Hammermann's Estate, In re, 79-47

• Decision Date: 30 July 1980
• Docket Number: No. 79-47,79-47
• Citation: 387 So.2d 409
• Parties: In re the ESTATE of Frank E. HAMMERMANN, Deceased.
• Court: Florida District Court of Appeals

Page 409

387 So.2d 409

In re the ESTATE of Frank E. HAMMERMANN, Deceased.

No. 79-47.

District Court of Appeal of Florida, Fourth District.

July 30, 1980.

Rehearing Denied Sept. 25, 1980.

Harry G. Carratt of Morgan, Carratt & O'Connor, P. A., and Stafford & Wooten, Fort Lauderdale, for appellant, Esther Hammermann Ritchie.

Jack M. Large, Fort Lauderdale, for appellee, Alicia Zachman.

GLICKSTEIN, Judge.

This is an appeal from a final judgment entered by the trial court denying the appellant's petition for revocation of the decedent's will with prejudice. We affirm.

Appellant contends the trial court erroneously relied upon lay testimony in determining the decedent's testamentary capacity in view of contrary medical testimony that the testator was of unsound mind when the will was executed.

Appellant is the testator's only grandchild and had been the beneficiary of the testator's earlier will. On February 7, 1977, the same date appellant applied for a hearing seeking involuntary hospitalization of the testator under the Baker Act, the testator was in a lawyer's office requesting that the lawyer the appellee/personal representative of the estate prepare a will for him leaving everything to the testator's sister. That will was prepared but never signed. The testator did however sign a handwritten will the same day the circuit judge had ordered testator's medical evaluation. The handwritten will, prepared by a friend of the testator, had the same dispositive provisions as that prepared by the lawyer.

Two psychiatrists examined the testator, one on February 11th and the other nine days later. In the opinion of the first, Dr. Isa A. Samad, the testator did not have sufficient mental capacity to execute a will. The second, Dr. Pedro Melchor, corroborated the testimony of Dr. Samad, having diagnosed the testator's condition as organic brain syndrome with psychosis, a condition that had to exist for a considerable period of time prior to the examination. It is appellant's contention that the lay testimony of the testator's friends and lawyer was insufficient to controvert appellant's medical testimony that the testator did not have sufficient mental capacity to execute the will.

Of the lay witnesses, Mary Elizabeth Adkinson, a woman 90 years of age, testified she had witnessed the will and had known the testator for forty or fifty years. She had never been concerned for his mental condition and it was her opinion that he had been capable of caring for himself.

Mary E. Adkinson, the daughter-in-law of the previous witness and a registered nurse, testified that she actually printed the will signed by the testator just before he went to the hospital on the night of February 10th. She stated she had seen the testator two or three times a week, had known him for 17 or 18 years,...