Estate Of: David Daniel Finch. Rhoda Cassell v. Douglas A. Portelance, MD

A defendant in a wrongful death suit obtained an order

vacating the appointment of the personal representative. The court then

dismissed the wrongful death suit with prejudice, reasoning that the personal

representative did not have the right to pursue the wrongful death suit at the time

she filed it, and the statute of limitations had since expired. We reverse. The

wrongful death defendant lacked standing to attack the probate court's order.

Dr. Douglas Portelance is the wrongful death defendant and the

respondent in this appeal. Dr. Portelance saw David Finch several times in

2004 and again in 2006. Finch complained of rectal bleeding. Dr. Portelance

told Finch the bleeding was due to hemorrhoids and not to worry about it. In

July 2006 a different doctor diagnosed Finch with terminal colorectal cancer.

Finch and his wife Rhoda Cassell met with an attorney to discuss bringing

a malpractice action against Dr. Portelance. They asked a second attorney to

prepare a will. The attorney prepared a draft of a will and e-mailed it to Cassell

on August 27, 2007. That same day, Cassell asked two neighbors to come over

and witness the will signing. Finch was very weak. He died of colon cancer on

September 2, 2007, at age 50, a little over a year after being diagnosed.

In November 2008, the court admitted Finch's will to probate. The will

declared Cassell the sole beneficiary of Finch's estate and named her personal

representative. The probate court appointed Cassell personal representative

with nonintervention powers.

In December 2008, Cassell sued Dr. Portelance for wrongful death,

individually and also as personal representative of the estate, alleging that Dr.

Portelance committed medical malpractice by failing to diagnose the colon

cancer.

Four days before the wrongful death trial was scheduled to begin in

September 2010, Dr. Portelance moved to dismiss the suit on the basis that the

will appointing Cassell personal representative was a fraud. As evidence of

fraud, Dr. Portelance provided a hospice nurse's notation from August 27, 2007,

the day Finch allegedly signed the will. 2


The notation described Finch's mental status as "comatose." The trial judge

granted a continuance to permit Dr. Portelance to investigate and address the

issue with the probate court.

Dr. Portelance deposed the two neighbors who witnessed the will and the

family friend who served as notary public. They admitted they had not actually

seen Finch sign the will. Dr. Portelance also obtained a sworn declaration from

the nurse. She reiterated that Finch was comatose and heavily medicated when

she saw him. With this evidence in hand, Dr. Portelance moved in the probate

court for permission to intervene in the probate. He asked the court to vacate

the order that appointed Cassell as personal representative because it was

based on a will that had not been signed by a testator with the requisite mental

capacity.

Cassell responded that Dr. Portelance's motion was a poorly disguised

will contest that he had no standing to bring and for which the four-month

limitation period in RCW 11.24.010 had long since passed. Cassell denied the

allegations of fraud, but she did not initially supply sworn declarations or other

evidence. Dr. Portelance replied that Cassell's lack of evidence was "very

telling" and it showed there was "no actual dispute that Mr. Finch was comatose"

on the date of the will signing. He hinted at some conflict between Cassell and

Finch's family and suggested that she had obtained a fraudulent will for self-

serving purposes.

At a hearing, Cassell argued that the witnessing error was unintentional, a

lay person's mistake. She submitted her own sworn declaration explaining that the witnesses did not want to go in to the room where her husband lay on his deathbed, so she alone took the will into the

room for him to sign while they waited in the adjoining room. Declarations by

Finch's parents stated that they had talked to Finch numerous times during the

week before he died and that he understood what they were saying and

responded appropriately. They said that "the whole family" supported Finch's

choice of Cassell to handle his estate. Cassell submitted sworn affidavits from

each of Finch's heirs consenting to her appointment as personal representative

and waiving notice of any hearings relating to her appointment. She continued

to argue that Dr. Portelance had no standing to challenge her appointment under

the will.

The will contest statute permits "any person interested in any will" to

petition for a determination of issues "respecting the competency of the

deceased to make a last will and testament, or respecting the execution by a

deceased of the last will and testament under restraint of undue influence or

fraudulent representations, or for any other cause affecting the validity of the will

or a part of it." RCW 11.24.010. The probate judge decided that Dr. Portelance

was a "person interested" in Finch's will within the meaning of the statute

because his position as defendant in the wrongful death suit gave him an

interest in challenging Cassell's appointment as personal representative. The

judge

did not make a finding of fraud, but he was persuaded that the witnesses had not

properly witnessed the will, that the will was therefore invalid, and that the order appointing Cassell as personal

representative under the will was also invalid.

