Samuel Patrick Burroughs, Appellant /cross-resp. V. Jennifer Gordon, Et Al., Respondents/cross-apps.

Citations and pin cites are based on the Westlaw online version of the cited material.
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Estate of JOSEPH ) No. 79737-9-I
P. BURROUGHS, ) (Consolidated with Nos.
) 80757-9-I, 80930-0-I)
Deceased. )
) DIVISION ONE
SAMUEL PATRICK BURROUGHS, )
)
Appellant/Cross Respondent, )
)
v. )
)
ESTATE OF JOSEPH BURROUGHS; ) UNPUBLISHED OPINION
and JENNIFER GORDON, as Personal )
Representative of the Estate of Joseph )
Burroughs, )
)
Respondents/Cross Appellants, )
)
DAVID BOWERS, STAN BOWERS, )
CURT BOWERS, and CYNTHIA )
BOWERS, )
)
Defendants. )
BOWMAN, J. — Samuel Burroughs contested probate of his father’s will
under both the Trust and Estate Dispute Resolution Act (TEDRA), chapter
11.96A RCW, and the will contest statutes, chapter 11.24 RCW, alleging that his
father had revoked the will. The trial court admitted the will to probate and
dismissed Burroughs’ will contest under TEDRA. A different trial judge granted
summary judgment on Burroughs’ chapter 11.24 RCW will contest. The personal

No. 79737-9-I (Consol. with Nos. 80757-9-I, 80930-0-I)/2
2
representative (PR) of the estate appeals the summary judgment order, asserting
that Burroughs’ chapter 11.24 RCW will contest was time barred and precluded
as res judicata. The PR also argues that the court erred in admitting evidence
barred by the attorney-client privilege, insufficient evidence supports the court’s
determination that the deceased revoked his will, and the court erred by
removing the PR pending appellate review. We affirm the court’s order granting
summary judgment in favor of Burroughs, but remand to vacate the order
removing the PR and to appoint a successor PR.
FACTS
Joseph Burroughs executed a “Last Will and Testament” (Will) on April 6,
2011. He left $50,000 to his only child, Samuel Burroughs, and the residual of
the estate to his wife, Cynthia Marie Burroughs. Joseph1 appointed Cynthia as
the PR of his estate and Cynthia’s sister, Jennifer Gordon, as an alternate PR.
The Will provided that if Cynthia predeceased Joseph, equal shares of “all
property that would otherwise go to her” went to Samuel and Cynthia’s four
siblings, Gordon, David Bowers, Stan Bowers, and Curt Bowers.
Joseph and Cynthia divorced in January 2015. Despite the dissolution,
Cynthia kept the original 2011 Will.
On May 17, 2018, Joseph met with attorney Nancy Ivarinen to prepare a
new Will. Joseph told Ivarinen that he wanted to revoke his 2011 Will and leave
his entire estate to Samuel. He also appointed Samuel as the PR of his estate.2
1 We refer to Joseph Burroughs, Samuel Burroughs, and Cynthia Burroughs by their first
names for purposes of clarity and mean no disrespect by doing so.
2 Joseph appointed his friend Tom Derrick as an alternate PR. He also divided his estate
among Derrick and two charitable organizations if Samuel predeceased him.

No. 79737-9-I (Consol. with Nos. 80757-9-I, 80930-0-I)/3
3
Ivarinen prepared a new Will and mailed a copy to Joseph. On June 12, 2018,
Joseph called Ivarinen’s office and approved the draft of the new Will. He
scheduled an appointment for June 15, 2018 to execute the new Will. Joseph
died on June 15, 2018, before he could sign the new Will.
After Joseph died, Samuel found a signed draft of the 2018 Will while
cleaning his father’s house. Samuel also found a document, signed by Joseph
on April 6, 2015, designating Samuel as the primary beneficiary for Joseph’s
AssetMark Trust Company IRA.3
On July 20, 2018, Ivarinen filed a “Petition for Letters of Administration,”
informing the court that Joseph’s estate should pass intestate because Joseph
revoked his 2011 Will on May 17, 2018. The court agreed and appointed Samuel
as the PR of Joseph’s estate.
On September 18, 2018, Gordon filed a “Petition for Probate of Testate
Estate,” asking the court to admit Joseph’s 2011 Will to probate and appoint her
as PR of Joseph’s estate.4 Gordon argued that the court should admit the 2011
Will to probate because “no admissible evidence of will revocation is before this
court.” The court scheduled a probate hearing for October 5, 2018.
The day of the probate hearing, Samuel filed a TEDRA petition, requesting
a hearing to determine whether Joseph revoked his 2011 Will and asking the
court to declare Joseph’s AssetMark IRA a nonprobate asset to which Samuel is
entitled as the designated beneficiary.
3 Individual retirement account.
4 Gordon argued that the court should appoint her as the PR under the terms of the 2011
Will because Cynthia declined service.

