Spencer Crosswhite, Et Al., App/cross-res V Luciana Crosswhite, Res/cross-appSpencer Crosswhite, Et Al., App/cross-res V Luciana Crosswhite, Res/cross-app
FACTS
Dean was 52 years old when he died on April 6, 2022, from cancer complications. Dean was survived by his spouse, Luciana, his son Spencer, and his former stepdaughter Kylie Sutton.
Dean worked in the fire department for 28 years. As part of his employment, Dean received retirement benefits through the Washington State Department of Retirement Systems (DRS) and maintained Deferred Compensation Program (DCP) retirement accounts with DRS. Dean executed beneficiary designations for his DCP aсcounts, which changed over the course of his employment. From 1991 to 1998, Dean designated his parents as the primary beneficiaries, with typically one of Dean‘s siblings as the contingent or alternative beneficiaries.
On August 1, 2000, presumably after his marriage to Gina (Middaugh)
On February 22, 2019, Dean married Luciana. The following month, Dean designated Luciana as the 100 percent primary beneficiary of his DCP accounts. Spencer became 80 percent contingent beneficiary and Dean‘s stepchildren from his marriage to Luciana each became 10 percent contingent beneficiaries. Kylie was removed as a beneficiary.
In January 2021, Dean was diagnosed with brain tumors, and he began cancer treatment. Throughout his treatment, medical notes described Dean as “oriented to person, place, and time,” exhibiting “normal mood, thought processes, speech and insight,” and as able to provide informed consent for surgeries.
On December 14, 2021, while a patient at Harborview Hospital, Dean executed a durable power of attorney (DPOA) for finances and a DPOA for health care, appointing Luciana as his agent under both documents. Dean executed both documents in the presence of a hospital notary, and both were notarized.
Between March 1 to March 4, 2022, Dean was hospitalized for low blood pressure and described at all times as having normal mood, thought processes, speech and insight. On March 3, Luciana was redesignated as 100 percent
On March 4, Spencer picked up Dean from the hospital to take Dean home. Luciana and Melva Haug, the couple‘s friend, prepared the home for Dean‘s arrival. Luciana also called attorney John Kamrar to discuss estate planning. Haug stated that on March 4, Dean was physically weak and tired but mentally alert, “talking and joking and carrying on a conversation.”
Later in the evening of March 4, Kamrar came to the house to discuss estate planning and to draft documents with Dean and Luciana. Kamrar met with Dean alone for approximately 30 minutes. Kamrar then met with Dean and Luciana together to have them sign estate documents, which included the Dean and Luciana Crosswhite living trust, the DPOAs for finances and for healthcare, and the will, which was later withdrawn from the probate because the will was not attested by two witnesses.
The DPOA for finances appointed Luciana as Dean‘s agent to manage, among other things, his assets, investments, contracts, retirement accounts, and property upon his death. And the living trust and will designated as beneficiaries Spencer and Luciana‘s “children as Dean‘s descendants and family, but not Kylie.” The living trust also included a no-contest provision, providing any person who contests or opposes the trust will cease to have any right or interest in the property.
Kamra later submitted a declaration that contained his interaction with Dean on March 4. Kamrar described that Dean was able to “express his wishes, tracked the conversation . . . , and gave thoughtful answers” to Kamrar‘s
A month after the meeting with Kamrar, on April 6, Dean died.
On June 10, 2022, Spencer and Kylie filed an action under TEDRA, alleging six causes of action:
4.1 Under Washington statutory and common law, Dean Crosswhite‘s alleged durable power of attorney was and is invalid. In early 2022, Dean Crosswhite did not have the capacity to execute a power of attorney.
4.2 Even assuming Dean Crosswhite had the capacity to execute such a document, he would not have changed the beneficiary(ies) of his DCP Retirement Account from Petitioners to his new wife, Luciana.
4.3 Dean Crosswhite did not intend or instruct Luciana to change the beneficiary designations of his DCP Retirement Account from Petitioners to Luciana. Luciana exceeded her authority under the alleged durable power of attorney.
4.4 Prior to and in March 2022, Dean Crosswhite was a vulnerable adult as provided in
RCW 74.34.020 .4.5 In or about March 2022, Luciana participated in the willful and unlawful financial exploitation of Dean Crosswhite, a vulnerable adult. Under
RCW 11.84.010 , Luciana abused and financially exploited Dean Crosswhite.4.6 Luciana, an abuser under
RCW 11.84.010 , is not entitled to receive any benefit as a result of Dean Crosswhite‘s death, underRCW 11.84.020 .
