Knutson's Estate, In re

• Citation: 82 N.W.2d 196,275 Wis. 380
• Parties: In re ESTATE of Andrena KNUTSON, Deceased. Clarence E. GULDHAUG, Appellant, v. Lloyd C. MARTIN, Ex'r, Respondent.
• Decision Date: 09 April 1957
• Court: United States State Supreme Court of Wisconsin

Page 196

82 N.W.2d 196

275 Wis. 380

In re ESTATE of Andrena KNUTSON, Deceased.

Clarence E. GULDHAUG, Appellant, v. Lloyd C. MARTIN, Ex'r, Respondent.

Supreme Court of Wisconsin.

April 9, 1957.

Harry D. Clarke, Stoughton, Frederick F. Hillyer, Madison, for appellant.

D. V. W. Beckwith, Madison, for respondent.

WINGERT, Justice.

In a careful and thorough opinion the county court held that on the date the will was executed testatrix possessed testamentary capacity to make a will, that the will was not the result of undue influence, and that it was properly executed. Formal findings of fact to that effect were made. On examination of the record we are satisfied that none of the essential findings is contrary to the great weight and clear preponderance of the evidence, and that therefore the judgment admitting the will to probate must be affirmed. Indeed we consider that the trial court's findings are clearly supported by the evidence.

1. Testamentary capacity. There was testimony by the head nurse at the Skaalen Home, and by a cousin of testatrix who had looked after her financial affairs for some time prior to the making of the will, to the general effect that testatrix was senile, forgetful, confused, suspicious, unable to reason, and did not understand what property she had or who her relatives were, and that her deterioration was progressive. None of that testimony was based on observation of the plaintiff on the day she gave instructions for the will or at the time she signed it. On the other hand, attorney Knudson, who discussed the subject matter of the will and other affairs with testatrix on May 19 and also was present at the execution of the will on May 20 testified that she discussed the disposition of her estate intelligently, discussed her relatives and gave him the names and addresses of the beneficiaries, that her knowledge of her property was correct, and that he was satisfied that she was competent and had no doubt about it. Several other witnesses also testified that she was competent, including her physician, who witnessed the will, her pastor, another physician who examined her three weeks after the will was made in anticipation of a proposed guardianship, an experienced lawyer who interviewed her the following December at the instance of the court when she was under guardianship, and other witnesses.

The weight to be given to this conflicting testimony was for the trial court, and its finding of testamentary capacity is amply supported. Contestant had the burden of proving incapacity by clear and satisfactory evidence. In re Estate of Scherrer, 242 Wis. 211, 216, 7 N.W.2d 848.

The testimony of the witnesses who observed the condition of testatrix at the very time she made the will is entitled to great weight as compared with the evidence of mental infirmity at other times, since it is elementary that the question of competency is to be determined as of the time of the execution of the will; and in cases of senility or illness, mental capacity may differ greatly from time to time, even from day to day. In re Estate of Fuller, 275 Wis. 1, 5, 81 N.W.2d 64; In re Estate of Radel, 248 Wis. 558, 564, 22 N.W.2d 475. Here the testimony of the scrivener was properly given great weight, since he discussed the affairs of testatrix with her at length and with professional understanding when she gave the instructions for the will, and he was present at its execution. In re Estate of Kesich, 244 Wis. 374, 383, 12 N.W.2d 688.

The infirmities of old age, such as forgetfulness, incoherence, eccentricity, and occasional inability to recognize acquaintances, do not necessarily establish want of testamentary capacity. In re Will of Washburn, 248 Wis. 467, 474, 22 N.W.2d 512; In re Will of Grosse, 208 Wis. 473, 479, 243 N.W. 465. The appointment of a guardian for testatrix two months after she made the will is not of controlling weight, not only because of the time difference, but for the further reason that a finding of incapacity to manage property sufficient to warrant guardianship does not necessarily negative testamentary capacity.

Contestant places great emphasis on a series of letters written by testatrix to him at frequent intervals during the first half of 1953, in which she constantly complained of forgetfulness, nervousness, and want of knowledge of her affairs, indicated that something unmentioned was upsetting her, and showed friendship for and confidence in contestant. Without going into detail, we do not consider that these letters demonstrate lack of testamentary capacity. Special emphasis is placed on one written by testatrix to contestant on May 28, nine days after Mr. Knudson had drawn the will, in which she said she had not had anything to do with Knudson for a long time. A week later, however, she wrote Mr. Knudson asking him to keep the will in his possession, 'and don't let Clarence know anything about it.' The inference is permissible that instead of being completely confused, testatrix was deliberately trying to keep Clarence from suspecting that she had made a will.

2. Undue influence. Contestant argues that the will was the product of undue influence exerted by Marie Lageson and her husband. In her 1951 will, testatrix had given contestant preferred treatment and had excluded Mrs. Lageson. It is claimed that the Lagesons were unfriendly to contestant, and persuaded testatrix to believe ill of him and cut him out and give them a share of the estate.

The ultimate facts to be proved in order to establish undue influence are (1) a person unquestionably subject to undue influence, (2) opportunity to exercise such influence and effect the wrongful purpose, (3) a disposition to influence unduly for...