No. 79737-9-I (Consol. with Nos. 80757-9-I, 80930-0-I)/4
4
Samuel also filed a declaration from Ivarinen. In the October 1, 2018
declaration, Ivarinen said that Samuel’s attorney advised her that “the PR . . . has
waived Joseph Patrick Burroughs’ attorney-client privilege.” Ivarinen explained
that Joseph retained her “to assist him in preparing a new Last Will” and that she
prepared the new Will as he instructed. She said Joseph “made it clear to me
that he wanted his son, Samuel Patrick Burroughs, to get all his estate upon his
death.” Ivarinen attached a copy of an unsigned draft of the new Will to her
declaration.
At the October 5 probate hearing, Samuel argued that the court should set
a fact-finding hearing to determine whether Joseph revoked his 2011 Will. The
court did not set a hearing. Instead, it concluded that Joseph’s 2011 Will “meets
all of the requisites to establish the validity of a will under RCW 11.12.020” and
that “Samuel has failed [to] establish by clear, cogent and convincing evidence
that the Will had been revoked.” The court admitted the 2011 Will to probate. It
also revoked the letters of administration previously issued to Samuel and
appointed Gordon as the successor PR with nonintervention powers.
Samuel filed a motion for reconsideration of the court’s October 5 order
admitting the 2011 Will to probate, revoking the letters of administration to
Samuel, and appointing Gordon as PR of Joseph’s estate. In support of the
motion, Samuel filed a second declaration from Ivarinen. In that declaration,
Ivarinen explained that Joseph gave her a copy of his 2011 Will at their May
2018 meeting. She said Joseph instructed her to revoke the 2011 Will, so she
“wrote on the copy of the old Will, ‘revoked’ and placed [her] initials next to

No. 79737-9-I (Consol. with Nos. 80757-9-I, 80930-0-I)/5
5
revoked.” Ivarinen attached the described copy of the 2011 Will with the
“revoked” notation to her second declaration.
Ivarinen’s paralegal Chellie Anderson also filed a declaration stating that
she was present at the May 2018 meeting between Ivarinen and Joseph.
Anderson said that she later had a telephone conversation with Joseph in June
and he told her that the draft of the 2018 Will “was consistent with his instructions
and intentions.” Both Ivarinen and Anderson said they believed Joseph was
competent to make and revoke his Will.
Gordon on behalf of the Estate of Joseph P. Burroughs (collectively the
Estate) moved to strike the second declaration of Ivarinen “based on attorney-
client privilege.” It argued that Joseph’s instructions to Ivarinen are privileged
because Gordon is now the PR of Joseph’s estate, and she “has not granted any
permission or authority to Ms. Ivarinen to disclose any such communications
between Decedent and herself and has continued to assert the privilege.” The
Estate also moved to dismiss Samuel’s TEDRA petition as barred by res judicata
because he sought to relitigate issues determined at the probate hearing.5 The
court scheduled a hearing for November 9, 2018 to address Samuel’s motion for
reconsideration, the Estate’s motion to strike Ivarinen’s second declaration, and
the Estate’s motion to dismiss Samuel’s TEDRA petition.
5 The Estate also argued the court should dismiss the TEDRA petition because Samuel
failed to join the Estate and AssetMark as necessary parties to the suit. It further argued that
because the Bowers siblings were “mere estate beneficiaries,” Samuel improperly joined them in
the petition, and the court should remove them as named parties.

No. 79737-9-I (Consol. with Nos. 80757-9-I, 80930-0-I)/6
6
On October 15, 2018, Samuel filed a “Petition for Will Contest” under
chapter 11.24 RCW, alleging that Joseph directed Ivarinen to revoke the 2011
Will during their May 17, 2018 meeting; and that “[i]n May and June of 2018, it
was the clear intention, of decedent, by signing a new will and by revocation of
the 2011 Will, to leave his entire estate to his son.” Samuel asked the court to
administer the Estate as though Joseph died intestate.
At the November 9 hearing, Samuel asked the court to reconsider its
“finding on the will contest before [the will has] even been filed.” The trial court
consolidated Gordon’s probate petition and Samuel’s TEDRA petition and
continued the matters.
In January 2019, the Estate filed another motion to dismiss Samuel’s
TEDRA claim and requested that the court award it the funds in Joseph’s
AssetMark IRA as well. The Estate again argued that the court should bar
Samuel’s TEDRA challenge as res judicata. In February 2019, the Estate also
moved to dismiss Samuel’s chapter 11.24 RCW will contest, arguing it was both
time barred and foreclosed as res judicata.
On February 1 and February 22, 2019, the court held hearings on
Samuel’s motion to reconsider its October 5, 2018 order admitting the 2011 Will
to probate. The court also considered the Estate’s motions to dismiss. Samuel
argued that the court should reconsider its order given the additional evidence
that Ivarinen revoked the 2011 Will at Joseph’s direction by writing “revoked” on
a copy of the document. The court disagreed and stated:
The statute says if you’re going to revoke it in the — by somebody
other than the testator is going to revoke the will, it must be done in

