may award any amount it “determines to be equitable.” RCW 

11.96A.150(1). “In exercising its discretion under this section, the court may 

consider any and all factors that it deems to be relevant and appropriate, which 

factors may but need not include whether the litigation benefits the estate or trust 

involved.” RCW 11.96A.150(1). We review a trial court’s decision to award 

attorney fees under TEDRA for “ ‘facts and circumstances clearly showing an 

abuse of the trial court’s discretion.’ ” In re Est. of Black, 153 Wn.2d 152, 173, 

102 P.3d 796 (2004) (quoting In re Est. of Larson, 103 Wn.2d 517, 521, 694 P.2d 

1051 (1985)).

The trial court found that Diana was required to file a TEDRA petition and 

that her actions benefited the trust. It found that the Siblings’ actions did not 

benefit the trust and were harmful. It ordered the four litigating Ferara Siblings, 

Alicia, Kristy, Nancy, and Johnny, to pay costs and fees to Diana jointly and 

severally, i.e., not from the trust, because their actions were harmful to it. See In 

re Est. of Niehenke, 117 Wn.2d 631, 647-48, 818 P.2d 1324 (1991) (stating there 

are situations where attorney fees are properly assessed against the estate, but 

noting that generally the estate must be benefited if attorney fees are assessed 

against it).
No. 83404-5-I/29

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Diana contends that the trial court properly exercised its discretion to 

award her fees below, and she requests fees on appeal under RCW 

11.96A.150(1) and RAP 18.1. We agree that the trial court did not abuse its 

discretion in awarding her fees and costs. On appeal, Diana is the prevailing 

party. The issues raised by the Siblings on appeal did not benefit the trust, and 

further harm was done by extending the delay in carrying out the intent of its 

trustors, Ivan and Amalia. Therefore, we agree to award costs and fees on 

appeal to Diana to be paid by the four litigating Ferara Siblings, not the trust.

17

Affirmed. 

WE CONCUR:

 

 17 Because we affirm the trial court’s decision on summary judgment, we deny the 

Siblings’ request that we reverse the grant of fees below and grant them fees on appeal.