IN THE MATTER OF THE ESTATE OF ADAMS, 2004 OK CIV APP 91, 101 P.3d 344
APPEAL FROM THE DISTRICT COURT OF McCLAIN COUNTY, OKLAHOMA
The decision of the HONORABLE NOAH EWING, JR., TRIAL JUDGE, was AFFIRMED.
Wanda Belle Adams, the decedent executed a will on July 1, 1996. She was then in declining health but lived until February 8, 2003, at which time she was seventy three. During her later years she needed increasing assistance with her normal life activities. She had never married and had no children. As the result of illness at the age of twelve or thirteen, she found it necessary to use a wheelchair for all her adult life, but was able to work as a public accountant. She was survived by four sisters and three brothers. Another brother predeceased her.
A brother filed his Petition for Letters of Administration and Determination of Heirs on March 12, 2003. He alleged his sister had died intestate. A sister objected alleging that her sister had died with a valid will made on July 1, 1996. It was produced for probate. The will left the Decedent’s home and adjoining land to the sister’s son and daughter-in-law, and the remainder of the estate was to go to the sister. Nothing like getting left out of a will is better to kindle a family fight!
At the hearing the brother argued that his deceased sister “was not competent to execute a will on July 1, 1996.” The two witnesses to the decedent’s will testified at the hearing in support of its validity, as did the beneficiaries of the will. One of the witnesses to the will was the attorney who drafted it, and the other was another attorney.
The trial court found the will was valid and admitted it to probate. The court concluded the case centered around the issue of testamentary capacity and that the “most complicating factor” was the court’s granting of guardianship over Decedent at approximately the same time as Decedent executed her will. The trial court found the guardianship did not, as a matter of law, preclude Decedent from executing a valid will, and that the testimony of the lawyer who drafted the will was “most convincing” because he had been involved with both execution of the will and application for Decedent’s guardianship.
In probate cases, being of equitable cognizance, the appellant court will examine and weigh the evidence, but we must abide by the presumption that the trial court’s determination is correct unless it is found to be clearly contrary to the weight of the evidence or to some governing principle of law. In re Estate of Holcomb, 2002 OK 90, 63 P.3d 9. The trial court enjoys deference when it comes to the resolution of conflicting evidence because it had the opportunity to observe the demeanor and conduct of the witnesses. And, the burden of persuasion on the issue of testamentary capacity lies with the party contesting the validity of the will. In re Estate of Maheras, 1995 OK 40, 897 P.2d 268.
In Estate of Holcomb, at, 13, the Supreme Court defined testamentary capacity as follows:
Testamentary capacity exists when a person possesses, in a general way, the ability to appreciate the character and extent of the devised property, understands the nature of the relationship between himself and the natural objects of his bounty, and apprehends the nature and effect of the testamentary act. … In adjudging a decedent’s testamentary capacity, it is appropriate for the trial tribunal to consider evidence of the testator’s mental capacity, appearance, conduct, habits and conversation both before and after the will’s execution to the extent these factors are relevant to the maker’s mental condition at the time the will was executed.
¶8 Appellant concedes the contested will was executed with the requisite formalities dictated by 84 O.S. 1991 § 55, but in his Brief in Chief contends the will is invalid because of noncompliance with 84 O.S. Supp. 1992 § 41. This latter section provides that one subject to guardianship or conservatorship may lawfully dispose of his or her estate by will, but requires the will to be subscribed and acknowledged in the presence of a judge of the district court. This contention fails because Appellant did not raise it before the trial court and is barred from raising it for the first time on appeal. Marlin Oil Corporation v. Barby Energy Corporation, 2002 OK CIV APP 92, 55 P.3d 446.1
A long standing rule of law in Oklahoma is that a presumption of want of testamentary capacity does not arise from the fact that the maker of a will may have been under guardianship at the time of the making of the will. In re Nitey’s Estate, 1935 OK 1218, 175 Okla. 389, 53 P.2d 215. Thus, incompetency or impairment which may support guardianship does not, as a matter of law, mean that the subject of the guardianship is unable to still make a will. The guardianship is some evidence for consideration of the court in determining the condition of Decedent’s mind at the time the will was signed.
The court also stated that being unable to manage one’s own estate was not inconsistent with testamentary capacity. That testamentary capacity is not identical to business capacity and a person subject to a guardianship is not necessarily a person of unsound mind. Tthat a person may not then have sufficient mind and vigor of intellect to transact business generally and make contracts, yet be competent to make a will. The presumption is that every person is sane.
The Order Appointing Guardians over the deceased sister stated, that she was “impaired by reason of mental confusion and physical limitations, resulting in an inability to receive and evaluate information effectively, meet the essential requirements for her physical health and safety, and manage her financial resources.” The appellant court stated that there was nothing in the finding, which was entered a month after the Decedent executed her will, which would necessarily preclude a determination of testamentary capacity.
The court also commented on the fact that the will left everything to one sister and her child and spouse. That the Decedent’s will was “an unnatural will in its disposition of her property.” Because she left the bulk of her estate to one sister only and wholly omitted her remaining six brothers and sisters and the children of her deceased brother. An unnatural disposition of property may be considered in determining his testamentary capacity. But the appellant court stated that leaving everything to one sibling is not an unnatural will.
The court went on to observe that no presumption of testamentary incapacity arises because a will gives property to persons other than those “who are natural objects of the testator’s bounty”, and if a testator is possessed of testamentary capacity, he may “give his property entirely to strangers.” In re Newkirk’s Estate, 1969 OK 93, 456 P.2d 104. The Oklahoma Supreme Court has held “[i]t is natural for a person to make provisions in his will for those who were particularly close and helpful to him during his lifetime, and more especially, to those within his own family.” In re Lacy’s Estate, 1967 OK 123, 431 P.2d 366.
The sister proponent of the will testified she had a long and close relationship with Decedent and that she was the “primary person who took her deceased sister to where she needed to go” until her child and spouse moved next door to Decedent. At Decedent’s request they moved a house trailer onto her property in 1985. The Decedent helped pay off the trailer and they remained there for twelve years.
The court went on to discuss the testimony of the other witnesses, and concluded saying that there is no dispute that Decedent did not enjoy good health at the time she executed her will. However, advanced age or physical infirmity alone do not render one incapacitated to make a will. Rose v. Foster, 1955 OK 242, 288 P.2d 745. The extent of Decedent’s mental impairment is contested, but the trial court’s finding that she possessed testamentary capacity at the time she executed her will is not clearly against the weight of the evidence. The trial court’s order admitting Decedent’s will to probate is accordingly AFFIRMED.
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