## Facts

- John Wesley Burkhart executed the will at issue on October 7, 1959.
- The 1959 will largely disinherited Burkhart’s close relatives and made bequests to several charitable organizations located in Morrow County, Ohio, a place with which Burkhart had long-standing interests and contacts.
- An Ohio lawyer drafted the 1959 will and testified that Burkhart met with him three times, including at execution, and that Burkhart was completely lucid, could discuss both his current and prior wills, understood what he wanted done with his property, and could explain his reasons for the dispositions.
- The drafting lawyer also testified that Burkhart said he had problems with his relatives, which aligned with the will’s plan to leave them little or nothing.
- Several acquaintances who interacted with Burkhart around the time of execution testified that Burkhart appeared lucid, neat, and conversationally normal.
- In February 1960, a court declared Burkhart incompetent by reason of cerebral arteriosclerosis with senility.
- Burkhart died in 1964. His 1959 will was admitted to probate, and letters of administration were issued to Union Trust National Bank as administrator *c.t.a.* of the estate.
- Burkhart’s relatives, including appellants Lowell Pangborn and Pauline Newell, filed a petition to revoke probate, asserting Burkhart lacked testamentary capacity when he executed the 1959 will.
- At the hearing, the relatives offered testimony that Burkhart showed signs of senility beginning years earlier (including as early as 1956) and presented an opinion from Dr. Holtzman, who had not known or examined Burkhart and based his view on a hypothetical question, that Burkhart was senile and lacked testamentary capacity in October 1959.
- Dr. Holtzman’s hypothetical did not include facts indicating Burkhart handled his own affairs, traveled alone, and lived alone up through at least February 1960.
- The administrator offered a competing medical opinion, also based on a hypothetical, that a person with Burkhart’s condition could experience lucid periods consistent with testamentary capacity.
- The county court denied the petition to revoke probate, finding Burkhart had testamentary capacity at the time of execution. The relatives appealed.

## Issues

1. Whether the county court erred in refusing to revoke probate by finding that Burkhart had testamentary capacity when he executed the October 1959 will, despite evidence of senility and a later incompetency adjudication.
2. Whether the county court’s finding of testamentary capacity was supported by competent, substantial evidence so that it could not be set aside on appeal.

## Decision

- The District Court of Appeal of Florida, Second District, affirmed the order denying the petition to revoke probate.
- The court held that the county judge’s finding that Burkhart had testamentary capacity at execution was supported by competent, substantial evidence and therefore would not be disturbed on appeal.

## Legal Principles

- Testamentary capacity is determined as of the time the will is executed; the question is the testator’s condition at execution, not at some earlier or later date.
- A testator has testamentary capacity if he can understand the nature and extent of his property, recognize the natural objects of his bounty, and understand the effect of making the will.
- A later adjudication of incompetency is evidence that may be considered, but it does not automatically prove the testator lacked testamentary capacity at the earlier execution date.
- Where evidence conflicts on testamentary capacity, the probate judge, as fact-finder, decides the weight and credibility of lay and medical testimony, including testimony about possible lucid periods.
- On appeal, factual findings in probate matters—such as capacity—are upheld if supported by competent, substantial evidence; the appellate court does not reweigh the evidence.
- Medical opinions based on hypothetical questions may carry less weight where the assumptions omit material facts shown by the record about the testator’s day-to-day functioning.
- A will that disfavors close relatives is not, by itself, proof of incapacity where the record shows the testator understood the plan and could explain reasons for it.

## Conclusion

The appellate court left Burkhart’s 1959 will in place because the probate judge had a legally sufficient evidentiary basis—especially the drafting attorney’s account and contemporaneous lay observations—to find that Burkhart was capable when he signed the will, and the later incompetency adjudication did not require a different result.


Pangborn v. Union Trust National Bank (In re Estate of Burkhart), 204 So. 2d 737 (1967)