In re Estate of Romero, No. 04CA0013.

Decision Date09 January 2006
Docket NumberNo. 04CA0013.
Citation126 P.3d 228
PartiesIn the Matter of the ESTATE OF Robert Ramon ROMERO, Deceased. Barbara A. Romero and Robert Ross Romero, Claimants-Appellants, v. Dolores G. Vasquez, Personal Representative-Appellee.
CourtColorado Supreme Court

Rebecca L. Shandrick, Denver, Colorado, for Claimants-Appellants.

Mona S. Goodwin, Denver, Colorado, for Personal Representative-Appellee.

HAWTHORNE, J.

In this formal testacy proceeding as to the estate of Robert Ramon Romero (decedent), decedent's children, Barbara A. Romero and Robert Ross Romero (contestants), appeal the probate court's judgment denying their petition for adjudication of intestacy. Decedent's sister, Dolores G. Vasquez, as devisee, opposed the petition. We affirm.

This case involves a contested probate of a formal will executed by decedent. The will named decedent's mother as personal representative and his sister as the successor personal representative. Decedent devised a gift of $500 to each of his children and left the remainder of his estate to his mother and sister in equal shares, with a provision that if either his mother or sister predeceased him, the remaining beneficiary would take the entire remainder. Because decedent's mother predeceased him, his sister was left as the sole beneficiary of the residuary estate.

Contestants filed objections, claiming that decedent did not have the testamentary capacity to execute a will. In addition, they claimed that the will was the product of undue influence. In support of their assertions, they relied primarily on the uncontested facts that decedent suffered from mental illness and that he had been a protected person under a Veterans Administration (VA) guardianship over his financial affairs.

A hearing was held on the petition for formal probate. Contestants presented, inter alia, expert witness testimony from the physician who treated decedent for schizophrenia. While this physician testified that decedent suffered from auditory hallucinations, the physician was unable to connect them with execution of decedent's will and, moreover, saw decedent for only a few minutes on three occasions during the eighteen months prior to the signing of the will. The probate court accordingly discounted his testimony.

Instead, the probate court credited the testimony of the attorney who prepared the will, because it found him to be the only individual with personal knowledge of decedent's testamentary capacity when the will was executed. The attorney testified that he met with decedent on four separate occasions, including one visit to decedent's home. He testified that although decedent's mother transported decedent to and from the attorney's office, she was present neither during his conversations with decedent nor during the actual execution of the will, but remained in the office waiting area. He further testified that decedent expressed his desire to leave his entire estate to his mother and his sister because of his minimal contact with his children and in return for all the love and support he had received from his mother and sister over the years. The attorney also testified that it was only upon his suggestion that decedent made a small bequest to his children to demonstrate that his exclusion of them as primary beneficiaries was intentional. He further testified that he had "no doubt in his mind" when the will was executed that decedent fully understood the consequences of his action.

After considering all the evidence, the probate court found that contestants did not prove by a preponderance of the evidence that decedent was not of sound mind when he executed his will. The court held that neither the evidence of mental illness nor the mere existence of a VA guardianship was sufficient, in and of itself, to prove lack of testamentary capacity. It further found that decedent's sister had provided ample evidence that the will was a voluntary act and was not the product of undue influence. Accordingly, it granted the petition to admit the will to formal probate and to appoint decedent's sister as the personal representative of the estate in unsupervised administration.

I.

Contestants first contend that the probate court erred in failing to conclude that the will was invalid because decedent lacked testamentary capacity. We disagree.

A person has testamentary capacity if he or she is an "individual eighteen or more years of age who is of sound mind." Section 15-11-501, C.R.S.2004. A testator's soundness of mind may be evaluated under either the test set forth in Cunningham v. Stender, 127 Colo. 293, 255 P.2d 977 (1953), or the insane delusion test. See Breeden v. Stone, 992 P.2d 1167 (Colo.2000).

Under the Cunningham test, a person has testamentary capacity when the person (1) understands the nature of the act, (2) knows the extent of his or her property, (3) understands the proposed testamentary disposition, and (4) knows the natural objects of his or her bounty, and (5) the will represents the person's wishes. Cunningham v. Stender, supra. An individual lacks testamentary capacity under the insane delusion test when he or she suffers from an insane delusion that materially affects the disposition of the will. Breeden v. Stone, supra.

