Estate of Killen, Matter of

• Decision Date: 18 April 1996
• Docket Number: No. 1,CA-CV,1
• Parties: In the Matter of the ESTATE OF Dorothy I. KILLEN, Deceased. M.I. MARSHALL & ILSLEY TRUST COMPANY OF ARIZONA, Successor Personal Representative-Appellee, v. Marion McCANNON, Personal Representative-Appellant. 94-0078.
• Court: Arizona Court of Appeals

Page 1368

937 P.2d 1368

188 Ariz. 562

In the Matter of the ESTATE OF Dorothy I. KILLEN, Deceased.

M.I. MARSHALL & ILSLEY TRUST COMPANY OF ARIZONA, Successor Personal Representative-Appellee, v. Marion McCANNON, Personal Representative-Appellant.

No. 1 CA-CV 94-0078.

Court of Appeals of Arizona,

Division 1, Department E.

April 18, 1996.

Review and Cross-Petition for

Review Denied Oct. 21, 1996. ^*

[188 Ariz. 563] A. Paul Blunt, P.C. by A. Paul Blunt, Scottsdale, for Appellee.

Marvin Johnson, P.C. by Marvin Johnson, Phoenix, and Lesher & Lesher, P.C. by Robert O. Lesher, Tucson, for Appellant.

OPINION

GRANT, Presiding Judge.

In this appeal, we consider whether a testator who knew the natural objects of her bounty but had insane delusions about some of them that affected the terms of her will had the testamentary capacity to execute a will. We hold that she did not have such capacity and that the evidence supports the trial court's conclusion that the testator's will is invalid due to lack of testamentary capacity.

FACTS AND PROCEDURAL HISTORY ¹

On February 13, 1988, appellant Marion McCannon ("Marion") and his wife, Virgie, arrived in Phoenix from Missouri to visit his aunt, Dorothy I. Killen, the decedent ("Killen"). Four days later, Killen told the McCannons that she wanted to find an attorney to draft a will for her. After driving around, they found two law offices, but the attorneys in those offices were unavailable. At the third office they tried, attorney Frank Collins agreed to draft a will for Killen. Collins did not know the McCannons or Killen.

At Killen's request, the McCannons left the office, and she conferred with Collins for an hour or two. The McCannons took her back to Collins' office the next day, February 18, 1988, for execution of the will. Collins and a couple who operated a shop next to Collins' office witnessed Killen's execution of her will.

In the will, Killen bequeathed only one dollar each to her nephews Russell Edward McCannon and R.C. McCannon and her niece Carolyn Dixon. She bequeathed to Marion McCannon $75,000, a rug, half of $75,000 upon the death of her sister (who was to receive the interest on the $75,000 during her lifetime), all of her personal property, and a pro rata share of her residuary estate. Bequests were also made to other family members and friends. She named Marion as the personal representative.

Killen's husband, Dylton, had died in 1985. They had no children. For many years prior to Dylton's death, Killen believed that he was trying to kill her, was putting poison in her food, and was in "the mob." However, by all accounts, Dylton was a fine man and a loving husband who cared for his wife despite her delusions about him.

Shortly before Dylton's death, Killen began having delusions about Russell, R.C., and Carolyn. Even though these nephews and niece took care of her when her husband was ill and after his death and treated her well, she believed they lived in her attic, or caused others to live in the attic, and sprinkled chemicals and parasites down on her, put her to sleep and then pulled a tooth out and cut her arms and hands with glass, were in the Mafia, and were trying to kill her so they could take her property. Although other relatives tried to dissuade Killen from these bizarre beliefs, she would insist that Russell, R.C., and Carolyn were out to get her.

On February 10, 1988, eight days before she executed her will, Killen was evaluated by Dr. Vinod Patel, a psychiatrist. He diagnosed her as having a delusional paranoid disorder. He noted that Killen's judgment was compromised by paranoid ideas and that her delusional beliefs "can interfere in certain decision making."

Killen was admitted to Boswell Memorial Hospital on March 9, 1988, due to difficulty in breathing and weakness. Because of her delusional and paranoid behavior, Killen was transferred later that day to the psychiatric unit at the Maricopa County Hospital. The psychiatrist who examined her concluded that she was having persecutory delusions, her insight was poor and her judgment was impaired, and she was incapacitated by mental illness. He recommended that a guardian and conservator be appointed for her.

Killen died in March, 1993. Marion applied for informal probate of her February 18, 1988 will. The will was admitted to informal probate, and Marion was appointed personal representative.

