ELDER LAW: Connecticut Appellate Court addresses the testamentary capacity to make a will

In an opinion officially released on June 5, 2012, The CT Appellate Court states in part:

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The following facts and procedural history are relevant to the present appeal. The decedent died on July 20, 2006. She was survived by three children: Aleta Deroy, Jeanne Baron and Glen Baron. Two documents were submitted to the Probate Court purporting to be the last will and testament of the decedent. The first will, dated February 12, 2002, devised the entirety of the decedent’s estate, including the decedent’s interest in an eighty-six acre farm located at 2247 Glasgo Road in the town of Griswold, to Deroy and Glen Baron in equal shares. The second will, dated July 3, 2002, devised the decedent’s interest in the farm to Jeanne Baron and provided that the residue and remainder of her estate should be distributed equally to each child. 2 Deroy and Glen Baron contested the admission of the second will, arguing, inter alia, that the decedent lacked testamentary capacity on July 3, 2002. The Probate Court disagreed and, accordingly, admitted the second will as the last will and testament of the decedent. 3 Deroy and Glen Baron filed separate appeals from that decision to the trial court.

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The standard for testamentary capacity is well established. ‘‘To make a valid will, the testatrix must have had mind and memory sound enough to know and understand the business upon which she was engaged, that of the execution of a will, at the very time she executed it.’’ (Internal quotation marks omitted.) Sanzo’s Appeal from Probate, 133 Conn. App. 42, 50, 35 A.3d 302 (2012); see also Atchison v. Lewis, 131 Conn. 218, 219-20, 38 A.2d 673 (1944). In Stanton v. Grigley, 177 Conn. 558, 418 A.2d 923 (1979), our Supreme Court stated: ‘‘The burden of proof in disputes over testamentary capacity is on the party claiming under the will. . . . While there is a presumption of sanity in the performance of legal acts, the party that presents a will still bears the burden of going forward with his proof, and only then does the burden shift to the opponents to prove incapacity.’‘(Citations omitted.) Id., 564.

It is equally clear that an individual may possess the mental capacity necessary to make a will although incapable of transacting business generally. See Turner’s Appeal, 72 Conn. 305, 317, 44 A. 310 (1899) (’‘Some courts have held the mental ability to execute a valid deed or contract to be the proper measure of testamentary capacity. . . . Others, that the possession of sufficient mind and memory for the transaction of ordinary business is the true test of capacity to make a valid will. . . . In this State one may make a valid will though mentally incapable of transacting business generally.’’ [Citations omitted.]); see also 95 C.J.S., Wills § 7 (2011) (’‘A will is not a contract. In evaluating mental capacity, the courts apply different standards for contracts and for testamentary instruments. The minimum level of mental capacity required to make a will is less thanthat necessary to make a contract or a deed . . . . Likewise, less mental capacity is required for the testatorto make a will than to carry on business transactions generally, or ordinary business affairs. Thus, the ability to transact business is not a true test of testamentary capacity; the ability to transact complicated or important business, or even ordinary business, is not the legal standard of testamentary capacity. A person may execute a valid will, even if he or she is not competent to transact ordinary, everyday affairs.’‘); 79 Am. Jur. 2d, Wills § 63 (2002) (’‘The law recognizes degrees of mental unsoundness, and not every degree of mental unsoundness or mental weakness is sufficient to destroy testamentary capacity. Absolute soundness of mind and memory in every respect is not essential to testamentary capacity. There is no particular degree of mental acumen which may be set up to serve as a standard for testamentary capacity. Testamentary capacity is not the same as the ability to transact ordinary business, or the capacity to execute a deed or contract.’‘).

In the present case, the trial court’s conclusion that the decedent was ‘‘incompetent’’ on July 3, 2002, was premised entirely on Tolsdorf’s conclusion that the decedent was unable ‘’ ‘to make fully informed, thoughtful judgments regarding complex financial issues’ ‘’ and on Tolsdorf’s belief that the decedent needed a conservator to manage her affairs. While the standard applied by the trial court was not explicitly stated in its decision, the court’s exclusive recitation of and reliance on Tolsdorf’s conclusions demonstrate that the court applied an incorrect standard to the question of testamentary capacity, namely, a standard that requires a testator to be able to comprehend ‘’ ‘complex’ ‘’ financial transactions. This standard is inconsistent with the requirements for testamentary capacity set forth by our Supreme Court. See Turner’s Appeal, supra, 72 Conn. 317.

For more information on the case discussed above see http://www.jud.ct.gov/external/supapp/Cases/AROap/AP136/136AP380