Filing a Will Contest — Initial Hurdles to Overcome

1. Presumption of Validity
2. Standard re Burden of Proof
3. No Jury Trial
4. Jurisdiction
   1. Pre-Admission Challenge under RCW 11.20.020
   2. Post-Admission Challenge under RCW 11.24.010
   3. Challenges That Are Not “Will Contests”
5. Standing
6. Res Judicata
7. Statute of Limitations
8. Award of Costs and Attorney’s Fees

The Problem:  Decedent has left a Will that contains a provision you want to eliminate, for example, you are a child of the Decedent and the Will gives all of the Decedent’s property to Decedent’s surviving spouse (or vice versa).

Your Remedy:  File with the Court a Petition challenging the legal validity of the Will, usually known as a Will Contest or a Petition to Set Aside the Will.

1. Presumption of Validity

   “We hold the view that the right to dispose of one’s property by will is one assured by the law and is a valuable incident to ownership, and does not depend upon its judicious use.”  Points v. Nier, 91 Wash. 20, 28 (1916); Dean v. Jordan, 194 Wash. 661 (1938);  Estate of Price, 75 Wn.2d 884 (1969).  A Will that is rational on its face and executed in legal form is presumed to be valid.  Estate of Eubank, 50 Wn.App. 611, 617 (1988).  Any Will admitted to probate is presumed to be valid.  Estate of Jolly, 3 Wn.2d 615 (1940).  Therefore, a challenger of the Will has the burden of proof to show its invalidity.  RCW 11.24.030; Estate of DeLion, 28 Wn.2d 649 (1947).

2. Standard re Burden of Proof

   “In will contests intent of the testator is the controlling factor.”  Estate of Hall, 7 Wn.App. 341, 343 (1972); Estate of Bowers, 132 Wn.App. 334 (2006).  As the testator is no longer able to speak for him/herself, a challenger of a Will must prove its invalidity by clear, cogent, and convincing evidence.  Estate of Martinson, 29 Wn.2d 912 (1948); Estate of Black, 153 Wn.2d 152 (2004).  Furthermore, every material fact required to invalidate the Will must be proven by clear, cogent, and convincing evidence.  Estate of Gordon, 52 Wn.2d 470 (1959).  Clear, cogent, and convincing evidence exists when the ultimate fact in issue is shown by the evidence to be highly probable.  Estate of Watlack, 88 Wn.App. 603 (1997).  “Highly probable” means significantly greater than the usual civil standard of proof, “by the preponderance of the evidence.”  Therefore, to invalidate the Will, its must provide evidence that the Will’s invalidity is significantly greater than “more likely than not.”  The Personal Representative of a contested Will is responsible for its defense.  Estate of Esala, 16 Wn. App. 339 (1977).

3. No Jury Trial

   There is no right to a trial by jury in a challenge to a Will.  RCW 11.24.010; Estate of Clayson, 26 Wash. 253 (1901).  Therefore, if the challenge proceeds to trial, it will be determined by the Court.

4. Jurisdiction — the Authority of the Court to Hear Your Challenge

   Courts have no jurisdiction over Wills except as provided by statute.  Pond v. Faust, 90 Wash. 117 (1916).  Therefore, a challenge to a Will is a purely statutory proceeding, and the Court hearing a challenge to a Will is limited in its ability to find a Will invalid by the provisions of the applicable statute.  Estate of Kane, 20 Wn.2d 76, (1944); Estate of Van Dyke, 54 Wn.App. 225 (1989); Estate of Kordon, 126 Wn.App. 482 (2005).

In Washington, there are three way to provide the Court with authority to invalidate a Will:

1. Under RCW 11.20.020, upon the Will’s submission to the Court for admission to probate.
2. Under RCW 11.24.010, after Will’s admission by the Court to probate.
3. In a way that is not considered to be a “Will Contest.”

1. As a Pre-Admission Challenge under RCW 11.20.020

RCW 11.20.020 provides in part:

RCW 11.20.020

Application for probate — Hearing — Order — Proof — Record of testimony — Affidavits of attesting witnesses.

