Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 17-PR-630
EMMA M. GOVAN, APPELLANT,
v.
JULIE EBNER BROWN, ET AL., APPELLEES.
Appeal from the Superior Court of the District of Columbia (LIT-12-14)
(Hon. Gerald I. Fisher, Trial Judge)
(Argued April 17, 2019 Decided May 28, 2020)
Johnny M. Howard for appellant.
Christopher G. Hoge, with whom Elena Iuga was on the brief, for appellee Julie Ebner Brown.
Robert E. Grant and James P. Lillis filed a statement in lieu of brief for appellee Holy Comforter St. Cyprian Roman Catholic School.
Before BLACKBURNE-RIGSBY, Chief Judge, MCLEESE, Associate Judge, and STEADMAN, Senior Judge.
BLACKBURNE-RIGSBY, Chief Judge: After an evidentiary hearing, Judge
Gerald Fisher denied appellant Emma M. Govan’s request to admit and enforce a
contested will executed by Emil Ebner on October 24, 2013 (the “2013 will”). The 2
trial court ruled that the 2013 will was invalid because Mr. Ebner lacked
testamentary capacity, specifically finding that Mr. Ebner “would not have been able
to understand the terms of the document without explanation to him, and no such
evidence was presented.” We disagree, and we use this opportunity to clarify the
standard for testamentary capacity.
A presumption exists in favor of testamentary capacity. See Morgan v.
Adams, 29 App. D.C. 198, 206 (D.C. Cir. 1907). However, a party may challenge
that presumption and invalidate a will by proving a lack of testamentary capacity.
See Brosnan v. Brosnan, 263 U.S. 345, 349-50 (1923). To prove a lack of
testamentary capacity, a party must show, by a preponderance of the evidence, that
a testator did not have sufficient memory and mind at the time of executing a will to
generally know (1) the property owned, (2) the intended beneficiaries of that
property, and (3) the nature of the instrument being executed. See Thompson v.
Smith, 103 F.2d 936, 943-44 (D.C. Cir. 1939). As we explain in this opinion, the
presumption in favor of testamentary capacity is not rebutted merely by the absence
of evidence that a testator understood the particular testamentary document at issue. 3
We conclude that appellee Julie Ebner Brown failed to present evidence
sufficient to rebut Mr. Ebner’s testamentary capacity, which is presumed. 1
Accordingly, we reverse the decision of the trial court, vacate its order denying
appellant’s request to admit the 2013 will to probate, and remand for further
proceedings consistent with this opinion.
I. Factual and Procedural Background
Mr. Ebner passed away on December 27, 2013, at ninety-three years old,
leading to a dispute over which testamentary document, distributing his three homes
and significant wealth, the court should enter into probate. Appellant Emma M.
Govan, Mr. Ebner’s neighbor, filed a complaint seeking to enforce a 2013 will, while
appellee Julie Ebner Brown, Mr. Ebner’s niece and appointed personal
representative, sought to enforce a will he executed on August 7, 2002, which was
subsequently amended by two codicils. The 2013 will deviated in two significant
respects from the previous testamentary documents. First, it replaced appellee Holy
Comforter St. Cyprian Roman Catholic School with Ms. Govan as the residual
1 We find no merit to appellant’s remaining contentions that the trial court erred in considering certain evidence regarding Mr. Ebner’s capacity, as well as its admission of the expert testimony of Dr. Robert Goldstein. We address these issues below. 4
legatee. 2 Second, it shifted the burden to pay estate taxes onto the beneficiaries,
where the August 2002 will and codicils had allocated specific funds to pay those
costs.
The trial court heard testimony concerning Mr. Ebner’s life that bore on his
mental capacity and the events leading up to, during, and following the preparation
and execution of the 2013 will. According to the testimony, which the trial court
credited, Mr. Ebner accumulated significant wealth throughout his life, including
three homes located in the District of Columbia. 3 Although Mr. Ebner was able to
live alone during the last decades of his life, he had issues that made it difficult for
him to be completely independent. He had a sixth-grade education and intellectual
challenges caused by a childhood trauma. Additionally, he had some physical
limitations and vision problems. Throughout his life, Mr. Ebner received assistance
from family members, including his nieces, appellee Ms. Brown and Lisa Winters.
