COX, J.
¶ 1 A court's paramount duty in construing a testamentary instrument is to give effect to the maker's intent.
¶ 2 Generally, a personal representative of an estate has the right to appeal an adverse decision in a will contest, as it is the duty of the executor to take all legitimate steps to uphold the testamentary instrument.
¶ 3 Here, a trial court judge decided on reconsideration of a motion for partial summary judgment that the First Codicil to the Will of J. Thomas Bernard, dated August 27, 2009, and the First Amendment to the J. Thomas Bernard Revocable Trust Agreement of even date were null and void as a matter of law. We conclude from our de novo review of these and other material documents that this was error.
¶ 4 We also conclude that a different trial court judge erred in deciding that the personal representative of the estate and the trustees of the trust did not have the right to appeal the adverse ruling we described in the previous paragraph. The circumstances of this case do not warrant that ruling.
¶ 5 We reverse and remand for further proceedings.
¶ 6 In 2008, James Bernard filed a petition for guardianship of his father, J. Thomas Bernard, and his father's estate. James alleged in the petition that Tom suffered from dementia and short-term memory loss.
¶ 7 The following year, Tom executed the Will of J. Thomas Bernard and the J. Thomas Bernard Revocable Trust Agreement, both of which are dated March 25, 2009. On advice of counsel, Tom used a revocable living trust "to avoid any negative tax consequences along with a notice requirement to [James] if Tom wanted to modify the Trust."
¶ 8 On March 27, 2009, the superior court dismissed the guardianship petition that James filed the previous year.
¶ 9 The trust agreement provided that the residue of Tom's estate would pass to James or his issue. It also provided that if James predeceased Tom and left no issue, the estate would pass to Tom's niece and nephews, Rose Linger, Larry Emery, and Richard Emery (the "Linger Beneficiaries"), and to various organizations. Under this instrument, each of the Linger Beneficiaries was to receive a 20 percent share.
¶ 10 Tom reserved in this revocable trust the power to revoke, withdraw property from, or modify the trust. These rights are stated in Article 3.1 of the trust instrument. Additionally, the instrument included provisions about exercising these rights:
¶ 11 Tom and James also executed the "Non-Judicial Agreement Re Trust Pursuant to RCW 11.96A," effective as of March 27, 2009 (the "March TEDRA agreement").
¶ 12 The agreement stated that it was "a compromise to certain disputes that have arisen between Tom and James regarding the current management and future disposition of Tom's assets."
¶ 13 The agreement further provided three requirements to be met before Tom exercised his modification powers:
¶ 14 In June 2009, Tom's attorney filed with the superior court a memorandum summarizing the terms of the March TEDRA agreement.
¶ 15 Tom's relationship with his niece, Rose Linger, deteriorated. In July 2009, the trustees for the trust sued Linger and her husband to collect outstanding loans.
¶ 16 In August 2009, Tom and his son, James, executed a second "Non-Judicial Agreement Pursuant to RCW 11.96A," effective as of August 27, 2009 (the "August TEDRA agreement"). They were the only parties to this second agreement.
¶ 17 This August TEDRA agreement acknowledged the three modification requirements set out in the March TEDRA agreement. It also stated that "this Amended Agreement will satisfy the [March TEDRA] Agreement's requirement to obtain a court
¶ 18 The August TEDRA agreement included, as attached exhibits, unexecuted copies of the First Amendment to the J. Thomas Bernard Revocable Trust Agreement and the First Codicil to the Will of J. Thomas Bernard.
¶ 19 The first amendment to trust and the first codicil state that they are also effective as of August 27, 2009.
¶ 20 The substance of the changes from the March 2009 trust was to reduce the shares of the Linger Beneficiaries from 20 percent each to $20,000 each. Moreover, the first amendment to trust added additional contingent beneficiaries: Leah Karp, Diane Viars, and Daniel Reina (collectively the "Karp Beneficiaries"). These beneficiaries are also to receive shares of the trust estate, two of them receiving 15 percent shares each, and one receiving a 25 percent share.
¶ 21 This record indicates that the trust estate is substantial. Thus, the distributive scheme — shares of $20,000 or percentages of the trust estate — has a substantial impact on the amounts that the contingent beneficiaries may receive from the estate.
