Gaudynski's Estate, In re

• Decision Date: 31 March 1970
• Docket Number: No. 94,94
• Parties: In re ESTATE of Walter M. GAUDYNSKI, Deceased. Edward J. MUELLER et al., Appellants, v. Lucille GAUDYNSKI et al., Respondents.
• Court: Wisconsin Supreme Court

Page 272

175 N.W.2d 272

46 Wis.2d 393

In re ESTATE of Walter M. GAUDYNSKI, Deceased.

Edward J. MUELLER et al., Appellants, v. Lucille GAUDYNSKI et al., Respondents.

No. 94.

Supreme Court of Wisconsin.

March 31, 1970.

Rehearing Denied June 2, 1970.

This is an appeal from an order admitting the will of Walter M. Gaudynski dated April 5th, 1967, to probate. Objections were filed by the appellants on the grounds the testator lacked testamentary capacity and the will was the result of undue influence exerted upon him by the respondents Lucille Gaudynski, his wife, and James R. Wartinbee, Sr., the executor named in the will. Appellant Edward J. Mueller by cross-petition also asks that a will executed in 1958 be admitted to probate.

Walter M. Gaudynski died on November 27, 1967, at the age of 87. He was married three times. The appellants Edward J. Mueller and Ruth Mueller are the issue of his first marriage; appellants Elizabeth Ann Wiechers and John Sharpe, and non-appellant Mary Jane Van Cleave, are the issue of the second marriage. The trial court, after finding the testator had testamentary capacity and no undue influence had been exerted upon him, admitted the 1967 will to probate.

Bernard F. Mathiowetz, Milwaukee, for appellants.

Alfred Rozran, Milwaukee, for Lucille Gaudynski.

Earl M. Wanecek, Milwaukee, for guardian ad litem.

Charne, Glassner, Tehan, Clancy & Taitelman, Milwaukee, for James R. Wartinbee, Sr.

HALLOWS, Chief Justice.

This case presents no new questions of law but only the application of well-established law governing testamentary capacity and undue influence to the facts. Testamentary Capacity.

The test for testamentary capacity in this state was originally taken from Delafield v. Parish (1862), 25 N.Y. 9, See Holden v. Meadows (1872), 31 Wis. 284. The rule has been stated in essentially the same form in many cases but generally as stated in Will of Wicker (1961), 15 Wis.2d 86, 88, 112 N.W.2d 137, 139:

'The test is not whether the testator did the best or the wisest or the theoretically just thing in his will; but, Did he have sufficient active memory to collect in his mind and comprehend, without prompting, the condition of his property, his relations to his children and other persons who might properly be his beneficiaries, and the scope and bearing of his will and to hold these things in his mind a sufficient length of time to perceive their obvious relations to each other, and be able to form some rational judgment in relation to them?' Butler's Will (1901), 110 Wis. 70, at 78, 85 N.W. 678; Will of Washburn (1946), 248 Wis. 467, 474, 22 N.W.2d 512; Will of Delmady (1947), 251 Wis. 98, 28 N.W.2d 301; Will of McLeish (1932), (1933), 209 Wis. 417, 245 N.W. 197; Will of Klagstad (1953), 264 Wis. 269, 58 N.W. 636; Estate of Cyborowski (1955), 271 Wis. 126, 72 N.W.2d 713; Will of Ganchoff (1961), (1960), 12 Wis.2d 503, 107 N.W.2d 474.

A testator may not have the testamentary capacity to make a complicated will and yet have the necessary capacity to make a simple will. The test is whether he had the mental ability to make the specific will in question.

The appellants argue the financial affairs of the deceased were comple and involved and the will indicates it is not the product of a rational judgment. Viewing the problem from the standpoint of a layman, to have testamentary capacity he must understand his will and its scope and what it purports to do, but it is not necessary that he understand all the legal terms or even the language of the will. As long ago as 1885 this court held in In re Walter's Will, 64 Wis. 487, 25 N.W. 538, that a will was valid if drawn in accordance with the instructions of a person of sound mind, who had a full and accurate knowledge of the contents of the will although it was written in the English language which the testator did not understand. Will of Klagstad (1953), 264 Wis. 269, 58 N.W.2d 636; Thompson on Wills, 3rd ed., p. 106, sec. 59.

The important point is that if the instrument expresses what the testator has in mind and the testator so understands his will, that is a sufficient relationship between the written word and the mental state. While this relationship does not prove testamentary capacity, it does make the content of the will an element to be considered in determining whether the testator was capable of making a rational judgment. In making his will a testator may rely upon his attorney to carry out his instructions and to use legal language which the attorney believes will effectuate the testator's purposes. 57 Am.Jur., Wills, p. 83, sec. 66. If the testator is accurately informed of the contents of the will prepared in accordance with his instructions before he signs it and he acknowledges the will represents his thinking, that is sufficient. The lawyer may make a mistake in his knowledge of the law or the effect of language used in drafting the will, which is relied upon by the testator, but such a mistake does not vitiate testamentary capacity. Testamentary capacity deals with the mental capacity and ability and should not be confused with the accuracy of the will which represents performance.

Here, the appellants argue the lack of testamentary capacity was established by five factors, (1) The testator's reaction to a lease which his son drafted and counselled him to execute, (2) the failure of the will to include a marital deduction provision, (3) the disregard of the effect of teansferring assets to trusts beyond the reach of the executor for payment of probable estate taxes on the transfers, (4) the failure to dispose of part of the corpus of his estate remaining after a life income estate for his widow terminated, and (5) the simultaneous and inconsistent conveyance of the same real estate to an inter vivors trust and in his will.

It is axiomatic in this court that a trial court's finding of fact will be sustained unless contrary to the great weight and clear preponderance of the evidence. A testator is presumed to be same and to have the capacity to make a will. Will of Szperka (1948), 254 Wis. 153, 35 N.W.2d 911. The appellants have the burden of proof to show the testator's lack of testamentary capacity. Estate of Scherrer (1943), 242 Wis. 211, 7 N.W.2d 848.

Tax consequences are only one consideration in making the will. Many times such consequences are disregarded so that certain persons or institutions may become beneficiaries. The failure to will your property in a way to obtain the greatest tax benefit is not necessarily evidence of lack of testamentary capacity. It is true the testator reacted violently to an important lease prepared by his son which resulted in loss of faith in and antagonism toward the son, but from the record we cannot tell whether the testator was unjustified in his changed attitude. In any event a testator's dissatisfaction with the conduct of a child which causes him to disinherit the child does not necessarily show lack of testamentary capacity even if the testator may be mistaken in his beliefs.

It is apparent that it was Mr. Gaudynski's intention to convey vacant land to the trustee of a trust created February 25, 1966, for his grandchildren and to deal with his homestead in his will. However, both he and his attorney thought the legal description in the deed covered only vacant land when in fact it also included the homestead. This mistake is explained by the fact that the survey used showed no building on the property. While this mistake created a conflict between the deed and the will, both of which were executed on the same day, we do not think this mistaken reliance on a survey shows that Mr. Gaudynski lacked testamentary capacity even though he was a successful real estate broker of...