Once a proponent of a will has offered prima facie proof that the will was duly executed, any contestant has the burden of establishing lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, or revocation by a preponderance of the evidence. Section 15-12-407, C.R.S.2004; Breeden, supra, 992 P.2d at 1170.

A.

Contestants maintain that the facts demonstrated that decedent did not know the extent of his property and therefore lacked testamentary capacity under that prong of the Cunningham test. We are not persuaded.

A finding of fact will not be set aside on appeal unless it is clearly erroneous. C.R.C.P. 52; In re Estate of Gallavan, 89 P.3d 521, 523 (Colo.App.2004) (probate court's findings under Cunningham and the insane delusion test will not be set aside if there is evidence in the record to support them). Evaluation of the credibility of witnesses, including expert witnesses, is a matter solely within the fact finding province of the trial court, and we will not reweigh testimony or reevaluate evidence on appeal. See CF & I Steel, L.P. v. Air Pollution Control Div., 77 P.3d 933, 937 (Colo.App.2003).

The appointment of a conservator or guardian is not a determination of testamentary incapacity of the protected person. Section 15-14-409(4), C.R.S.2004.

There is scant Colorado case law detailing what specific knowledge is required for a testator to be deemed to know the extent of his or her property. However, the cases which touch upon this issue, including Cunningham itself, indicate that it is sufficient that a testator comprehend the "kind and character of his [or her] property" or understand, generally, the nature and extent of the property to be bequeathed. Cunningham, supra, 127 Colo. at 300, 255 P.2d at 981; see also Columbia Sav. & Loan Ass'n v. Carpenter, 33 Colo.App. 360, 368, 521 P.2d 1299, 1303 (1974), rev'd on other grounds sub nom. Judkins v. Carpenter, 189 Colo. 95, 537 P.2d 737 (1975).

In other words, "A perfect memory is not an element of testamentary capacity. A testator may forget the existence of part of his estate . . . and yet make a valid will." 1 Page on Wills § 12.22 (rev.2003).

As further stated in Page on Wills:

In cases in which language is used which sounds as though actual knowledge on the part of testator was requisite to testamentary capacity, the court merely means that if [the] testator possesses such knowledge, he has testamentary capacity. It is probably not intended to imply that lack of knowledge will prevent testamentary capacity.

1 Page on Wills, supra, § 12.22. Therefore, "[t]he fact that [the] testator believes that the residue of his estate is of little value, when it is, in fact, more than two-thirds of his estate," does not show lack of capacity. 1 Page on Wills, supra, § 12.22.

An ability to index the major categories of property constituting an individual's estate was found sufficient to establish testamentary capacity in Breeden, supra, 992 P.2d at 1173. This holding is consistent with the approach taken by courts in other jurisdictions with similar tests for testamentary capacity. See Rich v. Rich, 615 S.W.2d 795, 797 (Tex.Civ.App.1980) (holding that a finding of testamentary capacity does not require proof that "the testator knew the `true value of his property"'); Prichard v. Prichard, 135 W.Va. 767, 772, 65 S.E.2d 65, 68 (1951)(holding that to have the capacity to make a will, the testator must know his property, but "it is not necessary that he know every item of his property or the value of his estate," and "[i]t is sufficient if he knows of what his property consists").

Here, the probate court found that decedent understood that his assets comprised the accumulation of whatever amounts were left over from his VA and social security benefits after his living expenses had been deducted. The probate court concluded that decedent's failure to know the actual amount of money in his VA account was not surprising or fatal, given that the VA's routine practice was not to inform its wards how much money they had in their VA accounts, to protect the wards from exploitation. Further, the court found that the relative size of the estate was not a motivating factor in decedent's decision to leave his estate to his mother and sister, as decedent's attorney testified that decedent's original intent was to preclude his children from taking any of his estate at all.

Under these circumstances, we agree with the probate court that decedent's lack of knowledge of the actual value of his estate did not affect his testamentary capacity.

B.

Contestants next contend that the...

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