At the same hearing, the probate judge determined that Cassell could

validly be appointed personal representative as Finch's surviving spouse. See

RCW 11.28.030; RCW 11.68.011(2)(b). He issued a new order reinstating

Cassell as personal representative by operation of statute. Cassell immediately

signed and filed with the court a document ratifying all of her previous actions as

personal representative.

The judge who was presiding over the wrongful death trial then held a

hearing on the impact of the probate court's orders. The trial judge determined

that the probate court had nullified its original order appointing Cassell as

personal representative, and therefore any actions taken by Cassell pursuant to

that order -- including filing the wrongful death suit -- were likewise null and void.

The trial judge concluded that because the deadline for filing suit under the three-

year statute of limitations had passed by the time the probate court reinstated

Cassell as personal representative, the suit could not be refiled. The result was

an order dismissing the wrongful death suit with prejudice.

Cassell assigns error to the probate judge's decisions permitting

Portelance to intervene in the probate and removing Cassell as personal

representative, and the trial judge's decision to dismiss the wrongful death case.

1. Standing to bring a will contest

A trial court's interpretation of a probate statute is a question of law

reviewed on appeal de novo. In re Estate of Jones, 152 Wn.2d 1, 8-9, 93 P.3d

147 (2004). A court may treat a motion as a will contest, even where the

petitioner styles it otherwise. See, e.g., In re Estates of Palmer, 146 Wn. App.

132, 137-38, 189 P.3d 230 (2008). Although Dr. Portelance denied that his

motion to intervene was an attempt to initiate a will contest, the probate judge treated it as a will contest governed by

RCW 11.24.010. A will contest is the proceeding in which a court determines

issues "affecting the validity of the will." RCW 11.24.010. Dr. Portelance based

his motion on "technical deficiencies" affecting the validity of the will:

What we're here to do is to point out that the appointment of Ms. Cassell as PR was facially invalid. It was void. It remains void for a number of reasons. . . . There were many technical deficiencies. Number one, by all evidence . . . Mr. Finch was not of sound mind and body. He was incompetent and could not have signed a will . . . . . . . Then I looked at his signature, which is not really a signature. . . . . . . . . . an invalid attempt to make a will was made. There were no witnesses to the will. We took their depositions. No one saw the signature. If no one saw the signature, the will is invalid.

(Emphasis added.) These allegations -- that Finch lacked the capacity to make a

will on the day he signed it, that he had not signed the will, and that the will was

not properly witnessed -- are precisely what a court considers in a will contest

under RCW 11.24.010. The judge did not err by treating Dr. Portelance's motion

as a will contest. The judge did err, however, in concluding that Dr. Portelance

was a proper will contestant.

A will contest can by initiated only by a person "interested" in the will.

RCW 11.24.010. The judge erroneously ruled that the term "interested" was

broad enough to include Dr. Portelance's interest, as a wrongful death

defendant, in establishing that Cassell was not lawfully serving as the estate's

personal representative when she commenced the suit against him.1 Only an individual who possesses a "direct,

pecuniary interest" in the devolution of the testator's estate may contest a will.

In re Estate of O'Brien, 13 Wn.2d 581, 591, 126 P.2d 47 (1942) (executor of

earlier will who attempted to challenge a later will on grounds of undue influence

and lack of testamentary capacity was not authorized to initiate a will contest).

That a person in Dr. Portelance's relationship to the estate has no

standing under the probate code to challenge the appointment of the personal

representative is confirmed by In re Estate of Upton, 199 Wash. 447, 92 P.2d

210 (1939). In that case, the appellants were individuals who had been sued for

wrongful death. They moved to have the appointment of the personal

representative set aside on the ground that persons interested in the estate had

not been given timely notice of presentation of the petition for letters of

administration. The trial court denied the motion, and our Supreme Court

affirmed, noting that the appellants were not heirs, distributees, or creditors of

the estate. "Their only relation to it was that of possible debtors. It would be of

no moment to them whom the court appointed as administrator." Upton, 199

Wash. at 453.

