Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Estate of:             )
                                            )       DIVISION ONE
VIRGIL VICTOR BECKER, JR.,                  )
                                            )       No. 65578-7-I
                      Deceased.             )
                                            )
CATHERINE JANE BECKER,                      )       UNPUBLISHED OPINION
CAROL-LYNNE JANICE BECKER,                  )
and ELIZABETH DIANE MARGARET                )
BECKER,                                     )
                                            )
                      Respondents,          )
                                            )
                   v.                       )
                                            )
JENNIFER WHITE, in her capacity as          )
Personal Representative of the Estate       )
of Virgil Victor Becker, Jr.,               )
                                            )
                      Respondent.           )       FILED: March 12, 2012
                                            )
NANCY BECKER,                               )
                                            )
                      Petitioner.           )
________________________________)

       Dwyer, C.J.  --  Virgil Victor ("Tory") Becker Jr. died in July 2008.  His 

purported will, which leaves his entire estate to his minor daughter Barbara, was 

thereafter admitted to probate.  Tory's three adult daughters from a previous 

marriage challenged the will as fraudulent and asserted numerous creditors'  

No. 65578-7-I/2

claims against the estate.  Following mediation, Barbara's guardian ad litem 

(GAL) and the adult daughters entered into an agreement settling the will 

contest and creditors' claims in exchange for granting the adult daughters a 

percentage interest in the estate.  

       Nancy Becker, Tory's wife and Barbara's mother, refused to sign the 

settlement agreement in her role as personal representative of the estate.  After 

her removal from that role due to irreconcilable conflicts, she appeared in the 

action personally.  Upon motion of the GAL, the trial court determined that 

Nancy -- who is not a named beneficiary in the will admitted to probate -- does not 

have standing to participate in proceedings regarding the settlement agreement.  

       Nancy filed a motion for discretionary review of the trial court's order, 

which we granted.  We conclude that neither general principles of standing nor 

the Trust and Estate Dispute Resolution Act (TEDRA), chapter 11.96A RCW,

confer upon Nancy standing to participate in the settlement agreement 

proceedings.  Accordingly, we affirm the trial court's order.

                                            I

       Tory Becker died on July 27, 2008 when the private airplane in which he 

was a passenger crashed.  At the time of his death, Tory was married to Nancy 

Becker, with whom he had a child, Barbara Becker.  Barbara was born on 

November 28, 1997.  She is currently 14 years old.  Tory is also survived by 

three daughters from a previous marriage -- Catherine Jane Becker, Carol-Lynne 

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No. 65578-7-I/3

Janice Becker, and Elizabeth Diane Becker.1  

       On August 13, 2008, the trial court admitted to probate a will which left 

Tory's entire estate to Barbara.  Pursuant to that will, Nancy was named as 

personal representative of the estate.  

       On December 12, 2008, the adult daughters filed a petition challenging 

the validity of the will and seeking to remove Nancy as personal representative 

based upon alleged conflicts of interest.  Jennifer Rydberg was thereafter 

appointed to act as Barbara's GAL.  The adult daughters and their 

mother -- Linda Bulger, Tory's previous wife -- additionally asserted 14 creditors' 

claims against the estate.  Nancy, as personal representative, rejected each of 

the creditors' claims, and a civil action for the claims was filed against the estate 

on January 29, 2009.  

       On December 4, 2009, Rydberg, the adult daughters, and Bulger 

participated in a meditation to resolve the disputes.  Following the mediation, 
they signed a "CR 2A Settlement Agreement."2 The agreement stated that the 

petitioners -- the adult daughters and Bulger -- recognized the possibility that one 

or more of their creditors' claims might be dismissed by the court and that their 

will contest might be unsuccessful.  Similarly, the agreement stated that the 

respondent -- Barbara, as represented by GAL Rydberg -- recognized the 

       1 Catherine Jane Becker, Carol-Lynne Janice Becker, and Elizabeth Diane Becker are 
referred to collectively herein as the "adult daughters."  The other Becker parties are referred to 
by their first names in order to avoid confusion.
       2 Nancy, as personal representative of the estate, was also present for part of the 
mediation.  However, she was not involved in the drafting of the settlement agreement.  

