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Estate of Siebert
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:1999 ME 156
on Briefs:October 14, 1999
Decided:	October 29, 1999




	[¶1]  Bryant Richard Garrett appeals from a judgment entered in the
Penobscot County Probate Court (Woodcock, J.) granting a petition for
probate of a will of Frank Siebert, Jr., dated November 25, 1997.  Garrett
contends that the court applied an improper standard in determining
Siebert's testamentary capacity and that the court's factual finding that he
possessed testamentary capacity was clearly erroneous.  Finding no error,
we affirm the judgment.
	[¶2]  The relevant facts may be summarized as follows:  Decedent,
Frank T. Siebert, Jr., a pathologist and a scholar of Penobscot Indian
linguistics, died on January 23, 1998, at the age of 85.  At the time of his
death, he was divorced with two daughters, both of Pennsylvania, and
resided at Ross Manor, a continuing care facility in Bangor.  Garrett and his
wife had been working closely with Siebert for a number of years prior to his
death on his Penobscot Indian projects.
	[¶3]  Upon his death, Siebert's two daughters filed an informal
petition for probate of a will dated November 25, 1997, in which he named
his two daughters as personal representatives.  Garrett filed with the
Probate Court a formal petition of probate, requesting the court to appoint
him or another person as special administrator of Siebert's estate based on a
prior will dated June 17, 1997, in which Siebert named Garrett as personal
representative.  Garrett contested the November will on the basis that it was
invalid.  The only practical differences between the June will and the
November will are the change in the provision appointing personal
representatives and a change in the provision assigning the task of editing
and publishing the Penobscot Legends, Volume Two, the Penobscot
Dictionary, and the Native American Field Work recordings.  After a hearing,
the Probate Court entered an order admitting the later will to probate, and
Garrett now appeals.
	[¶4]  This is a direct appeal from the Probate Court.  See 18-A M.R.S.A.
§ 1-308 (1998).  Garrett challenges Siebert's testamentary capacity.   As the
contestant to the will, he "bear[s] the burden of proving that probate should
not be ordered because of 'lack of testamentary intent or capacity, undue
influence, fraud, duress, mistake or revocation.'" Estate of Dodge, 576 A.2d
755, 756 (Me. 1990) (quoting 18-A M.R.S.A. § 3-407).
	[¶5]  Garrett first contends that the Probate Court erred as a matter of
law and applied the wrong standard for determining Siebert's testamentary
capacity.  The Probate Court described testamentary capacity in the
following terms:
	So far as testamentary capacity goes, the cases
interpreting the statutes seem to give the testator/testatrix a
chance to do pretty much what he/she wants to do by way of
testamentary devise, provided such person knows that it is a will
that is being executed, knows the general nature and extent of
the estate, and knows who the natural objects of bounty are. 
Testamentary capacity has a low threshold which is easily
crossed by a person making a will.
Garrett argues, however, that the proper standard adopted by this Court is
as follows:
"A 'disposing mind' involves the exercise of so much mind and
memory as would enable a person to transact common and
simple kinds of business with that intelligence which belongs to
the weakest class of sound minds; and a disposing memory
exists when one can recall the general nature, condition and
extent of his property, and his relations to those to whom he
gives, and also to those from whom he excludes, his bounty. He
must have active memory enough to bring to his mind the nature
and particulars of the business to be transacted, and mental
power enough to appreciate them, and act with sense and
judgment in regard to them.  He must have sufficient capacity to
comprehend the condition of his property, his relations to the
persons who were or should have been the objects of his bounty,
and the scope and bearing of the provisions of his will.   He must
have sufficient active memory to collect in his mind, without
prompting, the particulars or elements of the business to be
transacted, and to hold them in his mind a sufficient length of
time to perceive at least their obvious relations to each other,
and be able to form some rational judgment in relation to them."