(1) Applications for the probate of a will and for letters testamentary, or either, may be made to the judge of the court having jurisdiction and the court may immediately hear the proofs and either probate or reject such will as the testimony may justify. Upon such hearing the court shall make and cause to be entered a formal order, either establishing and probating such will, or refusing to establish and probate the same, and such order shall be conclusive except in the event of a contest of such will as hereinafter provided.  […]

In WA under RCW 11.20.020, most probates are begun and Wills are admitted in a nonadversarial, ex parte hearing, in which the person named in the Will as its Executor (ie, Personal Representative):

• Files with the Clerk of the Court the original of Decedent’s Will and the Executor’s Petition for Probate of Will,
• Pays the Clerk its $200 filing fee, and then
• Presents to a Judge the original of the Will and a copy of the Petition for Probate and requests the Judge to admit the Will to probate and appoint the named Executor as the Personal Representative of the Decedent’s estate.  Estate of Campbell, 47 Wn.2d 612 (1955).

This occurs ex parte, meaning that the Executor may take all these actions without having to give notice to anyone.

Exception:  Within the first forty days of Decedent’s death if the Decedent left a surviving spouse who is not the named Executor or has not consented to the named Executor’s appointment.  RCW 11.28.030  Therefore, it is highly unlikely that anyone interested in a Decedent’s estate will learn about the Will’s admission until after it has been admitted and those persons interested in the estate have received Notice of Probate.

While RCW 11.20.020 does authorize the Court to hear a challenge to a Will before its admission, the Courts have uniformly said that an interested party hostile to a will should not be permitted to participate in the probate proceeding itself but should, instead, proceed by allowing the Will to be admitted and then filing a Will Contest under RCW 11.24.010 et seq.  Estate of Larson, 187 Wash. 183 (1936); Gordon v. Seattle-First Natl. Bank, 49 Wn.2d 728 (1957).  There are two exceptions in which the Court is required to hear a pre-admission challenge:

• When two or more Wills have been submitted for admission to probate, such that the Court’s rejection of the later Will would allow the earlier Will to be admitted.  Estate of Godfrey, 164 Wash. 269 (1931).
• When the Court’s authority to open a probate for the Decedent has been questioned, for example, because the Decedent has been alleged not to have died a resident of and left property subject to probate in Washington.  State ex rel. Brisbin v. Frater, 1 Wn.2d 13 (1939).

And despite the disfavor of a pre-admission challenge, a Court may exercise its discretion to hear the challenge if it believes the issues presented should be determined.  Estate of Campbell, 47 Wn.2d 610 (1955); State ex rel. Perry v. Jordan, 50 Wn.2d 93 (1957); Estate of Black, 153 Wn.2d 152 (2004).

Caution:  See Res Judicata, below.

1. As a Post-Admission Challenge – a “True” Will Contest under RCW 11.24.010

See “True” Will Contests.

1. Challenges to a Will That Are Not “Will Contests”

One of the peculiarities of Washington law is that its Courts have determined that only claims that challenge the validity of a Will when it was executed are Will Contests under RCW 11.24.010 and, therefore, subject to the four month statute of limitations.  Estate of Wiltzius, 42 Wn.2d 149 (1953).  Any challenge to a Will based on any action taken after its execution, such as its revocation, is not subject to the four-month Will Contest statute of limitations.  Estate of Gherra, 44 Wn.2d 277 (1954) [Testator made his Will and then married, resulting in an omitted spouse.]  The following types of claims, for example, are not considered in Washington to be Will Contests and, therefore, are not subject to the four-month Will Contest statute of limitations period:

• Petition to Probate a Later-Dated Will:  Estate of Elliott, 22 Wn.2d 334 (1945); Estate of Campbell, 46 Wn.2d 292 (1955); Estate of Stein, 78 Wn. App. 251 (1995), rev, denied 128 Wn.2d 1014 (1996).  Offering a later-dated Will does not challenge the prior Will — it just renders it inoperative.  The procedure for admitting a later Will for probate is not provided either by stature or case law.  Presumably, one would simply file another Petition for Probate and send Notice of its hearing to all parties of record.  Furthermore, presumably, its petitioner has no burden to prove any issue regarding the prior Will, as this Petition for Probate is not a Will Contest.  But see: Estate of Bowechop, 52 Wn.App. 775 (1988).
• Petition to Probate a Lost or Destroyed Will:  Estate of Findley, 199 Wash. 669 (1939).  Such a Petition is not a Will Contest, as the latter requires a Will to have been admitted and rejected, and, here, the purportedly lost or destroyed Will has been neither.
• Asserting the Will Is Revoked by Operation of Law:  Examples:  Execution of a later Will that expressly revokes a prior Will; destruction of the Will; a later marriage or divorce; an omitted spouse or child; a lapsed (recipient of gift in Will predeceases testator) or adeemed (asset specifically given in Will is sold prior to death) gift.  See for example: Estate of Gherra, 44 Wn.2d 277 (1954) — Will revoked as to omitted spouse.
• Filing a Will-Contract Action:
  • Contract to Make Mutual Wills: Estate of Krause, 173 Wash. 1 (1933).
  • Contract to Make a Gift in a Will: McCullough v. McCullough, 153 Wash. 625 (1929).

