Opinion
No. 63734-7-I.
Filed: February 28, 2011.
Appeal from a judgment of the Superior Court for King County, No. 07-4-03264-6, Timothy A. Bradshaw, J., entered May 29, 2009.
Affirmed by unpublished opinion per Leach, A.C.J., concurred in by Grosse and Ellington, JJ.
Appellant Rodger Benson III sued Joan Benson in her capacity as personal representative of the estate of his late father, Rodger Benson Jr. Benson III claimed Mr. Benson's Charles Schwab accounts belonged to a partnership called "Benson Ventures" that he and his father formed in 1997. After a 10-day bench trial, the court dismissed Benson III's claims. Benson III appeals from the trial court's findings of fact and conclusions of law. He argues the court erred in concluding no partnership existed, the court improperly made a community property determination as that issue was nonjusticiable, and the court abused its discretion by excluding certain evidence based on an erroneous application of the dead man's statute, RCW 5.60.030, and the hearsay rules. We affirm.
We refer to the decedent as Mr. Benson and Rodger Benson III as Benson III. We use Joan Benson's first name to avoid confusion and intend no disrespect.
FACTS
Mr. Benson and Joan married in 1974. At the time of their union, Mr. Benson had four children from two previous marriages, including Benson III. From 1974 until 1986, Mr. Benson and Joan lived in the home that Joan inherited from her first husband. In 1986, Mr. Benson moved into a Belltown condominium that the Bensons jointly owned. The Bensons maintained separate residences until Mr. Benson's death. Although living apart, they filed joint income tax returns, jointly insured their vehicles, and maintained at least one joint account through 2003. In 2006, Joan initiated dissolution proceedings. Mr. Benson died before the divorce was final.
Mr. Benson began investing in natural resource and mining securities in the early to mid-1990s. In 1997, he opened a securities account at Wedbush Morgan. In March 1997, Benson III, an executive at Turner Construction, left his job after 18 years. He wrote in his resignation letter, "My father has offered me a position in his company that affords my family and I [sic] the opportunity for substantial financial growth in a business that is extremely interesting and challenging."
Between March 1997 and July 1998, Benson III worked with Mr. Benson. Mr. Benson taught Benson III about the natural resources industry. Benson III assisted his father and set up a Yahoo web page to monitor his stocks. U.S. Bank opened a joint account titled to Benson III, Mr. Benson, and Benson Ventures in 1997. The last account activity occurred in July 1998, and the account closed before 2001. In July 1998, Benson III resumed full-time employment.
The parties could not establish the exact date the account closed because U.S. Bank does not maintain records after seven years.
The value of Mr. Benson's Wedbush Morgan account dropped from $350,000 to $44,000 between 1997 and 2000, reflective of the significant decline in the value of natural resources securities in 1998 and 1999. Between 2000 and 2006, he made large contributions to the account. In 2001, Mr. Benson opened a second account with Wedbush Morgan, which held other securities. Mr. Benson merged these accounts in 2002 and in 2006 transferred the account to Charles Schwab.
Mr. Benson died on April 26, 2007, at the age of 83. He owned a stock portfolio account and a money market account at Charles Schwab valued at approximately $2.3 million and $157,000, respectively. The court admitted Mr. Benson's will into probate on July 24, 2007. The will named Joan as sole beneficiary and personal representative. Benson III filed a contradiction of inventory, arguing that Benson Ventures, as a partnership, was not an asset of the estate and asking to remove Joan as personal representative of the estate's interest in Benson Ventures. Joan responded 10 days later, denying Benson III's claims and counterclaiming that she owned an undivided one-half community property interest in Mr. Benson's assets, including any interest he had in Benson Ventures.
At trial, Benson III's case largely rested on the existence of the U.S. Bank account and several checks written to Wedbush Morgan from that account. Also, Benson III introduced Mr. Benson's and Benson III's business cards. Although Benson III prepared the cards, neither card identified the holder as a partner or Benson Ventures as a partnership. Benson III offered other items that the court determined were of limited probative value, including bank checks, statements, checkbook register, letterhead, fax sheet letterhead, a binder titled Benson Ventures, and a magazine label. Mr. Benson and Benson III did not execute a written partnership agreement. Nor was there a written partnership agreement for any entity called "Benson Ventures."
