In re Estate of Dennis Ottmar
34419-3
| Wash. Ct. App. | Dec 12, 2017Background
- Dennis Ottmar (decedent) executed a will in 2005 dividing his estate between his wife Elizabeth and son Thomas; in February 2015, while terminally ill in the ICU, Dennis executed a new will leaving the entire estate to Elizabeth.
- In the days before execution, Elizabeth located counsel, directed preparation of the 2015 will, read its terms to Dennis in the hospital, and controlled access to Dennis during his final days.
- The attorney who drafted the 2015 will consulted with Elizabeth (not Dennis) and his son’s office paralegal notarized; the drafting attorney never spoke with Dennis and did not attend the signing; a neighbor/attorney witnessed the signing.
- Medical records conflicted about Dennis’s condition on the signing day: some notes described him as alert and oriented, others as somnolent, confused, and disoriented; Dennis refused visitors and was isolated in palliative care.
- Thomas contested probate of the 2015 will, alleging lack of testamentary capacity and undue influence; the superior court invalidated the 2015 will on both bases, and the Court of Appeals affirmed as to undue influence.
Issues
| Issue | Thomas's Argument | Elizabeth's Argument | Held |
|---|---|---|---|
| Whether the 2015 will is presumptively procured by undue influence | Elizabeth had a confidential/fiduciary relationship with Dennis, actively procured the will, and the will unnaturally disinherited Thomas — raising a presumption of undue influence | Evidence insufficient: spouse involvement and changed bequest were natural and lawful; no proof she controlled Dennis’s volition | Affirmed: presumption of undue influence properly invoked because (1) confidential relationship/opportunity, (2) active participation in procuring the will, and (3) the will was an unnatural departure from prior testamentary intent. |
| Whether substantial evidence supports the trial court’s ultimate finding of undue influence | The presumption plus additional circumstances (Dennis’s vulnerable health, isolation, attorney’s limited contact with testator) meets clear, cogent and convincing proof | Contests sufficiency of evidence for presumption and ultimate finding | Affirmed: substantial evidence supports undue influence; court did not reach testamentary capacity. |
| Whether the deviation from the 2005 will was “unnatural” | The 2015 will completely disinherited Thomas despite no evidence Dennis changed his intent — this is an unnatural departure | A spouse’s full inheritance can be natural to account for community property and marriage; 2015 was not contrary to known wishes | Held unnatural: comparison to the 2005 will showed a stark, unexplained departure supporting presumption. |
| Whether appellate fees/costs should be awarded | Thomas prevailed on appeal and obtained estate recovery | Elizabeth opposed fee shifting to estate | Awarded: appellate fees and costs granted to Thomas, assessed against the estate. |
Key Cases Cited
- In re Estate of Barnes, 185 Wn.2d 1 (2016) (standards for invoking and rebutting presumption of undue influence; testamentary capacity not required to prove undue influence)
- In re Estate of Lint, 135 Wn.2d 518 (1998) (definition of undue influence as control of testator’s volition preventing free exercise of judgment)
- In re Estate of Haviland, 162 Wn. App. 548 (2011) (spouse’s fiduciary/confidential relationship can create opportunity for undue influence; context for spouse involvement)
- In re Estate of Miller, 10 Wn.2d 258 (1941) (unnaturalness of a will measured by deviation from testator’s known views and previous testamentary instruments)