1. Standing

To challenge a Will, the petitioner must have a “direct pecuniary interest” in the Will — he/she must “stand to lose directly in a financial way” if the Will is allowed to stand.  Estate of O’Brien, 13 Wn.2d 581, 583 (1942).

Examples of “interested” contestants:

• An intestate heir who would not take as much under the contested Will.
• A beneficiary under a prior Will who would not take as much under the contested Will.  But see Estate of West, 729 S.W.2d 676 (Tenn. Ct. App. 1987) [If a prior Will is lost, it must first be established before a beneficiary under the prior Will has standing to contest a later Will].

Examples of contestants who are not “interested”:

• A named Personal Representative in a prior Will if his/her only interest is the loss of receiving compensation for services as Personal Representative.  Estate of Romano, 40 Wn.2d 796 (1952).
• A beneficiary of a prior Will who can’t demonstrate its prima facie validity.  Sheridan v. Harbison, 101 Ohio App.3d 206 (Ct. of Appeals of Ohio, 1995) [Prior Will had been destroyed when Testator executed new Will, so beneficiary of prior Will could not demonstrate its validity.]

1. Res Judicata

Practically speaking, the legal doctrine of res judicata says “In Court, a person is prohibited from taking two bites on the apple” — in other words, if someone has made a claim in Court and lost, he/she can’t come back and make a second claim regarding the same facts and circumstances.  Seattle-First Nat’l Bank v. Kawachi, 91 Wn.2d 223 (1978); DeYoung v. Cenex, Ltd., 100 Wn.App. 891 (2000).  Consequently, res judicata prevents the following persons from filing a Will Contest:

• Admission of the Will:  Someone who appeared at the initial hearing to admit the Will and challenged its validity.
• Rejection of a Will:  The person who offered it for admission.  Only a party not at the hearing to admit the Will may contest its rejection; the offering party may only proceed by filing a motion for reconsideration, a motion for revision of Commissioner’s Order (if the initial hearing was held by a Superior Court Commissioner instead of a Judge), or an appeal.  Estate of Hall, 34 Wn.2d 830, (1949); Estate of Rynning, 1 Wn. App. 565 (1969).

1. Statute of Limitations

Once a Will has been admitted to probate, any Will Contest must be filed by four months after the date the Court admits it to probate.  RCW 11.24.010   Estate of Barr, 76 Wn.2d 59 (1969); Estate of Peterson, 102 Wn.App. 456 (2000).  This rule is remarkably strict.  For example:

• A Will Contest filed one day after after the four-month period was dismissed. State ex rel. Wood v. Chelan County Superior Court, 76 Wash 27 (1913).
• The four-month period is not subject to the three day addition allowed for sending notice by mail under CR6(e).  Estate of Young, 23 Wn. App. 761 (1979); Estate of Toth, 138 Wn.2d 650 (1999).
• The four-month period cannot be extended due to fraud.   Estate of Peterson, 102 Wn. App. 456 (2000), rev. denied 142 Wn.2d 1021 (2001).

Exception:  The four-month period does not begin for a “reasonably ascertainable” contestant who fails to be sent Notice of Probate.   Hesthagen v. Harby, 78 Wn.2d 934 (1971); Estate of Toth, 138 Wn.2d 650 (1999); Estate of Little, 127 Wn. App. 915 (2005).

1. Award of Costs and Attorney’s Fees

In a challenge to a Will, if the Court sustains the Will and finds that the contestant acted without probable cause and good faith, it may assess costs and reasonable attorney’s fees against the contestant.   RCW 11.24.050  If the Court invalidates the Will, the Court may assess costs and reasonable attorney’s fees against any party.  RCW 11.24.050 & 11.96A.150  Therefore, if the Court finds that a challenger to a Will challenged it, for example, based on spite and without probable cause, the Court can requires the challenger to pay the estate’s attorney’s fee and costs involved in defending the Will.