DeThorne v. Gibson

471 N.W.2d 780, 163 Wis. 2d 387, 1991 Wisc. App. LEXIS 788

• Court: Court of Appeals of Wisconsin
• Decided: May 16, 1991
• Docket: No. 90-0936
• Status: Published

Opinions

DYKMAN, J.

Marilyn DeThorne appeals a trial court order refusing to admit the will of A. Robert DeThorne to probate. The court found that the will was improperly executed because a third party assisted Robert in signing the will. We affirm.

I. BACKGROUND

Robert's first marriage was to Eugenia Patrick. They had two daughters, Kitty and Lisa. Robert divorced Eugenia in 1961. In 1981, Robert executed a will leaving his entire estate to Kitty and Lisa.

In April 1986, Robert met Marilyn and subsequently took up residence at her home. The two visited Kitty in California and Lisa in Oklahoma. In October 1986, Marilyn executed a will leaving Robert a life estate in her house, lake cottage and car. In December 1988, Robert was diagnosed as having hepatoma, a form of cancer. Robert and Marilyn were married on December 31,1988. Prior to the marriage, they signed a pre-nuptial agreement. From February to April 1989, Robert underwent chemotherapy and radiation treatment. Robert was discharged on May 5, and returned to Marilyn's home, where he did not leave until he was rehospitalized on May 15.

On May 14, Marilyn called her attorney, James Bakken, and requested that he draft a will for Robert, leaving everything to her. Bakken prepared the will and the next day, May 15, came to Marilyn's house. Marilyn had arranged for her friend, Diana Smith, to be present as a witness. Robert was in bed and weak. Marilyn, Bak-ken and Smith went into Robert's room. Bakken informed Robert that the will left everything to Marilyn. Bakken then placed the will on a magazine and handed it and a pen to Robert. Robert had difficulty grasping the pen and it repeatedly slipped out of his hand. Smith grasped Robert's wrist and the pen and assisted Robert in signing his name. That night, Robert was rehospital-ized. He died May 23, 1989.

Kitty and Lisa objected to the probate of Robert's May 15 will, contending: (1) that it was improperly executed; (2) that it was procured by undue influence; and (3) that Robert lacked testamentary capacity. After a trial, the court entered an order that the will not be admitted to probate because it was improperly executed. The trial court also found that Robert had testamentary capacity at the time the will was signed and that the will was not the product of undue influence. Marilyn appeals and Kitty and Lisa cross-appeal.

II. STANDARD OF REVIEW

The degree to which Smith assisted Robert in signing the will is a question of fact. We will uphold a trial court's factual findings unless clearly erroneous. Sec. 805.17(2), Stats.; Noll v. Dimiceli's, Inc., 115 Wis. 2d 641, 643, 340 N.W.2d 575, 577 (Ct. App. 1983). Whether, given those facts, the will was improperly executed is a question of law which we decide without deference to the trial court's decision. Ball v. District No. 4, Area Bd. of Vocational, Technical & Adult Educ., 117 Wis. 2d 529, 537, 345 N.W.2d 389, 394 (1984).

III. EXECUTION OF THE WILL

Marilyn contends the trial court's factual findings that Smith influenced Robert's signature are clearly erroneous. The trial court found:

Robert. . . appeared to attempt to sign the will, but the pen slipped from his hand at least 5 times. Diane Smith then held Robert's hand or wrist to steady it, and he signed the will. The signature was in part produced by the influence of Diane Smith and in part by the efforts of Robert. It is not possible to ascertain the relative contribution of each. Nor is it possible to determine precisely when the influence of Diane Smith began, but it is clear that it was before Robert had completed signing his first name.

Robert was not physically able to sign the will without the assistance of Diane Smith. At no time did Robert ever ask Diane Smith or anyone else to assist him to sign the will.

At trial, Bakken testified that Robert's grip was "very weak" and, although he couldn't recollect exactly how many times the pen slipped, he observed that "it could easily have been a half a dozen times." He stated that Smith "was holding on so that she could grip the pen."

Smith testified that, recognizing Robert was having difficulty, she said "I'll help you" and supported his hand and wrist while Robert signed the will. Marilyn acknowledged her deposition testimony where she stated, "Diana Smith helped [Robert] guide the pen."

