### FILED DECEMBER 12, 2017 In the Office ofthe ClerkofCourt WA State Court ofAppeals, Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE Inthe Matter ofthe Estate of DENNIS OTTMAR, Deceased. 

### ) ) ) ) 

### ) ) No. 34419-3-111
UNPUBLISHED OPINION
PENNELL, J.

- Days before his 2015 death inthe intensive care unit ofthe hospital, Dennis Ottmarexecuted a will leaving his estate to his wife, Elizabeth.1 The 2015 will differed significantly from one that hadbeen executed in 2005. The 2005 will had divided Dennis's estatebetweenElizabeth and Dennis's son, Thomas. After Elizabeth submittedthe 2015 will for probate, Thomas filed a will contest. A trial was held andthe superior courtjudge invalidatedthe 2015 will on two bases: lack of testamentary capacityand undue influence. Elizabethnow appeals. We affirm, as substantial evidence supports the trial court's finding ofundue influence. FACTS PRECEDING THE WILL CONTEST 

### Dennis Ottmar's relevantpersonal history Dennis and Elizabethwere married in 1987. Bothwere previously married and Dennis had one son, Thomas, from his first marriage. Dennis and Elizabethpurchased a

1For clarity and readability, first names are used to referto those individuals sharing the surname Ottmar. No disrespect is intendedby doing so.No. 34419-3-111 In re Estate of Ottmar
home in Spokane and lived there for the duration oftheir marriage. By all accounts, their marriage was a happy one. Dennis also maintained a good relationship with his son. In 2005, Dennis retained his longtime attorney and friend, ByronPowell, to assist in the preparation ofa will. With Mr. Powell's assistance, Dennis executed a will that divided his estate betweenElizabeth and Thomas. In 2007, Dennis fell ill. Although there were periods ofimprovement, Dennis spentthe rest ofhis life battling recurring health problems. Despite his ill health, Dennis never soughtto change his will. Nor did he ever express concerns that his will might not adequatelyprovide for his wife. Dennis was an avid firearms collector and had amassed about 350 guns bythe time ofhis death. In September2014, Dennis became concerned about the possible passage of Initiative 594.2 He worried the law would make the transfer ofhis firearms collection upon his death extremely difficult. Dennis inquired with an auction house about the possibility ofselling his firearms collection, butnoplanwas ever finalized. While Dennis's concerns about Initiative 594 were well known to family and friends, there is no evidence indicating he believedpassage ofInitiative 594 would necessitate modifying the terms ofhis will.

2 LAWS OF 2015, ch. 1 (Initiative 594, approved November4, 2014). 2No. 34419-3-111 In re Estate of Ottmar 

### Events immediatelyprecedingDennis Ottmar's death Dennis suffered several serious medical issues during December2014 and January 2015, and was admitted to the hospital for the final time on January 29. On February 6, the doctors told Dennis his illness was terminal and advisedElizabeth to get his affairs in order. To that end, Elizabethplaced a call to Mr. Powell. Bythe time ofthe call, Mr. Powell had retired from practicing law but he still maintained a close friendship with Dennis. Mr. Powell and Elizabeth offer differing descriptions oftheirphone call. According to Elizabeth, she calledMr. Powell in orderto obtain a copy ofthe 2005 will because she was unable to locate it. 3 Mr. Powell advised that he did nothave a copy ofthe 2005 will because he was now retired. Elizabeth claims he further advised thatthere was a problem withthe 2005 will that needed to be corrected.4 Elizabeth asked Mr. Powell for the name ofan attorney who could help fix the 2005 will, and Mr. Powell recommended Robb Grangroth. Elizabeth was unsure about using Mr. Grangroth and indicated she needed to speak with Dennis further. According to Mr. Powell, there was no discussion ofthe 2005 will or any request for a copy during his phone call with Elizabeth. Elizabeth only expressed her opinion that

3 Elizabeth was able to locate the 2005 will after Thomas initiatedthe will contest. 4 Dennis neverprepared a list ofpersonal propertypursuantto Section Il(B) ofthe 2005 will. See RCW 11.12.260. 3No. 34419-3-111 In re Estate of Ottmar
Dennis needed counsel for getting his estate in order, and Mr. Powell suggested Mr. Grangroth. Mr. Powell later testified that he had access to, and would haveprovided, a copy ofthe 2005 will ifElizabeth had asked for it. Dennis and Elizabeth were neighbors with William Etter Sr., a local attorney. On February 8, Elizabeth approached Mr. Etter Sr., explained her situation, and asked ifhe couldprovide the name ofan attorney who couldhelp prepare a will. Mr. Etter Sr. recommended his son, William EtterJr., because he did estate work. Mr. Etter Jr., operating underthe assumption the 2005 will was lost, prepared a newwill for Dennis at Elizabeth's direction. OnFebruary 9, Mr. EtterJr. was ill andunable to go to the hospital for the execution ofthe 2015 will. Mr. Etter Sr. agreed to go to the hospital in place of his son, though he did not do so in the capacity oflegal counsel. Mr. EtterJr. never spoke with Dennis about his wishes for his estate, and never attempted to locate a copy ofthe 2005 will. Mr. Etter Sr. arrived atthe hospital onFebruary 9 accompanied by a paralegal from his son's office. Dennis was inthe intensive care unit at this point. When Mr. Etter Sr. enteredDennis's room, Dennis greeted Mr. Etter Sr. by name. Mr. Etter Sr. explained the purpose ofhis visit and he surmisedthat Dennis appeared alert and competentto execute a will. Elizabeththen read the terms ofthe 2015 will to Dennis. Dennis was
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### No. 34419-3-111 In re Estate of Ottmar
asked ifhe understood. He indicated he did. Dennis initialed eachpage ofthe will and then signed offonthe document. Afterthe will was signed and notarized,5Elizabethhad Dennis name her as the beneficiary on a retirement account. Underthe 2005 will, the accountwas to be distributed equally to Elizabeth and Thomas. According to medical records and testimony, Dennis's condition vacillated on February 9. By some reports Dennis was described as "alert," "oriented," and "conversant." Ex. 

### P-1 at 

### 16, 28. But otherreports indicated Dennis was "somnolent," nonfocused, and unable to maintain a conversation. 

### Id. at 23. A reportprepared by the
nurse who had witnessed the signing ofDennis'swill stated that, by 4:04 p.m. that same day, Dennis was suffering from "Confusion/Disorientation/lmpulsivity." 

### Id. at 

### 138. Dennis's condition did not improve. On February 

### 11, after making the decision to begin palliative care, Dennis called Thomas to speak with him, but Thomas could not understand whatDennis was saying so the call was very brief. Elizabeth was angry at Thomas for the shortphone call so she texted him to ask ifhe understood Dennis was saying goodbye. Thomas indicated he did not understand that and asked ifhe could come to the hospital. Elizabeth stated he could not. Dennis refused all visitors during his time

5Mr. Etter Sr. and a hospital nurse signed as witnesses. Theparalegal from Mr. EtterJr.'s office notarized the document. 

### 5No. 34419-3-111 In re Estate of Ottmar
in the hospital and Elizabeth did not allow anyone butherselfto be with him. On February 14, Dennis died. ANALYSIS The trial court invalidated Dennis's 2015 will on two bases: lack oftestamentary capacity and undue influence. Under our deferential standard ofreview, only one theory ofinvalidity must be supported by substantial evidence to affirm the trial court's judgment. See In re Estate of Barnes, 185 Wn.2d 1, 9, 367 P.3d 580 (2016). As set forth below, substantial evidence supports the trial court's findings as to undue influence. Accordingly, we affirm the trial court's order invalidating the 2015 will withoutreaching the issue oftestamentary capacity. 

### The legal components of undue influence Undue influence is sufficientto void a will ifit "'at the time ofthe testamentary act, controlled the volition ofthe testator, interfered with his free will, and prevented an exercise ofhisjudgment and choice.'" Barnes, 185 Wn.2d at 10 (quotingIn re Estate of Lint, 135 Wn.2d 518,535,957 P.2d 755 (1998)). A will contestant canproceed withhis
or her case by raising a presumption ofundue influence. But despite the existence ofthe presumption, the will contestantretains the burden ofprovingthe will's invalidity by clear, cogent and convincing evidence. Id.
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### No. 34419-3-111 In re Estate of Ottmar
Three factors, along with additional circumstances, can raise apresumption of undue influence: (1) the beneficiary had an opportunity for undue influence due to the existence ofa fiduciary or confidential relationship, (2) the beneficiary's active participation in procuring the will supports finding the beneficiary caused undue influence, and (3) the resultant will is suggestive ofundue influence, due to an unusually
or unnaturally large bequest. Id. 

### at 10-11. Elizabeth claims the evidence presented at trial was insufficient to satisfy any of these factors. We disagree. 

### The opportunityfor undue influence due to afiduciary relationship The undisputed evidence at trial was that, during the weeks priorto her husband's death, Elizabeth was actively involved in all aspects ofDennis's financial andpersonal affairs. This evidence amplyjustifiedthe trial court's finding that Elizabeth had a confidential and fiduciary relationship with her husband. In re Estate of Haviland, 162 Wn. App. 548,559,255 P.3d 854 (2011); see Lint, 135 Wn.2d 518. 

### Activeparticipation inprocuring the will Elizabeth was notjustinvolved in her husband's general affairs, she was specifically involved in the preparation and execution ofDennis's 2015 will. 

### It was Elizabeth who advised Dennis he needed a new will. She selected legal counsel and


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### In re Estate of Ottmar
dictated the new will's terms. The attorney who prepared the will consulted with Elizabeth, but not Dennis. Andthe attorney was notpresent for the will's execution. The facts at trial were more than sufficienttojustifythe trial court's finding as to active involvement. While Elizabeth and Dennis may have been equal partners during the bulk oftheir 30-yearmarriage, this was not the applicable inquiry. The trial court properly focused on the narrow time period when Elizabethprocuredthe 2015 will for Dennis's signature. 

### It was during this time that Elizabeth exercised active involvement. There is no basis for disturbing this finding on appeal. Unusually orunnaturally large bequest Elizabeth's close involvement with her husband's affairs and the steps she took to
secure a will priorto her husband's passing are not, by themselves, unusual or suspicious. In a case such as this one, where one spouse is involved in wrapping up the other spouse's final affairs, the applicability ofa presumption ofundue influence turns largely on the third relevant factor-i.e., whether the size ofthe bequest was somehow "unusual" or "unnatural." 

### Barnes, 185 Wn.2d at 13; 

### see Haviland, 162 Wn. App. at 560 (recognizing importance ofother factors given that spouses oftenplay an active role in the preparation ofa will). A will meets this criteria '"when it is contrary to what the testator, from his

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### No. 34419-3-111 In re Estate of Ottmar


### known views, feelings, and intentions, would have been expectedto make.'" Barnes, 

### 185 Wn.2d at 14 (quoting In re Estate of Miller, 

### 10 Wn.2d 258,267, 116 P.2d 526 (1941)). Unusualness is typically measured by comparing the contested will "to the decedent's previous testamentary instruments." 

### Id. at 13. Elizabeth claims the 2015 will was more natural than the 2005 will because it provided a better account ofher community property. Under the terms ofthe 2005 will, which divided Dennis'sproperty between Elizabeth and Thomas, Elizabeth asserts that her interests in the home and otherportions ofher communityproperty would be negatively encumberedby Thomas's interests.6 

### According to Elizabeth, in a longtime, loving marriage such as hers, it is more natural to distribute an estate entirely to a surviving spouse, regardless ofthe existence ofchildren or otherheirs. Elizabeth's complaints about the 2005 will are not relevant to the issue before the court. The question at trial was whether the 2015 will was contrary to Dennis's known wishes. In 2005, Dennis made clear that he wanted to divide his estate between his wife and his son. Prior to signing the 2015 will, Dennis never expressed any desire to change

6 

### The 2005 will did not and could not strip Elizabeth ofher communityproperty interests. Through the 2005 will, Dennis was empoweredto bequeath only his separate property and his portion ofthe communityproperty . 9No. 34419-3-111 In re Estate of Ottmar

course. While Dennis was concerned Initiative 594 would make it harder for his heirs to liquidate his. firearms collection, there is no evidence this concern had anything to do with the terms ofhis will. Dennis may have wanted to auction offhis firearms collectionprior to his death in order to ease the burden on his heirs. But there is no evidence suggesting that Dennis also wanted the funds obtained from the disposition ofhis firearms to transfer solely to his wife. Atbottom, Dennis's 2015 will disinherited his son in favor ofhis wife, despite the lack ofany evidence suggesting Dennis had experienced a change ofheart. This kind of radical departure qualifies as "unnatural." We would be presented with a far different
case ifthe 2015 will had made some provision for Thomas. But it did not. Given the stark differences between the 2005 and 2015 wills, the trial court wasjustified in finding the 2015 will an unnatural deviation from Dennis'sprior intentions. 

### Other factors In addition to finding the three core elements ofthe undue influencepresumption, the trial court also found other factorsjustified invoking the presumption. Most importantly, the trial court found Dennis's physical and mental condition, days before his death, made him vulnerable to undue influence. There is sufficient evidence tojustify this finding. Dennis was inpain, secluded in the intensive care unit, and knew he was not
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### In re Estate of Ottmar going home. Regardless ofwhetherDennis lacked testamentary capacity,7 the trial court had a sufficientbasis for finding additional facts in support ofthe presumption ofundue influence. 

### The trial court had a sufficient basis tofind undue influence Elizabeth challenges only the sufficiency ofthe facts supporting invocation ofthe presumption. She does not otherwise challenge the trial court's finding ofundue influence. Ourreview indicates the trial court's ultimate determination ofundue influence was supported by a sufficient factual record. 

### See Barnes, 185 Wn.2d at 17. 

### ATTORNEY FEES AND APPELLATE COSTS Bothparties have requested attorney fees and costs under RAP 18.1 and RCW 11.96A.150. BecauseThomas has prevailed on appeal and has been awarded a portion ofthe estate, we grant Thomas's request for fees and costs but determine that the assessment shall be against the estate. 

### CONCLUSION It is undisputed thatElizabeth Ottmarwas a devoted and loving wife. Given her

7By definition, a will contestant need not prove lack oftestamentary capacityto establish undue influence. 

### Barnes, 185 Wn.2d at 9 ("[A] will executed by a person with testamentary capacity may be invalidated if'undue influence' existed at the time ofthe testamentary act.") (quoting

### Lint, 135 Wn.2d at 535). 11

### No. 34419-3-111 In re Estate of Ottmar 

### long marriage to Dennis, it is likely Elizabeth genuinely believed she knew herhusband's mind as well as her own and assumed he would wantto leave behind a will less cumbersome than the 2005 document. Butwhen it comes to someone who is ill and nearly incapacitated, love can sometimes have an undue influence. That is what happened here. The trial court's orderrevoking letters testamentary is affirmed. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040. Pennell, 

### J. WE CONCUR:

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