Testating While Intoxicated

Back Story:

Some men can’t stay married. A fourth wife sought to disinherit a son by a second wife, when their husband/father died.

The testator apparently spent the greater part of his adult life intoxicated, which could explain the four-wives thing. At the time of his death, he had separated from his fourth wife, but apparently never sobered up enough to divorce her. However, he did make a will – and therein lies a troubled tale.

When he died, the separated-but-not-yet-divorced-fourth-wife thought she deserved his stuff (after all, she was the last one on the ride when it came to a stop). Unfortunately for Number Four, the Drunken Testator left everything to his only child (four wives, one kid), a son from his second wife.

In the way that only a person who thought they were going to get free stuff from a dead guy can be, Number Four was litigating mad. Number Four argued, among other things, that the Testator was too drunk to make a will. The appellate court rejected the argument that habitual drunkenness means testating while intoxicated.

Decision:

It takes more than ‘mere guesswork and general conjecture’ to support a finding contrary to the presumption that a testator in competent. In re Estate of Teed, 112 Cal.App.2d 638, 647, 247 P.2d 54. Evidence, as in the instant action, that testator was a 'chronic alcoholic', that he has been drunk on various occasions, and that he has taken several ‘cures’, some of which consisted of bed rest, massive doses of vitamins, and food, does not tend to prove testamentary incompetence unless it is also proved that the time of decedent’s drunkenness coincided with the time of his execution of the testamentary document. In re Estate of Arnold, 16 Cal.2d 573, 585, 107 P.2d 25; In re Estate of Powers, 81 Cal.App.2d 480, 482, 184 P.2d 319.

Appellant cites and relies upon the decisions in In re Estate of Fosselman, 48 Cal.2d 179, 308 P.2d 336; and In re Estate of Collin, 150 Cal.App.2d 702, 712, 310 P.2d 663, 670, in the latter of which Mr. Justice Fourt, speaking for this court, said: ‘Proof of testamentary incapacity and of the facts upon which a testator's state of mind depends is not necessarily confined to the exact time or moment of the execution of the will.’

In re Estate of Collin, supra, affirmed on appeal a judgment admitting to probate a will dated December 19, 1951, and denying admission to probate a purported will dated October 24, 1952. That decision followed a finding that decedent 'was of unsound mind and lacked testamentary capacity and was suffering from insane delusions and hallucinations from February 2, 1952, until his death on November 3, 1952'. A reading of the eight-page summary of the evidence in that decision leaves no doubt that the finding of decedent's lack of testamentary capacity on October 24, 1952, is supported.

In Estate of Fosselman, supra, a judgment denying a petition for probate of a will and codicils was affirmed by the Supreme Court. There the trial court, sitting without a jury, found that at the time said purported testamentary documents were executed and continuously thereafter until the time of her death, decedent was 'suffering from senile dementia and was of such mental incompetency as to render her incapable of executing a Will, and was suffering from an insane delusion', that the beneficiary named in the will was ‘an old family retainer * * * and was a very old friend’, when actually she had known her only a few months and only as an employee. The evidence therein summarized supports the court's finding of testamentary incapacity.

No such evidence is called to our attention by appellant in the instant action, and a careful reading of the entire record fails to disclose any evidence of decedent's incompetence beyond his temporary incoherence and instability when drunk. All witnesses who knew him testified that he appeared to be competent when sober. Each of the attesting and other witnesses to the execution of the will dated July 2, 1953, was of the opinion that decedent was then sober and competent.

In the absence of proof that the intemperate use of alcoholic beverages, however long continued the habit is shown to have been, has actually destroyed testamentary capacity, no presumption will be indulged that it has thus been destroyed. In re Estate of Putnam, 1 Cal.2d 162, 165, 34 P.2d 148.

In the instant action, as stated by this court in In re Estate of Garvey, 38 Cal.App.2d 449, 458, 101 P.2d 551, 555, "The evidence of overindulgence in alcoholic liquor as reflected in the record before us falls far short of the quantum required to establish the fact that decedent had become so weakened in his physical and mental powers that he was incapable of the testamentary act. In re Estate of Fisher, 202 Cal. 205, 259 P. 755; In re Estate of Putnam, 1 Cal.2d 162, 165, 34 P.2d 148. Neither does not evidence in the instant case of repulsive or filthy personal habits, ill temper and a disagreeable disposition constitute insanity or unsoundness of mind. (Citations.)."

In re Warner's Estate ( 1959) 166 Cal.App.2d 677, 684-686.