The trial court held (1) the preponderance of the evidence did not establish a partnership between Benson III and Mr. Benson; (2) Mr. Benson's Charles Schwab accounts were not partnership property; (3) even if there were a partnership, Benson III's claim would be time barred because Benson III ceased to be associated with the alleged partnership in 1998; and (4) Mr. Benson's assets were community property.
Benson III appeals.
STANDARD OF REVIEW
Where findings of fact and conclusions of law are challenged, this court limits its review to determining whether substantial evidence supports the trial court's findings and whether those findings support its legal conclusions. "Substantial evidence exists if a rational, fair-minded person would be convinced by it." Though the trier-of-fact is free to believe or disbelieve any evidence presented at trial, "[a]ppellate courts do not hear or weigh evidence, find facts, or substitute their opinions for those of the trier-of-fact."
Panorama Vill. Homeowners Ass'n v. Golden Rule Roofing, Inc., 102 Wn. App. 422, 425, 10 P.3d 417 (2000).
In re Estates of Palmer, 145 Wn. App. 249, 265-66, 187 P.3d 758 (2008).
Quinn v. Cherry Lane Auto Plaza, Inc., 153 Wn. App. 710, 717, 225 P.3d 266 (2009) (citing Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d 570, 572, 343 P.2d 183 (1959)).
ANALYSIS
Findings of Fact
Benson III assigns error to the trial court's findings of fact 7, 13, 15, 21, 22, 27, 29, 35, 39, and 40. We hold that substantial evidence supports these findings and reject Benson III's challenge to them.
Finding of fact 7 states, "None of Decedent's assets were traced to separate (non-community) assets or funds." Mr. Benson and Joan were married in 1974 and remained married until Mr. Benson died. Joan testified that Mr. Benson brought no assets into the marriage. No other evidence contradicted this testimony. Thus, the trial court could reasonably find that all of the assets owned by Mr. Benson at the time of his death were acquired during his marriage to Joan, creating a presumption that they were community property. Benson III could only overcome this presumption with clear, cogent, and convincing evidence. His self-serving testimony that he had funds to contribute to the purchase of these assets and did contribute to their purchase is not sufficient to meet this burden.
Beam v. Beam, 18 Wn. App. 444, 452, 569 P.2d 719 (1977).
In re Estate of Borghi, 167 Wn.2d 480, 484 n. 4, 219 P.3d 932 (2009).
In re Marriage of Janovich, 30 Wn. App. 169, 171, 632 P.2d 889 (1981).
Finding of fact 13 states,
The two Wedbush Morgan accounts were titled to Decedent in his individual capacity, not as partner. Petitioner never appeared on the title of these accounts. He was not identified on account applications or account statements as a joint owner. Petitioner's name does not appear on any of the Wedbush Morgan documents admitted in evidence.
Substantial evidence supports this finding. Only the names of Mr. Benson and his stockbroker, Brian Decker, appear on the application documents for the Wedbush Morgan account. On the "Customer Account Information" form for the account, Mr. Benson identified it as "individual" by checking the appropriate box, even though the form included a box for a "partnership." Only Mr. Benson and Mr. Decker signed the forms. The forms indicate that each joint customer must sign for a joint account. But on Mr. Benson's forms, the joint customer signature line is blank. Finally, all account statements identify Mr. Benson as the sole account holder, and all stock certificates were titled individually to Mr. Benson.
Finding of fact 15 states,
The Charles Schwab accounts were titled solely to Decedent in his individual capacity, not as partner. Petitioner never appeared on the title of these accounts. He was not identified on account applications or account statements as a joint owner. Petitioner's name does not appear on any of the Charles Schwab documents admitted in evidence.
Substantial evidence also supports this finding. The Charles Schwab account application and all account statements identify Mr. Benson as the sole owner. None of these documents mention Benson III or Benson Ventures. All income and gains from the Charles Schwab accounts were reported under Mr. Benson's social security number. The documents transferring individual stocks to the Schwab account identify Mr. Benson as the sole owner. None of the correspondence relating to the transfer of the stocks from Wedbush Morgan to Charles Schwab refers to Benson III or Benson Ventures.
