Court Rules Threshold For Testamentary Capacity Is “Very Low”
On March 28, 1994, Helen Weste executed a will that made three charitable bequests; left her personal property to one niece; and bequeathed the remainder of her estate in different percentages to a sister and eight nieces and nephews, including Joanne Halkovich. She named her ex-husband John Weste executor.
In 1995, Helen left the apartment she had shared with Weste and moved back into her family’s home. John Brek lived in an apartment across the street and befriended Helen. He performed odd jobs around her home and drove her on errands.
Around 2001, Helen’s health began failing. Helen’s nephew and two nieces testified Helen did not recognize them on a few occasions, though she recognized her sister. A niece also testified Helen’s home was not as neat as usual, but acknowledged Helen was still coherent and stayed on topic when conversing.
Around the same time, Helen contacted an attorney and scheduled an appointment for February 15, 2002. Brek drove her to the appointment but denied knowing the reason for the meeting and had no prior association with the attorney. During the meeting, Helen gave the attorney a handwritten document which he testified was essentially a “holographic will.” He denied anyone else was in the office when he interviewed Helen and had no doubt regarding her testamentary capacity.
Helen executed the will on March 14, 2002. In it she made a bequest to one of the religious institutions referred to in the 1994 will, made a specific bequest to one of her nieces, bequeathed her personal property to another niece, together with 10 percent of her residual estate, and to Brek left the family home and 90 percent of her residual estate. She also named Brek executor. At the same time, she executed a living will that named Brek her medical proxy. Helen gave Brek copies of the documents and told him she did not want to enter a nursing home and asked him to care for her.
Due to their concerns regarding Helen’s health, the family contacted Weste as he was her agent pursuant to a written power of attorney Helen executed at the time of the 1994 will. On April 5, 2012, Weste had Helen admitted involuntarily to a hospital. Though Brek witnessed Helen’s removal from her home, he never advised anyone he held medical power of attorney, or that Helen wished to remain in his care. He also did not tell anyone of the 2002 will.
In the hospital Helen was diagnosed with dementia and found to be functioning well below normal. Upon discharge from the hospital, her family placed her in an assisted living facility where Helen was under twenty-four-hours-a-day supervision due to memory impairment and risk of wandering.
Helen died March 6, 2010. The 1994 will was admitted to probate on March 30, 2010, and Halkovich was appointed administratrix cum testamento annexo. Brek waited until October 2011 to offer the 2002 will for probate. The Appellate Court noted Brek filed three months past the allowable timeframe, but none objected and the trial court did not address the issue.
At trial, each side produced expert witnesses with differing opinions regarding Helen’s testamentary capacity at the time of the 2002 will. Halkovich’s expert witness testified Helen lacked two of the three criteria required for capacity. Specifically, she did not “understand the natural recipients” of her assets, or reasonably appreciate “the extent of [those] assets.” Brek’s expert witness opined Helen possessed testamentary capacity when she executed the 2002 will.
The trial court concluded the evidence did not clearly and convincingly establish Helen lacked testamentary capacity. It placed the most weight on testimony from the attorney and those who met with her prior to and subsequent to the execution of the will. Further, the court found, “If Helen Weste had the capacity to live alone and care for herself, she had the capacity to make a [w]ill.”
The trial court noted “the threshold for testamentary capacity is very low” and “one need only possess a very low degree of mental capacity to execute a will, even less than is needed to enter into a contract.” Proof of her capacity according to the court was found in Helen’s ability to contact the attorney on two occasions and the fact she prepared “very specific” handwritten instructions for preparation of the 2002 will. He also noted Halkovich’s expert “conceded that a person with ‘moderate dementia could have testamentary capacity,’” and offered no opinion on whether Helen had testamentary capacity when she wrote the instructions.
The trial court also rejected any claim Brek asserted “undue influence” upon Helen, noting Brek was not present when Helen met with the attorney, Helen made dispositions to a charity and relatives in the 2002 will in addition to the bequest to Brek, and Brek waited many months after Helen’s death to present the will.
Halkovich appealed. The Appellate Court affirmed giving deference and “great weight” to the trial court’s factual findings and legal conclusions. Additionally, it opined the presumption is that a testator is of sound mind when executing a will, and the burden is on the contestant of a will to show otherwise by clear and convincing evidence. Testamentary capacity is measured on the date of execution. It requires a low degree of mental capacity and rests on “whether the testator can comprehend the property he is about to dispose of; the natural objects of his bounty; the meaning of the business in which he is engaged; the relation of each of the factors to the others, and the distribution that is made by the will.”
Although Halkovich also argued there were “suspicious circumstances” surrounding the drafting of the will, the Appellate Court noted, such facts do not alter the burden of proof or change the legal standards relating to testamentary capacity. The Appellate Court also rejected Halkovich’s claim the trial court applied the wrong legal standard and noted the proofs for capacity: Helen made the appointment with the attorney, prepared a new will, and the attorney, who at the time of trial had 39 years of experience, did not question her capacity. The panel also rejected Halkovich’s argument that the 2002 will was the product of undue influence finding all evidence offered by Halkovich to support the allegation was “wholly-circumstantial suppositions.”