In 2000, Mr. Ebner executed a very broad power of attorney for Ms. Brown. From
2000 onward, both Ms. Govan and Ms. Brown assisted Mr. Ebner, including in
2 Appellee Holy Comforter St. Cyprian Roman Catholic School, though named as a party, did not participate either before the trial court or this appeal. 3 Mr. Ebner began working as a paper boy, and he ended his career doing book binding work. It appears that he inherited much of his wealth and properties, and his wealth increased through investments made by family. 5
business affairs and financial matters. In 2008, Mr. Ebner executed a second power
of attorney for health care for Ms. Brown, which also designated Ms. Govan as the
alternate.
Ms. Brown testified that Mr. Ebner had difficulty understanding issues,
specifically complex matters, oftentimes needing things explained in more than one
way. For example, with respect to banking, while Mr. Ebner could deposit money
and write checks, he did not understand how to set up a bank account. Ms. Brown
testified that when Mr. Ebner signed a deed in 2010 to transfer ownership of one his
properties, he became upset because he was unsure whether to sign the document.
To calm him down and alleviate his concerns, Ms. Brown read the deed to him “line
by line,” stopping repeatedly to make sure he understood. At that time, Mr. Ebner
could not see well enough to read. Ms. Brown testified that she believed Mr. Ebner
was confused and had difficulty understanding things throughout 2013 and until his
passing in December of that year.
Michael Davidson, Mr. Ebner’s long-time attorney, met with Mr. Ebner in
January 2013 to go over Mr. Ebner’s testamentary affairs and specifically to address
the payment of estate taxes as contemplated in the August 2002 will and its codicils.
Mr. Davidson followed up with Mr. Ebner in February 2013, at which time Mr. 6
Ebner stated that he did not intend to make any changes. Mr. Davidson testified that,
during both conversations, Mr. Ebner “clearly understood” the nature of the
conversation.
Ms. Brown testified to conversations that she had with Mr. Ebner in March,
May, and October 2013 during which Mr. Ebner discussed his finances and intent
on allocating his property upon his passing. Ms. Brown testified that Mr. Ebner told
her in March 2013 that he wanted Ms. Brown, Ms. Winter, and another niece each
to receive equal portions of his money.
Renee Williams worked as an in-home nurse’s aide for Mr. Ebner
approximately three days per week in 2013. She testified that, in August 2013, Mr.
Ebner had no difficulty recalling events, could articulate the previous day’s affairs,
communicated how he felt, and was not confused. Dr. Mohammed Khan, Mr.
Ebner’s primary care doctor from January 2012 through his passing, managed Mr.
Ebner’s diabetes and chronic renal insufficiency and observed him during visits in
April 2013, September 2013, and November 2013. Dr. Khan testified that, during
those visits, Mr. Ebner was well oriented to time and place and did not appear to be
confused. 7
In September 2013, Ms. Govan took Mr. Ebner to meet with a different
attorney, Johnny M. Howard, regarding his testamentary affairs. Ms. Govan was
present for this meeting, along with Ms. Williams. Ms. Govan testified that Mr.
Ebner appeared “very alert” during this meeting, did not appear to be confused, and
talked with Mr. Howard and asked questions.
A few days prior to Mr. Ebner’s birthday on October 8, 2013, Ms. Brown
arrived unannounced at Mr. Ebner’s home with many members of Mr. Ebner’s
extended family for a surprise party. During the party, Mr. Ebner was disheveled,
lost focus, appeared confused, did not recognize one family member whom he had
not seen in many years, stared off into space, and only responded to simple
questions. 4
On October 17, 2013, Mr. Howard sent Mr. Ebner a draft will, two draft
transfer-on-death deeds (which, upon Mr. Ebner’s death, would have changed
ownership of two properties from Ms. Brown to Ms. Govan), and a draft revocation
of Ms. Brown’s 2000 power of attorney. Mr. Howard included among these papers
an explanation sheet for the transfer-on-death deeds.
4 Ms. Brown introduced into evidence a photograph from the October 2013 surprise party that depicted Mr. Ebner. 8
Mr. Ebner met again with Mr. Howard on October 24, 2013, at which time he
executed the 2013 will and the two transfer-on-death deeds. He did not execute the
revocation of Ms. Brown’s power of attorney. Ms. Govan, who attended the
meeting, testified that Mr. Ebner was “jolly” and talkative during the commute to
and from Mr. Howard’s office, appeared alert about the matters discussed during the
meeting, and did not appear to be confused. Vonda Burns and Vivian Gatling,
employees of law firms in the suite where Mr. Howard worked, testified that they
observed Mr. Ebner execute the will and also served as witnesses. Ms. Gatling
testified that it was Mr. Howard’s practice to read through every page of a will to his
client, though she did not clarify whether Mr. Howard did so with Mr. Ebner.