No. 79737-9-I (Consol. with Nos. 80757-9-I, 80930-0-I)/7
7
the presence of the testator, and Ms. Ivarinen’s declarations never
say she was there — that he was there when she did that.
Samuel then explained that “our evidence and responses were stopped by a
claim of attorney/client privilege, . . . so we’re not able to talk to Ivarinen and get
any subsequent declarations and/or from her employees.”
The court assured Samuel that “you have a will contest matter going
forward under . . . [chapter 11.24 RCW] in which all of that material could be
presented.” The court told Samuel, “This order does not affect that case.” It
elaborated that
the only way it’s going to affect the other case is if a later judge[6]
determined that it’s res judicata, and that’s for a later determination.
This ruling, this ruling is not in the case of the will contest. It
doesn’t impact the will contest except insofar as it may at some
point if it’s determined to be res judicata, it may or may not, but you
still have the opportunity to present evidence to show that it’s
otherwise.
. . . .
. . . And that that evidence wasn’t before the Court and was
not part of the consideration that this Court had. Therefore, it
probably wouldn’t be res judicata. At least that’s how I see it.
Another judge may see it differently.
The court entered findings of fact and conclusions of law on February 22,
2019, denying Samuel’s motion for reconsideration. The court found Samuel
failed to establish by clear, cogent, and convincing evidence that Joseph revoked
his 2011 Will. The court also concluded that Samuel’s TEDRA petition failed
because “he has submitted nothing which would appropriately alter this Court’s
ruling in the October 5 Order that the [2011] Will is the valid Will of decedent and
6 February 22, 2019 was the last working day before the trial judge retired from the
bench.

No. 79737-9-I (Consol. with Nos. 80757-9-I, 80930-0-I)/8
8
properly admitted to probate.” As a result, the court dismissed with prejudice the
portion of Samuel’s TEDRA petition “through which he challenged the ruling set
forth in the October 5 Order that the Will is the valid Will of Decedent and
property admitted to probate.” The court reserved “[a]ny ruling as to whom the
[AssetMark] IRA should be awarded . . . pending further proceedings of this
Court.” The trial court did not rule on the Estate’s motion to strike the second
declaration of Ivarinen and deferred ruling on the Estate’s motion to dismiss the
chapter 11.24 RCW will contest, leaving the issues for the next judge to decide.
Samuel petitioned this court for discretionary review of the court’s October
5, 2018 order admitting the 2011 Will to probate and appointing Gordon as the
PR of Joseph’s estate and the February 22, 2019 order denying his motion for
reconsideration and dismissing a portion of his TEDRA petition. A commissioner
of this court accepted review under RAP 2.2(a)(3) and stayed the appeal pending
resolution of Samuel’s chapter 11.24 RCW will contest.
In June 2019, Samuel filed a “Note for Trial Setting,” seeking a trial date
for his will contest. The Estate moved to strike the trial setting, arguing that
Samuel’s claim is time barred under RCW 11.24.010 because he failed to set an
initial hearing in the matter pursuant to the TEDRA statute, RCW 11.96A.100.
The newly assigned trial judge granted the Estate’s motion and struck the trial
setting pending resolution of the Estate’s claim and other outstanding dispositive
motions.
The Estate moved for summary judgment on the will contest, again
arguing the petition was time barred and subject to res judicata. Samuel

No. 79737-9-I (Consol. with Nos. 80757-9-I, 80930-0-I)/9
9
opposed the motion and asked the court to determine whether attorney-client
privilege precludes Ivarinen “and her staff” from submitting supplemental
declarations. Following a hearing in September 2019, the court entered findings
of fact and conclusions of law, concluding that the will contest was not time
barred or barred as res judicata. The court continued the Estate’s motion for
summary judgment to address the Estate’s assertion of attorney-client privilege
and allow Samuel to present additional evidence about the facts surrounding
Joseph’s revocation of his 2011 Will.
The Estate moved for reconsideration. The court denied the motion to
reconsider. It explained that the will contest was not barred as res judicata
because Samuel’s claim that Joseph revoked his 2011 Will “was never actually
litigated and never had an opportunity to be litigated in the other matter.” As to
the question of whether the prior judge had considered the will contest issues,
the trial court noted:
I don’t believe he fully considered the issue of whether that will was
revoked, and I think he knew he wasn’t fully considering that issue
when he stated in his ruling that the will contest would still be alive,
and that he did not — he did state that he did not believe res
judicata would apply.
The court concluded, “I reviewed the record, and I don’t see where the Petitioner
ever got an evidentiary hearing on whether the will was revoked.”
The court then determined that Joseph’s instructions to Ivarinen were
admissible because Samuel, acting as the PR of the estate at the time, waived
Joseph’s attorney-client privilege:
I don’t think the attorney/client privilege prevented Ms. Ivarinen
from providing evidence in this case for a couple reasons. I think

