01-1132 In Re: the Estate of Nicholas Persha v. Abram

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Further, the court properly ruled that defendant, with whom decedent had lived for many years, had failed to rebut the fact of decedent’s apparent on-going incapacity by showing that decedent had a “lucid interval” when he signed the will.

“The court then recounted the evidence of the several doctors, including Dr. Davis and Dr. Hower, and the several nurses caring for Persha that consistently showed he continued to be confused and disoriented on January 26-not oriented to time and place, not able to carry on a conversation, and not understanding what was going on. …

“Although the court erred in stating that Abram had the burden of proving a lucid interval (because the burden of proving lack of testamentary capacity, and, thus, lack of a lucid interval, remained with Gittel), we conclude the court’s analysis of the evidence of a lucid interval was not affected by that error. …

“In summary, we agree that the court erroneously stated that the burden shifted to Abram to rebut, through proof of a lucid interval, the presumption that Persha’s mental incapacity continued at the time of the execution of the will. However, we conclude this misunderstanding of the law did not affect the court’s analysis of the evidence and did not result in a deviation from the correct burden and standard of proof, which the court applied in this case: the objector must prove lack of testamentary capacity by clear, convincing, and satisfactory evidence. Accepting the court’s credibility evaluations as we are bound to do, we conclude the court’s determination that Gittel proved lack of testamentary capacity by clear, convincing, and satisfactory evidence is not clearly erroneous.”

Judgment affirmed, but we reverse the trial court’s order that the estate reimburse Abram’s attorneys’ fees and costs and remand for resolution of this issue.

Dist IV, Dodge County, Storck, J., Vergeront, P.J.

Attorneys:

For Appellant: Charles H. Barr, Milwaukee; Thomas C. Wilkoski, Milwaukee

For Respondent: Michael R. Bauer, Madison; Christopher J. Blythe, Madison