In December 2013, Mr. Ebner required hospitalization and surgery. Ms.
Govan and Ms. Brown both testified that, while he was in the hospital, they spoke
with Mr. Ebner regarding his financial matters. During one such conversation, Ms.
Brown testified that Mr. Ebner repeated his intention that his three nieces receive
equal portions of his money after he passed. Ms. Winters testified that Mr. Ebner
informed her during a telephone call in either November or December 2013 that he
wanted Ms. Govan to receive $100,000 and that he had created bank accounts in Ms.
Winters and Ms. Brown’s names. Mr. Ebner died on December 27, 2013. 9
On December 30, 2013, Mr. Howard filed the 2013 will with the Probate
Division of the Superior Court of the District of Columbia. On February 21, 2014,
Ms. Brown filed a petition for probate seeking to admit the August 2002 will and its
codicils. On April 7, 2014, Ms. Govan filed a complaint seeking to set aside the
August 2002 will and codicils and to enter the 2013 will into probate.
At the hearing, Ms. Brown presented the expert testimony of Dr. Robert
Goldstein, a physician who practiced internal medicine with a specialty in
nephrology. Dr. Goldstein was also the parent of an attorney at the firm representing
Ms. Brown. Over appellant’s objection, Dr. Goldstein testified that Mr. Ebner
lacked capacity when executing the 2013 will. In forming his opinion, Dr. Goldstein
relied on Mr. Ebner’s medical records, the deposition transcripts of Ms. Brown and
Ms. Govan, conversations with Ms. Brown and Ms. Winters, and his fifty years of
medical experience. He testified that, by 2013, Mr. Ebner’s kidney disease, diabetes,
and visual impairment would have caused confusion, fatigue, and an inability to
focus. Dr. Goldstein opined that the cumulative impact of Mr. Ebner’s conditions
likely meant that he would not have understood or comprehended the contents of the
2013 will, even if the document had been read to him. 10
At the conclusion of the testimony, the trial judge found that the 2013 will
was properly executed pursuant to D.C. Code § 18-103 (2012 Repl.) because it was
in writing, signed by the testator, and attested to and ascribed in Mr. Ebner’s
presence by Ms. Burns and Ms. Gatling, two credible witnesses over the age of
eighteen. However, the trial judge found that clear and convincing evidence
demonstrated that Mr. Ebner lacked testamentary capacity to execute the 2013 will
“because he did not understand its terms.” Specifically, he found no evidence that
Mr. Ebner read the will or that it was read to him or reviewed with him on the date
of execution.
The trial court credited the testimony of Ms. Govan, Ms. Williams, and Dr.
Khan that, at or around the time Mr. Ebner executed the 2013 will, he did not have
mental difficulty making decisions and was oriented to time and place. The trial
court, however, also gave “significant weight” to the testimony of Ms. Brown and
Ms. Winters, who both felt that Mr. Ebner could not, on his own, understand
complex matters. The trial court noted that Ms. Brown began having concerns about
Mr. Ebner months in advance of October 24, 2013, similar to the concerns she had
during his October 2013 surprise birthday party. Importantly, the trial court credited
Ms. Brown’s testimony that, in executing a deed in 2010, she had to go “over it line-
by-line with him” to understand it. The trial judge gave little weight to the expert 11
opinion of Dr. Goldstein because his opinion stemmed from generalities and because
he never examined Mr. Ebner or spoke with Dr. Kahn. Additionally, the trial court
noted “legitimate issues” about Dr. Goldstein’s bias due to his relationship with Ms.
Brown’s counsel.
Based on this testimony, the trial court determined that Mr. Ebner was
“capable of understanding the terms of the October 24th will, but only if someone
took the time to carefully review the document with him and explain its terms,
literally going line-by-line with him through it.” Because the evidence did not
support this finding, the trial court found that Mr. Ebner lacked testamentary
capacity when he executed the 2013 will, and therefore denied Ms. Govan’s request
to admit it to probate. Instead, the trial court admitted the August 2002 will and its
two codicils to probate and ordered relief consistent with that finding. 5 This appeal
followed.
