In re the Estate of: Anne Marie Roe, 34545-9

Background

Theodore Roe died in 1997; Anne Roe (his widow) died in 2014. Anne served as PR for Theodore's estate and later as trustee of an irrevocable trust that named Kathleen co‑trustee.
In 1991 Theodore and Anne made a written loan to their daughter Kathleen for $14,809 (acknowledging $2,800 repaid).
Anne later wrote 43 checks to children (notably William and two in 2008 to Kathleen) each annotated “loan” but without separate loan documents; Anne’s 2013 will distributed assets among children.
After Anne’s death Gerald (eldest son) as personal representative sought to offset distributions to William and Kathleen using the claimed loans (right of retainer). Kathleen and another sibling filed a TEDRA action seeking to characterize the loans as gifts.
At summary judgment the trial court held the 2008 checks and William’s checks were not sufficiently memorialized as loans, but found the 1991 writing created an enforceable loan. Kathleen moved for reconsideration, submitting a new affidavit from her son Brian attesting that Anne and Theodore forgave the 1991 loan; the trial court denied consideration of that late evidence and denied reconsideration.

Issues

Issue	Plaintiff's Argument (Kathleen)	Defendant's Argument (Estate)	Held
Whether the 1991 loan to Kathleen was forgiven (creates genuine issue of material fact)	Brian’s affidavit and other circumstantial evidence show Anne and Theodore forgave the loan, so no debt exists and Estate cannot retain against Kathleen	Stipulated facts did not show forgiveness; Estate entitled to retainer for unpaid loan	Reversed: trial court should have considered the late affidavit and circumstantial evidence; genuine factual dispute exists about forgiveness, remanded
Whether trial court properly refused to consider additional evidence on reconsideration (procedural admissibility)	Court should exercise discretion to consider the affidavit; no prejudice to Estate and continuance could remedy any concern	Trial court limited itself to stipulated facts and did not abuse discretion denying late evidence	Reversed: trial court erred in excluding the affidavit; under Keck/Burnett principles court must consider whether exclusion was justified; here exclusion was improper
Application of Deadman’s statute to bar testimony about transactions with the deceased	Third‑party witness (Brian) may testify about his grandparents’ statements and conduct; Deadman’s statute does not bar such third‑party testimony	Estate relied on Deadman’s protections to preserve asserted debt and to contest belated evidence	Court noted Deadman’s statute does not bar third‑party testimony; exclusion of Brian’s affidavit was improper if admissible and not prejudicial
Sufficiency of memorialization for later checks (2008 checks and other checks to William)	Kathleen argued some were gifts or insufficiently memorialized	Estate argued checks were loans and could be retained against distributions	Trial court correctly held 2008 checks and William’s checks insufficiently memorialized as loans (that determination was left intact)

Key Cases Cited

Schaaf v. Highfield, 127 Wn.2d 17 (review of summary judgment standard) (summary judgment reviewed de novo)
Inniss v. Tandy Corp., 141 Wn.2d 517 (summary judgment facts and inferences construed for nonmoving party)
Reid v. Pierce County, 136 Wn.2d 195 (summary judgment as matter of law standard)
In re Jackson's Estate, 200 Wash. 116 (equitable right of retention doctrine)
In re Smith's Estate, 179 Wash. 417 (purpose of right of retention to recover uncollectable debts)
Kilbourne v. Kilbourne, 156 Wash. 439 (third‑party testimony not barred by Deadman's statute)
Martini v. Post, 178 Wn. App. 153 (trial court discretion to consider new evidence on reconsideration)
Keck v. Collins, 184 Wn.2d 358 (untimely affidavits and application of Burnett factors in summary judgment context)
Burnett v. Spokane Ambulance, 131 Wn.2d 484 (factors for imposing discovery sanctions/excluding evidence)