Weihe's Estate, In re

• Decision Date: 02 November 1972
• Docket Number: No. 71--593,71--593
• Citation: 268 So.2d 446
• Parties: In re Estate of John F. WEIHE, Deceased.
• Court: Florida District Court of Appeals

Page 446

268 So.2d 446

In re Estate of John F. WEIHE, Deceased.

No. 71--593.

District Court of Appeal of Florida, Fourth District.

Nov. 2, 1972.

Sam D. Phillips, Jr., of Phillips & Babbitt, West Palm Beach, for Atlantic National Bank of West Palm Beach, as Executor of the Estate of John F. Weihe, deceased, Palm Beach County Children's Home, Palm Glades Girl Scout Council, Tuberculosis and Respiratory Disease Association of Southeast Florida, Inc., Salvation Army of West Palm Beach, Florida Gulfstream Council of Boy Scouts of America and Father Flanagan's Boys Town.

Joseph D. Farish, Jr., of Farish & Farish, West Palm Beach, and Ray C. Osborne, Boca Raton, for appellees Roy W. Weihe and Beatrice Chiniquy.

WALDEN, Judge.

The County Judges' Court revoked the probate of a will based upon its findings that the decedent lacked testamentary capacity. We reverse.

Following familiar pattern, it will be our purpose to state the critical and dispositive question and outline the salient facts, the law appertaining, our reasoning and conclusions, and finally our appellate decision.

Did John F. Weihe possess testamentary capacity at the time he executed his will on September 24, 1965? (The other appellate questions are without merit and do not require discussion.)

Weihe died in 1968 at the age of 85 years. His will was admitted to probate in March 1970. He left his estate predominantly to six charities. These six charities, appellants here, moved for distribution of the estate. The probate court denied their petition and granted an extension of time for filing a petition for revocation of the will.

Weihe's two children, Roy Weihe and Beatrice Chiniquy, from whom he had been estranged since he and his wife were divorced in 1929, filed a petition to revoke the will. The petition was granted on the grounds that decedent lacked testamentary capacity at the time the will was executed in 1965. The charities appeal the order setting aside Weihe's will.

The decedent imbibed alcoholic beverages for a number of years and had arteriosclerosis at the time of his death. In 1966, after the will was executed, he suffered from a stroke. The evidence showed Weihe had certain peculiar traits; for instance, he dressed sloppily, kept a messy apartment and was known to urinate in his yard. His children questioned his testamentary capacity based on these factors.

All that need be proved to establish sound mind is that the testator, At the time he executed the will, knew the objects of his bounty, understood, in a general way, the nature and extent of his property and had a general understanding of the practical effect of the will as executed. Hamilton v. Morgan, 1927, 93 Fla. 311, 112 So. 80. A testator may still have testamentary capacity to execute a valid will even though he may frequently be intoxicated, use narcotics, have an enfeebled mind, failing memory, vacillating judgment. In re Estate of Dunson, Fla.App.1962, 141 So.2d 601; In re Estate of Bailey, Fla.App.1960, 122 So.2d 243. A will may even be executed by one who is insane or exhibits 'queer conduct,' so long as it is done during a lucid interval. In re Carnegie's Estate, 1943, 153 Fla. 7, 13 So.2d 299. The important requirement is that the testator possess the necessary qualities for testamentary capacity At the time of the execution of the will. Hamilton v. Morgan, supra.

Appellate courts will not interfere with probate court findings of testamentary capacity unless there is an absence of substantial competent evidence to support its finding or unless it appears that the probate court misapprehended the legal effect of the evidence as a whole. In re Estate of Coles, Fla.App.1968, 205 So.2d 554. In this instance, we believe the probate court did misapprehend the legal effect of the evidence as a whole and must therefore be reversed. For an instance where the probate judge correctly denied probate and properly interpreted the legal effect of the evidence as a whole, see In re Estate of Zimmerman, Fla.1956, 84 So.2d 560.

The burden of proving lack of testamentary capacity is on the person seeking revocation of probate. In re Estate of Witt, Fla.App.1962, 139 So.2d 904. We have examined with care the voluminous record in this case. Numerous witnesses testified presenting testimony both in support of and against Weihe's capacities. Although the evidence was conflicting, we do not think it sufficient, as a whole, to prove lack of testamentary capacity.

To simplify matters, we will first discuss testimony supporting decedent's testamentary capacity. Dr. O. L. Kelley, the decedent's family physician, who had known and treated the decedent since 1963 and frequently made house calls on him, was deposed. In 1966, at decedent's request, some four months after the will in question was executed, Dr. Kelley examined him to determine his capacity to sign a legal document. Dr. Kelley opined at the time he examined the decedent in 1966 Weihe was '. . . in complete contact with his surroundings, and mentally capable of signing legal documents, including a will.' Dr. Kelley also testified regarding decedent's arteriosclerosis; he first made comment about it in his medical records in 1966 and considered it 'average' for a man of Weihe's age. Dr. Kelley felt that at all the times he saw decedent between 1963 and 1966, prior to his stroke, he was capable of 'carrying on his usual business affairs, including drafting a will.'

Two attorneys who had had dealings with Weihe testified. John Bollinger, the attorney who drafted the will in question and spent some twenty-two and one-half hours in conference with decedent, testified. Bollinger, an experienced attorney, had ample opportunity to observe Weihe's speech and mannerisms around the time the will was executed and, based on his experience with decedent and observances of him, Bollinger thought Weihe had sufficient mental capacity to execute a will. Weihe first approached Bollinger concerning the will during the second or third week of August 1965. He visited Bollinger's office on five separate occasions during the last few weeks of August and beginning of September 1965. Bollinger delivered the will to Weihe's home on September 21, 1965. His legal secretary, who was present whenever Weihe came to the office and who went with her employer to Weihe's house on September 21, 1965, also testified that Weihe was competent.

Charles Nugent, another lawyer, reviewed and discussed the will with Weihe on the date he executed it, September 24, 1965. He had no doubt that Weihe clearly understood the terms of the will and knew what he was doing when he executed it. Nugent discussed with Weihe the fact that he was specifically disinheriting his children. He stated that On the date the will was executed there was no question in his mind as to Weihe's testamentary capacity.

Hugh Proctor, Weihe's friend and a witness to the will, testified. He saw decedent at least weekly during the period the will was executed. Proctor stated that Weihe had not been drinking the morning he signed the will, that he spoke distinctly and there was nothing unusual about his appearance.

Weihe's cousin also testified, stating Weihe seemed competent. Weihe's stepdaughter by his second marriage, who saw him 'at least once a week' and ran many errands for him, thought Weihe competent to make a will in 1965.

Now, we will discuss the testimony supporting decedent's incapacity. Several medical witnesses testified in an attempt to overcome the presumption of Weihe's capacity. Dr. D. E. Patterson, who treated decedent from 1955 to 1957, almost ten years prior to the execution of the will, observed that when he last saw Weihe in 1957 he was sometimes irrational and suffered from loss of memory. Patterson had not treated Weihe after 1957 and did not examine him around the time this will was executed in 1965...