No. 79737-9-I (Consol. with Nos. 80757-9-I, 80930-0-I)/10
10
that the privilege was waived by the personal representative, Sam
Burroughs, at the time, and cannot then be reasserted by the
current personal representative, but more importantly, I think that
the broad — the purpose of the attorney/client privilege is not met
by imposing it or requiring it to apply in this case.
The court concluded that the attorney-client privilege “is not absolute” and that
“[i]n a controversy between heirs, the interests of the deceased as well as the
estate was that the truth be ascertained.” The court also denied the Estate’s
motion for summary judgment dismissal of the will contest.7
In November 2019, Samuel moved for a summary judgment determination
“return[ing] the Joseph Burroughs probate to an intestate probate” and
reappointing Samuel as the PR. In support of his motion, Samuel filed a third
declaration from Ivarinen. In that declaration, Ivarinen gave a full account of her
May 2018 meeting with Joseph in her office. Ivarinen stated that Joseph “made it
clear” that he wanted “all his estate and assets” to go to Samuel. Although he
could not find his original 2011 Will, Joseph brought a copy of the 2011 Will to
the meeting and directed Ivarinen to revoke it. Based on his instructions,
Ivarinen then wrote and initialed “revoked” on Joseph’s copy of the 2011 Will.
Ivarinen noted that Anderson also attended the meeting and heard Joseph’s
instructions to revoke the 2011 Will.
Anderson also filed another declaration providing detailed information
about Joseph’s May 2018 meeting with Ivarinen. According to Anderson, Joseph
advised them that he could not find the original 2011 Will so he gave them a
7 The Estate petitioned this court for review of several of the court’s orders, including the
order denying the Estate’s summary judgment motion. A commissioner of this court stayed
review, reasoning review would likely be consolidated under Samuel’s pending appeal.

No. 79737-9-I (Consol. with Nos. 80757-9-I, 80930-0-I)/11
11
copy. With Anderson present, Joseph instructed Ivarinen to revoke the 2011
Will. Anderson then watched as Ivarinen wrote and initialed “revoked” on
Joseph’s copy of the 2011 Will. Ivarinen and Anderson both believed Joseph
was competent when he revoked his 2011 Will.
The Estate opposed Samuel’s motion for summary judgment and moved
for a continuance under CR 56(f). The Estate argued a continuance was
necessary to explore Joseph’s testamentary capacity due to a relapse of his
alcoholism before his death. The trial court denied the motion to continue and
granted Samuel’s motion for summary judgment, concluding that clear, cogent,
and convincing evidence showed Joseph revoked the 2011 Will.
On December 27, 2019, the Estate appealed the order granting Samuel’s
summary judgment motion, the order denying the Estate’s summary judgment
motion to dismiss the will contest, and the court’s conclusion that the PR waived
attorney-client privilege. On December 31, a commissioner of this court
determined that “review in this matter is now available” and consolidated the
pending discretionary review and appeals.
In February 2020, Samuel petitioned to remove Gordon as the PR of
Joseph’s estate, terminate her nonintervention powers, and appoint an
independent PR. The trial court granted the motion and removed Gordon as the
PR. The court appointed attorney Steve Chance as PR of the estate without
nonintervention powers and issued letters testamentary to Chance. The Estate

No. 79737-9-I (Consol. with Nos. 80757-9-I, 80930-0-I)/12
12
appealed the removal of Gordon as the PR.8
ANALYSIS
Will Contest
Samuel petitioned to contest the probate of Joseph’s 2011 Will under
chapter 11.24 RCW. The Estate contends that Samuel’s will contest is barred as
both res judicata and untimely.
1. Res Judicata
The Estate argues that Samuel’s will contest is barred as res judicata
because it was “Samuel’s third attempt to re-litigat[e] claims addressed and
resolved through the [trial court’s] October 5 Order and the February 22 Order.”
Samuel contends the trial court did not allow him to present all of his evidence
that Joseph revoked his 2011 Will before the court issued its October 5, 2018
order admitting the 2011 Will to probate and its February 22, 2019 order
dismissing his TEDRA claims challenging the validity of the 2011 Will. We agree
with Samuel.
Res judicata is an equitable, common law doctrine. Weaver v. City of
Everett, 194 Wn.2d 464, 482, 450 P.3d 177 (2019). Res judicata affords every
party one fair adjudication of their claim. Lejeune v. Clallam County, 64 Wn. App.
257, 266, 823 P.2d 1144 (1992).
“The doctrine of res judicata rests upon the ground that a
matter which has been litigated, or on which there has been an
8 The Estate filed a motion with this court requesting determination that the removal order
violated RAP 7.2(e). A commissioner of this court ordered the Estate to file an amended notice of
appeal under the consolidated appeal. The Estate filed the amended notice of appeal as
directed. A commissioner then stayed the probate proceedings pending appellate review.

