## Facts

- Katherine F. Washburn executed three wills: an October 1986 will favoring her sister (or niece Catherine Colonna if the sister predeceased), a March 1992 will giving $5,000 to Barbara A. Remick and the residue to Colonna, and an April 13, 1992 will giving $5,000 to Colonna and leaving the residue (including Washburn’s home) to Remick.
- The April 13, 1992 will was offered for probate; Colonna petitioned for reexamination in solemn form, contesting Washburn’s testamentary capacity.
- After a three-day evidentiary hearing with expert medical testimony and lay testimony, the probate court found Washburn had Alzheimer’s disease at the time of execution.
- The probate court found the disease caused Washburn to be unable to recollect and understand the general nature of her property and unable to choose how and to whom to distribute it by will.
- The probate court denied admission of the April 13, 1992 will to probate; Remick’s motion for reconsideration was denied, and she appealed.

## Issues

1. Whether the probate court erred in finding that Washburn lacked testamentary capacity on April 13, 1992, rendering the April 13, 1992 will invalid.
2. Whether the probate court misapplied New Hampshire’s testamentary-capacity test.
3. Whether the probate court improperly relied on evidence of Washburn’s mental condition from times before and after the execution date.

## Decision

- The Supreme Court of New Hampshire affirmed the probate court’s order denying probate of the April 13, 1992 will.
- The court held the probate court applied the correct testamentary-capacity standard.
- The court held the record contained sufficient medical and lay evidence to support the finding of incapacity at execution.
- The court held it was permissible to consider evidence from periods surrounding execution, particularly given the progressive nature of Alzheimer’s disease.
- The court applied deferential review to the probate court’s factual findings and credibility assessments.

## Legal Principles

- A testator has testamentary capacity only if she can (1) recollect the property to be disposed of, (2) understand its general nature, and (3) make a choice as to beneficiaries and disposition.
- Testamentary capacity is presumed, but the presumption is rebuttable through competent evidence of incapacity.
- Evidence of a testator’s mental condition before and after execution may be used as circumstantial evidence of capacity on the execution date, especially for progressive conditions.
- Appellate review of probate findings on capacity is deferential; factual findings will be upheld when supported by the record, and appellate courts do not reweigh credibility.

## Conclusion

The court upheld the refusal to probate the April 13, 1992 will because the evidence supported the probate court’s finding that Alzheimer’s disease left the testatrix unable to meet the state’s requirements for testamentary capacity at the time of execution.


In re Estate of Washburn, 690 A.2d 1024 (N.H. 1997)