Washington State Supreme Court – Estate Case

The Washington State Supreme Court released an opinion in an Estate case:

In re Estate of Jepsen, Docket No. 90874-5; Opinion Author – Yu; joined by Madsen, Fairhurse, Wiggns, Gonzalez; Dissent Author – Stephens, joined by Johnson, Owens, and McCloud. Attorney for Petitioners  –  Susan L. Caulkins and Ingrid Linnea Daun Mcleod of Davies Pearson, P.C.; Counsel for Respondent – Robert P. Dickson, Dickson Law Group, P.S.

Basics of Decision: While this case concerned an estate dispute the appellate issue was a procedural issue. The question was whether the there was timely personal service of the will contest petition on the estate’s personal representative. Person service was not served on the personal representative and the State Supreme Court majority found that the case was never fully commenced and should have been dismissed.

Basic Facts: Jespen wrote her will on 7/1/09 and died on 11/16/11. On 12/20/11 her will was admitted to probate and appointed Julie Miles as PR with nonintervention powers. On 3/22/12 Jespsen’s adult son Mack filed a petition to contest the validity of the will. Mack’s attorney e-mailed the petition to the PR’s attorney the same day it was filed. Nothing in the record showed that the PR affirmatively agreed to accept e-mail service on her attorney in lieu of personal service on the PR. On 4/27/12, the PR filed a response denying its substantive allegations but not raising any affirmative defenses (i.e., did not at this time raise the issue of lack of service).

On 10/31/12, the PR filed a motion to dismiss Mack’s petition because it was not personally served within 90 days of filing. The trial court initally granted but then reversed itself on reconsideration holding that service under 11.24.010 went solely to personal jurisdiction and that the objection had been waived. The PR appealed and the Court of Appeals affirmed the trial court and it was appealed to the State Supreme Court.

The Majority

The court identified two issues: (A) Did the Court of Appeals correctly hold that the PR waived any objection to Mack’s failure to comply with RCW 11.24.010? and (b) Is either party entitled to attorney fees and costs on appeal? The court’s simple answer was that RCW 11.24.010 is clear that personal service is required in order to commence a will contest, but to express its disapproval of PR’s delay in raising the issue, the court denied the parties’ request for attorney fees and costs on appeal.

The son’s argument around the plain language of the statute was to argue that personal service was only required to gain personal jurisdiction over the PR and that the PR waived any objection on that basis under CR 12(h)(1) (waiver of a defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service is waived if it is neither made by motion under the rule nor included in a responsive pleading).

The court’s response to this argument is there is a difference between notice of and the commencement of a will contest. Washington Courts have always strictly enforced the requirements for commencing a will contest action and their holding adhering to the language of the RCW requiring personal service in order to commence a will contest action is consistent with the history of strictly enforcing the requirements. The court also adds a footnote 7 that says that the PR’s response was superfluous and that an automatic waiver under CR 12(h)(i) is inconsistent with the plain language of RCW 11.24.010 and so would not have been applied anyway.

The son also made an argument that RCW 11.24.010 would conflict with CONST. art. IV, § 6 and divest the superior courts of their constitutional jurisdiction over “all matters probate.” The majority disagreed with this argument stating that the legislature may prescribe reasonable regulations without divesting the court of its jurisdiction and that RCW 11.24.010 does just that.

The Dissent

The dissent frames the case as a dispute concerning whether the statutory personal service requirement speaks to the superior court’s subject matter jurisdiction over will contest proceedings or to personal jurisdiction over the PR. For the dissent, this distinction is crucial as subject matter jurisdiction can be raised at any time, but personal jurisdiction  can be waived. The dissent feels that the case involves personal jurisdiction and the defense of lack of personal service was waived.

The dissent also acknowledged that there is a significant amount of confusion in the difference of personal jurisdiction and subject matter jurisdiction and that they disagree with the majority in this case regarding what is at issue here (which speaks volumes about how profound this confusion is since it was a 5-4 decision, so the confusion still abounds).