Finding of fact 21 states,
Petitioner's expert witness, Michael Gillespie, also testified that the Wedbush Morgan account statements and the Charles Schwab account statements do not contain independent data that would support the conclusion that Petitioner and Decedent had a partnership. Mr. Gillespie[,] Petitioner's expert witness[,] also testified that Decedent's tax records, the Wedbush Morgan account statements and the Charles Schwab account statements do not contain any data that would support the conclusion that Petitioner and Decedent were equal partners. Mr. Gillespie was unable to attribute contributions to petitioner. The expert witness further testified that Decedent's tax records, the Wedbush Morgan account statements and the Charles Schwab account statements do not contain data that would support the conclusion that the Charles Schwab accounts owned by Decedent on his date of death were partnership property.
Mr. Gillespie's testified as described by the court. Substantial evidence in the record supports this finding.
Finding of fact 22 states,
Decedent's stock broker [sic], Mr. Brian Decker . . . testified that Decedent specifically denied that Petitioner had an ownership interest in his stock portfolio. Mr. Decker testified that "Benson Ventures" was the name that he and decedent had given to the "time they spent together" and that decedent never said they were partners. Decedent made clear to Mr. Decker that "this is all my money." Decker testified that petitioner did not have unilateral power of investment. The Court finds Mr. Decker's testimony credible.
Benson III assigns error specifically to the underlined portions of the finding.
(Emphasis added.) Substantial evidence supports this finding. Mr. Decker did testify that Mr. Benson never told him that he and Benson III were partners. Mr. Decker also testified that Benson III did not have unilateral authority over Mr. Benson's investments. He understood that Benson III had no authority to enact trades after he resumed full-time work. Decker said that although Benson III never attempted to call in a trade after 1998, if he had, Mr. Decker would have first consulted with Mr. Benson before going through with the transaction.
In response to the question, "Did Mr. Benson the Dad tell you during the `97 to `98 period that he and his son were partners?" Mr. Decker answered "No." In response to the question, "Did Rodger the Dad ever tell you that Rodger the Son was not a partner?" Mr. Decker said, "He never told me that he was or wasn't."
Finding of fact 27 states,
During the March 1997 to July 1998 period, Decedent authorized Petitioner to make stock trades for him on the Wedbush Morgan account. Petitioner was never authorized to change title to any of Decedent's securities accounts. . . . Decedent made it clear to Mr. Decker that the ownership information was to stay the same and show only decedent's name, and not petitioner's name nor "Benson Ventures."
Benson III assigns error specifically to the underlined portions of the finding.
(Emphasis added.) The court accurately describes Mr. Decker's testimony in its finding. Both statements are supported by substantial evidence in the record.
Finding of fact 29 states, "Petitioner did not establish that he deposited any funds into the joint bank account or that he made any financial contributions to the alleged partnership." Except for Benson III's self-serving testimony, he produced no evidence at trial to establish directly that he made any financial contributions to Benson Ventures. While Benson III did produce evidence that he refinanced his home and liquidated his 401(k) from Turner Construction, he produced no evidence corroborating his claim that he contributed those funds to Benson Ventures. Further, Mr. Decker testified that it is his practice to verify the source of funds each time a deposit is made into a securities account and that Benson III never deposited his individual funds into Mr. Benson's Wedbush Morgan or Charles Schwab accounts. After considering all the evidence, the trial judge did not find Benson III's testimony persuasive. We do not substitute our judgment for that of the trial judge in resolving factual disputes.
In assigning error, Benson III omits the word "financial."
Thorndike, 54 Wn.2d at 574-75.
Finding of fact 35 states, "Several of Petitioner's family members testified that they formed an impression from what Decedent said that he had an equal partnership with his son. None of these witnesses had specific personal knowledge regarding Decedent's investments." (Emphasis added.) While Mr. Benson's brothers were aware that Mr. Benson invested in mineral securities, sufficient evidence supports the finding that neither of them had specific personal knowledge of those investments. Wright Benson testified that Mr. Benson identified the companies in which he had invested, but Wright could not list them because "there's many, many, many, many thousands of stocks that are a gray area because I never saw them." Anthony Benson testified that he saw stock data sheets on Mr. Benson's computer while in his apartment but could not recall any specific information relating to what he saw. Substantial evidence supports the court's finding. And even if the testimony had shown that Wright and Anthony Benson had personal knowledge of Mr. Benson's investments, the court found their testimony not credible, a determination not in dispute.
Benson III assigns error specifically to the underlined portions of the finding. Again, Benson III misquotes by leaving out the word "personal" in his assignments of error.
