FILED per order dated 4/29/20 SUPREME COURT The clerk’s motion to strike the reply is granted STATE OF WASHINGTON except as to portion of the reply that addresses 212812020 1 :32 PM the request for attorney fees. BY SUSAN L. CARLSON CLERK 98013-6 CASE NO. 78696-2-I COURT OF APPEALS, DIVISION I OF THE STA TE OF WASHING TON Indira Rai-Choudhury, Petitioner, V. Stephanie Inslee, in her official capacity as personal representative of the Estate of Margaret Rai-Choudhury, Respondent. REPLY IN SUPPORT OF PETITION FOR REVIEW TO THE WASHINGTON STATE SUPREME COURT Christopher C. Lee, WSBA No. 26516 Attorneys for Indira Rai-Choudhury Aiken, St. Louis & Siljeg, P.S. 801 Second A venue, Ste. 1200 Seattle, WA 98104 206-624-2650/fax: 206-623-5764 lcd u~ni ken .tom Table of Contents I. INTRODUCTION .. ... .. ...... .... .. ... .. .. ... .. .. ... .. ... .. .. ...... .. ... 1 II. REPLY TO STATEMENT OF FACTS ... ... .. .. ..... .. .......... .. 2 III. REPLY TO LEGAL ARGUMENTS ... .......... ..... .. .... .. ... ... ... 3 A. A Presumption of Lucidity Can Be Challenged By Showing Margaret's Reasoning for her Estate Plan had no Basis in Fact ................................................. 3 B. RCW 5.60.030 Excludes Testimony of Transactions With the Decedent and Statements Made by Decedent; It is Not a Complete Bar of All Testimony Concerning Decedent .................................................... .... ...... 6 C. Substantial Admissible Evidence Existed to Create a Genuine Issue of Material Fact Decedent ........ ... ... ...... ... .. 8 D. The Estate's Request for Attorneys' Fees and Expenses Should Be Denied ......... ..... ... .. .. .. .. .. ..... ..... ..... .. .. 9 IV. CONCLUSION . .. .. .... ... ... ............ .... ... .... .......... ..... ...... 9 APPENDIX • Anderson v. Hunt, 196 Cal. App. 4th 722, 126 Cal. Rptr. 3d 736 (2011) Table of Authorities Cases Aetna Life Ins. Co. v. Booher, 56 Wn. App. 567, 784 P.2d 186 (1990) ..... 7 In re Anderson 's Estate, 114 Wn. 591 , 195 P. 994 (1921) ................. ... 7 In re Bottger's Estate, 14 Wn.2d 676, 129 P.2d 518 (1942) ............ ....... 3 In re Estate of Gwinn, 36 Wn.2d 583,219 P.2d 591 (1950) .... ..... .... 1 8 In re Estate ofKlein, 28 Wn.2d 456, 183 P.2d 518 (1947) ...... ... .. ...... 5 In re Estate ofMiller, 10 Wn.2d 258, 116 P.2d 526 (1941) ... .. ... ...... l 9 In re Estate of O 'Neil, 35 Wn.2d 325,212 P.2d 823 (1949) .. ........ .... .. 5 In re Trust and Estate ofMelter , 167 Wn. App. 285, 273 P.3d 991 (2012) ............ .. ...... ................ ....... ........ ...... .. ..... 4 Johnston v. Medina Improv. Club, Inc., l 0 Wn.2d 44, 116 P.2d 272 (1941) .... ..... ..... ... .... ........................ .. .... .. ........... 7 Keck v. Collins, 181 Wn. App. 67, 325 P.3d 306 (2014) ................... .. 6 Richards v. Pacific Nat'! Bank, 10 Wn. App. 542,519 P.2d 272 (1974) ..... 7 Thomson v. Jane Doe, 189 Wn. App. 45, 356 P.3d 727 (2015) ................ 5 Thor v. McDearmid, 63 Wn. App. 193,817 P.2d 1380 (1991) ............ ... 7 Tiger Oil Corp. v. Yakima County, 158 Wn. App.553, 242 P.3d 936 (2010) .............................................. .... .......... .. .. 5 Statutes RCW 5.60.030 ... ... ... ... ..... ... ... .... .. ... .. .. ... ... ... ... .. ...... .. .... ....... .. 7 Other authority Civil Rule 56 .......................... ....... ..... ... ...... .. .. ..... ........ ... ... 6, 9 Rule of Appellate Procedure 18.8 ......... .. .... ........ ...... .... ..... .... ....... 9 Rule of Appellate Procedure 18.9 (a) .. ...... .. ... ..... .... .... .... ..... .......... 9 11 I. INTRODUCTION Appellant Indira Rai-Choudhury presented admissible evidence to the trial court in opposition to the Estate' motion for summary judgment on the claim that her mother, Margaret Rai-Choudhury, was under an insane delusion that affected the dispositions set forth in her Last Will and Testament. 1 Indira presented evidence similar to evidence that the Washington Supreme Court recognized as relevant and probative of whether a person was under a insane delusion affecting the disposition in that person's last will and testament.2 Indira also satisfied the requirements for a CR 56 (f) continuance that the trial comi improperly denied. The trial court failed to recognize the relevance of facts regarding Margaret both before and after the execution of her will. 11. REPLY TO STATEMENT O FACTS The following addresses a couple of factual inaccuracies in the Estate's response. 1 As a matter of clarity first names will be used because a number of individuals share the same surname. No disrespect is intended or implied. 2 In re Estate ofMiller, 10 Wn.2d 258,267, 116 P.2d 526 (1941) and In re Estate of Gwinn, 36 Wn.2d 583, 219 P.2d 591 (1950). In both Miller and Gwinn, a parent changed their will to disinherit a child. In Miller, the Supreme Court found the parent's gifting supported by facts. In Gwinn, the Supreme Court held that a will was invalid because the parent's views of his child were not supp01ied by evidence and contrary to historical relations. 