¶ 22 In February 2010, Tom's attorney filed with the superior court a memorandum summarizing the terms of the August TEDRA agreement.
¶ 23 James predeceased Tom in September 2010, leaving no issue. Tom died in January 2011.
¶ 24 After the filing of Tom's testamentary documents with the court, the Linger Beneficiaries, by amended petition, contested the March TEDRA agreement, the Will of J. Thomas Bernard dated March 25, 2009, the J. Thomas Bernard Revocable Trust Agreement dated March 25, 2009, the First Codicil to the Will of J. Thomas Bernard, dated August 27, 2009,
¶ 25 The Linger Beneficiaries moved for partial summary judgment. They requested that the court invalidate the "March Agreement." They identified this agreement as including the March TEDRA agreement, the will, and the revocable trust. They also sought to invalidate the "August Agreement." They identified this agreement as including the August TEDRA agreement, the first codicil, and the first amendment to trust.
¶ 26 Alternatively, the Linger Beneficiaries argued that the "August 2009 Amendment" — the first amendment to trust and the first codicil — was void. The personal representative of the estate, the trustees of the trust, and the Karp Beneficiaries opposed the motion.
¶ 27 The trial court denied the motion for partial summary judgment, concluding that there were genuine issues of material fact related to the March TEDRA agreement. The court deferred making any decision "involving the validity and effectiveness of subsequent agreements reached between the testator, [Tom], and his son [James], specifically the August TEDRA agreement."
¶ 28 The Linger Beneficiaries moved for reconsideration of the denial of summary judgment. They requested the court to reconsider its deferral of the legal issues related to the validity of the August TEDRA agreement, the first amendment to trust, and the first codicil.
¶ 29 By its order dated October 19, 2012, the trial court granted the motion for reconsideration. It concluded that the first codicil, effective as of August 27, 2009, and the first amendment to trust of even date were "null and void as a matter of law." This order incorporated the court's oral ruling of October 12, 2012.
¶ 30 The Karp Beneficiaries moved for reconsideration of the October 19, 2012 order. The personal representative of the estate and the trustees joined in their motion. The court ultimately denied reconsideration.
¶ 32 The Linger Beneficiaries moved for revision of the commissioner's order, and the matter came before a different superior court judge than the one who entered the October 19, 2012 order. The revision judge granted this motion, concluding that the personal representative and trustees "do not have the right to appeal" the October 19, 2012 order.
¶ 33 The Karp Beneficiaries appeal. The personal representative of the estate and trustees of the trust also appeal.
¶ 34 The Karp Beneficiaries argue that the trial court erred when it concluded that the first amendment to trust, effective August 27, 2009, and first codicil to will of even date are null and void as a matter of law. We agree.
¶ 35 We review de novo the grant or denial of a summary judgment motion.
¶ 36 We review de novo the interpretation of a will or trust instrument.
¶ 37 When construing a testamentary instrument, our paramount duty is to give effect to the maker's intent.
¶ 38 Similarly, "[t]he `touchstone of contract interpretation is the parties' intent.'"
¶ 39 Here, the trial court did not address whether Tom had the capacity to make any of the testamentary documents or the two TEDRA agreements that are before us. Neither do we. The question of his capacity is not properly before us at this time, despite this argument in the appellate briefing by the Linger Beneficiaries. Likewise, the question of whether Tom was subjected to undue influence is not before us.
¶ 40 Rather, the focus of our review is limited to the trial court's decision declaring the first codicil to will, effective as of August 27, 2009, and the first amendment to trust of even date void as a matter of law.
¶ 41 In order to determine whether Tom complied with the specific method of modification when he executed the first amendment
¶ 42 The following articles in the trust instrument are relevant to this inquiry:
¶ 43 Article 3.2 of this trust makes clear that Tom could modify the March 2009 trust and that such modifications "shall be valid and fully effective" on written notice to the trustee.
¶ 44 Article 3.3 imposes additional conditions on modification of the trust beyond written notice to the trustee. Specifically, the Trust instrument states that modification is
¶ 45 The Linger Beneficiaries point to Article 3.3 to assert that this provision incorporates the terms of the March TEDRA agreement into the trust instrument. We disagree.