Luciana denied all six causes of action, contending that Kylie and Spencer did not have standing to bring the claims. Luciana cross-petitioned, as administrator of Dean‘s estate, to intervene in the TEDRA action and to enforce
Luciana moved to dismiss on summary judgment the TEDRA petition and for a ruling in her favor on her cross-petition. On April 13, 2023, the trial court held a hearing on Luciana‘s motions. In support of the motions, Luciana‘s counsel filed a declaration and attached Exhibits A – J. Kylie and Spencer objected to four-of-nine exhibits referenced in the declaration filed by Luciana‘s counsel, arguing lack of personal knowledge and hearsay. The trial court overruled the objections and considered all exhibits in reaching its decision.
On June 27, the trial court granted in part Luciana‘s motion by dismissing the claims involving the retirement benefits. The сourt found
The parties agree in declarations that Luciana Crosswhite, in her individual or representative capacity, did not alter nor influence the amendment of, Dean Crosswhite‘s retirement account beneficiaries. There is no genuine issue of material fact and the Respondent is entitled to judgment on this claim as a matter of law. It is dismissed.
Given the dismissal of those claims, the trial court found that the issue of standing was moot to the extent that claims were made under the Uniform Power of Attorney Act.2 The trial court denied in part Luciana‘s motions to dismiss the clаims relating to Dean as a vulnerable adult and to enforce the no-contest provision, and denied attorney fees and costs.
Luciana moved for reconsideration, which the court granted. In a September 15 ruling, the trial court reconsidered its June 27 ruling and dismissed the claims related to Dean as a vulnerable adult, but maintained other parts of its ruling. The only remaining claim in the TEDRA petition was related to Dean‘s
Over two days in September 2024, the court held a trial on the remaining claim. The court later entered findings of fact and conclusions of law in December. On January 16, 2025, the court entered its final order on the TEDRA petition, finding Kylie and Spencer failed to prove by clear, cogent, and convincing evidence that Dean lacked testamentary capacity to execute the General DPOA on March 4, 2022. The trial court did not enforce the no-contest clause and did not award attorney fees to either party.
Spencer and Kylie timely appealed the summary judgment orders and the final order on the TEDRA petition. Luciana cross appealed.
ANALYSIS
Spencer and Kylie designated the following orders in their notice of appeal: June 27, 2023, September 15 and 16, 2023, July 16, 2024, September 16, 2024, December 20, 2024, and January 16, 2025. They present 16 assignments of error, the majority of which generally challenge the propriety of the various rulings and orders set out above, and challenge certain findings of fact and conclusions of law. In her cross-appeal briefing, Luciana presents three assignments of error: the denial in part of her motion for summary judgment dismissal on standing, the denial of her request to enforce the no contest provision of the trust, and the denial of her request for attorney fees and costs.
We conclude that Spencer and Kylie failed to establish that Dean was a vulnerable adult, and accordingly, address some of the assignments of errors following that dispositive conclusion. We affirm the trial court‘s decision on the
Claims Dismissed on Summary Judgment
Spencer and Kylie contend the trial court erred because it considered inadmissible evidence in reaching its rulings on Luciana‘s motions for summary judgment and for reconsiderаtion, and thus, the trial court erred in dismissing all their claims, excluding the one regarding Dean‘s capacity. This is so, they assert, because some of the documents Luciana attached in support of her summary judgment motion and motion for reconsideration included declarations from Luciana‘s attorney Kevin Khong and a declaration from attorney Kamrar, where both declarations referenced the estate documents of Dean‘s will, Dean and Luciana‘s living trust, and the DPOAs.
A. Evidentiary challenges
In briefing, Spencer and Kylie identify four exhibits they contend were improperly considered because the declarations from attorneys Khong and Kamrar, through which these documents were submitted, came from witnesses who lacked personal knowledge of the content of the various documents and the declarations “contained only inadmissible hearsay.”
Evidence offered in opposition to a summary judgment motion must be admissible. Portman v. Herard, 2 Wn. App. 2d 452, 463, 409 P.3d 1199 (2018). Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
Spencer and Kylie fail to explain how any of the challenged evidence was hearsay. Rather, they offer only conclusory arguments that are not supported by any citation to authority. For example, they argue “Kevin Khong had no personal knowledge of any of the documents attached or facts contained therein” because the documents were not signed or prepared by Khong. Additionally, they argue the trial court relied on Dean‘s medical records, which contained “inadmissible hearsay.” For both arguments, Kylie and Spencer did not provide citations to authority or brief reasoned argument to support their propositions.
B. Vulnerable adult determination
Spencer and Kylie argue the trial court erred in dismissing their vulnerable adult claims at summary judgment. They assert there were genuine issues of material fact showing financial exploitation. We disagree.
We review claims that were dismissed at summary judgment de novo, performing the same inquiry as the trial court. Gardens Condo. v. Farmers Ins. Exch., 2 Wn.3d 832, 838, 544 P.3d 499 (2024). A motion for summary judgment should be granted if “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.”