5 The trial court also found (1) insufficient evidence that Ms. Govan or Mr. Howard unduly influenced Mr. Ebner, (2) the two transfer-on-death deeds signed by Mr. Ebner at the October 24, 2013, meeting were valid, (3) no evidence of self- dealing by Ms. Brown as the personal representative, and (4) Ms. Brown was entitled to expenses and disbursements from Mr. Ebner’s estate related to the litigation, pursuant to D.C. Code § 20-752 (2012 Repl.). These findings – including the trial court’s further relief consistent with its order – are not before us on appeal, though they may be affected by our disposition here. 12
II. Standard of Review
In reviewing a trial court’s ruling following a bench trial or evidentiary
hearing, we “may review both as to the facts and the law, but the judgment may not
be set aside except for errors of law unless it appears that the judgment is plainly
wrong or without evidence to support it.” Ross v. Blackwell, 146 A.3d 385, 387
(D.C. 2016) (quoting D.C. Code § 17-305(a) (2012 Repl.)). We review the evidence
in the light most favorable to the prevailing party, and we defer to the trial court’s
credibility determinations unless clearly erroneous. Id. We review legal issues de
novo. See In re Ingersoll Tr., 950 A.2d 672, 692 (D.C. 2008). The issue of
testamentary capacity – like those of other challenges to a will’s validity, such as
undue influence – is a mixed question of law and fact. Id.; Dougherty v. Rubenstein,
914 A.2d 184, 192 (Md. Ct. Spec. App. 2007) (“The standard[] or test of
testamentary capacity is a matter of law while the question of whether the evidence
in the case measures up to that standard is a matter of fact.” (cleaned up)). 6
6 We find Maryland law to be persuasive because the District’s statutory construction of capacity “was adopted from the Maryland Probate Act of 1798.” Rossi v. Fletcher, 418 F.2d 1169, 1170 (D.C. Cir. 1969); see also Phelps v. Goldberg, 313 A.2d 683, 684 (Md. 1974) (“It appears that District of Columbia law and Maryland law on the subject of testamentary capacity are virtually identical, if not identical.”). 13
The burden of proof regarding whether the testator, at the time of executing
the will, lacked testamentary capacity is on the party challenging the mental capacity
of the decedent, see Brosnan, 263 U.S. at 349-50, who must do so by a
preponderance of the evidence, see Thomas v. Young, 22 F.2d 588, 590 (D.C. 1927);
Morgan, 29 App. D.C. at 206; see also 3 William J. Bowe & Douglas H. Parker,
Page on the Law of Wills, § 29.35 (3d ed. 2004) (“To sustain the burden of proof”
of testamentary capacity, “a preponderance of the evidence is necessary.”); cf. Butler
v. Harrison, 578 A.2d 1098, 1100 (D.C. 1990) (affirming preponderance of the
evidence standard in holding that appellant failed to meet burden of proof to show
lack of mental capacity in executing a deed).
III. Legal Framework
We start with – and reaffirm – the basic presumption that all individuals have
sufficient testamentary capacity to make a will, a presumption that extends
throughout their life. See Brosnan, 263 U.S. at 349 (noting the “effective weight”
given “to the presumption of the testator’s sanity”); Morgan, 29 App. D.C. at 206
(“[T]he presumption of law is in favor of the sanity and capacity of the testatrix to
make a will . . . .”); see also Zook v. Pesce, 91 A.3d 1114, 1122 (Md. 2014) (“The
law presumes that every man is sane and has capacity to make a valid will.”) (quoting 14
Arbogast v. MacMillan, 158 A.2d 97, 101 (Md. 1960)). 7 That presumption can be
challenged, however, and the burden to prove a lack of testamentary capacity lies
with the party challenging mental capacity. See Brosnan, 263 U.S. at 349; Morgan,
29 App. D.C. at 206; see also Zook, 91 A.3d at 1122 (“[T]he burden of proving the
contrary rests upon those who allege that he lacked mental capacity.”); cf. Butler,
578 A.2d at 1100-01 (noting that “the burden of proof is on the party asserting
incompetency” when challenging a person’s capacity to contract). The District’s
statute is predicated on this presumption, in that a will is not valid unless a testator
is “of sound and disposing mind” at the time of executing or acknowledging it. D.C.
Code § 18-102. Here we clarify the criteria that define the presumption of
testamentary capacity.
Testamentary capacity is the mental state that a person must possess at the
time of making a will for it to be valid, and we reaffirm that the threshold for
testamentary capacity is low. See Lewis v. Am. Sec. & Tr. Co., 289 F. 916, 919 (D.C.