No. 79737-9-I (Consol. with Nos. 80757-9-I, 80930-0-I)/13
13
opportunity to litigate, in a former action in a court of competent
jurisdiction, should not be permitted to be litigated again.”
Marino Prop. Co. v. Port Comm’rs of the Port of Seattle, 97 Wn.2d 307, 312, 644
P.2d 1181 (1982) (quoting Walsh v. Wolff, 32 Wn.2d 285, 287, 201 P.2d 215
(1949)).
Res judicata bars a claim where the subsequent action is identical with the
prior action in (1) persons and parties, (2) causes of action, (3) subject matter,
and (4) the quality of the persons for or against whom the claim is made. Ensley
v. Pitcher, 152 Wn. App. 891, 902, 222 P.3d 99 (2009). Res judicata only applies
to matters actually litigated and to those that could have, and should have, been
raised in the prior proceedings. Emeson v. Dep’t of Corr., 194 Wn. App. 617,
626, 376 P.3d 430 (2016). And “ ‘res judicata . . . is not to be applied so rigidly
as to defeat the ends of justice, or to work an injustice.’ ” Weaver, 194 Wn.2d at
4829 (quoting Henderson v. Bardahl Int’l Corp., 72 Wn.2d 109, 119, 431 P.2d 961
(1967)). The party asserting res judicata bears the burden of proof. Hisle v.
Todd Pac. Shipyards Corp., 151 Wn.2d 853, 865, 93 P.3d 108 (2004). Whether
res judicata bars an action is a question of law we review de novo. Ensley, 152
Wn. App. at 899.
Citing In re Estate of Black, 153 Wn.2d 152, 102 P.3d 796 (2004), the
Estate argues that Samuel contested the validity of Joseph’s 2011 Will at probate
and was precluded from filing a subsequent will contest. In Black, the decedent’s
daughter contested her mother’s will at probate under chapter 11.24 RCW,
asking the court to admit a “lost will” instead. Black, 153 Wn.2d at 157. The
9 Alteration in original.

No. 79737-9-I (Consol. with Nos. 80757-9-I, 80930-0-I)/14
14
court granted the daughter’s motion for summary judgment, admitting the lost will
to probate. Black, 153 Wn.2d at 159. The estate appealed. Division Three of
our court determined that summary judgment admitting the lost will was not
appropriate because it precluded challenges to the will’s validity. In re Estate of
Black, 116 Wn. App. 476, 485-86, 66 P.3d 670 (2003). On review, our Supreme
Court acknowledged that “if a party contests the admission of [a] will to probate,
generally that same party may not file a later will contest.” Black, 153 Wn.2d at
170. But the court also recognized that “it must be remembered that res judicata
bars only claims actually adjudicated which were or should have been raised in
the proceeding.” Black, 153 Wn.2d at 171.
Here, the record shows that Samuel did not have the chance to actually
litigate his will contest at the probate hearing or through his TEDRA petition.
Samuel urged the court several times to allow a full hearing on the merits of his
claim. The court did not set a hearing to address the will contest. Instead, it
consolidated Samuel’s TEDRA petition with the probate matter, dismissed the
portion of his TEDRA contesting validity of the will, and assured Samuel that he
would have the chance to present all of his evidence to a different judge as part
of his chapter 11.24 RCW will contest action. The trial court knew that the
Estate’s assertion of attorney-client privilege prevented Samuel from accessing
more evidence in support of his argument that Joseph revoked his 2011 Will, and
assured Samuel that he still had “a will contest moving forward” and “all of that
material could be presented.”

No. 79737-9-I (Consol. with Nos. 80757-9-I, 80930-0-I)/15
15
Precluding Samuel’s will contest as res judicata under these
circumstances would work an injustice by denying Samuel a full and fair
adjudication on the merits of his Will revocation claim. The court did not err in
concluding that res judicata did not bar Samuel’s chapter 11.24 RCW will
contest.
2. Time Barred
The Estate contends that Samuel’s will contest under chapter 11.24 RCW
is time barred because he failed to comply with the notice requirements of RCW
11.24.020. We disagree.
Statutory interpretation is a question of law we review de novo. Jametsky
v. Olsen, 179 Wn.2d 756, 761-62, 317 P.3d 1003 (2014). We begin with the
statute’s plain meaning, which we discern from the ordinary meaning of the
language at issue, the context of the statute in which we find the provision,
related provisions, and the statutory scheme as a whole. Lake v. Woodcreek
Homeowners Ass’n, 169 Wn.2d 516, 526, 243 P.3d 1283 (2010). Our inquiry
ends if the plain language of the statute is unambiguous. Lake, 169 Wn.2d at
526-27.
Under RCW 11.24.010, an interested party must file a will contest petition
within four months of a will’s admission to probate or “rejection thereof.” The
petitioner “shall personally serve the [PR] within ninety days after the date of
filing the petition.” RCW 11.24.010. “If, following filing, service is not so made,
the action is deemed to not have been commenced for purposes of tolling the
statute of limitations.” RCW 11.24.010. Under RCW 11.24.020, notice of the