Finding of fact 39 states, "The evidence does not establish that Petitioner co-owned any of Decedent's mining or natural resources securities or that Petitioner and the Decedent had an agreement to co-own any securities." Based on findings of fact 13 and 15, discussed above, substantial evidence supports this finding.
Finding of fact 40 states, "The evidence does not establish that the decedent and the petitioner had an agreement to share profits or losses from Decedent's mining and natural resources securities. The evidence shows that the decedent claimed all gains and losses from the securities as his own on his joint tax returns with Respondent [Joan]." Substantial evidence supports this finding. At trial, Benson III introduced no evidence corroborating his claim of an agreement with his father to share profits and losses. Mr. Benson reported all gains and losses from the securities held in the Wedbush Morgan and Charles Schwab accounts on his personal tax returns filed jointly with Joan. Benson III's tax records similarly show that he invested his own funds into natural resources securities, which were individually maintained. Benson III reported all gains and losses from these securities on his personal tax returns filed jointly with his wife. No tax identification number was ever obtained for the alleged partnership, and no tax return was ever filed for it.
Conclusions of Law
Benson III assigns error to the court's conclusions of law 5, 6, 7, 8, 13, and 14-19. Because the court's findings of fact support its conclusions of law, we affirm.
Conclusion of law 5 states, "A contract of partnership is essential to the creation of the partnership relationship." An express or implied contract is necessary to establish a partnership. Conclusion 5 is an accurate statement of the law.
Malnar v. Carlson, 128 Wn.2d 521, 535, 910 P.2d 455 (1996).
Conclusion of law 6 states, "The preponderance of evidence does not establish a partnership between Petitioner and his father Rodger Benson Jr." The court's findings support this conclusion.
A partnership is "an association of two or more persons to carry on as co-owners a business for profit." Indeed, the partnership contract must contemplate a common venture, a sharing of profits and losses, and a joint right of control. All alleged partners must voluntarily consent to the formation of a partnership. A party asserting the existence of a partnership bears the burden of proof by a preponderance of the evidence. This evidence must be stronger where the dispute is between alleged partners rather than with a third party.
Former RCW 25.04.060, repealed by Laws of 1998, ch. 103, § 1308; see also RCW 25.05.005(6) defining partnership as "an association of two or more persons to carry on as co-owners a business for profit formed under RCW 25.05.055, predecessor law, or comparable law of another jurisdiction."
Eder v. Reddick, 46 Wn.2d 41, 49, 278 P.2d 361 (1955).
Ferguson v. Jeanes, 27 Wn. App. 558, 564, 619 P.2d 369 (1980).
Eder, 46 Wn.2d at 48-49.
Eder, 46 Wn.2d at 49 (citing Cruickshank v. Lich, 158 Wash. 523, 531, 291 P. 485 (1930)).
Where, as here, there is no express partnership contract, the existence of a partnership depends upon the intention of the parties. "That intention must be ascertained from all of the facts and circumstances and the actions and conduct of the parties." Facts gleaned from the conduct of the parties are preferred over anything the parties have said. "[C]ircumstantial evidence does not tend to prove the existence of a partnership, unless it is inconsistent with any other theory."
Malnar, 128 Wn.2d at 535.
Malnar, 128 Wn.2d at 535.
Eder, 46 Wn.2d at 49.
Eder, 46 Wn.2d at 49.
Here, scant evidence supports Benson III's claims that he and his father were "co-owners" of "a business for profit." No account document ever identified Benson III as a co-owner of Mr. Benson's stock portfolio. And Benson III presented no evidence corroborating his alleged investments in Benson Ventures. Mr. Benson and Benson III never shared profits and losses. To the contrary, all gains, losses, and income from the Wedbush Morgan and Charles Schwab accounts were reported on the tax returns filed for Mr. Benson and Joan. Similarly, Benson III's tax records do not reflect a partnership.
In fact, Benson III admits in his reply brief that "there was never any evidence of where the money came from for the Benson Ventures checking account. . . . The money could have just as probably been Rodger the Son's money as it was Rodger the Dad's money."
Further, Mr. Decker testified that, when asked, Mr. Benson emphatically and unequivocally denied a partnership:
Rodger the Son made the comment when stocks were falling that Rodger the Son had some skin in the game, and so I immediately called Rodger the Dad and said, Rodger, you've got to retitle the account because the account, if Rodger the Son has money in it, needs to be either a joint account or a corporation or a partnership. And he quickly responded, No. No. No. This is all my money. We're just spending time together, and this is what we're calling our — what do you call it? Our time together.
