COURT OF APPEALS DECISION DATED AND RELEASED October 26, 1995 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-1212
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
IN THE MATTER OF THE
ESTATE OF
FLORENCE M. MACCALL,
DECEASED:
DANIEL DONEHUE and
REBECCA SIRECI,
Proponents-Appellants,
v.
SUE C. SCHMOLDT,
Objector-Respondent.
APPEAL from an order of
the circuit court for Rock County:
EDWIN C. DAHLBERG, Judge. Affirmed.
Before Eich, C.J.,
Dykman and Sundby, JJ.
PER CURIAM. Daniel Donehue and Rebecca Sireci appeal
from an order denying admission of a will executed by Florence M. MacCall. The issue is whether the trial court's
finding that MacCall lacked testamentary capacity is clearly erroneous. We conclude it is not. We affirm.
MacCall died on February
17, 1993. The appellants offered for
probate a will she executed on January 27, 1993, in her hospital room. Sue C. Schmoldt, named beneficiary in an earlier
will, objected. The trial court concluded
that MacCall lacked testamentary capacity.
To have testamentary
capacity, a testator must have had the mental capacity to comprehend the
nature, extent and state of affairs of her property. Estate of Sorensen, 87 Wis.2d 339,
344, 274 N.W.2d 694, 696 (1979). She
would have to be aware of those who were or might be the natural objects of her
bounty. Id. She would also have to understand the scope
and general effect of her will. Id. Testamentary capacity is determined as of
the time of the making of the will. Id.
at 345, 274 N.W.2d at 697. The
objectors must prove lack of testamentary capacity by clear, convincing and
satisfactory evidence. Id.
at 344, 274 N.W.2d at 696.
The appellants argue
that the trial court misallocated the burden of proof. They rely on this statement in the trial
court's memorandum decision: "In
this case there is no evidence that the testatrix at the time of the drafting
and execution of the will was aware of the extent of her estate." This argument might have merit if the trial
court had said nothing else. However,
it is clear from the trial court's discussion of relevant law and the evidence
before it that the trial court properly applied the burden of proof.
The appellants argue
that the trial court's finding of lack of capacity is contrary to the
evidence. We affirm the finding unless
it is clearly erroneous, and we are to give due regard to the opportunity of
the trial court to judge the credibility of witnesses. Section 805.17(2), Stats. There was
ample evidence in support of the trial court's finding. Most of the testimony that MacCall had
testamentary capacity came from interested parties. The trial court noted that most of the testimony from
disinterested observers was that MacCall was confused at times before and after
the execution of the will. There was
testimony and medical records showing that hospital staff usually found MacCall
confused or disoriented. Therefore, we
conclude that the finding of lack of capacity was not clearly erroneous.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.