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possibility that one or more of the creditors' claims might be granted by the court 

and that the will contest might be successful.  Accordingly, pursuant to the 

agreement, the adult daughters and Bulger agreed to dismiss the will contest 

and creditors' claims in exchange for granting the adult daughters a percentage 

interest in the estate.  The agreement further recognized that "[t]he assets that 

are in the Estate as well as the characterization and value of those assets are in 

dispute."  Clerk's Papers (CP) at 259.  The agreement did not purport to 

determine those assets which made up the estate.  

       Nancy refused to sign the agreement in her role as personal 

representative of the estate.  Rydberg and the adult daughters petitioned the 

court to appoint a co-personal representative for the limited purpose of 

approving the settlement agreement.  Rydberg additionally filed a petition to 

remove Nancy as personal representative.  On March 12, 2010, following a two-

hour hearing, the trial court removed Nancy as personal representative of the 

decedent's estate.  The court determined that Nancy had numerous direct, 

irreconcilable conflicts of interest that precluded her from acting in that role.  

       On April 8, 2010, following her removal as personal representative, Nancy 

appeared personally in this matter.  Jennifer White was thereafter appointed as 

personal representative of the estate.    

       On May 10, 2010, Rydberg filed a motion with the trial court entitled 

Motion to Determine Standing of Nancy Becker Regarding CR 2A Agreement of 

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Heirs to Resolve Will Contest and Creditors' Claims, and Distribute Estate.  

Rydberg sought "an order identifying those parties who are entitled to participate 

in the June 11th court proceedings regarding the review and possible approval 

of the pending CR 2A Agreement."  CP at 173.  Her motion asserted that the 

effect of the settlement agreement was solely to "apportion[] whatever assets 

end up in the Estate on a percentage basis between the Adult Children and 

Barbara" -- not to "determine what assets are actually in or owned by the Estate, 

or whether the Estate has any claim to assets which [Nancy] now claims are hers 

alone."  CP at 174.  The motion further contended that Nancy lacked standing to 

participate in the proceedings based both on general principles of standing and, 

specifically, on the provisions of TEDRA that define who constitutes a "party" for 

purposes of that act.  Thus, Rydberg asserted, Nancy has no legally cognizable 

interest in the subject matter of the agreement.  

       The adult daughters filed a response in support of the motion to 

determine Nancy's standing to participate in the review and approval process of 

the settlement agreement.  They alleged that Nancy had incurred hundreds of 

thousands of dollars in legal fees in order to impede discovery and prevent the 

court from considering the settlement agreement and that Nancy's further 

involvement would continue to deplete the estate of resources.  They also

alleged that Nancy, who had purportedly mischaracterized the assets of the 

estate to her own benefit, was fearful that the adult daughters would assist 

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No. 65578-7-I/6

Barbara in recovering the true value of the estate.  

       On May 20, 2010, the trial court granted the motion and entered an order 

determining that Nancy lacks standing to participate in judicial proceedings 

concerning the settlement agreement and its proposed resolution of the will 

contest and creditors' claims.  In support of its ruling, the trial court entered the 

following findings of fact:

       1.  On December 4, 2009, during a court-ordered mediation, the 
       GAL for Barbara Becker, and the Petitioners entered into a written 
       CR 2A Agreement that purports to resolve the will contest, resolve 
       all of the creditors' claims brought by Petitioners against the Estate 
       of Virgil Victor Becker, Jr., (the "Estate" herein), and distribute the 
       Estate.  The CR 2A Agreement does not affect the prosecution or 
       distribution of proceeds from the wrongful death claim that arose 
       from the circumstances of the death of Virgil Victor Becker, Jr. (
       "decedent" herein).  The PR has not signed the CR 2A 
       [Agreement].