This denial belies the notion that Mr. Benson intended or voluntarily assented to the formation of a partnership with his son.
Benson III, however, argues that Mr. Benson held out to family and friends that Benson Ventures was a partnership between father and son. Mr. Benson's brothers, Carolyn Barclay (one of Mr. Benson's ex-wives), and Benson III's children did testify that they understood Benson Ventures to be a partnership. But the fact that parties to a business arrangement call it a partnership does not make it so in the absence of additional evidence.
State v. Bartley, 18 Wn.2d 477, 481-82, 139 P.2d 638 (1943); see also Eder, 46 Wn.2d at 51 ("Were the rights of third persons involved in this proceeding, the testimony concerning a holding out of Eder as a partner might be sufficient to establish liability against Reddick. As previously noted, however, in proving a partnership, the evidence must be stronger as between the parties themselves than when third persons assert its existence.") (citation omitted).
Benson III also argues that we should find a partnership based on Benson III's authority to buy and sell stocks in the Wedbush Morgan account. However, Benson III's authority to trade on Mr. Benson's account is as consistent with a finding that Benson III was Mr. Benson's agent or employee as it is that Benson III was a partner. Because this evidence is consistent with another theory, it does not compel a finding of intent to form a partnership.
See In re Estate of Thornton, 14 Wn. App. 397, 401, 541 P.2d 1243 (1975) (no implied partnership where evidence of partnership was equally consistent with a finding that appellant was a managerial employee authorized to incur financial obligations).
Benson III's arguments on appeal misconceive this court's role. He appears to ask this court to substitute its own findings for those of the trial court rather than attempt to demonstrate the absence of substantial evidence to support the findings of the trial court. That, however, is not the job of this court. And, because the trial court's findings support its conclusions, we find no error.
Benson III relies on Nicholson v. Kilbury, 83 Wash. 196, 145 P.189 (1915), where our Supreme Court held a partnership by circumstantial evidence existed between a niece and her deceased aunt. In making its determination, the court reviewed all the evidence before the trial court. 83 Wash. at 204. Benson III's reliance on Nicholson is flawed as that case was decided before Thorndike, which established the proposition that "the constitution does not authorize this court to substitute its findings for that of the trial court." 54 Wn.2d at 575.
Conclusion of law 7 states,
Property is partnership property if acquired in the name of the partnership or by one of the partners with an indication in the instrument transferring title of the person's capacity as a partner or of the existence of the partnership. RCW 25.05.065(1). Property acquired in the name of one of the partners, without an indication in the instrument transferring title to the property of the person's capacity as a partner or of the existence of the partnership and without use of partnership assets, is presumed to be separate property, even if used for partnership purposes. RCW 25.05.065(4).
Conclusion of law 7 is an accurate statement of the law.
Conclusion of law 8 states, "The evidence does not rebut the presumption that the Charles Schwab account was Mr. Benson's individual (non-partnership) property. The decedent's accounts at Charles Schwab are not partnership property as defined by RCW 25.05." Benson III contends that the court should have applied former statute RCW 25.04. Because no partnership existed, the distinction between separate property and partnership property is fictional. But even if there were a partnership, RCW 25.05 would govern as RCW 25.05.901(2) states, "Effective January 1, 1999, this chapter governs all partnerships." We therefore apply the current partnership statute, RCW 25.05.065.
RCW 25.05.065(4) reads,
Property acquired in the name of one or more of the partners, without an indication in the instrument transferring title to the property of the person's capacity as a partner or of the existence of a partnership and without use of partnership assets, is presumed to be separate property, even if used for partnership purposes.
Because the Charles Schwab accounts are in Mr. Benson's name, they are presumed to be his separate (non-partnership) property without evidence to suggest otherwise. The trial court's conclusion was correct.
Conclusion of law 13 states, "Petitioner's claim is time-barred because the evidence preponderates that Petitioner ceased to be associated in the carrying on of the alleged partnership in 1998." Because no partnership existed, we need not reach this issue.
Finally, Benson III assigns error to each of the court's conclusions regarding the community property characterization of Mr. Benson's assets. Benson III argues that the trial court erred by not granting his motion to dismiss Joan's claim of community property because the issue was nonjusticiable. Joan, however, filed a counterclaim, alleging that the securities and earnings were community property, not partnership property. Therefore, the issue was properly before the court.
