IN MATTER OF ESTATE OF ADAMS

• Decision Date: 01 October 2004
• Citation: 2004 OK CIV APP 91,101 P.3d 344
• Parties: IN THE MATTER OF THE ESTATE OF WANDA BELLE ADAMS, deceased. JERRY ADAMS, Petitioner/Appellant, v. ANN FAYE IDLEMAN, Respondent/Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

2004 OK CIV APP 91

101 P.3d 344

IN THE MATTER OF THE ESTATE OF WANDA BELLE ADAMS, deceased.

JERRY ADAMS, Petitioner/Appellant, v. ANN FAYE IDLEMAN, Respondent/Appellee.

Case Number: 100533

Court of Civil Appeals of Oklahoma, Division 3

Decided: October 1, 2004

Mandate Issued: November 10, 2004

Bill C. Lester, Purcell, Oklahoma, for Petitioner/Appellant.

Ted W. Haxel, Purcell, Oklahoma, for Respondent/Appellee.

CAROL M. HANSEN, JUDGE:

¶1 Appellant, Jerry Adams (hereafter Appellant), brings this appeal from the trial court's Order Admitting Will to Probate in the case of Wanda Belle Adams (Decedent). We find the trial court's determination was not clearly against the weight of the evidence and affirm.

¶2 The following facts are uncontested. Decedent executed a will on July 1, 1996. She was then in declining health but lived until February 8, 2003, at which time she was seventy three. During her later years she needed increasing assistance with her normal life activities. She had never married and had no children. As the result of illness at the age of twelve or thirteen, she found it necessary to use a wheelchair for all her adult life, but was able to work as a public accountant. She was survived by four sisters and three brothers. Another brother predeceased her.

¶3 Appellant, Decedent's brother, filed his Petition for Letters of Administration and Determination of Heirs on March 12, 2003. He alleged Decedent had died intestate. Appellee, Ann Fae Idleman (hereafter Appellee), Decedent's sister, filed her Objection to Issuance of Letters of Administration, alleging Decedent had died with a valid will. Appellee asked the court to admit the July 1, 1996 will to probate and to appoint her as personal representative of the estate. The will left Decedent's home and adjoining land to Tommy and Judy Idleman, Appellee's son and daughter-in-law, and the remainder of the estate was to go to Appellee.

¶4 A hearing was held on the parties' respective requests. It was Appellant's position that Decedent "was not competent to execute a will on July 1, 1996." The two witnesses to Decedent's will testified at the hearing in support of its validity, as did Appellee and Tommy Idleman. One of the witnesses to the will was Larry Bonnell, the attorney who drafted it, and the other was another attorney. Appellant and Alta Mae Bowerman, another sister, testified in opposition to admitting the will to probate. Judy Idleman testified in rebuttal to Appellant's evidence.

¶5 The trial court held the will was valid and admitted it to probate. Appellee was appointed Personal Representative of the estate. In its order, the trial court set out the issues and facts which lead to its determination. The court concluded the case centered around the issue of testamentary capacity and that the "most complicating factor" was the court's granting of guardianship over Decedent at approximately the same time as Decedent executed her will. The trial court found the guardianship did not, as a matter of law, preclude Decedent from executing a valid will, and that the evidence of Larry Bonnell was "most convincing" because he had been involved with both execution of the will and application for Decedent's guardianship. Appellant brings his appeal from this order.

¶6 As his sole proposition of trial court error, Appellant contends the court's finding that Decedent possessed testamentary capacity "is not supported by the evidence." In probate cases, being of equitable cognizance, we will examine and weigh the evidence, but we must abide by the presumption that the trial court's determination is correct unless it is found to be clearly contrary to the weight of the evidence or to some governing principle of law. In re Estate of Holcomb, 2002 OK 90, 63 P.3d 9. Even though we will weigh the evidence, we will accord some deference to the trial court's resolution of conflicting evidence because that court had the opportunity to observe the demeanor and conduct of the witnesses. Id., at 13. The burden of persuasion on the issue of testamentary capacity lies with the party contesting the validity of the will. Id.; In re Estate of Maheras, 1995 OK 40, 897 P.2d 268.

