Wicker's Will, In re

• Decision Date: 28 November 1961
• Parties: In re WILL of Lydia Mueller WICKER, Deceased. Tom T. WICKER, Appellant, v. Harold GUNDELACH et al., co-executors, Respondents.
• Court: Wisconsin Supreme Court

Page 137

112 N.W.2d 137

15 Wis.2d 86

In re WILL of Lydia Mueller WICKER, Deceased.

Tom T. WICKER, Appellant, v. Harold GUNDELACH et al., co-executors, Respondents.

Supreme Court of Wisconsin.

Nov. 28, 1961.

A proceeding to probate a will dated June 15, 1959, executed by Lydia Mueller Wicker. By her will, the testator bequeathed $5 to her husband Tom T. Wicker, $100 to her brother, $150 to a friend, $150 to each of two nephews, $50 to another nephew, and $100 to each of five grandnephews, and the rest of her estate to another nephew; all persons being specifically named and their relationship stated. She appointed two of her nephews co-executors. Tom T. Wicker, the husband, filed objections to the probate of the will on the ground that at the time of the execution of the will, Mrs. Wicker was not of sound mind and did not have sufficient mental capacity to make a will. After a hearing, the trial court found Mrs. Wicker had testamentary capacity and admitted the will to probate. Tom T. Wicker appeals.

Tom and Lydia Wicker were married in May, 1949, which was the second marriage for each. There were no children of any of the marriages. At the time of the marriage, Lydia Wicker was approximately 71 years of age and Tom Wicker 67. On June 8, 1949, the month following their marriage, they executed individual wills making each other the beneficiary. After their marriage, thy lived in Mrs. Wicker's home in Colby, Wisconsin. On June 15, 1959, without the knowledge of her husband, Mrs. Wicker had an attorney prepare the will in issue, which she executed. On August 26, 1959, Tom Wicker left the home and moved to Stetsonville, Wisconsin, some 11 miles from Colby, and a few months later brought an action of replevin against Mrs. Wicker to recover tools, lumber, dishes, and other items. In March of 1960, the following spring, the authorities of Colby undertook to have Mrs. Wicker committed as an incompetent. Two doctors examined her and did not recommended commitment; the court found her not mentally infirm on April 18, 1960. However, a few months later, in June, two doctors, one of whom was the same doctor who had examined her two months previously, recommended her commitment to the Marathon county hospital. The court on June 17, 1960, found her mentally infirm and committed her. Within a few months, she died in the hospital.

During the last three or four years of their marriage, the serenity of their relationship was disturbed by many facts which are claimed to support the respective positions taken in this lawsuit.

Nikolay, Jensen & Scott, Abbotsford, for appellant.

Schmidt & Schmidt, Wausau, Gorman & Gorman, Wausau, of counsel, for respondents.

HALLOWS, Justice.

The test for testamentary capacity, as it is applied in Wisconsin, was originally taken from Delafield v. Parish (1862), 25 N.Y. 9. See Holden v. Meadows (1872), 31 Wis. 284. The rule has been stated in essentially the same form in many cases. The rule, as generally stated, is:

'The test is not whether the testator did the best or the wisest or the theoretically just thing in his will; but, Did he have sufficient active memory to collect in his mind and comprehend, without prompting, the condition of his property, his relations to his children and other persons who might properly be his beneficiaries, and the scope and bearing of his will, and to hold these things in his mind a sufficient length of time to perceive their obvious relations to each other, and be able to form some rational judgment in relation to them?'

In re Butler's Will (1901), 110 Wis. 70, at 78, 85 N.W. 678; Will of Washburn (1946), 248 Wis. 467, at 474, 22 N.W.2d 512; Will of Delmady (1947), 251 Wis. 98, 28 N.W. 301; Will of McLeish (1933), 209 Wis. 417, 245 N.W. 197; Will of Klagstad (1953), 264 Wis. 269, 58 N.W. 636; Estate of Cyborowski (1955), 271 Wis. 126, 72 N.W. 713; Will of Ganchoff (1960), 12 Wis.2d 503, 107 N.W.2d 474.

The appellant contends Mrs. Wicker lacked testamentary capacity because she was afflicted with senile dementia and was laboring under an insane delusion that her husband was stealing from her and such insane delusion materially affected the disposition of her property in the will. A testator may meet all the requirements of general testamentary capacity and yet be held to be incapacitated because of an insane delusion. ¹ In considering insane delusion, it is not necessary to diagnose the exact nature of the disease or incapability. It is sufficient to determine whether such an incapability did, in fact, exist and if so, did it prevent the testator from making a proper will. Will of McGovern, supra, note 1. While some courts have held if there is any evidence to support the testator's belief, however erroneous, such belief is not an insane delusion. This court has for many years held insane delusion may exist even though there was some evidence from which the testator might have formed his belief or judgment. Ballentine v. Proudfoot (1885), 62 Wis. 216, 22 N.W. 392. In the Estate of Bickner (1951), 259 Wis. 425, at page 433, 49 N.W. 404, 408, this court stated:

'In order to be an insane delusion the mistake must be one which is not based upon evidence; or at least without any evidence from which a sane man could draw the conclusion which forms the delusion. It is not merely a bias or prejudice. The justice or injustice of the will does not determine whether it is or is not the result of an insane delusion,'

quoting 1 Page, Wills (3d) ed., p. 295, sec. 144.

After reviewing the test applied in other jurisdictions, we said in Will of Riemer (1957), 2 Wis.2d 16, at page 21, 85 N.W.2d 804, 806:

'* * * the question before us is not whether there is any evidence on which Mrs. Riemer [the testatrix] could base her delusions, but rather whether there is any evidence from which a sane person could draw the conclusion which formed such delusions.'

But proving the testator had an insane delusion is not sufficient. It must be further proved that the will made was affected by such delusion. As stated in Will of Shanks (1920), 172 Wis. 621, at page 624, 179 N.W. 747, at page 748:

'It is not a question whether testator had general testamentary capacity, for many persons laboring under insane delusions may be competent to make a will (In re Will of Cole, 49 Wis. 179, 5 N.W. 346), but whether the insane delusion under which the testator suffered materially affected the will be made. In other words, is it reasonably certain that but for the insane delusion his wife could have received a materially larger devise? If that is reasonably certain, then mental incapacity is sufficiently shown to invalidate the will made.'

During the last four years of her marriage to Tom Wicker, Lydia Wicker became extremely hard of hearing and wore a hearing aid. She was active for a woman of her age, took care of her own affairs such as marketing, collecting rent, giving receipts therefor, ordering coal, writing checks, and visiting socially. She read newspapers and magazines and discussed their contents. The evidence is conflicting on just how forgetful she was and the condition of her personal appearance, but it is clear that when she appeared in public Mrs. Wicker was presentable. She maintained two bank accounts and a safety deposit box. One bank closed out her account because of difficulties with her, due, in part, to her hearing defect and the annoyance caused by her forgetfulness.

The evidence establishes she accused her husband on many occasions of having stolen or taken her hearing aid, glasses, keys, false teeth and social security checks. After Tom Wicker left the home, Mrs. Wicker no longer complained about losing such articles. Tom and Lydia had many arguments and on three occasions in 1958 and two in 1959 a law enforcement officer was called to the home because of fighting. The chief of police testified he was called about once a month. On one occasion, shortly before Mrs. Wicker changed her will, Dr. Koch, the health officer, was called to examine an injury to...