The record shows that Finch's heirs were satisfied with having Cassell

serve as personal representative. Any technical deficiencies in the manner of

her appointment were of no legitimate concern to Dr. Portelance. Because Dr.

Portelance did not claim a direct interest entitling him to take a part of Finch's estate, he lacked standing to contest the will under RCW 11.24.010.2

2. Standing to intervene to show fraud

Dr. Portelance freely admits that he is not Finch's heir, and he makes it

clear that he does not rest his claim of standing upon a right to contest the will

under RCW 11.24.010. Dr. Portelance's theory is that he had standing to

challenge Cassell's appointment as personal representative because he

possessed evidence that Cassell had committed fraud by presenting the court

with a will she knew was invalid.

Dr. Portelance invokes CR 60(b)(4) as authority for intervening to show

fraud. But CR 60(b) is of no use to Dr. Portelance. As an avenue of relief from a

final judgment or order, CR 60(b) is available only to a "party."

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: . . . (4) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.

CR 60(b). A motion under CR 60(b) is part of the original proceeding. See

Lindgren v. Lindgren, 58 Wn. App. 588, 596, 794 P.2d 526 (1990), review

denied, 116 Wn.2d 1009 (1991). "A stranger to the proceeding cannot ask the

court to vacate its final judgment." Thomas v. Bremer, 88 Wn. App. 728, 734,

946 P.2d 800 (1997), review denied, 135 Wn.2d 1009 (1998). Portelance was

not a party to the probate of Finch's will. Therefore, CR 60(b)(4) did not

authorize his intervention.

Dr. Portelance's intervention in the probate belongs in the category of a

collateral attack. A collateral attack is an attempt to impeach a judgment in an

action other than that in which it was rendered. Batey v. Batey, 35 Wn.2d 791,

798, 215 P.2d 694 (1950). Dr. Portelance's true concern was not with the

probate but with the wrongful death action. His motion to dismiss the wrongful

death action depended upon first knocking out the order appointing Cassell as

personal representative.

A stranger to the original proceeding has the right to collaterally impeach

a judgment that was procured through the fraud of either or both of the parties

for the purpose of defrauding that stranger. Peyton v. Peyton, 28 Wash. 278,

299, 68 P. 757 (1902), quoting 1 A.C. Freeman, A Treatise on the Law of

Judgments § 334 (4thed. 1892). To fit within this principle, Dr. Portelance would

have to show both that Cassell obtained her first appointment as personal

representative through fraud and that she engineered the appointment with the

specific purpose of defrauding him in particular. The record contains no

evidence to support either proposition.

Finch's estate was entitled to have a personal representative to pursue

the claim of wrongful death. No machinations concerning Finch's will were necessary to make the wrongful death

suit viable. No misrepresentations concerning what happened at the will signing

were necessary to achieve Cassell's appointment as personal representative.

As the probate court's second order of appointment recognized, even if the will

was invalid, Cassell was entitled to be the personal representative as Finch's

surviving spouse. There is simply no evidence or inference of fraudulent intent.

Because Cassell's appointment was not procured through fraud for the purpose

of injuring Dr. Portelance, Dr. Portelance was not entitled to attack it collaterally.

In summary, Dr. Portelance lacks standing under existing law to challenge

the order appointing Cassell as personal representative.

Dr. Portelance acknowledged at oral argument that he brings this appeal

as a matter of first impression with the objective of opening up a new frontier for

discovery and defense in wrongful death actions. Dr. Portelance contends

"anyone should be welcome" to bring evidence of fraud to the attention of a court

that has been defrauded, "whether because of a personal interest or merely as amicus curiae."3 In other words, he advocates that anyone with time to spend

digging up irregularities in probate files should be given a roving commission to

uncover fraud and seek vacation of orders. None of the cases Dr. Portelance cites lend support to this novel idea,4 and we will not entertain it.


The probate court erred when it allowed Dr. Portelance to intervene and

when it removed Cassell as personal representative under the will. As Cassell

was a validly appointed personal representative of the estate when she sued Dr. Portelance, the trial court erred when it dismissed that suit.5

The order granting Portelance's motion to intervene in the probate is

reversed. The order removing Cassell as personal representative is reversed.

The order dismissing Cassell's wrongful death suit is reversed.

* * *

See: http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=671952MAJ

The order dismissing Cassell's wrongful death suit is reversed.