¶7 In Estate of Holcomb, at, 13, the Supreme Court stated:

Testamentary capacity exists when a person possesses, in a general way, the ability to appreciate the character and extent of the devised property, understands the nature of the relationship between himself and the natural objects of his bounty, and apprehends the nature and effect of the testamentary act. ... In adjudging a decedent's testamentary capacity, it is appropriate for the trial tribunal to consider evidence of the testator's mental capacity, appearance, conduct, habits and conversation both before and after the will's execution to the extent these factors are relevant to the maker's mental condition at the time the will was executed.

¶8 Appellant concedes the contested will was executed with the requisite formalities dictated by 84 O.S. 1991 § 55, but in his Brief in Chief contends the will is invalid because of noncompliance with 84 O.S. Supp. 1992 § 41. This latter section provides that one subject to guardianship or conservatorship may lawfully dispose of his or her estate by will, but requires the will to be subscribed and acknowledged in the presence of a judge of the district court. This contention fails because Appellant did not raise it before the trial court and is barred from raising it for the first time on appeal. Marlin Oil Corporation v. Barby Energy Corporation, 2002 OK CIV APP 92, 55 P.3d 446.¹

¶9 In fact, Appellant's only assertion regarding execution which was raised before the trial court was that "[t]he will was not properly witnessed by two attesting witnesses as required by 84 O.S. § 55." Appellant's argument, which he reiterates here, was that Larry Bonnell could not properly have been one of the two required witnesses because on the same day the will was executed, Bonnell signed papers applying for guardianship over Decedent as an incompetent. Appellant further argues Bonnell's involvement with the guardianship application is inconsistent with the requirement under § 55 that he, as a witness to a will, certify the testator is "of sound mind."

¶10 Appellant's contention, however, ignores the long standing rule of law in this jurisdiction "that a presumption of want of testamentary capacity does not arise from the fact that the maker of a will may have been under guardianship at the time of the making of the will." In re Nitey's Estate, 1935 OK 1218, 175 Okla. 389, 53 P.2d 215. Thus, incompetency or impairment which may support guardianship was not, as a matter of law, preclusive of testamentary capacity, but was evidence for consideration of the court in determining the condition of Decedent's mind at the time she executed her will. Id., at 218.²

¶11 The Nitey Court, at 218, held that "adjudication that Nitey was an incompetent person to manage her estate was not inconsistent with testamentary capacity." The Court noted contestants there "confuse[d] testamentary capacity with business capacity" and "assume[d] that all persons adjudicated incompetent are in the category of `persons of unsound mind'." The Nitey Court further noted "that a person may not then have sufficient mind and vigor of intellect to transact business generally and make contracts, yet be competent to make a will." The presumption is that every person is sane. Id.

¶12 The Order Appointing Guardians over Decedent, which is a matter of record here, finds she was "impaired by reason of mental confusion and physical limitations, resulting in an inability to receive and evaluate information effectively, meet the essential requirements for her physical health and safety, and manage her financial resources." There is nothing in this finding, which was entered a month after Decedent executed her will, which would necessarily preclude a determination of testamentary capacity.

¶13 The guardianship finding here is very similar to the Nitey Court's discussion of one who may not have "sufficient mind and vigor of intellect to transact business generally", but still possess testamentary capacity. In view of the foregoing, Bonnell's witnessing that Decedent was not of unsound mind, as a measure of testamentary capacity, was not legally inconsistent with the contemporaneous application for her guardianship. The facts surrounding the guardianship were matters for the trial court to consider in its probate determination, but were not dispositive of it.

¶14 Appellant contends, in his Reply Brief, that Decedent's will was "an unnatural will in its disposition of her property." More specifically, he asserts Decedent's will was unnatural "in that she left the bulk of her estate to one sister only [Appellee] and wholly omitted her remaining six brothers and sisters and the children of her deceased brother."³ Citing In re Smiths's Estate, 1946 OK 165, 172 P.2d 328, Appellant asserts that "[w]hile not conclusive, an unnatural disposition of property by the testator may be considered in determining his testamentary capacity." While we agree...