McCabe v. Hanley

• Decision Date: 17 November 2004
• Docket Number: No. 4D03-2998.,4D03-2998.
• Citation: 886 So.2d 1053
• Parties: Edward Joseph McCABE, Appellant, v. Daniel A. HANLEY, as personal representative of the Estate of F. Edward McCabe, and Donna (Toby) Keller, as co-trustee of the F. Edward McCabe Trust, Appellees.
• Court: Florida District Court of Appeals

886 So.2d 1053

Edward Joseph McCABE, Appellant, v. Daniel A. HANLEY, as personal representative of the Estate of F. Edward McCabe, and Donna (Toby) Keller, as co-trustee of the F. Edward McCabe Trust, Appellees.

No. 4D03-2998.

District Court of Appeal of Florida, Fourth District.

November 17, 2004.

J. Henry Cartwright and Terence J. Watterson of Watterson Hyland & Fleming, P.A., Palm Beach Gardens, for appellant.

Jack J. Aiello and Michael D. Simon of Gunster, Yoakley & Stewart, P.A., West Palm Beach, for appellee Daniel A. Hanley.

Ronald E. Crescenzo of Boose Casey Ciklin Lubitz Martens McBane & O'Connell, West Palm Beach, for appellee Donna (Toby) Keller.

WARNER, J.

Appellant, Edward McCabe, filed a will contest alleging that his father lacked the capacity to execute his will, which did not acknowledge his son. After presentation of McCabe's case in this non-jury trial, the trial court entered an involuntary dismissal and entered judgment for the estate. In doing so, the court weighed the evidence. We reluctantly reverse on the authority of Tillman v. Baskin, 260 So.2d 509 (Fla.1972).

McCabe's father, the decedent, was an admitted alcoholic. He moved away from his wife a week after McCabe was born in 1952. Contact between the decedent and his wife and child was sporadic during the 1960's and 70's, and it thereafter ceased. The decedent moved to Palm Beach and worked as an alcohol and drug abuse counselor. In 1994, the decedent approached his friend, attorney Chris Schilling, about executing a will. Schilling drafted the will at no charge and, assuming the decedent had no wife or children, included a boilerplate clause stating, "I have never been married and I have no children, living or deceased." The will provided nothing for McCabe and left the entire estate in trust for the benefit of recovering alcoholics and drug addicts. Two codicils were subsequently executed in 1995 and 1997, incorporating the provisions of the will.

In 1996, before the second codicil was executed, McCabe located the decedent and visited him unannounced. After initially refusing to come to the door, the decedent ended up spending several days with his son and introduced him to relatives as his son. They corresponded over the next several months. The decedent planned a trip to visit McCabe but cancelled it and cut off contact. Later that year he executed the last codicil incorporating the provisions of his prior will. On many occasions following the execution of the documents, the decedent denied he had a son.

Upon the decedent's death in 2002, McCabe filed a petition to revoke probate of the will, challenging the testamentary documents on the ground that the decedent was subject to an insane delusion involving a natural object of his bounty, i.e., his son. McCabe alleged that the decedent was physically weak and mentally tired, and he adhered to the delusion that he had no children in the face of evidence to the contrary.

The case proceeded to trial. McCabe testified as to the foregoing facts. The decedent's niece testified that decedent knew he had a son but would never take responsibility for the family. He made a willful choice to keep the fact that he had a son a secret.

McCabe also presented an expert psychiatric witness, Dr. Norman Silversmith. Dr. Silversmith testified that, to a reasonable degree of psychiatric certainty, the decedent suffered from a long-standing fixed false belief, an insane delusion, that overrode his capacity to recognize his son.

Without detailing all of Dr. Silversmith's opinions, many were unsubstantiated and filled with contradictions. He did not interview McCabe or the attorney who drew the will and codicils. On cross-examination, counsel severely discredited Dr. Silversmith's opinions.

After McCabe rested, the estate moved for involuntary dismissal and to strike the testimony of Dr. Silversmith. It first argued the motion for involuntary dismissal, and, for the sake of time, the court granted an involuntary dismissal, concluding that there was no evidence other than Dr. Silversmith's opinion that the decedent was suffering from an insane delusion at the time he executed his will and codicils. As to Dr. Silversmith's testimony, the court noted that it would have stricken the testimony had it been requested pre-trial, because it was not predicated on adequate and complete facts and was unsupported by any reasonable interpretation of the facts. Subsequently, the court entered judgment for the estate, and McCabe appeals.

McCabe argues the lower court erred in entering an involuntary dismissal because he presented a prima facie case that the decedent suffered from an insane delusion as to the natural object of his bounty and thus lacked testamentary capacity to execute his will and codicils. "An involuntary dismissal or directed verdict is properly entered only when the evidence considered in the light most favorable to the non-moving party fails to establish a prima facie case on the non-moving party's claim." Hack v. Estate of Helling, 811 So.2d 822, 825 (Fla. 5th DCA 2002).

McCabe sought to show that the decedent lacked testamentary capacity because he suffered from an insane delusion. "[A] will should be held invalid for lack of testamentary capacity if it is executed as a result of an insane delusion." In re Hodtum's Estate, 267 So.2d 686, 688 (Fla. 2d DCA 1972) (citing In re Estate of Supplee, 247 So.2d 488 (Fla. 2d DCA 1971)). An insane delusion is a "spontaneous conception and acceptance as a fact, of that which has no real existence adhered to against all evidence and reason." In re Estate of Edwards, 433 So.2d 1349, 1351 (Fla. 5th DCA 1983). The only evidence in the case that supported a conclusion that the decedent suffered an insane delusion was the testimony of Dr. Silversmith. None of the other evidence rose to a level to establish a prima facie case because the decedent did not persistently deny the existence of his son. In fact, he admitted it not only to McCabe himself but to many family members.

Despite the fact that the court thought that Dr. Silversmith's testimony was not based on adequate facts or any reasonable interpretation of the facts, the testimony was never stricken. When the court admits testimony, it must weigh the testimony and is not free to disregard it as inadmissible. See Southeastern Fire Ins. Co. v. King's Way Mortg. Co., 481 So.2d 530, 531 (Fla. 3d DCA 1985). Therefore, Dr. Silversmith's testimony was part of the prima facie case.

Tillman v. Baskin, 260 So.2d 509, 511-12 (Fla.1972), holds that, even in a non-jury case, a trial court cannot weigh evidence in ruling on a motion for involuntary dismissal at the close of the plaintiff's case but must deny the motion when a prima facie case is made. In Tillman, the court adopted the opinion of the Supreme Court of Alaska in Rogge v. Weaver, 368 P.2d 810, 813 (Alaska 1962). See 260 So.2d at 511. However, in Rogge...