No. 79737-9-I (Consol. with Nos. 80757-9-I, 80930-0-I)/16
16
filing of the will contest must be given to the executors and administrators of the
will, legatees named in the will, and all interested parties “as provided in RCW
11.96A.100.”
RCW 11.96A.100 establishes the procedural rules for commencing an
action under TEDRA. Under the statute, “[a] summons must be served in
accordance with this chapter.” RCW 11.96A.100(2). The summons, as specified
in RCW 11.96A.100(3),10 “need only contain the following language or
substantially similar” language:
TO THE RESPONDENT OR OTHER INTERESTED PARTY: A
petition has been filed in the superior court of Washington for (. . .)
County. Petitioner’s claim is stated in the petition, a copy of which
is served upon you with this summons.
In order to defend against or to object to the petition, you must
answer the petition by stating your defense or objections in writing,
and by serving your answer upon the person signing this summons
not later than five days before the date of the hearing on the
petition. Your failure to answer within this time limit might result in
a default judgment being entered against you without further notice.
A default judgment grants the petitioner all that the petitioner seeks
under the petition because you have not filed an answer.
If you wish to seek the advice of a lawyer, you should do so
promptly so that your written answer, if any, may be served on time.
The parties do not dispute that Samuel timely filed his will contest petition
and that he timely served Joseph’s estate and other interested parties with a
copy of his petition and a summons containing the language mandated by RCW
11.96A.100(3). But the Estate argues that the tolling requirements of RCW
11.24.010 were not satisfied because Samuel “did not provide for and set an
10 Alteration in original.

No. 79737-9-I (Consol. with Nos. 80757-9-I, 80930-0-I)/17
17
Initial Hearing” as required by RCW 11.96A.100(4), and he did not give notice of
a hearing date in his petition or summons.
The Estate conflates the requirements to commence an action properly
under chapter 11.24 RCW to toll the statute of limitations with a procedural step
toward litigating the dispute. If the Estate were seeking relief from an order of
default issued for failure to answer Samuel’s petition, the argument would have
merit. But the will contest statute sets only two requirements for commencing an
action and tolling the statute of limitations—filing a petition with the court within 4
months following probate and personally serving the PR within 90 days of filing
the petition. RCW 11.24.010. Here, Samuel did both.11 The court did not err in
finding that his will contest was not time barred.
Attorney-Client Privilege
The Estate claims that the court erred by determining that Joseph’s
attorney-client privilege “was waived by the Estate of Joseph P. Burroughs on
October 1, 2018” and that it “cannot be reinstated as a matter of law.” We
disagree.
We review waiver of attorney-client privilege de novo. Steel v. Phila.
Indem. Ins. Co., 195 Wn. App. 811, 822, 381 P.3d 111 (2016). The purpose of
the attorney-client privilege is to allow communication between the client and
11 The Estate cites In re Estate of Kordon, 157 Wn.2d 206, 137 P.3d 16 (2006), to
support its claim that “a will contest petition sufficient to toll the four-month limitation period must
be filed and served upon all necessary parties such that a command is issued requiring them to
appear and respond by the expiration of the applicable deadlines.” But the petitioner in Kordon
failed to issue the citation to the parties within the time limit as required by former RCW 11.24.020
(1965). Kordon, 157 Wn.2d at 208-09. Without service of the citation, the petitioner failed to
satisfy one of the two necessary steps for timely commencing a will contest. Kordon, 157 Wn.2d
at 213. Kordon is inapposite because Samuel both filed the petition and served the summons to
commence his will contest within the statutory tolling period.

No. 79737-9-I (Consol. with Nos. 80757-9-I, 80930-0-I)/18
18
their attorney without fear of compulsory discovery. Steel, 195 Wn. App. at 823.
Under the privilege, “[a]n attorney or counselor shall not, without the consent of
his or her client, be examined as to any communication made by the client to him
or her, or his or her advice given thereon in the course of professional
employment.” RCW 5.60.060(2)(a). But the attorney-client privilege is not
absolute:
Because the privilege sometimes results in the exclusion of
evidence otherwise relevant and material, and may thus be
contrary to the philosophy that justice can be achieved only with the
fullest disclosure of the facts, the privilege is not absolute; rather, it
is limited to the purpose for which it exists.
Dietz v. Doe, 131 Wn.2d 835, 843, 935 P.2d 611 (1997).
After death, attorney-client privilege passes to the PR of the decedent’s
estate. Martin v. Shaen, 22 Wn.2d 505, 511, 156 P.2d 681 (1945). The PR
inherits the right to waive attorney-client privilege on behalf of the deceased,
assuming that the PR is “ ‘interested in the protection of the estate’ ” and “ ‘would
consent to the waiver of the privileged communication only for the purpose of
securing that end.’ ” In re Thomas’ Estate, 165 Wash. 42, 55, 4 P.2d 837 (1931)
(quoting Appeal of Prohon, 67 A. 317, 319, 102 Me. 455 (1907)).
The Estate does not dispute that Samuel inherited Joseph’s authority to
waive attorney-client privilege on behalf of the estate when Samuel became PR
of Joseph’s estate. Nor does the Estate dispute that Samuel actually waived the
privilege on October 1, 2018, the date Ivarinen filed her first declaration, as it
applied to Joseph’s discussions with Ivarinen about the revocation of his 2011
Will. Instead, it argues that as the successor PR, Gordon’s subsequent assertion