Here, Spencer and Kylie alleged in their TEDRA petition that Luciana is not entitled to benefit from Dean‘s estate because she is an “abuser” based on her financial exploitation of Dean, who they claimed was a vulnerable adult. To prevail on these claims, they had the burden to establish that Luciana engaged in “willful and unlawful financial exploitation of a vulnerable adult.”
During oral argument before this court, Spencer and Kylie asserted Dean was a vulnerable adult because he was in the hospital at the time of the preparation and execution of his will, DPOA, his and Luciana‘s trust, and the statutory warranty deed.3 But
[a] residence licensed or required to be licensed under
chapter 18.20 RCW , assisted living facilities;chapter 18.51 RCW , nursing homes;chapter 70.128 RCW , adult family homes;chapter 72.36 RCW , soldiers’ homes;chapter 71A.20 RCW , residential habilitation centers; any other facility licensed or certified by the department; or a medical foster home as defined in38 C.F.R. 17.73 .
Thus, the trial court did not err in dismissing the causes of action rooted in Spencer and Kylie‘s theory that Dean was a vulnerable adult. Spencer and Kylie fail to establish that any of the statutory definitions applied to Dean. Because the claims of financial exploitation and abuse by Luciana depend on a finding that Dean was a vulnerable adult, the claims related to financial exploitation necessarily fail.4
Findings and Conclusions after TEDRA bench trial
Next, Spencer and Kylie challenge the trial court‘s findings of facts and conclusions of law on the issue of testamentary capacity, entered after the bench trial on their sole remaining claim from their TEDRA petition. In her cross-appeal, Luciana аssigns error to the trial court‘s decision to not enforce the no-contest provision in the living trust and to deny attorney fees. We address each issue below.
A. Testamentary capacity
In the first two causes of action set out in their TEDRA petition, Spencer and Kylie contended that “[in] early 2022, Dean []did not have the capacity to execute a power of attorney“, and “[e]ven assuming Dean []had the capacity to execute such a document, he would not have changed the beneficiary (ies) [sic]
“We review challenges to the trial cоurt‘s findings of fact for substantial supporting evidence.” In re Est. of Bussler, 160 Wn. App. 449, 460, 247 P.3d 821 (2011). In the context of TEDRA, this court determines whether substantial evidence supports a finding of lack of capacity in light of the ” ‘highly probable’ test.” In re Tr. & Est. of Melter, 167 Wn. App. 285, 301, 273 P.3d 991 (2012) (quoting In re Welfare of Sego, 82 Wn.2d 736, 739, 513 P.2d 831 (1973)). “Evidence which is ‘substantial’ to support a preponderance may not be sufficient to support the clear, cogent, and convincing requirements.” In re Est. of Riley, 78 Wn.2d 623, 640, 479 P.2d 1 (1970). ” ‘Where a will, rational on its face, is shown to have been executed in legal form, the law presumes testamentary capacity in the testator, and that the will speaks his wishes.’ ” Bussler, 160 Wn. App. at 461.
This court reviews de novo whether the triаl court‘s conclusions of law flow from its findings. In re Est. of Jones, 152 Wn.2d 1, 8-9, 100 P.3d 805 (2004).
A person has testamentary capacity,
[I]f at the time he assumes to execute a will he has sufficient mind and memory to understand the transaction in which he is then engaged, to
comprehend generally the nature and extent of the property which constitutes his estate and of which he is contemplating disposition, and to recollect the objects of his bounty.
Bussler, 160 Wn. App. at 461 (quoting In re Bottger‘s Est., 14 Wn.2d 676, 685, 129 P.2d 518 (1942)). Whether a person has testamentary capacity is an issue of fact. In re Est. of Kessler, 95 Wn. App. 358, 373 n.28, 977 P.2d 591 (1999); Page v. Prudential Life Ins. Co. of Am., 12 Wn.2d 101, 109, 120 P.2d 527 (1942). A party challenging capacity must prove this claim by clear, cogent, and convincing evidence. Melter, 167 Wn. App. at 301.
Spencer and Kyliе contend the trial court failed to weigh cross-examination testimony by their witnesses Fire Chief Larry Hoffman, Charles Cooper, and Bernice Maxfield. And they specifically assert that the testimony from these witnesses “provided sound reasons for the trial court to be concerned about its earlier summary conclusions regarding the capacity of Dean in March of 2022.” In essence, Spencer and Kylie argue the trial court erred in giving greater weight to the credibility of Luciana and her witnesses than to their witnesses when it found Luciana and her witness Haug provided credible testimony on Dean‘s testamentary capacity, while Spencer‘s testimony alone was insufficient to carry the burden of establishing Dean‘s incapacity.
