Velk's Estate, In re

• Decision Date: 04 January 1972
• Docket Number: No. 181,181
• Citation: 53 Wis.2d 500,192 N.W.2d 844
• Parties: In re ESTATE of Joseph VELK, a/k/a Joe Velk, Deceased. Leonard VELK et al., Appellants, v. Martha LEWANDOWSKI et al., Respondents.
• Court: Wisconsin Supreme Court

Page 844

192 N.W.2d 844

53 Wis.2d 500

In re ESTATE of Joseph VELK, a/k/a Joe Velk, Deceased.

Leonard VELK et al., Appellants, v. Martha LEWANDOWSKI et al., Respondents.

No. 181.

Supreme Court of Wisconsin.

Jan 4, 1972.

This is an appeal from an order admitting a will to probate. The objections to the will are that the testator lacked testamentary capacity and was unduly influenced in the making of his will.

The testator, Joseph (Joe) Velk, died April 4, 1970, at the age of eighty-four years. He was survived by two sons, Leonard and Harry Velk. They were both married and had children. He was predeceased by his other child, Clara Velk Rozanski, who died in October, 1969. Mrs Rozanski left five children who were between the ages of twenty-six and thirty-eight and all married or self-supporting at the time of the testator's death. Joe Velk's wife predeceased him in 1943. He also left a married sister, Martha Lewandowski. Martha has a son, Gerald. Both Martha and Gerald were named beneficiaries in the will. They are the proponents of the will and the respondents in this appeal. Leonard and Harry Velk and the five Rozanski grandchildren are the objectors and appellants.

The testator left a will executed on March 6, 1970. It bequeathed a life estate in a residence on South 33rd street, Milwaukee, Wisconsin, and the net income from a rental property on Pulaski avenue, Cudahy, Wisconsin, to Martha Lewandowski for the remainder of her life. The will also provided for a $500 bequest to St. Barbara's Church for Masses for Joe Velk's soul. The will forgave the principal and interest on a $1,500 debt owned to Joe Velk by Gerald Lewandowski, Martha's son. The residue of the estate was left to Leonard and Harry Velk or to the survivor if one son predeceased Joe Velk, and if neither survived then the residue was to be distributed under the law of intestacy. The will named Martha Lewandowski as executrix.

For the 45 years prior to his death Joe Velk lived in the lower flat of the bungalow he built on South 33rd street in Milwaukee. He was retired in March, 1955, from the Harley-Davidson Motor Company where he was a set-up man on an automatic screw machine. He was the holder of a patent on a device known as the 'Velk Drive,' which he briefly manufactured and marketed.

In 1954, Joe Velk underwent surgery for a hernia. In 1964, he was hospitalized because of severe headaches, at which time Dr. William L. Deardorff diagnosed his condition as arteriocerebral vascular disease.

In September, 1964, Dr. Piero Gasparri examined Joe Velk and found him to be suffering from arteriosclerotic heart disease. On January 15, 1970, Dr. Gasparri confirmed the diagnosis after examining Joe Velk and also found that Joe Velk was suffering from ankle edema and bronchial congestion.

On October 15, 1965, Joe Velk's younger sister, Martha Lewandowski, born in 1900, moved into Joe Velk's home on South 33rd street after Joe Velk had invited her to move in. Martha prepared meals, cleaned the flat and performed Joe Velk's business tasks at the direction of Joe Velk. Martha was not paid for her services. Martha Lewandowski had a third grade education, was a widow, and had a monthly income of $151.35 ($90.35 from social security and $61 from a pension). Martha lived with Joe Velk until he died.

At the time of his death Joe Velk left an estate slightly in excess of $100,000. It consisted of the following: $27,295.14 in savings accounts; bungalow on South 33rd street, Milwaukee, valued at $20,500; a four-flat unit on North 30th street valued at $14,500; and rental property, with stores and an apartment on Pulaski avenue, Cudahy, valued at $56,000 with a mortgage of $13,706.76. This property had a gross income of $7,860 per year.

Martha Lewandowski, named in the will as executrix, petitioned for admission of the will to probate. Leonard and Harry Velk, and the five children of Clara Velk Rozanski, objected to the admission of the will to probate.

After a six day trial was held on June 8, 9, 10, 11, 30 and July 11, 1970, the county court of Milwaukee county held that the will had been properly executed and that the testator had testamentary capacity and was not unduly influenced. The court then admitted the will to probate.

The objectors appeal.

Further facts will be stated in the opinion.

Ben Lewis, Milwaukee, for Leonard and Harry Velk.

Walther, Halling & Commey, Milwaukee, for John, Margaret, James and Elizabeth Rozanski and Barbara Wahlen; David L. Walther and F. M. Van Hecke, Milwaukee, of counsel.