Cir. 1923). To be of “sound and disposing mind” and thereby have testamentary
capacity, a testator must have sufficient memory and mind to generally know (1) the
property owned, (2) the intended beneficiaries of that property, and (3) the nature of
7 D.C. law requires that a person making a will be at least eighteen years old. See D.C. Code § 18-102 (2012 Repl.). 15
the instrument being executed. See Thompson, 103 F.2d at 943 (quoting Lewis, 289
F. at 919); Barbour v. Moore, 4 App. D.C. 535, 547 (D.C. 1894) (finding a testator
to be “of sound and disposing mind” if he “possess[es] memory and mind enough to
know what property he owns and desires to dispose of, and the person or persons to
whom he intends to give it, and the manner in which he wishes it applied by such
person, and, generally, fully understands his purposes and the business he is engaged
in, in so disposing of his property”). While this court has not yet clarified the
standard for testamentary capacity, the standard as articulated by our predecessor
courts comports with the “standard . . . agreed upon, in substance, by the great weight
of authority.” 1 William J. Bowe & Douglas H. Parker, Page on the Law of Wills,
§ 12.21 (2d. 2003) (“Testator must have sufficient strength and clearness of mind
and memory to know, in general, without prompting, the nature and extent of the
property of which he is about to dispose, and nature of the act which he is about to
perform, and the names and identity of the persons who are to be the objects of his
bounty, and his relation towards them.”). A testator need not be “endowed with a
high order of intellect, nor even an intellect measuring up to the ordinary standards
of humanity; nor . . . [a] perfect memory, and a mind wholly unimpaired by age,
sickness, or other infirmities.” Morgan, 29 App. D.C. at 206. Even the weak, aged, 16
powerless, ignorant, and uninformed have the right to create a testamentary
document. See Thompson, 103 F.2d at 944-45. 8
Testamentary capacity is tested at the time a testator executes a will. Barbour,
4 App. D.C. at 547. In determining such capacity, the trial court may consider
evidence of the testator’s state of mind before, at the time of, and after the will is
executed. See id. at 548. This includes evidence of any factor that may otherwise
bear on mental capacity, such as age, impairment of mental faculties, memory loss,
illness, physical condition, sedation, or other use of drugs or medication. See
Thompson, 103 F.2d at 945; McCartney v. Holmquist, 106 F.2d 855, 856 (D.C. Cir.
1939). Evidence of any one or more of these factors alone, however, does not rebut
the presumption of testamentary capacity when there is no indication that, at the time
the testator executed a will, such factor impaired the testator or his or her
understanding of the predicate knowledge of testamentary capacity. See Thompson,
103 F.2d at 945.
8 See also Rossi, 418 F.2d at 1171 (affirming that persons subject to conservatorship may have testamentary capacity to make a will); D.C. Code § 21- 2002(d) (2012 Repl. & 2019 Supp.) (As applied to guardianship and protective proceedings, “[a]n individual shall be presumed competent and to have the capacity to make legal, health-care, and all other decisions,” unless determined otherwise). 17
Moreover, testamentary capacity is not defined by the testator’s understanding
of the testamentary document. In fact, our determination of testamentary capacity
has never turned on the complexity of the document at issue, the difficulty of its
terms, or the testator’s understanding of it. “The standard of testamentary capacity
does not mean that [the] testator must be able to understand the meaning of all the
technical legal terms which are employed by counsel in drafting [the] testator’s will,
under his general instructions.” 1 Bowe & Parker, supra, § 12.21. We believe it to
be too high a burden to require that a testator be able to fully comprehend the
document he or she signs. Id. Such a requirement would conflict with our standard
for testamentary capacity, which only requires that a testator “generally” understand
the nature of the instrument being executed. See Thompson, 103 F.2d at 943;
Barbour, 4 App. D.C. at 547 (requiring only that a testator “generally, fully
understands his purposes and the business he is engaged in, in so disposing of his
property”); see also In re Weir’s Estate, 475 F.2d 988, 991-92 (D.C. Cir. 1973)
(noting that standard for testamentary capacity is whether the testator understood
“precisely what he was doing when he executed the contested will”); 1 Bowe &
Parker, supra, § 12.21 (“It is sufficient if [the] testator understands the legal effect 18
and intent of the instrument as a whole, and if the instrument is so drawn as to
express [the] testator’s intent.”). 9
9 We are careful to distinguish between testamentary capacity, as explained here, and testamentary intent. Generally, “a will may not be admitted to probate where a purported testator is entirely ignorant of the contents of his will, indicating a lack of testamentary intent.” In re Estate of Turpin, 19 A.3d 801, 806 (D.C. 2011). But “[t]here is a presumption that a testator knows the contents of a properly executed will.” Mann v. Cornish, 185 F.2d 423, 424 n.4 (D.C. Cir. 1950) (citing Lipphard v. Humphrey, 209 U.S. 264-268-69 (1908)); see also Wood v. Martin, 641 A.2d 853, 854 (D.C. 1994) (noting that a properly signed and executed will gives “rise to the presumption that [a] testator knew the contents of the will regardless of his inability to read”). The presumption in favor of testamentary intent “must prevail,” although it may be rebutted if there is “proof of fraud, undue influence, or want of testamentary capacity attending the execution of the will.” Lipphard, 209 U.S. at 269.