1 The Estate stated that "In her dissolution, Margaret was awarded substantial assets." (Response, p. 5.) This is incorrect. Margaret settled her dissolution action with her husband Prosenjit Rai­ Choudhury. (CP 216.) Gregory Kosanke, Margaret's divorce attorney, noted that Margaret's dissolution was unusual due to her late age. Despite Margaret's complaints to Mr. Kosanke that Prosenjit was controlling and abusive, Mr. Kosanke testified that the dissolution was negotiated without any significant difficulty. (CP 211,505,514, 516.) Margaret's allegations against Prosenjit, such as those against Indira, had no factual support. The Estate stated: "Margaret provided Tuttle with substantial reasons for not wanting anything to go to Indira." (Response, p. 7.) The Estate cited to CP 131-132, Mr. Tuttle's declaration. Other than conclusory statements such as "she disclosed substantial information," and "Margaret provided me with substantial reasons why she did not want Indira inheriting anything from her Estate", Mr. Tuttle does not disclose any of the substantial information or substantial reasons in specificity. What reasons for Margaret's estate plan that Mr. Tuttle did provide at his deposition, such as Margaret's brothers having gone to the University of British Columbia as the reason to gift to UBC, were false and imagined. (CP 568.) 2 III. REPLY TO LEGAL ARGUMENTS A. A Presumption of Lucidity Can Be Challenged By Showing Margaret's Reasoning for her Estate Plan had no Basis in Fact The Estate cited case law that it is presumed that a person has capacity at the time of the execution of a will if the will is rational on its face and done in legal form. In re Bottger's Estate, 14 Wn.2d 676,685, 129 P.2d 518 (1942). The Estate then cited to California case law for the proposition that "even when the testator has an agreed mental disorder, there can be lucid periods." (Response, p. 14.) The Estate quoted from Andersen v. Hunt, l 96 Cal. App. 4th 722, 727, 126 Cal. Rptr. 3d 736 (Cal. App. 2011) as follows: "[I]t is presumed that [her] will has been made during a time of lucidity ... Thus a finding of lack of testamentary capacity can be supported only if the presumption of execution during a lucid period is overcome." The quoted text without the above editing reads: "It must be remembered, in this connection, that '[w]hen one has a mental disorder in which there are lucid period, it is presumed that his will has been made during a time of lucidity.' (Estate ofGoetz (1967) 253 Cal.App.2d 107, 1114 [ 61 Cal. Rptr. 181].) . Thus a finding oflack of testamentary capacity can be supported only if the presumption of execution during a lucid period is overcome." The citation to California case law is unnecessary and misleading. This state's courts have already addressed circumstances in which a person suspected of having a mental disorder executed a will. The Comi of Appeals previously 3 looked at the issue of determining the validity will of a person claimed to have insane delusion. The Court of Appeals held: "A prejudice or dislike that a testator might have for a relative is not ground for setting aside a will unless the prejudiced and dislike cannot be explained on any other ground that that of an insane delusion." In re Trust & Estate ofMelter, 167 Wn. App. 285,312,273 P.3d 991 (2012) (bold added). The Washington Supreme Court expounded upon the relevance of the lack of evidence to support views and opinions that the testator relied upon in the execution of a last will and testament: "Mrs. Klein had resided with her daughter, and there had been a strong bond of affection between them. While eating a pudding served in dish made of thin opalescent glass, she discovered a small piece of glass which had broken off and lodged in the pudding. Mrs. Klein became suspicious that an attempt had been made to poison her. The idea grew in her mind and became an obsession. Its intensity increased. She made many accusations to various people that her daughter and son­ in-law were attempting to kill or poison her. The total absence of any rational foundation for such an idea in view of the affectionate relationship, its progressive development, and the effect it had upon the mental processes of Mrs. Klein, prompted the trial judge and this court on appeal to conclude that the will made by her was the product of insane delusion. The will was unnatural in that the testatrix left the sum of one dollar to her daughter, her only child, and the remainder of her restate, except two hundred dollars, she gave to the church of which she was a member." 4 In re Estate of O'Neil, 35 Wash.2d 325, 334-335, 212 P.2d 823 (1949) (bold added), analyzing, In re Estate ofKlein, 28 Wash.2d 456, 183 P.2d 518 (1947). Indira is not required on summary judgment to satisfy the clear, cogent and convincing standard to challenge a will; that is reserved for trial.