Becker's Estate, Matter of

• Decision Date: 15 March 1977
• Docket Number: No. 75-96,75-96
• Parties: In the Matter of the ESTATE of Minna BECKER, Deceased. Robert L. BECKER, Appellant, v. Alfred F. ZOSCHKE, Personal Representative of Estate of Minna Becker, Deceased, Respondent.
• Court: Wisconsin Supreme Court

Page 431

251 N.W.2d 431

76 Wis.2d 336

In the Matter of the ESTATE of Minna BECKER, Deceased.

Robert L. BECKER, Appellant, v. Alfred F. ZOSCHKE, Personal Representative of Estate of

Minna Becker, Deceased, Respondent.

No. 75-96.

Supreme Court of Wisconsin.

Submitted on Briefs Feb. 2, 1977.

Decided March 15, 1977.

Dahms & Brewer, Oconomowoc, on the brief, for appellant.

Fenno & Hughes, Wauwatosa, on the brief, for respondent.

HEFFERNAN, Justice.

This appeal is from the order of the county court which admitted to probate the will of Minna Becker dated April 19, 1974. The will was objected to by Robert L. Becker, Minna Becker's grandson and only heir at law, on the grounds that the will was not properly executed, that Minna Becker lacked testamentary capacity to execute the will, and that the will was the result of undue influence exercised by Alfred Zoschke, one of the principal beneficiaries of the will.

Although improper execution of the will was urged in the county court, that point was determined adversely to the objector and has not been reasserted on appeal. In respect to questions appealed, we conclude that the trial judge's finding that Minna Becker had sufficient testamentary capacity to execute the questioned will and the finding that the will was not the result of undue influence are not contrary to the great weight and clear preponderance of the evidence. Accordingly, we affirm the order admitting the will to probate.

The facts adduced at the hearing show that, on April 19, 1974, Minna Becker executed a will which differed markedly from wills executed in 1969 and 1973. The earlier wills named Minna Becker's daughter-in-law, Lorraine Becker, as the sole residual legatee, while the 1974 will provided that one-half of the residue of the estate be left to Alfred Zoschke outright, and that the other residual half to be left to Zoschke as the trustee for Lorraine Becker, with the proviso that Zoschke, as trustee, was to distribute the trust principal and income to Lorraine Becker within five years after Minna Becker's death. In the event that Lorraine Becker predeceased Zoschke, Zoschke was to be the beneficiary of the remainder of the trust. Although Zoschke became the principal residuary beneficiary of the 1974 will, the prior wills bequeathed only $1,000 to him.

Zoschke had known Minna Becker for over forty-five years and was related to her by marriage. Zoschke had also served as the accountant for the business operated by Frank Becker, Minna's husband, until Frank's death in 1966.

In 1967 Minna Becker granted a power of attorney to Zoschke, who thereafter managed her personal business, prepared tax returns, and served as an investment advisor. For these services he was paid $100 a year.

On March 23, 1974, Minna Becker, then eighty-three years of age, was admitted to Mt. Sinai Hospital for a condition diagnosed as vasculitis a toxic immune reaction producing ulceration of the palate, fever, occasional euphoria, and clouding of the sensorium. She also had an arteriosclerotic heart condition and psoriasis.

Erwin E. Fritz, Mina Becker's attorney, who had prepared the 1969 and 1973 wills and the 1974 will questioned in these proceedings, testified that Zoschke called him and stated that Minna Becker wished to see him at Mt. Sinai Hospital. When Fritz arrived at the hospital on April 17, 1974, he met Zoschke, who was pushing Minna Becker in a wheelchair. Zoschke took Minna Becker to a private room, where he left her in the company of Attorney Fritz for approximately three-fourths of an hour. Fritz testified that Minna Becker said that she wished to change the property dispositions set forth in her prior will because she felt that her daughter-in-law, Lorraine Becker, was overly influenced in the use of her money by her son, Robert Becker. She told Fritz that Zoschke was a long-time friend of the family and "was the only man and member of the family of the Minna Becker family who was trustworthy, who was honest and who was not looking after things for his own situation and personal gains."

Attorney Fritz testified that he returned to the hospital on April 19 with the draft of the will. He stated that he explained the will to Minna Becker, that she then read it herself, and that she then said, "That's the way I want it. That's exactly the way I want it." Fritz stated that he explained the will to her paragraph by paragraph. Fritz testified that, although he had seen Minna Becker more alert on prior occasions when she was not in the hospital, on the date of the will's execution on April 19, 1974, she was "alert" and "cognizant" and recognized, and called by name without prompting, Attorney Fritz's secretary, whom Minna Becker had not seen for several years. Fritz stated that he had not the slightest doubt that Minna Becker had the capacity to execute a will and was knowledgeable in respect to her property and the natural objects of her bounty.