Therein lies the intersection between intent and capacity: a want of testamentary capacity can rebut the presumption of testamentary intent that arises when a will is properly executed. However, a testator’s knowledge of the contents of a will, while a predicate for testamentary intent, is not dispositive of the separate issue of testamentary capacity. Therefore, we reject appellee Brown’s request that we “take guidance” from Crafton v. Harris, 9 Tenn. App. 561 (Ct. App. 1929), because that case turned on “the determinative question” of “whether the testator understood the legal effect of the provisions of said will,” i.e., had the requisite testamentary intent, id. at 562 (and where the court summarily rejected the challenge to testamentary capacity, id. at 563). While a testator’s knowledge of the contents of a will is “an essential ingredient of intent,” Turpin, 19 A.3d at 807 (quoting 1 Bowe & Parker § 5.8), it is ultimately not necessary evidence to prove testamentary capacity.
In this case, we are not tasked with determining the question of Mr. Ebner’s testamentary intent, as that issue was not raised by the trial court, argued by the parties, or addressed on appeal. See Thornton v. Northwest Bank of Minn., 860 A.2d 838, 842 (D.C. 2004) (“It is fundamental that arguments not raised in the trial court are not usually considered on appeal. This court will deviate from this principle only in exceptional situations and when necessary to prevent a clear miscarriage of justice apparent from the record.” (cleaned up)). 19
While the complexity of a testator’s property may be relevant to testamentary
capacity inasmuch as capacity requires that a testator know his or her property, the
legal document purporting to devise such property – and the complexity of such
document – is not dispositive of the issue. Indeed, we employ lawyers, scriveners,
and other professionals to draft complicated documents that devise and divide
property upon death without requiring that a testator understand the complexities of
the document itself. Cf. Conrades v. Heller, 87 A. 28, 32 (Md. 1913) (noting that
“many wills would be invalid” if it was required that the testator understand the
meaning of all the technical terms used therein, “especially those involving intricate
trusts, which oftentimes dispose of large estates in terms which give judges and
attorneys trouble in determining their meaning and legal effect”). Of course,
evidence demonstrating that the testator read his or her will (or had it read to him or
her) and understood its terms may have strong evidentiary value as to affirmative
proof of capacity. But the lack of such evidence is not a necessary criterion – nor a
definitive one – to rebut the presumption in favor of it.
In sum, we reaffirm the presumption in favor of testamentary capacity, a low
threshold of mental capacity. When a party attempts to rebut that presumption by
challenging the testator’s mental capacity in order to invalidate a will, that party
must show, by a preponderance of the evidence, that the testator did not have 20
sufficient memory or mind to generally know (1) the property he or she owns, (2)
the persons to whom he or she intends to give it, and (3) the nature of the instrument
being executed, e.g., a will. An understanding of the resulting testamentary
document – including its complex legal jargon – is not dispositive to a court’s
analysis of whether a testator is “of sound and disposing mind.”
IV. Analysis
We cannot reconcile the trial court’s ruling with the above-clarified standard
for testamentary capacity. Although the trial court determined that the 2013 will
was properly executed, it found that appellee proved by clear and convincing
evidence that Mr. Ebner lacked testamentary capacity because he did not understand
the terms of the document, reasoning that he neither read the will prior to signing it
nor had it read to him.
At the outset, it was not necessary that Ms. Brown demonstrate lack of
testamentary capacity “by clear and convincing evidence,” in that the burden of
proof is only by a preponderance of the evidence. See, e.g., Thomas, 22 F.2d at 590.
Rather, invalidating a will on the issue of testamentary capacity merely requires
showing that Mr. Ebner – at the time he executed the 2013 will – did not generally 21
understand the property he owned, to whom he wanted to give it, and the nature of
the instrument he signed.