As a reviewing court, we do not reweigh the evidence or reassess the credibility of the witnesses because the trial court has the witnesses before it, is able to observe them and their demeanor on the witness stand, and is more capable of resolving questions touching upon both weight and credibility. We defer to the trial court‘s evaluation of “the persuasiveness of the evidence and the crеdibility of the witnesses.” Endicott v. Saul, 142 Wn. App. 899, 909, 176 P.3d 560 (2008). Thus, this argument fails.
Spencer and Kylie also challenge the trial court‘s reliance on Kamrar‘s declaratory statements about Dean‘s testamentary capacity because Kamrar did not testify at the evidentiary hearing. They did not provide authority to support their assertion that Kamrar‘s declaration was not admissible in lieu of his live testimony. Accordingly, they have failed to establish reversible error on this basis.
Spencer and Kylie challenge no other written findings or conclusions. We conclude the trial court‘s findings support its conclusion that they failеd to establish by clear, cogent, and convincing evidence that Dean lacked capacity to execute the DPOA.
B. No-contest provision
Luciana argues the trial court erred in denying her request to enforce the trust‘s no-contest provision to disinherit Spencer and Kylie because, even if the presumption that Spencer and Kylie brought the TEDRA petition in good faith applies, which Luciana asserts it does not, it was rebutted by a lack of a factual basis to support their claims in the TEDRA petition. The trial court did not err.
After a bench trial, our review is limited to whether substantial evidence supports a trial court‘s findings of fact and whether those findings support the conclusions of law. Kessler, 95 Wn. App. at 369. “Substantial evidence is the quantum of evidence sufficient to persuade a rational fair-minded person the premise is true.” Endicott, 142 Wn. App. at 909. In evaluating the sufficiency of the evidence, we consider only the evidence favorable to the prevailing party.
Generally, a no-contest clause is valid and enforceable. See In re Est. of Mumby, 97 Wn. App. 385, 393, 982 P.2d 1219 (1999). But a no-contest clause will not operate when a beneficiary contests in good faith and with probable cause. Mumby, 97 Wn. App. at 393. “If a contestant initiates an action on the advice of counsel, after fully and fairly disclosing all material facts, [they] will be deemed to have acted in good faith and for probable cause as a matter of law.” Mumby, 97 Wn. App. at 393. But when a contestant fails to disclose all material facts to their attorney fully and fairly, the contestant is not entitled to a presumption of good faith. Mumby, 97 Wn. App. at 394.
The “Contest Provision” in Dean and Luciana Crosswhite‘s Living Trust, reads in relevant part:
[i]f any person attempts to contest or oppose the validity of this trust or any amendment to this trust, or commences, continues, or prosecutes any legal proceedings to set this trust aside, then that person will forfeit his or her share, cease to have any right or interest in the trust property, and will be considered to have predeceased the last of us to die for purposes of this instrument.
The trial court concluded the “TEDRA action was brought in good faith and with probable cause.” The trial court noted the testimonial evidence presented by Spencer and Kylie “was consistent with the facts alleged in their Petition, and
Here, Spencer and Kylie were represented by cоunsel and filed the TEDRA petition based on the advice of counsel, thus, there is a presumption they acted in good faith. In re Est. of Kubick, 9 Wn. App. 413, 420, 513 P.2d 76 (1973). However, Luciana asserts the TEDRA petition was brought in bad faith. She complains Spencer and Kylie knew Dean was not a vulnerable adult, that they made discovery requests related to claims that were dismissed by the trial court, and had no factual basis to support their financial abuse claims. We disagree, because although Spencer and Kylie were not successful in their claims, it does not necessarily follow that they failed to disclоse material facts to their attorney, constituting bad faith.
Additionally, the record shows there was evidence presented challenging Dean‘s lack of capacity during the relevant time period. For example, Dean‘s close friend, Fire Chief Hoffman, testified that during a hospital visit on March 1 or 2, 2022, Dean was “not coherent” and was “not able to hold a conversation with me” even though “I think he knew who I was.” Another close friend, Cooper, testified that sometime in February or March 2021, he and Dean spent five to six days golfing in Arizona and he was in “good” physical and mеntal health. By contrast, Cooper stated that in October 2021, Dean was “incoherent,” “couldn‘t
Viewed in the light most favorable to Spencer and Kylie, the trial court‘s findings support its conclusion that Spencer and Kylie filed the TEDRA petition and litigated its merits in good faith and with probable cause.
C. Attorney fees
Luciana asserts that the trial court erred in denying her request for attorney fees. She argues the TEDRA petition had no merit and the delays in
“TEDRA grants trial courts remarkably broad discretion to award any party its reasonable attorney fees or costs.” Radliff v. Schmidt, 27 Wn. App. 2d 206, 216, 532 P.3d 622 (2023) (citing
The trial court‘s award of attorney fees under
Attorney Fees on Appeal
Both parties request attorney fees and costs on appeal under
We affirm.
Bui, J.
WE CONCUR:
, ACJ