Foman v. Moss

Decision Date05 June 1997
Docket NumberNo. 18A02-9511-CV-669,18A02-9511-CV-669
Citation681 N.E.2d 1113
CourtIndiana Appellate Court
PartiesGrace M. FOMAN, Appellant-Respondent, v. Alene MOSS, as Personal Representative of the Estate of Odell Foman, Appellee-Petitioner.
OPINION

GARRARD, Judge.

The trial court set aside Grace Foman's ("Foman") election to take against her deceased husband's will because she was incompetent. The trial court appointed a guardian and ordered the guardian not to file an election to take against the will. Despite the trial court's order, the guardian subsequently filed, on Foman's behalf, an election to take against the will which the trial court struck as invalid. Foman appeals. We affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

On February 13, 1994, Odell Foman ("Odell"), Foman's ninety-one year old husband, died testate with no living children or descendants of children surviving him. Odell's last will and testament, dated December 29, 1992, left Foman five thousand dollars ($5,000) with the balance of his estate, approximately two hundred thousand dollars ($200,000), to be divided among his four nieces. Following Odell's death, Foman, who was also ninety-one, moved to Florida with her son and was eventually placed in a nursing home in May 1994. Foman signed an election in late May 1994, to take against Odell's will. The trial court subsequently entered an order that Foman was allowed to elect against the will and also ordered the estate to pay her survivor's allowance.

The devisees of Odell's will ("devisees") filed an objection to the final accounting in May, 1995, arguing that Foman's election was invalid because she was not mentally competent to make such an election. After a hearing, the trial court found on July 31, 1995, that Foman was not mentally competent to make an election to take against the will, struck the election, appointed a guardian and ordered the guardian not to elect to take against the will. Robert C. Wright ("Wright"), Foman's son, acting as Foman's temporary guardian, filed an election to take against the will on her behalf on August 30, 1995. 1 The estate moved to strike the election and on September 11, 1995, the trial court struck the election because it was contrary to the court's July 1995 order and therefore invalid. Additional facts are supplied as needed.

ISSUES

Foman presents two issues on appeal.

1. Whether the trial court erred in finding that Foman was not competent to elect to take against the will.

2. Whether the trial court abused its discretion in ordering that Foman's guardian not elect to take against the will on Foman's behalf.

DISCUSSION AND DECISION
Issue I

Foman maintains that the burden of proof was on the devisees to establish that she was incompetent to make an election. Therefore, Foman concludes that she is not appealing a negative judgment, citing Matter of Estate of Covell, 540 N.E.2d 74, 75 (Ind.Ct.App.1989), trans. denied. In Covell, we indicated that the appellants, who appealed the trial court's judgment finding that the widow was competent to elect against her deceased husband's will, were appealing a negative judgment. When an appellant bears the burden of proof at trial, he appeals from a negative judgment. Carmichael v. Kroger Co., 654 N.E.2d 1188, 1191 (Ind.Ct.App.1995), reh'g denied, trans. denied. Although we did not directly indicate in Covell that the party challenging the competency of the spouse electing to take against the will bears the burden of proof, our standard of review supports that conclusion. It is also noteworthy that every person is presumed to be of sound mind to execute a will until the contrary is shown. Kronmiller v. Wangberg, 665 N.E.2d 624 (Ind.Ct.App.1996), trans. denied. We agree that the burden of proof was on the devisees to establish Foman's incompetency. Therefore, Foman is appealing a general judgment.

In reviewing general judgments issued in a civil case tried to the bench, we ask only "whether there is substantial evidence of probative value supporting the verdict on any legal theory. We do not reweigh evidence or judge the credibility of witnesses. In examining the record, we consider only the evidence most favorable to the prevailing party along with all reasonable inferences to be drawn from it." Bayh v. Sonnenburg, 573 N.E.2d 398, 427, n. 5 (Ind.1991), reh'g denied, cert. denied 502 U.S. 1094, 112 S.Ct. 1170, 117 L.Ed.2d 415 (1992); see also Martin v. Roberts, 464 N.E.2d 896, 904 (Ind.1984). Conflicts in the evidence, standing alone, do not render the evidence insufficient if there is relevant evidence to support the claim. Estate of Hann v. Hann, 614 N.E.2d 973 (Ind.Ct.App.1993).

