Sorenson's Estate, Matter of, 76-430

• Decision Date: 30 January 1979
• Docket Number: No. 76-430,76-430
• Citation: 274 N.W.2d 694,87 Wis.2d 339
• Parties: In the Matter of the ESTATE of Martin V. SORENSEN, Deceased. Niels P. SORENSEN, Appellant, v. Emilie ZIEMKE, Anna M. Coates, Elizabeth M. Friesma, et al., Respondents.
• Court: Wisconsin Supreme Court

Page 694

274 N.W.2d 694

87 Wis.2d 339

In the Matter of the ESTATE of Martin V. SORENSEN, Deceased.

Niels P. SORENSEN, Appellant, v. Emilie ZIEMKE, Anna M. Coates, Elizabeth M. Friesma, et al.,

Respondents.

No. 76-430.

Supreme Court of Wisconsin.

Submitted on Briefs Jan. 9, 1979.

Decided Jan. 30, 1979.

David M. Monson, Racine, for appellant.

Constantine, Christensen, Krohn & Kerscher, S. C., Racine, for respondents.

COFFEY, Justice.

This is an appeal from an October 26, 1976 judgment entered in the Racine county court, Branch I, GILBERT N. GERAGHTY, presiding. The judgment overrules the appellant's objections to the admission to probate of a will executed by one Martin V. Sorensen on October 8, 1963. There were three objections made challenging the will's validity: (1) that the instrument was not duly executed in a manner provided by law; (2) that on October 8, 1963 Martin V. Sorensen lacked the testamentary capacity necessary for a valid execution; (3) that the will's execution was procured by the exercise of fraud and undue influence. On this appeal the only issue raised is as to the trial court's finding that the appellant did not meet the burden of proof required to establish that the deceased lacked testamentary capacity at the time the will was executed. The appellant-objector, Niels Sorensen, is the testator's father and an heir under a prior will executed by his deceased son.

By an order dated November 18, 1959 Martin V. Sorensen, the testator, was adjudged mentally ill and a proper subject for custodial treatment. The mental commitment proceedings were initiated by the decedent's brother who alleged that the decedent experienced delusions, suspicions and exhibited an excitable nature. At the hearing, the report of the two examining physicians concluded that the decedent was suffering from paranoia and auditory hallucinations and recommended the testator be placed in custody in order to receive institutionalized treatment. In accordance with the court order, Martin V. Sorensen was committed to the Veteran's Administration Hospital in Tomah, Wisconsin.

On December 4, 1959 the testator was found incapable of taking care of himself and mentally incompetent to have charge and management of his property. The court appointed the First National Bank and Trust Company of Racine as legal guardian over the person and estate of Martin V. Sorensen.

The testator remained confined in the Tomah V.A. Hospital until the date of his discharge, July 31, 1963, when he was transferred to the Wood Veteran's Administration Hospital in Milwaukee. The certificate of discharge stated the opinion of the Tomah medical staff was that the decedent had not recovered, but that the discharge would not be detrimental to the public welfare or injurious to the patient.

It is undisputed that the testator's guardianship had not been removed as of October 8, 1963, the date the contested will was executed. The second will named as primary beneficiaries Sorensen's step-brothers and step- sisters; their respective issue were named as successor beneficiaries, and made no mention of the decedent's father, Niels P. Sorensen, an heir under the prior will.

The hearing on the appellant's objections was held on May 12, 1976 wherein the testimony of one Dorothy Dykstra was received. Dykstra is the only surviving witness to the will and at the time the will was executed she was employed as legal secretary to the attorney who drafted the document. She could not recall the particular execution, or Mr. Martin Sorensen, but gave testimony regarding the meticulous probate practices of her employer, the late Attorney Charles Helm. The trial court took judicial notice of the guardianship and mental commitment files before reaching its decision overruling the three specified objections to probate.

Issue :

Did the trial court err in not declaring a will invalid on the basis that the testator lacked the mental capacity to make a testamentary disposition when proof was offered that prior to the will's execution the testator had been declared incompetent and placed under guardianship and remained in the same legal status on the date of the will's execution?

The burden of proof at trial when a will is challenged for want of the testator's testamentary capacity is that of introducing clear, convincing and satisfactory evidence. Estate of Dobrecevich, 14 Wis.2d 82, 85, 109 N.W.2d 477 (1960). The standard of review is not whether this court would reach the same findings, but whether the findings should ". . . be affirmed as not being contrary to the great weight and clear preponderance of the evidence. In Matter of Estate of Becker, 76 Wis.2d 336, 346, 251 N.W.2d 431 (1977)." Estate of Evans, 83 Wis.2d 259, 271, 265 N.W.2d 529, 533 (1978). Therefore, there is a heavy burden upon the appellant- objector to demonstrate that the trial court erred in concluding that the decedent's lack of mental capacity was not proven by clear, convincing and satisfactory evidence.

The testamentary capacity necessary to execute a valid will requires that the testator have the mental capacity to comprehend the nature, extent and state of affairs of his property, an understanding of his relationship to persons who are or might naturally be expected to be the objects of his bounty and that the testator understand the scope and general effect of the provisions of his will in relation to his legatees and devisees. Estate of O'Loughlin, 50 Wis.2d 143, 146, 147, 183 N.W.2d 133 (1971); In re Estate of...