¶ 46 "Considerable caution must be exercised in applying the doctrine of incorporation by reference."
¶ 47 Here, Tom's decision to use the term "subject to" in Article 3.3 is significant. It shows that he intended the primary relationship between the trust instrument and the March TEDRA agreement to be conditional, not one of incorporation.
¶ 48 This conclusion is supported by examining the definitions of these terms. "Incorporate" is defined as "[t]o combine with something else" and "[t]o make the terms of another (esp. earlier) document part of a document by specific reference."
¶ 50 Thus, the plain language of the trust shows that the substantive requirements of the March TEDRA agreement would not be combined
¶ 51 Accordingly, when we apply the plain meaning of "subject to" in this context, we conclude that modification of this March 2009 trust was also contingent on compliance with the provisions of the March TEDRA agreement as it then existed or was later amended. Tom's intent in Article 3.3 was to require compliance with such provisions of this agreement as a condition to modifying the trust.
¶ 52 A necessary implication of this wording and structure is that the March TEDRA agreement could be modified without modifying the terms of the trust. The terms of the trust itself would only be modified upon incorporation, only triggered by a determination that the agreement was unenforceable.
¶ 53 Our conclusion is consistent with Tom's counsel's, one of the drafting attorneys, explanation of the reason for preparing these two instruments in the ways stated:
¶ 54 A related question is whether the March 2009 will incorporates the provisions of the March 2009 TEDRA agreement. We conclude that the will does not incorporate these provisions.
¶ 55 Tom's March 2009 will contains a similar provision to that in the March 2009 trust. Specifically, it states:
¶ 56 Noticeably absent is any mention of incorporation of the provisions of the Non-Judicial Agreement Re Trust Pursuant to RCW 11.96A, effective as of March 27, 2009. For the reasons we already discussed with respect to the March 2009 trust, the provisions of the March TEDRA agreement were never incorporated into the will itself. We conclude that modification of the March 2009 will was also "subject to" compliance with the terms of the March 2009 TEDRA agreement.
¶ 57 As just discussed, modification of both the trust and will is conditioned on satisfying the provisions of the separate March TEDRA agreement as it then existed or was later modified. Accordingly, we must determine the terms of the March TEDRA agreement at the time that Tom executed the first amendment to trust and the first codicil.
¶ 59 This agreement imposes three further requirements for modification of the trust beyond the requirement of written notification to the trustees imposed by Article 3.2 of the trust. Namely, the March TEDRA agreement requires that Tom petition for a hearing (specifically stating the proposed modifications), serve James with a summons for that hearing, and obtain a court order as a result of that hearing.
¶ 60 The next question is whether these terms were later modified by the August TEDRA agreement. This inquiry involves two questions. First, whether the March TEDRA
¶ 61 First, we must determine whether the March TEDRA
¶ 62 As the trial court correctly recognized in its oral decision, "The case law is clear that parties to an agreement setting forth restrictions or limitations on modifications to a contract are free to later waive, supersede or revoke those limitations and restrictions."
¶ 63 But after acknowledging these general principles, the court commented, "[T]hat is not the scenario here."
¶ 65 The plain language of the March TEDRA agreement provides that the three requirements apply to an exercise of Tom's "Modification Powers" over
¶ 66 The term "Modification Powers" is expressly defined in the March TEDRA agreement:
¶ 67 Accordingly, Tom's "Modification Powers" include: (1) the right to revoke the Trust in its entirety, (2) the right to partially revoke or modify the Trust, (3) the right to withdraw part or all of the Trust estate, and (4) the right to amend or revoke the will.
¶ 68 Consequently, the plain language of the March TEDRA agreement indicates that the three requirements do not apply to modification of the March TEDRA agreement itself.
¶ 69 As the Karp Beneficiaries point out, this conclusion is consistent with the purpose and policies of the TEDRA statute and Washington common law.
¶ 70 The legislature expressly stated that the "overall purpose" of TEDRA is "to provide nonjudicial methods for the resolution of matters, such as mediation, arbitration, and agreement."