No. 79737-9-I (Consol. with Nos. 80757-9-I, 80930-0-I)/19
19
of the attorney-client privilege “should have been honored.” Gordon offers no
case law in support of her assertion.12
Regardless, assertion of the attorney-client privilege under these
circumstances does not serve its purpose. In Thomas’ Estate, our Supreme
Court considered the purpose of the attorney-client privilege in the context of a
will contest and determined:
“We are of opinion that, in a suit between devisees under a will,
statements made by the deceased to counsel respecting the
execution of the will, or other similar document, are not privileged.
While such communications might be privileged if offered by third
persons to establish claims against an estate, they are not within
the reason of the rule requiring their exclusion, when the contest is
between the heirs or next of kin.”
Thomas’ Estate, 164 Wash. at 52-53 (quoting Glover v. Patten, 165 U.S. 394,
406, 17 S. Ct. 411, 41 L. Ed. 760 (1897)).
Here, Joseph’s privileged communications consist of instructions to
Ivarinen regarding the revocation of his will. Exclusion of those relevant and
material statements would prevent full disclosure of the facts necessary to reach
a fair and just distribution of Joseph’s estate in a lawsuit between devisees under
his will. The trial court properly concluded that Joseph waived his attorney-client
privilege as it related to the revocation of his 2011 Will.
12 Indeed, existing case law holds that once waived, a privilege generally cannot be
reinstated. See State v. Smith, 84 Wn. App. 813, 822-24, 929 P.2d 1191 (1997) (In the context of
the physician-patient privilege, “ ‘the original disclosure takes away once and for all the
confidentiality sought to be protected by the privilege.’ ”) (quoting 8 J.W. WIGMORE, EVIDENCE IN
TRIALS AT COMMON LAW § 2389(4), at 860-61 (McNaughton rev. ed. 1961)).

No. 79737-9-I (Consol. with Nos. 80757-9-I, 80930-0-I)/20
20
Summary Judgment
The Estate contends the trial court erred by granting summary judgment
for Samuel. It argues that Ivarinen’s writing of “revoked” on the copy of Joseph’s
2011 Will “cannot constitute a revocation under RCW 11.12.040(1)(b).” We
disagree.
We review orders on summary judgment de novo and consider all
evidence and reasonable inferences in the light most favorable to the nonmoving
party. Kim v. Lakeside Adult Family Home, 185 Wn.2d 532, 547, 374 P.3d 121
(2016). “Summary judgment is properly granted when the pleadings, affidavits,
depositions, and admissions on file demonstrate there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law.”
Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998) (citing CR
56(c)). The moving party bears the burden of proving there are no issues of
material fact. Kim, 185 Wn.2d at 547.
“Revocation of a will—as distinguished from making a new will—is
permitted without the formalities required for executing a will.” In re Estate of
Malloy, 134 Wn.2d 316, 323, 949 P.2d 804 (1998). A will can be revoked
[b]y being burnt, torn, canceled, obliterated, or destroyed, with the
intent and for the purpose of revoking the same, by the testator or
by another person in the presence and by the direction of the
testator. If such act is done by any person other than the testator,
the direction of the testator and the facts of such injury or
destruction must be proved by two witnesses.
RCW 11.12.040(1)(b). A petitioner must prove by clear, cogent, and convincing
evidence that a testator revoked their will. In re Estate of Drown, 60 Wn.2d 110,
113, 372 P.2d 196 (1962).