Mark M. Camp, Wauwatosa, for respondents.

BEILFUSS, Justice.

The issue is whether the two conclusive findings of the trial court, namely, that the testator did not lack testamentary capacity and that the will was not the result of undue influence are against the great weight and clear preponderance of the evidence. The objectors claim that a presumption that the testator lacked testamentary capacity arises from the facts and that this presumption has not been rebutted or overcome; they also claim a fiduciary relationship existed between the testator and Martha Lewandowski which gave rise to an inference of undue influence.

The objectors contend that Joe Velk lacked testamentary capacity on March 6, 1970, because he was suffering from arteriosclerotic cerebral vascular disease. Objectors base this contention on the testimony of Dr. Deardorff, who first diagnosed Joe Velk's condition is August of 1964, when Joe Velk was suffering from intermittent confusion, loss of memory and persistent headaches. He examined Joe Velk again in October and December of 1964, but did not see him thereafter. Dr. Deardorff testified that Joe Velk's condition could deteriorate over the next few years and that deterioration was probable but not certain.

However, this court has ruled that the test is whether the testator has testamentary capacity at the time of making his will, even in situations where the testator has suffered periods of incapacity and is suffering from common infirmities of old age, including arteriosclerosis. Estate of Phillips (1961), 15 Wis.2d 226, 112 N.W.2d 591.

The proponents of the will introduced other testimony that demonstrated that Joe Velk possessed testamentary capacity at the time of executing his will. This evidence supports the trial court's finding of testamentary capacity and overcame a presumption to the contrary if the evidence was sufficient to raise such presumption.

Dr. Piero Gasparri, who had examined testator in September, 1964, and also in 1967, examined testator on January 15 and February 25, 1970. Aside from Joe Velk's medical problems, Dr. Gasparri found that Joe Velk was well oriented, alert and in full possession of his faculties.

Dr. Chris Christopher examined Joe Velk at home on March 15 and March 24, 1970. He also saw him daily from March 29 through April 3, 1970, the day before testator's death. Dr. Christopher found Joe Velk to be well oriented, alert and free from mental difficulties.

On March 6, 1970, when testator's will was executed, Attorney Kenneth Berger, who drafted Joe Velk's will, believed Joe Velk had testamentary capacity. Berger testified:

'I am aware of the fact that it is possible for a person to have a lucid interval and be not competent at other times but, in my conversation with Joe Velk on that day, he knew where his property was, he knew who his children were, he knew almost to the penny the amount of the mortgage that remained on the Pulaski Street property, and we discussed between ourselves the wisdom of whether or not he should dispose of this, discharge that mortgage and clear up that debt because I pointed out to him that what he was paying in the way of interest and what he was earning in the way of interest was substantially the same, and he probably would be better off if he had it free of debt. And one of the reasons why this will contains the language that it does is because he said we should think about that; we better put that in the will.'

Objectors advance many facts that in themselves might support an inference that Joe Velk lacked testamentary capacity at some prior time, but none of those facts related to the period of time directly before, during or after the time that Joe Velk executed his will. The testimony of Dr. Gasparri, Dr. Christopher, and that of Attorney Berger readily supports the finding that Joe Velk had testamentary capacity on March 6, 1970. It is necessary only that the testator have capacity at that time. Estate of Phillips, supra; Estate of O'Loughlin (1971), 50 Wis.2d 143, 183 N.W.2d 133; Estate of Fuller (1957), 275 Wis. 1, 81 N.W.2d 64.

Attorney Berger, as cited above from the record, concluded that Joe Velk understood the nature, the extent, and the state of affairs of his property. They talked for over an hour about the will. These facts fulfill the basic elements of the testamentary capacity test. Estate of O'Loughlin, supra, 50 Wis.2d at page 146, 183 N.W.2d 133; Will of Wicker (1961), 15 Wis.2d 86, 112 N.W.2d 137.

The trial court's finding that Joe Velk had testamentary capacity on March 6, 1970, is not against the great weight and clear preponderance of the evidence and must be affirmed. In fact, the evidence advanced by the proponents of the will positively demonstrates that Joe Velk had testamentary capacity on March 6, 1970. The presumption of testamentary incapacity was never raised and therefore the proponents of the will did not have to rebut any such presumption.

The trial court found that Joe Velk was not susceptible to undue influence. The court also found that neither Martha nor Gerry Lewandowski were disposed to exercise undue influence over Joe Velk, and that no coveted result, 'whatever that may have been, obviously was not obtained.'

The finding by the trial court that no undue influence was exercised in the execution of a will, will be sustained by this court unless the finding is against the great weight and...