¶ 71 The trial court erred when it concluded that the March TEDRA agreement could not be modified by the August TEDRA agreement.
¶ 72 The Linger Beneficiaries argue that the express language placing restrictions on modification also encompasses the March TEDRA agreement itself. They focus on the words
¶ 73 Second, because we conclude that the March TEDRA agreement could be modified by a second TEDRA agreement, we look to the August TEDRA agreement to determine if it modified the March TEDRA agreement's modification requirements.
¶ 74 The August TEDRA agreement acknowledged the three requirements imposed by the March TEDRA Agreement. It also recognized that TEDRA permits parties to
¶ 75 Another provision stated:
¶ 76 Overall, these provisions do not substantively change the three requirements in the March TEDRA agreement. Rather, the use of the term "satisfy" in the first of the two previous provisions shows that Tom and James were not trying to change the March TEDRA agreement's requirements but instead, were trying to comply with them. Thus, we consider whether they did so.
¶ 77 The next question that we decide is whether Tom substantially complied with the modification requirements set forth in the trust and in the March TEDRA agreement. By executing the August TEDRA agreement and filing a memorandum of this agreement, we hold that he did.
¶ 78 "The rule is that the settlor of a trust has the power to revoke the trust if and to the extent that, by the terms of the trust, he reserved such a power. Where the trust instrument specifies the method of revocation, only that method can be used."
¶ 79 In Williams v. Bank of California N.A., the supreme court held that the doctrine of substantial compliance may be sufficient to validate a trust amendment.
¶ 80 There, the supreme court concluded that there was substantial compliance to uphold the trust amendment in question.
¶ 81 This court also considered the validity of an amendment under the doctrine of substantial
¶ 82 This court acknowledged that "[t]he record establishe[d] the clear intent of the trustor to effect an amendment to the trust document, and a reasonable belief on his part that he had done so."
¶ 83 In concluding that the amendment in that case was invalid, this court distinguished Williams on the basis that "no close conformity occurred" and on the basis that in Williams, "the requirements were eventually complied with."
¶ 84 Here, as we previously discussed in this opinion, Article 3.2 of the trust required Tom to give written notice to the trustees. In this case, there is no dispute that Tom gave proper written notice of modification of this trust to the trustees. Thus, Article 3.2 is not at issue here.
¶ 85 Article 3.3 of the trust and the will both provide that Tom's right to modify was also subject to the requirements of the March TEDRA agreement. This agreement expressly required Tom to do three things. First, he had to petition the court for a hearing under RCW 11.96A and "clearly and specifically" set forth a particular proposal to exercise his reserved power to modify the March 2009 trust or will.
¶ 86 Rather than utilizing the exact procedures set forth in the March TEDRA agreement, Tom and James substantially complied with these requirements by executing the August TEDRA agreement and later filing a memorandum of this agreement. The record indicates that Tom deemed the procedures utilized in August to be a more efficient method for him to modify the trust and will under the circumstances.
¶ 87 In the August TEDRA agreement, the parties expressly acknowledged "that Article 3.3 of the Trust and the [March TEDRA] Agreement require Tom to [follow the three-step process] in order to exercise his retained right to modify the terms of the Trust or Will."
¶ 88 The emphasized language in this provision shows the parties' clear intent to satisfy the modification requirements in the March TEDRA agreement. It also shows that they believed this to be a more efficient method than petitioning the court, conducting a hearing, and obtaining an order entered by a judge. This election is completely consistent with the policy of TEDRA, which promotes efficiency through nonjudicial methods for resolution of matters.
¶ 89 Most importantly, the procedures stated in the August TEDRA agreement and followed by the parties substantially comply with those stated in the March TEDRA agreement.
¶ 90 First, Tom elected not to petition for a hearing under RCW 11.96A to obtain approval to modify the trust and his will of March 25, 2009. Instead, he and James agreed, in writing, to the express terms of the modifications to each, as evidenced by both signing the August TEDRA agreement. This agreement includes as attachments unsigned copies of the first codicil and the first amendment to trust, specifying the exact modification to each sought.
¶ 91 Second, Tom did not provide James with a summons for the hearing described in the prior paragraph of this opinion. Instead, Tom and James agreed, in writing, that both the will and the trust should be modified in accordance with the express terms of the August TEDRA agreement. Because the only parties to the agreement stipulated to the result, it is unclear what purpose the hearing that the Linger Beneficiaries argue should have occurred would have accomplished. We see none.
¶ 92 Third, there was no hearing and no court order entered by a judge approving the modifications. Instead, the parties stipulated, in writing, that the procedures of the August TEDRA agreement were sufficient to satisfy the requirements of the March TEDRA agreement.
¶ 93 Significantly, counsel for Tom filed with the court a memorandum summarizing this agreement. RCW 11.96A.230(2) states, "On filing the agreement or memorandum, the agreement
¶ 94 The filing with the superior court of the memorandum made the August TEDRA agreement, by operation of law, one "deemed approved by the court" and "equivalent to a final court order."
¶ 95 In sum, the August TEDRA agreement between Tom and James substantially complied with the provisions of the March TEDRA agreement. Although Tom utilized a different method than the one expressed in the March TEDRA agreement, the method he utilized closely followed the March TEDRA agreement's process. The first amendment to trust, effective as of August 27, 2009, and the first codicil of even date were not void as a matter of law.
¶ 96 The Linger Beneficiaries argue that there was no substantial compliance with the
¶ 97 First, they argue that the first requirement to petition a court for a hearing was not substantially complied with because "Tom desired that a court would review the modifications sought to be made." That is possible.
¶ 98 But even if we agreed that Tom desired a court to review the proposed modifications, it is clear that James reviewed and approved the changes. Why court intervention under these circumstances would be required is left unexplained. This is particularly true in view of the fact that TEDRA, to which Tom specifically referred in both TEDRA agreements, permits an agreement to be "deemed approved" on the filing with the court of the memorandum of the agreement.
¶ 99 Second, the Linger Beneficiaries correctly concede that it "is conceivable that James' execution of the August TEDRA agreement was substantial compliance with the notice provision to James." But they then argue that the notice requirement was not met because "all interested parties" must also receive notice.
¶ 100 But the notice requirement in the March TEDRA agreement was imposed solely by virtue of the March TEDRA agreement, and it only required notice to James. It did not require notice to anyone else. It states that Tom must "timely provide[] James with a summons for such hearing pursuant to RCW 11.96A.100 (and otherwise compl[y] with the substantive and procedural provisions of RCW 11.96A)." The Linger Beneficiaries fail to explain how the notice requirement of the March TEDRA agreement requires notice to them. Thus, their argument is not persuasive.
¶ 101 Third, they argue that the third requirement in the March TEDRA agreement was not substantially complied with because the court did not issue an order before the amendments occurred. They also argue that "equivalent" to a court order is not the same as "obtaining a court order." This argument makes little sense in the context of this discussion about the application of the doctrine of substantial compliance. But as we already discussed, there was substantial compliance with the court order requirement by the filing of the memorandum of the August TEDRA agreement.
¶ 102 Fourth, the Linger Beneficiaries argue that substantial compliance requires "near perfect compliance" and that the changes to the trust "substantially changed Tom's estate plan." But substantial compliance does not look to the substantive changes resulting from the amendment. Rather, it focuses on the procedures used to institute those changes.
¶ 103 Lastly, the Linger Beneficiaries make a number of arguments that the August TEDRA agreement did not comply with the procedural and substantive requirements of TEDRA. For the reasons that follow, we reject these arguments.
¶ 104 These arguments involve interpretation of the TEDRA statute. When interpreting a statute, we seek to determine and follow the legislature's intent.
¶ 105 First, the Linger Beneficiaries argue that the August TEDRA agreement did not resolve a "matter" as defined by TEDRA. This is incorrect.
¶ 106 RCW 11.96A.030(2) states:
¶ 107 The plain words of this definition of "matter" make clear the broad scope of this term. There simply is no persuasive argument here that the subject of the TEDRA agreement did not fall within this definition.
¶ 108 Even if we were required to go beyond the plain words that define the very broad scope of this term, comments to the Senate Bill by the Washington State Bar Association Real Property, Probate & Trust Section support this conclusion:
¶ 109 Second, the Linger Beneficiaries argue that Tom did not give notice to or obtain the signatures of "all parties" as required by TEDRA. Specifically, the Linger Beneficiaries argue that they were entitled to notice under RCW 11.96A.110 and that their signatures were required to create a TEDRA agreement under RCW 11.96A.220. They are again wrong.
¶ 110 RCW 11.96A.110 provides that in judicial proceedings requiring notice, the notice must be personally served on all parties or the parties' virtual representatives.
¶ 111 RCW 11.96A.220 through 11.96A.250 provide "a binding nonjudicial procedure to resolve matters through written agreements among the parties interested in the estate or trust."
¶ 112 Whether the Linger Beneficiaries were "parties" for purpose of the August TEDRA agreement is the issue. We hold they were not.
¶ 113 TEDRA defines a "party" as any member of a listed category who "has an interest in the subject of the particular proceeding...."
¶ 114 In In re Estate of Becker, the supreme court looked to the definition of "party" in TEDRA and observed that was limited to one "`who has an interest in the subject of the particular proceeding.'"
¶ 115 Here, the Linger Beneficiaries are contingent trust beneficiaries. This appears to fall within the category of "trust beneficiaries." But in order to be a "party," the Linger Beneficiaries must also
¶ 116 In Pond v. Faust, the supreme court concluded that a court has no authority to inquire into the validity of a will prior to the death of the maker, to determine the competency of the maker.
¶ 117 Further, California courts have noted a difference in a beneficiary's interest in revocable and irrevocable trusts.
¶ 118 Here, it is undisputed that the subject of the August TEDRA agreement dealt with Tom's first amendment to trust and his first codicil. It is also undisputed that the trust was revocable and that this transaction was conducted while the trustor was still alive. Accordingly, the Linger Beneficiaries did not then have a legally cognizable interest at the time of the August TEDRA agreement. Moreover, because the subject of the proceeding was modification of the trust and will, the Linger Beneficiaries fail to show that they had an interest in this particular proceeding.
¶ 119 For these reasons, they were not proper parties for purpose of this agreement.
¶ 120 Finally, we address two other specific concerns that the trial court identified when it invalidated the first amendment to trust and the first codicil as a matter of law. The court stated: (1) "If this court gives full effect to Tom's intent as set forth in the March TEDRA agreement, then it cannot enforce that August agreement entered in contravention of the terms of the prior agreement"; and (2) "[T]he modifications to the trust and will were made prior to the entry of the TEDRA agreement allegedly giving the authority to modify or revoke."
¶ 121 First, as discussed earlier in this opinion, the August TEDRA agreement stated that it "will satisfy" the March TEDRA agreement requirements. The plain language of the August TEDRA agreement indicates that Tom recognized the process set out in March and intended to comply with it, using a more efficient method. This is not a contradictory intent.
¶ 122 Second, the trial court concluded that the modifications to the trust and will were invalid because they were made prior to the filing of the August TEDRA agreement. In reaching this conclusion, the court noted that the memorandum of the binding agreement was not filed with the court until February 2, 2010.
¶ 123 RCW 11.96A.230(1) states that any party
¶ 124 Accordingly, filing is permissive, not mandatory. But even if the agreement was not filed until a later date, the plain language of TEDRA shows that the filing date is irrelevant to the effectiveness of the agreement.
¶ 125 Further, although James did not sign the agreement until September 23, by its express terms, the August TEDRA agreement expressly states that it is effective as of August 27, 2009. The August TEDRA
¶ 126 In sum, the August TEDRA agreement substantially complied with the modification process set out in the March TEDRA agreement. Further, it complied with the relevant provisions of TEDRA.
¶ 127 The Karp Beneficiaries argue in the alternative that the August TEDRA agreement modified the terms of the March TEDRA agreement and that Tom strictly complied with the modification requirements. Because we conclude that the August TEDRA agreement between Tom and James substantially complied with the provisions of the March TEDRA agreement, we need not address this argument.
¶ 128 The Karp Beneficiaries, on behalf of themselves, the estate and the trust, argue that the trial court erred when it concluded that the personal representative and trustee cannot appeal a summary judgment ruling invalidating the first codicil and first amendment to the trust. We agree.
¶ 129 As a threshold issue, the Linger Beneficiaries argue that the Karp Beneficiaries do not have standing to appeal this ruling because it was the trust and estate that petitioned for instructions from the court. But this argument ignores several facts.
¶ 130 First, the Karp Beneficiaries supported the petition for instructions by the personal representative of the estate and the trustees of the trust. Thus, they are aggrieved parties by virtue of the superior court's order vacating the commissioner's ruling.
¶ 131 For a ruling on a motion for revision, the superior court reviews the commissioner's decisions de novo based on the evidence and issues before the commissioner.
¶ 132 Generally, a personal representative has a right to appeal an adverse decision in a will contest. The supreme court has stated, "Where a will is contested, whether before or after its probate, it is the duty of the executor to take all legitimate steps to uphold the testamentary instrument...."
¶ 133 Additionally, the supreme court has held, "A trustee, in his fiduciary or representative capacity, is aggrieved by a judgment which threatens the continuance of the trust in the form directed by the trustor, whether or not the beneficiaries appeal. He is more than a mere stakeholder."
¶ 134 In re Ferrall's Estate, a case from the Supreme Court of California, is also instructive.
¶ 135 The court cited the general rule that "trustees acting in their representative capacities cannot by an appeal litigate the conflicting claims of beneficiaries."
¶ 136 Finally, the court concluded, "To deny the trustees an appeal under these circumstances would render them helpless to prevent invasions of the corpus that might defeat the plan of the trustor or even destroy the trust itself."
¶ 137 Here, under Washington law, it is the duty of the personal representative of Tom's will to take legitimate steps to uphold the testamentary instrument, including the first codicil.
¶ 138 Additionally, the motion for summary judgment was not litigation involving conflicting claims of beneficiaries. Rather, the motion for summary judgment sought to invalidate the first amendment to the trust as a matter of law. Accordingly, the trustee had a similar duty — to protect the plan of the trustor and protect the trust itself.
¶ 139 In sum, both the personal representative and the trustee had a right to appeal the order that declared the first amendment to the trust and the first codicil null and void as a matter of law.
¶ 140 The Karp Beneficiaries also rely on TEDRA for the proposition that the personal representative and trustee have a right to appeal, but we need not rely on this argument to conclude that they had this right.
¶ 141 The Linger Beneficiaries argue that "if the Trust were permitted to appeal the trial court's grant of summary judgment, it would place the Trustees in direct conflict with the beneficiaries of the Trust." But, as discussed previously, the trustee has a right to protect the plan of the trustor or defend the trust itself.
¶ 142 The Linger Beneficiaries rely on In re Cannon's Estate to argue that "where the dispute is about who has a right to receive, and there is no impairment of the estate, the estate itself does not have a right to appeal."
¶ 143 The Linger Beneficiaries request an award of attorney fees based on RCW 11.96A.150.
¶ 144 RCW 11.96A.150(1) states that "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; (b) from the assets of the estate or trust involved in the proceedings; or (c) from any nonprobate asset that is the subject of the proceedings." Additionally, the court may consider any factors it deems relevant and appropriate which may include "whether the litigation benefits the estate or trust involved."
¶ 145 Here, the Linger Beneficiaries do not provide any persuasive reason for an award in their favor. Accordingly, we deny this request.
¶ 146 To summarize, neither the first amendment to the trust effective on August 27, 2009 nor the first codicil of even date is void as a matter of law for the reasons before us. Tom substantially complied with the modification provisions of the trust and the March TEDRA agreement. Moreover, Tom filed a memorandum of the August TEDRA agreement, making the agreement one deemed approved by the court and equivalent to a court order. This agreement also complied with the relevant provisions of TEDRA.
¶ 147 We do not address the capacity of Tom to either enter into the two TEDRA agreements or make the testamentary instruments at issue in this case. Neither his capacity nor whether he was subject to undue influence at any relevant time is properly before us at this time. These and other issues are to be determined, in the first instance, by the trial court on remand.
¶ 148 We reverse the orders that are before us and remand for further proceedings.
WE CONCUR: LEACH, and DWYER, JJ.