No. 79737-9-I (Consol. with Nos. 80757-9-I, 80930-0-I)/21
21
The Estate contends that Samuel failed to show by clear, cogent, and
convincing evidence that Joseph revoked his 2011 Will because “marking upon a
copy of a will does not serve to revoke the actual (original) will.” The Estate
points to certain sections of the probate code that specifically refer to “original”
wills. It cites RCW 11.12.265, which permits a person with custody of an
“original” will and “who has not received knowledge of the death of the testator”
to file it with “any court having jurisdiction.” The Estate also relies on RCW
11.20.070, which provides that if a will “has been lost or destroyed under
circumstances such that the loss or destruction does not have the effect of
revoking the will,” a petitioner must meet certain requirements before the court
can consider “the validity of the will and establish it.” RCW 11.20.070(1), (2).
RCW 11.20.070(3)13 provides that if the petition meets those requirements in
subsections (1) and (2), the court may appoint a PR “in the same manner as is
herein provided with reference to original wills presented to the court for probate.”
But RCW 11.12.040 does not use the word “original.” See RCW
11.12.040(1) (“A will, or any part thereof, can be revoked . . . .”). If the legislature
intended RCW 11.12.040 to apply to only an “original” will, it would have included
that term in the statute. See Citizens All. for Prop. Rights Legal Fund v. San
Juan County, 184 Wn.2d 428, 440, 359 P.3d 753 (2015) (When the legislature
uses two different terms in the same statute, we presume it intended the terms to
have different meanings.).
13 Emphasis added.

No. 79737-9-I (Consol. with Nos. 80757-9-I, 80930-0-I)/22
22
Here, Joseph had no access to the original 2011 Will because Cynthia
kept it after the couple divorced. Joseph told Ivarinen he did not have the original
and produced a copy in its stead. The Estate does not dispute the authenticity or
accuracy of the copy. Two witnesses declared that Joseph directed Ivarinen to
revoke his 2011 Will. Ivarinen then cancelled the 2011 Will by writing “revoked”
on Joseph’s copy of the document. Joseph’s intent to revoke his 2011 Will and
leave his estate to Samuel was clear. The trial court properly determined that the
undisputed clear, cogent, and convincing evidence showed Joseph revoked his
2011 Will. The court did not err in granting summary judgment for Samuel.14
Replacement of the PR
The Estate argues that the trial court lacked the authority to remove
Gordon as the PR of Joseph’s estate after this court accepted appellate review.
We agree.
The trial court has limited authority to act in a case after the appellate
court accepts review. RAP 7.2(a). “If the trial court determination will change a
decision then being reviewed by the appellate court, the permission of the
appellate court must be obtained prior to the formal entry of the trial court
decision.” RAP 7.2(e)(2).
14 Besides opposing the summary judgment, the Estate argues that the trial court erred
by failing to defer or deny Samuel’s motion for summary judgment under CR 56(f) to allow for
investigation and discovery of issues related to Joseph’s testamentary capacity, his interactions
with Ivarinen, and his relationships with the various possible heirs. The Estate fails to provide
legal citation or analysis in support of this claim. This violates RAP 10.3(a)(6), which requires
“argument in support of the issues presented for review, together with citations to legal authority.”
This passing treatment of an issue, lack of reasoned argument, and conclusory arguments
without citation to authority do not merit our consideration. Winter v. Dep’t of Soc. & Health
Servs., 12 Wn. App. 2d 815, 835, 460 P.3d 667, review denied, 476 P.3d 565 (2020).

No. 79737-9-I (Consol. with Nos. 80757-9-I, 80930-0-I)/23
23
Here, the trial court granted Samuel’s motion to remove and replace
Gordon as PR of Joseph’s estate after this court accepted appellate review.
Under RAP 7.2(a), the trial court had no authority to grant the motion. We
remand to vacate the order removing and replacing Gordon as the PR of
Joseph’s estate. See State ex rel. Shafer v. Bloomer, 94 Wn. App. 246, 250, 973
P.2d 1062 (1999). On remand, the court shall appoint a successor PR.
Attorney Fees
Samuel requests fees on appeal under RAP 18.1 and RCW 11.96A.150.
The authority to award attorney fees under RCW 11.96A.150 includes actions
initiated under any provision of Title 11 RCW. RCW 11.96A.150(2); In re Estate
of Berry, 189 Wn. App. 368, 379, 358 P.3d 426 (2015). Under RCW
11.96A.150(1), we may award fees at our discretion, considering any relevant
and appropriate factors, which may but need not include whether the litigation
benefits the estate or trust involved.15 In re Estate of Mower, 193 Wn. App. 706,
729, 374 P.3d 180 (2016). Given the unnecessarily complicated litigation
created by the multiple lawsuits and challenges by both parties, we decline to
award fees in this case.
15 RCW 11.96A.150(1) provides:
Either the superior court or 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. The court may order the costs, including reasonable attorneys’
fees, to be paid in such amount and in such manner as the court determines to
be equitable. In exercising its discretion under this section, the court may
consider any and all factors that it deems to be relevant and appropriate, which
factors may but need not include whether the litigation benefits the estate or trust
involved.

No. 79737-9-I (Consol. with Nos. 80757-9-I, 80930-0-I)/24
24
We conclude that Samuel’s petition to contest Joseph’s 2011 Will under
chapter 11.24 RCW was not precluded as res judicata and was not time barred.
We affirm the trial court’s order granting summary judgment in favor of Samuel
and remand for the trial court to appoint a successor PR of Joseph’s estate.
WE CONCUR: