269 A.2d 260 (Del.Orph. 1970), In re Levering's Estate
| Date | 06 January 1970 |
| Citation | 269 A.2d 260 |
| Docket Number | . |
| Parties | In the Matter of the ESTATE of Frank A. LEVERING, Deceased. |
| Court | Orphans' Court of Delaware |
Page 260
Appeal from Register of Wills. Decision of Register of Wills affirmed after consideration of the case de novo on the record made below.
David Snellenburg, II, Wilmington, for Francis Levering, proponent-appellant.
Joseph H. Flanzer, Wilmington, for Blair S. Levering, contestant-appellee.
OPINION
CHRISTIE, Judge.
This is an appeal from an order of the Register of Wills, declaring invalid the purported will of the decedent dated June 15, 1968, and revoking the Register's earlier order of September 11, 1968, which had admitted the instrument to probate. The order appealed from provides for 'the admission to probate of a will of the decedent dated January 24, 1962, and the codicil thereto, dated November 8, 1966.' The Register found that the decedent lacked testamentary capacity at the time of the execution of the instrument dated June 15, 1968. The proponent of the 1968 instrument is the grandson of the decedent and is named in the instrument as executor and sole beneficiary of the decedent's estate. He has brought this appeal seeking to reverse the decisions of the Register of Wills.
The decedent, Frank A. Levering, was 93 years of age at his death on September 11, 1968. He was hospitalized on May 27, 1968, suffering from generalized arteriosclerosis. On June 28, 1968, he was admitted to a nursing home. During all of his hospital stay he was under heavy sedation, frequently with physical restraints.
On June 15, 1968, at about the middle of the period of hospitalization the deceased executed the purported will. The instrument had been prepared and presented to him by the proponent and was executed by holding deceased's hand on the top of a pen while one of the witnesses
Page 261
wrote an 'X'. The evidence is conflicting as to the cordiality of the relationship between the decedent and his grandson. In the instrument of June 15, 1968, the proponent-grandson is named as his sole beneficiary and executor to the exclusion of the testator's six surviving children.
An appeal to this Court from the Register of Wills results in a trial de novo on the facts and law, considered in the light of the record as a whole. This Court may call for the presentation of some of or all of the evidence and the proponent requested permission to represent some of the testimony...
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