The evidence credited by the trial court requires a finding that Mr. Ebner had
testamentary capacity. Mr. Howard, Ms. Govan, Ms. Burns, and Ms. Gatlin were
all in the room when Mr. Ebner executed the 2013 will. Ms. Govan testified that
Mr. Ebner was “jolly” and talkative during the commute to meet with Mr. Howard
on October 24, 2013, appeared alert during the discussion with Mr. Howard, and did
not appear to be confused. Ms. Brown presented no contradictory evidence
concerning Mr. Ebner’s mental state at that meeting. The trial court credited
testimony from Ms. Govan, Ms. Williams, and Dr. Khan that, at and around the time
he executed the 2013 will, Mr. Ebner did not have any mental difficulty and was
oriented to time and place. The trial judge also noted that Mr. Davidson, Mr. Ebner’s
former attorney, believed that, during meetings in January and February 2013, “Mr.
Ebner understood exactly what was going on, that he was making knowledgeable,
intelligent decisions,” particularly concerning payment of estate taxes. This
evidence requires a finding, and does not rebut the presumption, in favor of
testamentary capacity. 22
Moreover, the evidence demonstrates that Mr. Ebner knew his property and
to whom he wanted to devise it. Both Ms. Brown and Ms. Winters testified to
conversations they had with Mr. Ebner throughout 2013, even in the weeks prior to
his passing in December 2013, during which Mr. Ebner discussed his property,
specifically money in bank accounts, and how he wanted it allocated, to Ms. Brown,
Ms. Winters, and Ms. Govan, among others. Additionally, during the October 2013
meeting with Mr. Howard, Mr. Ebner signed transfer-on-death deeds, which devised
his property upon his passing. The evidence demonstrates that Mr. Ebner understood
his property – to include money and real property – and understood who the intended
beneficiaries of that property should be.
While the trial court gave “significant weight” to the testimony of Ms. Brown
and Ms. Winters that Mr. Ebner could not, on his own, understand complex matters,
we are not persuaded that this evidence rebuts the presumption in favor of
testamentary capacity, or any of the predicate facts. Many business people, and
people more advanced in years, receive significant assistance from others, including
family members, in handling their affairs. It appears that Mr. Ebner was no different.
Evidence that Mr. Ebner had difficulty handling his affairs on his own, particularly
financial and business matters, does not refute a finding of testamentary capacity 23
when it was otherwise evident that Mr. Ebner understood the nature and extent of
his property, but merely needed assistance in accomplishing his goals. 10
Appellee presented little evidence to rebut the presumption in favor of
testamentary capacity, let alone disprove it. The primary evidence credited by the
trial court concerning Mr. Ebner’s mental state in October 2013 was Ms. Brown’s
testimony as to Mr. Ebner’s demeanor during a surprise birthday party in early
October 2013 (weeks prior to the October 24, 2013, meeting), during which she
contends that Mr. Ebner was disheveled, lost focus, appeared confused, did not
recognize a family member, stared off into space, and only responded to simple
questions. We find this testimony to have little probative value on the issue of
testamentary capacity. See Weir’s Estate, 475 F.2d at 991 (noting that evidence
showing testator “dressed conservatively, was occasionally forgetful, sometimes
untidy . . . , and had some strange habits” to be “speculative and meaningless” in a
challenge to testamentary capacity).
10 We note also that Mr. Ebner’s difficulty understanding complex matters was an issue that persisted throughout his life and not just during the timeframe in which he executed the 2013 will. The evidence demonstrated that, for years, he successfully managed his significant wealth and properties, albeit with assistance from others. Therefore, evidence that Mr. Brown and other family members assisted Mr. Ebner with his financial and business matters from 2000 onward would have the same evidentiary import with respect to any of the earlier testamentary documents in this case. 24
Importantly, the trial court credited Ms. Brown’s testimony that, in executing
a deed in 2010, she had to go “over it line-by-line with him” so that he understood.
While it is unclear whether Mr. Ebner read or was read the 2013 will prior to signing
it, or whether he fully understood all its terms, neither of these findings demonstrate
a lack of testamentary capacity. Evidence concerning Mr. Ebner’s understanding of
the underlying testamentary document does not disprove testamentary capacity.
Specifically, such evidence did not undermine the above-credited evidence that Mr.
Ebner generally knew the property he owned, to whom he wanted to give it, or that
he knew he was signing a will. For this reason, the trial court’s reliance on Ms.