       2.  Nancy Becker is the surviving spouse of the decedent.

       3.  Nancy Becker has no beneficial interest in any matters 
       addressed by the CR 2A Agreement or in the Estate.  Nancy 
       Becker is not an heir or beneficiary of the Estate, and has no legal 
       interest in the decedent's property, in this estate action.

       4.  Nancy Becker was removed as Personal Representative ("PR" 
       herein) of the Estate on March 16, 2010, and is not presently the 
       PR.

       5.  Nancy Becker is not a "real party in interest" as to the matters 
       addressed by the CR 2A Agreement.

       6.  Nancy Becker is not a party under the Trust and Estates 
       Dispute Resolution Act, RCW 11.96A, et seq.

CP at 231.  The trial court also entered conclusions of law, ruling that:

       1.  Nancy Becker is not a real party in interest, nor is she a party 

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No. 65578-7-I/7

       under the Trust and Estates Dispute Resolution Act, RCW 11.96A 
       et seq.

       2.  Nancy Becker has no standing to participate as a party in the 
       court's determination of whether a CR 2A Agreement, that resolves 
       the will contest and Petitioners' creditors' claims, and distributes 
       the estate among the heirs, reached by the Petitioners and the 
       GAL, or any variation thereof, should be approved by the Court.

       3.  Except for any proceeds that may in the future be obtained from 
       a wrongful death action, Nancy Becker has no standing to 
       participate as a party in the Court's determination of how the 
       assets of the Estate shall be distributed among its heirs.

       4.  Nancy Becker has no standing to participate as a party in the 
       litigation and resolution of creditors' claims made against the 
       Estate, or the validity of the Will admitted to probate.

CP at 232.

       On June 2, 2010, Rydberg and the adult children filed a motion for court 

approval of the CR 2A Agreement.  The court thereafter stayed the motion for 

approval of the settlement agreement pending the resolution of issues to be 

presented to the minor settlement ex parte department.  

       On July 6, 2010, Nancy sought discretionary review in this court of the 

trial court's order determining that she lacks standing to participate in 

proceedings regarding the settlement agreement.  On August 31, 2010, we 

granted discretionary review of that order. The adult daughters thereafter filed 

with this court a motion for the admission of additional evidence -- specifically, a 

purported premarital agreement between Nancy and Tory that allegedly 

precluded the creation of community property interests during their marriage.  

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No. 65578-7-I/8

Thus, both the trial court's order regarding Nancy's standing and the motion for 

additional evidence are before us.

                                           II

       Nancy contends that the trial court erred by determining that she does not 

have standing to participate in proceedings regarding the settlement of the will 

contest and creditors' claims.  Because general principles of standing do not 

entitle Nancy to so participate, and because Nancy is not a "party" to this 

proceeding pursuant to TEDRA, we disagree.

       Standing is a question of law subject to de novo review.  In re Irrevocable 

Trust of McKean, 144 Wn. App. 333, 339, 183 P.3d 317 (2008).  "A party has 

standing to raise an issue if that party has a distinct and personal interest in the 

issue."  Paris Am. Corp. v. McCausland, 52 Wn. App. 434, 438, 759 P.2d 1210 

(1988).  That interest must be present and substantial, rather than "a mere 

expectancy, or future, contingent interest."  Primark, Inc. v. Burien Gardens 

Assocs., 63 Wn. App. 900, 907, 823 P.2d 1116 (1992).  "Standing requires that 

the plaintiff demonstrate an injury to a legally protected right."  Sprague v. Sysco 

Corp., 97 Wn. App. 169, 176 n.2, 982 P.2d 1202 (1999).  Consistent with 

principles of standing -- although a doctrine distinct from standing -- CR 17(a) 

requires that "[e]very action shall be prosecuted in the name of the real party in 

interest."   See Sprague, 97 Wn. App. at 176 n.2.  "The real party in interest is 

the person who possesses the right sought to be enforced."  Sprague, 97 Wn. 

