Fletcher v. DeLoach

• Decision Date: 30 June 1978
• Citation: 360 So.2d 316
• Parties: Mary Elizabeth DeLoach FLETCHER v. William DeLOACH and Sandra DeLoach Hopkins. 77-4.
• Court: Alabama Supreme Court

Page 316

360 So.2d 316

Mary Elizabeth DeLoach FLETCHER v. William DeLOACH and Sandra DeLoach Hopkins.

77-4.

Supreme Court of Alabama.

June 30, 1978.

Thomas W. Underwood, Jr., Foley, for appellant.

W. Kenneth Gibson, Fairhope, for appellees.

TORBERT, Chief Justice.

The appellant, Mary Elizabeth DeLoach Fletcher, is the proponent of Ada B. Padgett's last will and testament, which was executed on April 15, 1970. After the testatrix died on October 31, 1975, Mrs. Fletcher filed the above mentioned instrument for probate on November 19, 1975. The appellees, a son and granddaughter of the testatrix, contested the probate of said will on April 1, 1976, and moved that the contest of the will be transferred to circuit court for a trial by jury. See sections 43-1-70, 43-1-78, Code of Alabama 1975. The probate judge ordered the transfer of the cause to circuit court for trial by jury on April 2, 1976.

The trial was held on July 18 and 19, 1977. The trial judge, after hearing the evidence, ruled that the will had been properly executed and that there was no evidence of undue influence or fraud in the case. Therefore, the only issue submitted to the jury was whether the testatrix possessed testamentary capacity at the time she executed the will of April 15, 1970. The jury found for the appellees (contestants) on the issue of testamentary capacity, and the trial judge ordered that Mrs. Fletcher was not entitled to have the will probated.

Mrs. Fletcher filed a motion for new trial on August 2, 1977, alleging that the testimony and the evidence failed to support the jury's verdict. The trial judge denied this motion on August 17, 1977. Mrs. Fletcher appeals from the denial of her motion for a new trial and from the jury verdict on a similar ground whether the contestants satisfied their burden to prove the testatrix's lack of testamentary capacity. We hold that there was evidence before the jury which would tend to show that the testatrix lacked testamentary capacity at the time she executed the will of April 15, 1970, and we therefore refuse to overturn the verdict of the jury where it has not been shown to be clearly wrong and unjust.

The testatrix must have testamentary capacity in order to execute a valid will; I. e., she must have

"mind and memory sufficient to recall and remember the property she was about to bequeath, and the objects of her bounty, and the disposition which she wished to make to know and understand the nature and consequences of the business to be performed, and to discern the simple and obvious relation of its elements to each other . . .."

Knox v. Knox, 95 Ala. 495, 503, 11 So. 125, 128 (1892). However, since it is presumed that every person has the capacity to make a will, the contestant has the burden to prove a lack of testamentary capacity. Johnston v. Johnston, 174 Ala. 220, 227, 57 So. 450, 452 (1912). This court has said that:

"The burden is on the contestant to show incapacity at the time the will was made and insanity prior to that time, unless of a permanent character, raises no presumption of insanity at the time the will was made."

King v. Aird, 251 Ala. 613, 617, 38 So.2d 883, 887 (1949). Unless the contestant presents evidence that the testatrix suffered from a permanent type of insanity prior to the execution of the will (which was not shown in this case), the contestant's burden of proof is met when the jury is reasonably satisfied from the evidence that the testatrix did not have testamentary capacity at the time she executed the will. See Tucker v. Tucker, 248 Ala. 602, 611, 28 So.2d 637, 645 (1946).

When mental capacity is at issue, the factual inquiry must necessarily be of the broadest range:

"Evidence is competent to prove conduct and language at various times and places indicating an unhealthy mental condition, and the more extensive the view the safer is the determination reached."

Id. at 610, 28 So.2d at 644; Accord, Batson v. Batson, 217 Ala. 450, 456, 117 So. 10, 15 (1928); Johnston v. Johnston, supra, 174 Ala. at 226, 57 So. at 452. Thus, evidence offered as to the mental and physical condition of the testatrix, either before or immediately after execution of the will, is admissible since it tends to indicate her condition when the will was signed. Burke v. Thomas, 282 Ala. 412, 417, 211 So.2d 903, 908 (1968); Haghart v. Cooley, 278 Ala. 354, 357-58, 178 So.2d 226, 228 (1965); Tucker v. Tucker, supra, 248 Ala. at 610, 28 So.2d at 644; Knox v. Knox, supra, 95 Ala. at 503-04, 11 So. at 128; Fountain v. Brown, 38 Ala. 72, 75 (1861). Likewise, testimony regarding the testatrix's "conversations, deportment, acts, and appearance" has been found to be competent on the issue of testamentary capacity. Batson v. Batson, supra, 217 Ala. at 456, 117 So. at 15.

Also relevant to this issue is the character of the testamentary scheme; I. e., the reasonableness of the distributions made by the testatrix in her will. It is permissible for the jury to examine the will to see if its provisions are "just and reasonable, and consonant with the state of the (testatrix's) family relations," since this would reflect on her capacity to recall the natural objects of her bounty. Fountain v. Brown, supra at 74. This...