Russell, R.C., and Carolyn petitioned the probate court for determination of testacy, removal of Marion as personal representative, and appointment of M & I Marshall & Ilsley Trust Company of Arizona as personal representative of Killen's estate. They alleged that at the time Killen executed the will, she was operating under a mental derangement and did not have the capacity to make a valid will.

The matter was tried to the court in September, 1993. Dr. Patel testified that Killen could not have had lucid intervals because a delusion is permanent and lucid intervals are not possible with that condition. According to Dr. Patel, Killen's delusional disorder affected her ability to perceive her family members and friends. In his opinion, a person with delusional paranoia, when family and friends are involved in the delusions, would be unable to make a valid will.

Dr. Alexander Don, a psychiatrist, also testified. He had examined Mrs. Killen on November 27, 1989, and had reviewed her hospital records, records of other psychiatric evaluations, and documents prepared by some of her family members. In his opinion, on February 18, 1988, Killen was suffering with a psychotic illness termed delusional disorder. He explained that a delusion is a fixed false belief that cannot be disabused by rational argument and that because of her delusional disorder she believed her husband and Russell and R.C. intended to harm her.

Dr. Don further testified that Killen's delusions would have influenced the writing of a will because her belief that individuals close to her were trying to destroy her would have been uppermost in her mind when she contemplated her actions toward them. Thus, he said, her perception of various beneficiaries was not rational or lucid. In Dr. Don's opinion, Killen knew who the natural objects of her bounty were, but she had a misperception of them because of her mental illness.

As contradictory evidence, Marion offered the testimony of Dr. Otto Bendheim, a psychiatrist. Dr. Bendheim never examined Killen, he did not review her hospital records, and he acknowledged that he did not perform a complete psychiatric autopsy but only reviewed the items relevant to the question of her capacity to make a will. He testified that there was no question that the diagnosis of Killen as psychotic, paranoid, and suffering from paranoid delusion disorder was correct. However, he believed that she had testamentary capacity because she knew she was executing a will, she knew the natural objects of her bounty, and she was aware of the nature and extent of her estate.

The probate court found that despite the good care Killen received from Russell, R.C., and Carolyn, she believed they were trying to injure her and take her property. These delusions, said the court, were false and were fixed and unshakable in her mind when she signed the February 18, 1988 will. The probate court found that Killen did not have the capacity to know the natural objects of her bounty and to appreciate her relationships with them. Therefore, it concluded that on February 18, 1988, Killen lacked testamentary capacity as a result of a delusional paranoid disorder that influenced the creation and terms of the will she signed that day and thus the will was invalid. The court entered an order withdrawing the will from probate, declaring that Killen died intestate, removing Marion as personal representative, and appointing M & I Marshall & Ilsley Trust Company of Arizona as successor personal representative. The court noted that each of Killen's nieces and nephews was entitled to one-eighth of her estate.

The court denied Marion's motion for new trial. Marion, as personal representative and in his personal capacity, appealed from the order and the denial of his motion for new trial.

DISCUSSION

Marion poses the issue on appeal as whether a testator's will is valid if she understands the nature of a will, knows the nature and extent of her property and knows the natural objects of her bounty but has a misperception of some of her family members due to insane delusions. He argues that a testator need only have the ability to know the natural objects of her bounty; it is not necessary that she possess an accurate perception of her relationships or have plausible, justifiable reasons for her opinions about her family members.

Marion maintains that, in any event, there was no proof that Killen's paranoid state and nothing else, such as a rational dislike and distrust of Russell, R.C., and Carolyn, produced her hostility toward them. Marion argues that in reaching the conclusion it did, the probate court disregarded Arizona law and substituted a rule that even when a testator is found to have known the natural objects of her bounty, a will may be rejected on a showing that the testator's subjective perceptions of one of those persons has been affected by a paranoid delusion concerning that individual.

The policy of the law favors testacy. In re Walters' Estate, 77 Ariz. 122, 125, 267 P.2d 896, 898 (1954). Thus, the law presumes that a testator had the requisite mental capacity to execute a will. In re Vermeersch's Estate, 109 Ariz. 125, 128, 506 P.2d 256, 259 (1973); Matter of Estate of Thorpe, 152 Ariz. 341, 343, 732 P.2d 571, 573 (App.1986). The contestant of a will has the burden of showing by a preponderance of the evidence that the testator lacked testamentary capacity at the time the will was executed. Walters' Estate, 77 Ariz. at 125, 267 P.2d at 898. The contestant must produce evidence sufficient to rebut the...