Brown reading the 2010 deed to Mr. Ebner “line-by-line” is not determinative of his
As a legal matter, the trial court’s ruling that the transfer-on-death deeds were
valid supports our decision. “The capacity required to make . . . a transfer on death
deed is the same as the capacity required to make a will.” D.C. Code § 19-604.08
(2012 Repl. & 2019 Supp.). While a finding of capacity for a transfer-on-death deed
is not sufficient alone to support a finding of testamentary capacity, in that the facts
supporting capacity as to each will necessarily be different (i.e., the property,
beneficiaries, and document involved), it is persuasive. Here, the trial court ruled
that the deeds were valid, thereby affirming that Mr. Ebner had sufficient capacity 25
to make them, and neither party takes issue with that decision. The deeds transferred
ownership of two of Mr. Ebner’s properties upon his death to Ms. Govan, rather than
Ms. Ebner, demonstrating Mr. Ebner’s knowledge of his property and to whom it
wanted to give it. The trial court noted that the transfer-on-death deeds were
“consistent with what Mr. Ebner had been seeking to do all along” and that the deeds
were not “so complex that he couldn’t understand what [they] meant.” While these
findings do not necessarily require a finding of capacity, they lend support to the
conclusion that with respect to the transfer-on-death deeds Mr. Ebner was able to
understand his property, who would receive it, and the nature of the underlying
transaction, providing a sufficient basis to support a finding of testamentary capacity
with respect to the 2013 will.
Therefore, we conclude that the trial court erred in finding that Mr. Ebner
lacked testamentary capacity because he did not read the 2013 will, have it read to
him, or understand it. The preponderance of the evidence credited by the trial court
requires a finding that Mr. Ebner had testamentary capacity: that on and around
October 24, 2013, Mr. Ebner understood the nature of his property (money and real
property), understood to whom he wanted to give it (including Ms. Govan, Ms.
Brown, and Ms. Winters, among others), and understood that he was signing a will. 26
Therefore, we reverse the decision of the trial court that Mr. Ebner lacked
testamentary capacity at the time he executed the 2013 will. 11
V. Expert Designation
We find no error in the trial court’s decision to admit Dr. Goldstein’s expert
testimony. We review the trial court’s admission of expert testimony for abuse of
discretion, only disturbing that ruling if it is “manifestly erroneous.” Dickerson v.
District of Columbia, 182 A.3d 721, 726 (D.C. 2018). The “goal” of the trial court’s
role as a gatekeeper “is to deny admission to expert testimony that is not reliable,”
and to admit that which is “derived from reliable principles that have been reliably
applied.” Motorola, Inc. v Murray, 147 A.3d 751, 755, 757 (D.C. 2016) (en banc).
11 Appellant also argues that trial court erred in considering evidence that had “no temporal proximity” to the date the will was executed (evidence showing Mr. Ebner’s sixth-grade education, the photograph from the October 2013 party, and Mr. Ebner’s unspecified childhood trauma) because “the drafter of a will would not likely have been privy” to this information. We review a trial court’s decision to admit evidence for abuse of discretion. See Jackson v. George, 146 A.3d 405, 420 (D.C. 2016). While we analyze testamentary capacity at the time a testator executes a will, evidence of mental capacity preceding that date may be probative of a testator’s capacity. See Barbour, 4 App. D.C. at 548. Whether and how much weight to afford that evidence is left to the factfinder. See In re H.R., 206 A.3d 884, 887 (D.C. 2019) (Under D.C. Code § 17-305(a), this court “review[s] the evidence in the light most favorable to the trial court’s finding, giving full play to the right of the judge, as the trier of fact, to determine credibility, weigh the evidence, and draw reasonable inferences.” (cleaned up)). We find no abuse of discretion in the trial court’s consideration of this evidence. 27
“While a physician need not be a specialist” in a particular field to provide expert
testimony, “he or she must still be a qualified physician and have familiarity with
the particular subject matter in order to render an expert medical opinion.”
Dickerson, 182 A.3d at 729. The trial court admitted Dr. Goldstein as an expert in
internal medicine, and specifically nephrology, because of his knowledge and
experience in those subject areas. We find no error in that decision. Appellant
primarily challenges the evidentiary basis underlying Dr. Goldstein’s expert opinion,
such as his failure to speak with certain people or review certain records; the trial
court properly understood these concerns as relevant to the weight to afford the
opinion, rather than its admissibility. See, e.g., Russell v. Call/D, LLC, 122 A.3d
860, 868 (D.C. 2015) (noting that “lack of textual support” supporting expert
opinion, e.g., from peer-reviewed journals or data that provides the highest degree
of certainty, “may go to the weight, not the admissibility of the expert’s testimony”).
Therefore, we will not disturb the trial court’s decision here.
VI. Conclusion
We conclude that appellee Ms. Brown failed to establish that Mr. Ebner lacked
testamentary capacity. We therefore reverse the decision of the trial court and vacate 28
its order denying appellant’s request to admit the 2013 will to probate. We remand
for further proceedings.
So ordered.