On the other hand, the notes of a nurse's aide showed that on April 19 Minna Becker ate poorly and was incontinent. Doctor Jay S. Goodman, Minna Becker's physician at Mt. Sinai Hospital, testified in respect to the ailments for which she was hospitalized. He stated that she was short of breath, weak, and frequently feverish. He stated that her "sensorium," which he defined as her sense perception, was clouded most of the time. He stated, however, that her periods of euphoria and lack of inhibition coincided with times that she had a high fever. Her temperature on the date the will was executed was roughly normal 99 degrees. Doctor Goodman testified that, in his opinion, Minna Becker would have difficulty in completely comprehending the April 19, 1974, will.

Donald J. Wachowiak, who had been Minna Becker's landlord for several years, visited her on either April 19 or April 20. She told Wachowiak that she had made a new will and was pleased with the disposition made by the will.

Accordingly, the testimony which confronted the trial judge was that of the physician, who believed, in light of Minna Becker's general condition, that she would not have sufficient comprehension to understand the will (although he did not testify as to her mental attitude on the date the will was executed), and the very specific testimony of Attorney Fritz, who discussed the will with Minna Becker in detail and concluded that she fully understood it, understood the nature of her property, and was fully aware of her relationship with persons who were the potential objects of her bounty. He was unequivocal in his opinion that she was of sound mind and disposing memory at the time of the will's execution.

In determining that Minna Becker had sufficient testamentary capacity, the trial judge relied on the very specific testimony of Attorney Fritz that he found the testatrix to be alert and cognizant, that she had made up her own mind in respect to the changes she wished to have made in her will, and that she gave specific reasons for those changes. The judge also was impressed by Attorney Fritz's testimony that Minna Becker recalled, and called by name, Fritz's secretary whom she had not seen for several years.

The judge also considered the testimony of Doctor Goodman and gave weight to it. But he was also much impressed with the testimony of Minna Becker's landlord, Wachowiak that the testatrix was knowledgeable about her surroundings and of her relatives, and particularly of the fact that, shortly after the execution of the will, Minna Becker told Wachowiak that she had made a will and that she was happy with it. She also told Wachowiak that Alfred Zoschke at her request had made the arrangements for the consultation with Attorney Fritz.

The trial judge, in concluding that Minna Becker had the testamentary capacity to make a will, relied upon the legal standards formulated by this court in Will of Wicker, 15 Wis.2d 86, 112 N.W.2d 137 (1961); Estate of Gaudynski, 46 Wis.2d 393, 175 N.W.2d 272 (1970); Estate of O'Loughlin, 50 Wis.2d 143, 183 N.W.2d 133 (1971). In the latter case, this court stated:

"The testator must have mental capacity to comprehend the nature, the extent, and the state of affairs of his property. The central idea is that the testator must have a general, meaningful understanding of the nature, state, and the scope of his property but does not need to have in his mind a detailed itemization of every asset; nor does he need to know the exact value of his property. A perfect memory is not an element of a testamentary capacity. 1 Page, Wills (Bowe-Parker), p. 617, sec. 12.12. The testator must know and understand his relationship to persons who are or might naturally or reasonably be expected to become the objects of his bounty from which he must be able to make a rational selection of his beneficiaries. He must understand the scope and general effect of the provisions of his will in relation to his legatees and devisees. Finally, the testator must be able to contemplate these elements together for a sufficient length of time, without prompting, to form a rational judgment in relation to them, the result of which is expressed in the will." (at 146-47, 183 N.W.2d at 136).

Where a trial judge has made a finding in respect to testamentary capacity and has applied the proper legal standards, this court will not upset that finding unless it is contrary to the great weight and clear preponderance of the evidence. Gaudynski, supra. Although conflicting evidence may be presented, it is the trial judge, as the finder of fact, who makes the final determination of testamentary capacity, which will not be set aside unless the record demonstrates that the finding is contrary to the great weight and clear preponderance of the evidence.

In the instant case, although the testimony of the physician was significant, it was a generalized opinion in respect to what he believed to be the testatrix' probable mental capacity. He did not attempt nor could he base his opinion on ...