A documents examiner testified that Robert's signature was "written with some assistance from another writer.” She based this conclusion in part on the fact that, in prior signatures, the "T" in DeThorne was shaped with a loop but in the signature on the will the "T" was crossed. See Appendix A. She also noted the difference in the size of some of the letters in past signatures to those in the signature in the will.

The credibility of a witness is a matter peculiarly within the province of the trier of fact. In re A.M.C., 144 Wis. 2d 621, 636, 424 N.W.2d 707, 713 (1988). Although a second expert testified that it was impossible to determine if the will signature was assisted, the trial court's factual findings will not be upset "where more than one reasonable inference can be drawn from credible evidence." In re Dejmal, 95 Wis. 2d 141, 151, 289 N.W.2d 813, 818 (1980) (citations omitted). We conclude that the trial court's factual findings are not clearly erroneous.

Marilyn contends that the will was properly executed. The formal requirements for valid execution of a will are set out in sec. 853.03, Stats., which provides:

Every will in order to be validly executed must be in writing and executed with the following formalities:

(1) It must be signed (a) by the testator, or (b) in the testator's name by one of the witnesses or some other person at the testator's express direction and in his presence, such a proxy signing either to take place or to be acknowledged by the testator in the presence of the witnesses; and

(2) It must be signed by 2 or more witnesses in the presence of the testator and in the presence of each other.

Relying on Estate of Komarr, 46 Wis. 2d 230, 175 N.W.2d 473 (1970), cert. denied, 401 U.S. 909 (1971), the trial court found that the will was improperly executed. In Komarr, the testatrix was physically unable to write her signature. Id. at 236, 175 N.W.2d at 476. To assist her, a third party held her hand. Id. at 237, 175 N.W.2d at 476-77.¹ The testatrix had not requested assistance. Id. at 236, 175 N.W.2d at 476.

Interpreting the predecessor statute to sec. 853.03, Stats., the court stated:

We agree with the trial court that, despite the inconsistent testimony of Joseph and Benedetta Balistrieri, there is sufficient evidence to establish compliance with the rule laid down in Will of Wilcox, [215 Wis. 341, 254 N.W. 529 (1934)²]. However, it is our considered opinion that such rule allows too great an opportunity for fraud and should thus be overruled.

We think that where one fails or is unable to in any manner expressly authorize another to sign for him, the statute's alternative requisite is not met by simply taking the testator's hand, as an inanimate object, and making his mark or signature. Where one does not expressly authorize another to assist him, such assistant should not be allowed to claim that the use of the testator's hand was voluntary.

Komarr, 46 Wis. 2d at 238, 175 N.W.2d at 477.

Marilyn concedes that, during the execution of the will, Robert did not expressly request assistance to sign the document. She maintains, however, that the trial court went too far in determining that "virtually any influence" is barred by Komarr.

We conclude the extent of the Smith's assistance offends Komarr. We therefore do not reach the question of whether any unrequested physical assistance in the signing or marking of a will is impermissible.

The trial court found that the signature was a product of the influence of both Robert and Smith. The trial court could not ascertain the degree to which each contributed to the signature. The rule in Komarr was adopted because of the "obvious opportunity" for fraud where a testator is physically helpless. Id., 46 Wis. 2d at 238, 175 N.W.2d at 477. Where the actual signature of the testatrix is physically influenced by a third party, the danger of fraud is present. It is not alleviated by the fact that Robert may, in some degree, have also influenced the signature. We conclude the trial court properly refused to admit Robert's May 15 will to probate.³

By the Court. — Order affirmed.

Appendix A

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Wisconsin, this 15th day of May, 1989.

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1 In Komarr, the testimony was contradictory whether the testatrix had held the pen and the third party held her hand or the third party held the pen and the testatrix put her hand on his. Id. at 237, 175 N.W.2d at 476-77.

2 In Will of Wilcox, the testatrix, physically unable to sign a will, touched a pen with which a third party signed the will. Id. at 342-43, 245 N.W. at 529. The court found that the touching of the pen "was a sufficient participation in the act" to satisfy the statute. Id. at 343, 245 N.W. at 529.

3 Because we conclude the trial court correctly found that the will was improperly executed, we do not reach the issue, raised on cross-appeal, of whether the trial court erred in finding that the will was not procured by undue influence.