## Facts

- George F. Bauer executed a will on September 13, 1956, while married to Susie D. Bauer, devising his homestead to Susie and leaving the remainder of his estate to his paternal and maternal relatives.
- George and Susie married in September 1955, divorced on February 22, 1957, and remarried on October 26, 1957; they lived together as husband and wife until George’s death on July 10, 1962.
- George died testate without children; his parents predeceased him.
- Mary Douglas Reese, George’s cousin and the person named in the will as executrix, was appointed executor of the estate.
- Susie filed a probate petition seeking relief on two grounds: (1) George lacked testamentary capacity when he executed the 1956 will; and (2) Susie should take as a pretermitted spouse because the 1957 divorce allegedly voided the will’s provisions in her favor and the later remarriage did not restore them.
- On the executrix’s motion, the probate court struck Susie’s pretermitted-spouse ground.
- After hearing testimony on capacity (including evidence of George’s extreme frugality and domestic behavior and testimony from witnesses supporting competency), the probate court dismissed Susie’s petition with prejudice.
- Susie appealed the final order dismissing her petition and striking her pretermitted-spouse claim.

## Issues

1. Whether the probate court erred in rejecting Susie’s challenge to the will based on alleged lack of testamentary capacity at the time of execution.
2. Whether Susie could claim a statutory share as a pretermitted spouse based on the theory that the parties’ divorce nullified the will’s provisions for her and that their remarriage did not reinstate those provisions.

## Decision

- The appellate court affirmed the probate court’s ruling upholding the will against the testamentary-capacity attack.
- The appellate court affirmed the probate court’s order striking Susie’s pretermitted-spouse claim.
- The appellate court affirmed the dismissal of Susie’s petition with prejudice.

## Legal Principles

- A will contestant has the burden to prove lack of testamentary capacity at the time the will was executed; capacity is generally presumed.
- Testamentary capacity requires that, at execution, the testator understand the nature and extent of the property, recognize the natural objects of the testator’s bounty, and understand the effect of making a will.
- Evidence of eccentricity, extreme frugality, unconventional living conditions, or marital discord does not by itself establish testamentary incapacity.
- A probate court’s factual determinations on capacity will be upheld on appeal when supported by competent evidence.
- Statutes that alter ordinary testamentary dispositions (including statutes dealing with spouses omitted from a will) are construed narrowly; courts will not alter a will’s dispositions without clear legislative direction.
- A spouse is not treated as a pretermitted spouse merely because the spouses divorced and later remarried, where the will was executed during the original marriage and includes a provision for that spouse; absent an applicable statute, the divorce/remarriage sequence does not itself nullify the devise and then create after-marriage omission rights.

## Conclusion

The First District Court of Appeal affirmed the probate court in full, holding that Susie failed to prove George lacked testamentary capacity when he executed the 1956 will and that she could not claim pretermitted-spouse rights based on the parties’ divorce and subsequent remarriage; the will’s devise to her remained effective and her petition was properly dismissed.


Bauer v. Reese (In re Estate of Bauer), 161 So. 2d 678 (1964)