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No. 65578-7-I/9

App. at 176 n.2.

       TEDRA provides various methods for resolving disputes concerning wills

and trusts.  One such method is a "binding nonjudicial procedure to resolve 

matters through written agreements among the parties interested in the estate or 

trust."  RCW 11.96A.210; see also RCW 11.96A.220-.250.  The procedure is 

applicable to the resolution of any "matter," as defined by the act.  RCW 
11.96A.220.3  "If all parties agree to a resolution of any such matter, then the 

agreement shall be evidenced by a written agreement signed by all parties.  

Subject to the provisions of RCW 11.96A.240, the written agreement shall be 

binding and conclusive on all persons interested in the estate or trust."  RCW 

11.96A.220.   

       Thus, pursuant to TEDRA, those persons whose agreement must be 

obtained in order to resolve by written agreement a dispute regarding a will are 

those "persons interested in the estate."  RCW 11.96A.220; see also RCW

11.96A.210.  TEDRA further defines who constitutes a "party" for the purposes 

of that statute.  See RCW 11.96A.030(5).  A "party" means each person listed 

within RCW 11.96A.030(5) "who has an interest in the subject of the particular 

proceeding."  RCW 11.96A.030(5).  The statute then lists numerous individuals 

who may constitute "parties" in a proceeding, including, as relevant here, "[t]he 

       3 See RCW 11.96A.030(2)(c) (defining "matter" as "any issue, question, or dispute 
involving . . . [t]he determination of any question arising in the administration of an estate or 
trust, or with respect to any nonprobate asset, or with respect to any other asset or property 
interest passing at death"); see also In re Estate or Kordon, 157 Wn.2d 206, 211, 137 P.3d 16 
(2006). (holding that "[a] will contest presents a 'question arising in the administration of an 
estate,' and therefore is clearly a 'matter' subject to TEDRA").

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No. 65578-7-I/10

surviving spouse or surviving domestic partner of a decedent with respect to his 
or her interest in the decedent's property." RCW 11.96A.030(5)(f).4 TEDRA 

further provides that "'[p]ersons interested in the estate or trust'" means . . . "all 

persons beneficially interested in the estate or trust."  RCW 11.96A.030(6).

       As the trial court determined, Nancy is not a "party" pursuant to TEDRA.  

The statute provides that the persons who constitute "parties" are those persons 

who are both listed within RCW 11.96A.030(5) and have "an interest in the 

subject of the particular proceeding." RCW 11.96A.030(5).  Moreover, a 

surviving spouse is a party only "with respect to his or her interest in the 

decedent's property."  RCW 11.96A.030(5)(f) (emphasis added).  Nancy has an 

       4 RCW 11.96A.030(5) provides in full:
       "Party" or "parties" means each of the following persons who has an interest in 
       the subject of the particular proceeding and whose name and address are known 
       to, or are reasonably ascertainable by, the petitioner:
           (a) The trustor if living;
           (b) The trustee;
           (c) The personal representative;
           (d) An heir;
           (e) A beneficiary, including devisees, legatees, and trust beneficiaries;
           (f) The surviving spouse or surviving domestic partner of a decedent with 
       respect to his or her interest in the decedent's property;
           (g) A guardian ad litem;
           (h) A creditor;
           (j) Any other person who has an interest in the subject of the particular 
       proceeding;
           (j) The attorney general if required under RCW 11.110.120;
              (k) Any duly appointed and acting legal representative of a party such as 
           a guardian, special representative, or attorney-in-fact;
              (l) Where applicable, the virtual representative of any person described 
           in this subsection the giving of notice to whom would meet notice 
           requirements as provided in RCW 11.96A.120; 
              (m) Any notice agent, resident agent, or a qualified person, as those 
           terms are defined in chapter 11.42 RCW; and
              (n) The owner or the personal representative of the estate of the 
           deceased owner of the nonprobate asset that is the subject of the particular 
           proceeding, if the subject of the particular proceeding relates to the 
           beneficiary's liability to a decedent's estate or creditors under RCW 
           11.18.200.

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No. 65578-7-I/11

interest neither in the subject of the settlement agreement proceeding nor in the 

decedent's property.  Nancy is not a named beneficiary in the will.  Nor has 

Nancy challenged the validity of the will, as have the adult daughters, such that 

she has a beneficial interest in the resolution of the will contest.  Indeed, having 

not challenged the will within the four-month statutory period, Nancy cannot now 

do so.  See RCW 11.24.010 (requiring that will contests be filed within four 

months following the probate of a will).

       Moreover, even if Nancy and Tory owned community property prior to his 
death,5 "[a]t death, the community [was] dissolved and the former community 

property [became] the separate property of the decedent's estate and of the 

surviving spouse."  In re Estate of Mell, 105 Wn.2d 518, 523, 716 P.2d 836 

(1986) (quoting deNoskoff v. Scott, 36 Wn. App. 424, 426-27, 674 P.2d 687 

(1984)).  Nancy obviously has an interest in that portion of any such community 

property which, upon Tory's death, became her separate property.  She does 

not, however, have any interest in the separate property of Tory's estate, 
regardless of whether any such property once constituted community property.6

       5 Whether Nancy and Tory owned community property during their marriage is disputed.  
However, the settlement agreement at issue here does not purport to determine the 
characterization of any property within the estate.  Thus, we need not determine whether any 
such community interest existed.  Moreover, we note that any such determination is properly 
made by the trial court, not by an appellate court in the first instance.  For these reasons, we 
deny the adult daughters' motion to admit as additional evidence, for purposes of this review, the 
purported premarital agreement between Nancy and Tory precluding the creation of community 
property interests during their marriage.
       6 Nancy asserts that she has standing to participate in the settlement agreement 
proceedings due to her interest in the community property within the estate.  She contends that 
joint ownership of any property with the adult daughters would diminish the value of that 
property.  Moreover, she asserts that community property in which she has an interest may be 
required to be sold due to the settlement agreement.  However, as explained above, Nancy has 

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No. 65578-7-I/12

       Nevertheless, Nancy asserts that she has an interest in the will 

contest -- and, thus, in the settlement of the will contest -- because she would be 

entitled to inherit a part of the estate through intestacy were the will in probate 

determined to be invalid.  She contends that if the will contest were successful, 

she, as an heir, would be entitled to an intestate share of the estate.  Moreover, 

she asserts, in the event that the challenged will is invalid and an earlier-

executed will is determined to be valid, she would be entitled to inherit as an 

omitted spouse.  

       However, Nancy stands to benefit from the will contest -- such that she 

has a beneficial interest in that matter -- only if the will is invalidated, such that 

she could inherit a percentage of the estate through intestacy.  But, as already 

noted, Nancy has not herself challenged the will.  Rather, she has maintained 

throughout the proceedings that the will, which, acting as personal 

representative, she sought to have admitted to probate, is valid.  RCW 

11.96A.210, which authorizes parties to enter into settlement agreements such 

as that contemplated here, is a dispute resolution mechanism.  Nancy is not 

involved in this dispute.  The trial court did not err by determining that she is not 
entitled to participate in its settlement.7

no beneficial interest in the estate, even had some of that property been community property 
prior to Tory's death.  Speculation regarding the distribution of property within the estate does not 
confer upon Nancy standing to participate in the settlement agreement proceedings.
       7 The settlement agreement does not purport to determine what property is a part of the 
estate; nor does it purport to determine the character of any such property.  The trial court's 
order does not preclude Nancy's participation in future proceedings in which she has a beneficial 
interest. 

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No. 65578-7-I/13

       Nancy is not a "party" pursuant to TEDRA such that she is entitled to 

participate in the settlement of the will contest and creditors' claims, as she does 

not "[have] an interest in the subject of [this] particular proceeding."  See RCW 

11.96A.030(5).  Furthermore, although Nancy is the decedent's surviving 

spouse, she has no "interest in the decedent's property" that would confer upon 

her standing pursuant to TEDRA.  See RCW 11.96A.030(5)(f).  Finally, because 

Nancy has not demonstrated that she has a "distinct and personal interest in the 

issue," general principles of standing do not confer upon her the right to 

participate in the settlement agreement proceedings.  See Paris Am. Corp., 52 

Wn. App. at 438.

       The trial court did not err by determining that Nancy is not entitled to 
participate in the settlement agreement proceedings.8

                                           III

       The adult daughters, Nancy, and Rydberg all request an award of 
attorney fees "on appeal."9 We decline to grant an award of fees to the adult 

       8 Nancy additionally contends that the trial court erred by determining that she is not an 
"heir" to the estate.  See RCW 11.02.005(6) (defining "heirs" as "those persons, including the 
surviving spouse or surviving domestic partner, who are entitled under the statutes of intestate 
succession to the real and personal property of a decedent on the decedent's death intestate").  
In so doing, she mischaracterizes the trial court's order, which states that Nancy "is not an heir or 
beneficiary of the Estate, and has no legal interest in the decedent's property, in this estate 
action."  CP at 231 (emphasis added).  The trial court did not determine, as Nancy implies, that 
Nancy would not be entitled to inherit a portion of the estate through intestacy. 
       Nancy also requests that we vacate any trial court order entered in this matter 
subsequent to the standing order challenged herein.  She asserts that any such order is "tainted" 
by the erroneous determination that she does not have standing to participate in these 
proceedings.  Because the trial court did not err by determining that she does not have standing, 
we decline to vacate any subsequent orders.
       9 This matter is not on appeal.  Rather, this is a discretionary review proceeding.  
Nevertheless, the same standards apply with regard to resolving a request for an award of 
attorney fees for work performed litigating matters in this court.

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No. 65578-7-I/14

daughters or to Nancy, but we determine that Rydberg is entitled to be paid for 

her services as Barbara's GAL.

       TEDRA confers upon us broad discretion in granting an award of attorney 

fees.  It provides that

       any court on 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.

RCW 11.96A.150(1).  

       Nancy requests that we order the adult daughters and Rydberg to pay her 

attorney fees for work done in this court on this matter. She contends that such 

an award is warranted because, she asserts, by seeking review she benefitted 

the estate by aiding the prevention of the approval of the settlement agreement.  

Because we determine that Nancy does not have standing to participate in 

proceedings regarding the settlement agreement, we decline her request for an 
award of attorney fees.1

       The adult daughters request an award of appellate attorney fees to be 

paid personally by Nancy.  They contend that such an award is warranted due to 

       1 Moreover, we note that the interests of the estate are represented by the personal 
representative of the estate -- not by Nancy.  Moreover, the approval of the settlement 
agreement is not at issue in this discretionary review proceeding.

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No. 65578-7-I/15

Nancy's failure to produce the purported premarital agreement in discovery, 

coupled with Nancy's appellate arguments that, they contend, contradict that 

agreement.  However, the validity of the premarital agreement has not been 

determined.  We decline to grant an award of fees on this basis.

       Finally, Rydberg contends that she is entitled to be paid for her services 

as GAL pursuant to RCW 11.96A.160(4), which provides that "[t]he guardian ad 

litem is entitled to reasonable compensation for services . . . to be paid from the 

principal of the estate or trust whose beneficiaries are represented."  There is no 

indication in the record that Rydberg has acted in bad faith or made 

unmeritorious arguments.  Thus, we order that Rydberg be paid her reasonable 

fees incurred for work in this court, to be paid by the estate pursuant to RCW 

11.96A.160(4), in an amount to be established by the superior court on remand.  

RAP 18.1(i).

WE CONCUR:

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No. 65578-7-I/16

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