Foman asserts, and Odell's estate agrees, that Indiana opinions have not discussed the degree of mental competence a person must possess in order to elect to take against the will. Appellant Brief, p. 12; Appellee Brief, p. 14. Further, Odell's estate is willing to accept the test for mental competency of electing spouses which is advanced by Foman. Foman urges this court to adopt the standard employed by Michigan and Nebraska. Additionally, Foman contends that there is no reason a greater degree of competency should be required to elect to take against the will than is required to make a will in Indiana.

This court has reviewed trial court decisions regarding the competency of a surviving spouse to elect against the will; however, our research does not reveal a case in which a method or test is set forth for establishing the competency required of a surviving spouse who elects to take against the will. Therefore, we examine the reasoning of the cases advanced by Foman in the following excerpt of her brief.

In In re Dellow's Estate, 290 Mich. 167, 287 N.W. 420 (1939) the court considered an election by an 83 year old on the day of her husband's funeral. It said:

The fact that Mrs. Dellow was an unkempt, sickly person, reserved and disinclined to read and write, does not necessarily mean that she was incompetent to make an election to take under the statute. If she was capable of reasoning and taking reasonable action, she was competent to make an election, and the jury was properly instructed that, if such was the case, neither it nor the court might substitute its views for hers. 287 N.W. at 421-22.

In In re Bergren's Estate, 154 Neb. 289, 47 N.W.2d 582 (1951), the court said:

In determining the mental capacity of a widow to execute an election to take under the statute and renounce the will, if it clearly appears that when the instrument was executed the widow had the capacity to understand what she was doing and to decide intelligently whether or not she desired to execute the instrument, it cannot be said that she was incompetent or incapable at the time of executing the instrument. In order to invalidate an election of a widow to take under the statute on the ground of mental incapacity, it is necessary to show such a degree of mental weakness as renders her incapable of understanding and protecting her own interests at the time she executed the instrument. (citations omitted). 47 N.W.2d at 589.

Appellant's Brief, p. 12. The Nebraska Supreme Court recently relied on its holding in In re Bergren's Estate in deciding In Re Estate of Disney, 250 Neb. 703, 550 N.W.2d 919, 924 (1996). In upholding the trial court's determination that the surviving spouse who elected to take his statutory share was competent, the court stated:

In summary, there was conflicting evidence in the record as to Disney's [the surviving spouse] mental capacity to make an election. The trial court accepted as more credible the testimony that Disney was competent to make such an election. It is not the province of this court to weigh or resolve conflicts in the evidence, the credibility of witnesses, or the weight to be given their testimony. [Citation omitted].

In Re Estate of Disney, at 924.

Foman also contends that Indiana's test for determining the mental competency of a testator at the time of executing a will is instructive. In Farner v. Farner, 480 N.E.2d 251 (Ind.Ct.App.1985), we enunciated Indiana's test.

Every person is presumed to be of sound mind to execute a will until the contrary is shown. [Citation omitted]. Only where the testator lacks mental capacity at the time of executing the will to know (1) the extent and value of his property; (2) those who are the natural objects of his bounty; and (3) their deserts, with regard to their treatment of and conduct toward him, will the law in Indiana invalidate a will. [Citation omitted]. If the testator is of sound mind to execute his will at the time he does so, it is immaterial what may have been his condition at some other time. [Citation omitted]. Although evidence of the testator's mental condition prior to and following the date of execution is admissible, such is relevant only as evidence of his mental state when making the will. [Citation omitted].

Nor is all mental weakness or infirmity enough to set aside a will. The testator may not be in full possession of his reasoning powers and his memory may be slightly obscured or clouded, but if the above conditions are met, his will is deemed valid. [Citation omitted]. The mere fact that the testator was of unsound mind when the will was executed is not enough to invalidate the will if it did not affect his making of the will and disposition of his property. [Citation omitted]. As stated in Bundy [v. McKnight, 48 Ind. 502 (1874)] "Case upon case can be cited which go to the extent of deciding that unless the failure of understanding be quite total, reaching to the testator's forgetfulness of his immediate family and property, he is not disqualified from making a will," for the weak and aged must be...

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