These are conclusions of law 14-19.
Benson III also contends that the court's community property determination does not alter his entitlement to a distribution of partnership profits. Regardless of whether Mr. Benson's securities were community or separate property, however, Benson III has no claim to them as no partnership ever existed.
Evidentiary Rulings
Benson III argues the court erred by excluding certain evidence based on an erroneous application of the dead man's statute and the hearsay rules. A trial court has broad discretion in ruling on evidentiary matters, and we will not overturn a court's ruling absent a manifest abuse of discretion. Discretion is abused if exercised on untenable grounds or for untenable reasons. But error without prejudice is not grounds for reversal. Prejudice occurs if the exclusion of evidence affected, or presumptively affected, the outcome of the trial. In addition, the party challenging the exclusion must show that he made an offer of proof at trial, indicating the substance, purpose, and admissibility of the evidence.
Sintra, Inc. v. City of Seattle, 131 Wn.2d 640, 662-63, 935 P.2d 555 (1997).
Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006).
See Henderson v. Tagg, 68 Wn.2d 188, 190, 412 P.2d 112 (1966); In re Estate of Rakestraw, 28 Wn. App. 585, 587, 624 P.2d 1175 (1981); Brown v. Spokane Cnty. Fire Prot. Dist. No. 1, 100 Wn.2d 188, 196, 668 P.2d 571 (1983).
Brown, 100 Wn.2d at 196.
ER 103(a)(2); ER 103(b); Robert H. Aronson, The Law of Evidence in Washington § 103.05[3][b][ii] (4th ed. 2010).
Benson III argues that the trial court erred by sustaining several of Joan's objections based upon the dead man's statute. He claims that 19 objections were to questions that should have been allowed as foundational, and for one in particular, because "[t]here was no gain or loss in the question or in the answer." Benson III, however, does not cite to a single offer of proof in the record for any of these 19 objections. Benson III also fails to argue prejudice. Besides, if "there is no gain or loss," there is no prejudice. We reject his claims.
As to the remaining objections, Benson III cites to only a single offer of proof; thus, we deem the other objections waived. For the remaining objection, Benson III again fails to argue prejudice. Without deciding error, we reject Benson III's claims.
Next, Benson III contends that the trial court erred when it sustained two different hearsay objections and excluded two exhibits from the record. First, Benson III argues that the court should have permitted Carolyn Barclay to testify about a conversation she had with Mr. Benson regarding his plan to enter into a business relationship with his son. Benson III contends that this statement was admissible under ER 803(a)(3) as a then existing statement of intent or plan. But the page in the record that Benson III cites pertains to testimony from Ms. Barclay about a conversation she had with Benson III, not Mr. Benson. This court does not generally consider unsupported arguments nor does it seek out those documents necessary to support an appellant's claim. We therefore do not consider the merits of this claim.
RAP 10.3(a)(5); State v. Nelson, 131 Wn. App. 108, 117, 125 P.3d 1008 (2006); Eugster v. City of Spokane, 118 Wn. App. 383, 424-25, 76 P.3d 741 (2003).
Second, Benson III alleges that Wright Benson should have been permitted to testify that Mr. Benson and Benson III were "equal" partners. Benson III contends that this statement was admissible under ER 804(b)(3) as a statement against pecuniary interest. Again, it is unclear from the record cited that Benson III ever offered this testimony. But even if Wright did testify that the two were "equal" partners, Benson III fails to explain how the decision to exclude Wright's testimony resulted in prejudice, especially in light of the trial court's finding that Wright was not a credible witness.
Benson III also challenges the trial court's refusal to admit exhibits 8 and 202 into evidence as documents created and maintained in the ordinary course of business. But again, he presents no discussion of how the trial court's refusal resulted in prejudice. Because this court can only speculate as to the basis of these claims, we reject them.
Attorney Fees
Finally, Joan requests attorney fees under RAP 18.1 and RCW 11.96A.150. Under the probate statute, an appellate court has discretion to assess attorney fees and costs and may consider "any and all factors," including whether the litigation benefits the estate. Because Joan is the substantially prevailing party on appeal, we award her reasonable attorney fees upon compliance with RAP 18.1(d).
CONCLUSION
We affirm the trial court and award respondent attorney fees and costs.
WE CONCUR: