FILED 

DECEMBER 12, 2017 

In the Office of the Clerk of Court 

WA State Court of Appeals, Division III 

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

DIVISION THREE 

In the Matter of the Estate of 

DENNIS OTTMAR, 

Deceased. 

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No. 34419-3-111 

UNPUBLISHED OPINION 

PENNELL, J. - Days before his 2015 death in the intensive care unit of the 

hospital, Dennis Ottmar executed a will leaving his estate to his wife, Elizabeth. 1 The 

2015 will differed significantly from one that had been executed in 2005. The 2005 will 

had divided Dennis' s estate between Elizabeth and Dennis' s son, Thomas. After 

Elizabeth submitted the 2015 will for probate, Thomas filed a will contest. A trial was 

held and the superior court judge invalidated the 2015 will on two bases: lack of 

testamentary capacity and undue influence. Elizabeth now appeals. We affirm, as 

substantial evidence supports the trial court's finding of undue influence. 

FACTS PRECEDING THE WILL CONTEST 

Dennis Ottmar's relevant personal history 

Dennis and Elizabeth were married in 1987. Both were previously married and 

Dennis had one son, Thomas, from his first marriage. Dennis and Elizabeth purchased a 

1 For clarity and readability, first names are used to refer to those individuals 

sharing the surname Ottmar. No disrespect is intended by doing so. 
No. 34419-3-111 

In re Estate of Ottmar 

home in Spokane and lived there for the duration of their 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, Byron Powell, to assist 

in the preparation of a will. With Mr. Powell's assistance, Dennis executed a will that 

divided his estate between Elizabeth and Thomas. In 2007, Dennis fell ill. Although 

there were periods of improvement, Dennis spent the rest of his life battling recurring 

health problems. Despite his ill health, Dennis never sought to change his will. Nor did 

he ever express concerns that his will might not adequately provide for his wife. 

Dennis was an avid firearms collector and had amassed about 350 guns by the time 

of his death. In September 2014, Dennis became concerned about the possible passage of 

Initiative 594.2 He worried the law would make the transfer of his firearms collection 

upon his death extremely difficult. Dennis inquired with an auction house about the 

possibility of selling his firearms collection, but no plan was ever finalized. While 

Dennis's concerns about Initiative 594 were well known to family and friends, there is no 

evidence indicating he believed passage of Initiative 594 would necessitate modifying the 

terms of his will. 

2 LAWS OF 2015, ch. 1 (Initiative 594, approved November 4, 2014). 

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Events immediately preceding Dennis Ottmar's death 

Dennis suffered several serious medical issues during December 2014 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 advised Elizabeth to get 

his affairs in order. To that end, Elizabeth placed a call to Mr. Powell. By the time of the 

call, Mr. Powell had retired from practicing law but he still maintained a close friendship 

with Dennis. Mr. Powell and Elizabeth offer differing descriptions of their phone call. 

According to Elizabeth, she called Mr. Powell in order to obtain a copy of the 

2005 will because she was unable to locate it.3 Mr. Powell advised that he did not have a 

copy of the 2005 will because he was now retired. Elizabeth claims he further advised 

that there was a problem with the 2005 will that needed to be corrected.4 Elizabeth asked 

Mr. Powell for the name of an 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 of the 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 initiated the will contest. 

4 Dennis never prepared a list of personal property pursuant to Section Il(B) of the 

2005 will. See RCW 11.12.260. 

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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 have provided, a 

copy of the 2005 will if Elizabeth 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 

could provide the name of an attorney who could help prepare a will. Mr. Etter Sr. 

recommended his son, William Etter Jr., because he did estate work. Mr. Etter Jr., 

operating under the assumption the 2005 will was lost, prepared a new will for Dennis at 

Elizabeth's direction. On February 9, Mr. Etter Jr. was ill and unable to go to the hospital 

for the execution of the 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 of legal counsel. Mr. Etter Jr. never spoke 

with Dennis about his wishes for his estate, and never attempted to locate a copy of the 

2005 will. 

Mr. Etter Sr. arrived at the hospital on February 9 accompanied by a paralegal 

from his son's office. Dennis was in the intensive care unit at this point. When Mr. Etter 

Sr. entered Dennis's room, Dennis greeted Mr. Etter Sr. by name. Mr. Etter Sr. explained 

the purpose of his visit and he surmised that Dennis appeared alert and competent to 

execute a will. Elizabeth then read the terms of the 2015 will to Dennis. Dennis was 

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In re Estate of Ottmar 

asked if he understood. He indicated he did. Dennis initialed each page of the will and 

then signed off on the document. After the will was signed and notarized, 5 Elizabeth had 

Dennis name her as the beneficiary on a retirement account. Under the 2005 will, the 

account was 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 other reports indicated Dennis was "somnolent," 

nonfocused, and unable to maintain a conversation. Id. at 23. A report prepared by the 

nurse who had witnessed the signing ofDennis's will 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 what Dennis was saying so the call was very brief. Elizabeth was angry at 

Thomas for the short phone call so she texted him to ask if he understood Dennis was 

saying goodbye. Thomas indicated he did not understand that and asked if he could come 

to the hospital. Elizabeth stated he could not. Dennis refused all visitors during his time 

5 Mr. Etter Sr. and a hospital nurse signed as witnesses. The paralegal from Mr. 

Etter Jr.'s office notarized the document. 

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in the hospital and Elizabeth did not allow anyone but herself to be with him. On 

February 14, Dennis died. 

ANALYSIS 

The trial court invalidated Dennis's 2015 will on two bases: lack of testamentary 

capacity and undue influence. Under our deferential standard of review, only one theory 

of invalidity 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 without reaching 

the issue of testamentary capacity. 

The legal components of undue influence 

Undue influence is sufficient to void a will if it "' at the time of the testamentary 

act, controlled the volition of the testator, interfered with his free will, and prevented an 

exercise of his judgment and choice.'" Barnes, 185 Wn.2d at 10 ( quoting In re Estate of 

Lint, 135 Wn.2d 518,535,957 P.2d 755 (1998)). A will contestant can proceed with his 

or her case by raising a presumption of undue influence. But despite the existence of the 

presumption, the will contestant retains the burden of proving the will' s invalidity by 

clear, cogent and convincing evidence. Id. 

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Three factors, along with additional circumstances, can raise a presumption of 

undue influence: (1) the beneficiary had an opportunity for undue influence due to the 

existence of a 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 of undue 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 opportunity for undue influence due to a fiduciary relationship 

The undisputed evidence at trial was that, during the weeks prior to her husband's 

death, Elizabeth was actively involved in all aspects of Dennis' s financial and personal 

affairs. This evidence amply justified the 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. 

Active participation in procuring the will 

Elizabeth was not just involved 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. And the attorney was not present for the will' s execution. 

The facts at trial were more than sufficient to justify the trial court's finding as to 

active involvement. While Elizabeth and Dennis may have been equal partners during the 

bulk of their 30-year marriage, this was not the applicable inquiry. The trial court 

properly focused on the narrow time period when Elizabeth procured the 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 or unnaturally large bequest 

Elizabeth's close involvement with her husband's affairs and the steps she took to 

secure a will prior to 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 of a presumption of undue influence turns largely on the 

third relevant factor-i.e., whether the size of the bequest was somehow "unusual" or 

"unnatural." Barnes, 185 Wn.2d at 13; see Haviland, 162 Wn. App. at 560 (recognizing 

importance of other factors given that spouses often play an active role in the preparation 

of a will). A will meets this criteria '"when it is contrary to what the testator, from his 

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In re Estate of Ottmar 

known views, feelings, and intentions, would have been expected to 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 of her community property. Under the terms of the 2005 will, 

which divided Dennis' s property between Elizabeth and Thomas, Elizabeth asserts that 

her interests in the home and other portions of her community property would be 

negatively encumbered by 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 of the existence of children or other heirs. 

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 of her community property 

interests. Through the 2005 will, Dennis was empowered to bequeath only his separate 

property and his portion of the community property . 

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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 of his will. Dennis may have wanted to auction off his firearms collection prior 

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 of his firearms to transfer 

solely to his wife. 

At bottom, Dennis' s 2015 will disinherited his son in favor of his wife, despite the 

lack of any evidence suggesting Dennis had experienced a change of heart. This kind of 

radical departure qualifies as "unnatural." We would be presented with a far different 

case if the 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 was justified in finding 

the 2015 will an unnatural deviation from Dennis' s prior intentions. 

Other factors 

In addition to finding the three core elements of the undue influence presumption, 

the trial court also found other factors justified 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 to justify 

this finding. Dennis was in pain, secluded in the intensive care unit, and knew he was not 

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In re Estate of Ottmar 

going home. Regardless of whether Dennis lacked testamentary capacity,7 the trial court 

had a sufficient basis for finding additional facts in support of the presumption of undue 

influence. 

The trial court had a sufficient basis to find undue influence 

Elizabeth challenges only the sufficiency of the facts supporting invocation of the 

presumption. She does not otherwise challenge the trial court's finding of undue 

influence. Our review indicates the trial court's ultimate determination of undue 

influence was supported by a sufficient factual record. See Barnes, 185 Wn.2d at 17. 

ATTORNEY FEES AND APPELLATE COSTS 

Both parties have requested attorney fees and costs under RAP 18.1 and 

RCW 11.96A.150. Because Thomas has prevailed on appeal and has been awarded a 

portion of the estate, we grant Thomas' s request for fees and costs but determine that the 

assessment shall be against the estate. 

CONCLUSION 

It is undisputed that Elizabeth Ottmar was a devoted and loving wife. Given her 

7 By definition, a will contestant need not prove lack of testamentary capacity to 

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 of the 

testamentary act.") (quoting Lint, 135 Wn.2d at 535). 

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long marriage to Dennis, it is likely Elizabeth genuinely believed she knew her husband's 

mind as well as her own and assumed he would want to leave behind a will less 

cumbersome than the 2005 document. But when 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 order revoking letters testamentary is affirmed. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to 

RCW 2.06.040. 

Pennell, J. 

WE CONCUR: 

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