In Re Estate Of Romero

126 P.3d 228 (2005)

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Nature of the Case

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Facts

Ps contested probate of a formal will executed by the decedent. The will named the decedent's mother as the personal representative and his sister as the successor personal representative. It devised a gift of $500 to each of the decedent's children and left the remainder of his estate to his mother and sister in equal shares, with a provision that if either his mother or sister predeceased him, the remaining beneficiary would take the entire remainder. The decedent's mother predeceased him. P was left as the sole beneficiary of the residuary estate. Ps claimed that the decedent did not have the testamentary capacity to execute a will and that the will was the product of undue influence. Their alleged proof was the fact that the decedent suffered from mental illness and that he had been a protected person under a Veterans Administration (VA) guardianship over his financial affairs. Ps presented expert witness testimony from the physician who treated the decedent for schizophrenia. The physician was unable to connect P's mental issues with the execution of the will. The physician saw the decedent for only a few minutes on three occasions during the eighteen months prior to the signing of the will. The probate court discounted his testimony. The probate court credited the testimony of the attorney who prepared the will. The attorney testified that he met with the decedent on four separate occasions, including one visit to the decedent's home. The decedent expressed his desire to leave his entire estate to his mother and his sister because of his minimal contact with Ps and in return for all the love and support he had received from his mother and sister over the years. It was only upon his suggestion that the decedent made a small bequest to Ps to demonstrate that his exclusion of them as primary beneficiaries was intentional that he did so. The lawyer testified that he had 'no doubt in his mind' when the will was executed that the decedent fully understood the consequences of his action. The probate court found that Ps did not prove by a preponderance of the evidence that the decedent was not of sound mind when he executed his will. It held that the mental illness nor the mere existence of a VA guardianship was sufficient, by itself, to prove a lack of testamentary capacity. Ps appealed.