In re Leonard, 321 A.2d 486, 488-89 (Me. 1974) (quoting Hall v. Perry, 87
Me. 569, 572, 33 A. 160, 161 (1895)); see also Estate of Rosen, 447 A.2d
1220, 1222 (Me. 1982).  Reviewing the various formulations of the test for
testamentary capacity, we find that the Probate Court sufficiently
paraphrased the test and thus applied the proper standard for determining
testamentary capacity. See Estate of Mitchell, 443 A.2d 961, 963 (Me. 1982)
(quoting In re Will of Loomis, 133 Me. 81, 85, 174 A. 38, 41 (1934)).  
	[¶6]  Garrett also challenges the court's finding that Siebert possessed
testamentary capacity. Testamentary capacity is an issue of fact.  See Appeal
of Royal, 152 Me. 242, 245, 127 A.2d 484, 486 (1956);  Appeal of Waning,
151 Me. 239, 251, 117 A.2d 347, 354 (1955).  In a direct appeal from the
Probate Court to this Court, the Probate Court's findings of fact stand unless
clearly erroneous.  See Estate of Mitchell, 443 A.2d 961, 963 (Me. 1982). 
We will not assume fact-finding authority where there is a choice of two
permissible views of the weight of evidence. See id.  Because Garrett as the
contestant had the burden of proving lack of testamentary capacity, and the
Probate Court found that Siebert possessed said capacity, the Probate Court's
findings concerning testamentary capacity will not be disturbed unless the
evidence compelled a different result than that reached.  See Estate of
Dodge, 576 A.2d 755, 756 (Me. 1990). 
	[¶7]  Contrary to Garrett's contention, there is competent evidence
that the Probate Court was justified in concluding that Siebert possessed
testamentary capacity.  It had the testimony of the scrivener, Nathan Dane,
III, Esq., who testified that he visited Siebert at Ross Manor four times from
November 3, 1997, to November 25, 1997, concerning his power of
attorney and will.  He testified that at all times Siebert was sitting up and 
recognized him; that on two separate occasions he went over each provision
of the will with Siebert, asking him whether it was his wish, and that
Siebert would listen intently and verbally respond yes in an assertive voice;
that Siebert also verbally responded yes to the questions whether he was
prepared to sign his will and whether he acknowledged the document to be
his will.  Dane also testified that, during those discussions, Siebert appeared
to know the members of his family, and, although they did not go into great
detail about his assets, because of Siebert's gruff businesslike manner, they
did discuss what he owned in relation to the specific devises in the will.
Dane testified that there was no question in his mind that Siebert was aware
that he was signing his will.
	[¶8]  The court also had the testimony of Siebert's financial advisor,
Richard Stolkner, a financial consultant with A.G. Edward, who testified that
he had known Siebert since 1982 when he became his client, that he had
visited with him regularly to discuss his financial matters, and that he
visited him at Ross Manor in 1997 near the time he executed his will. 
Stolkner testified that Siebert did not behave abnormally during the 30-45
minute visit.  Stolkner testified that Siebert recognized him when he
arrived, that he indicated he did not like being in the nursing home, and
that he asked questions about his investments.  Stolkner also testified that
Siebert, during their visit, discussed his two daughters.
	[¶9]  The court also had the testimony of Siebert's neighbor of eight to
ten years, Donald Spencer.  Spencer testified that he saw Siebert several
times a week when he lived at home in Old Town, because Siebert enjoyed
reading Spencer's newspaper after he had finished with it.   He also testified
that he visited Siebert at Ross Manor in November 1997 just before
Thanksgiving to deliver a lobster roll his wife had made and that Siebert did
not behave any differently than he had for the eight to ten years they had
known each other.  Spencer testified that Siebert greeted him by name,
asked about Spencer's wife by name, and mentioned his daughters and the
controversy  with Garrett about who was going to be in charge of his
	[¶10]  Garrett argues that the Probate Court failed to evaluate Siebert's
memory function, ignoring the medical records and testimony. Certain
evidence suggested that Siebert may have had difficulty remembering
certain things and performing certain tasks at different times and that he
may not have been as detail-oriented as he once had been.  Notwithstanding
that evidence, the Probate Court could have found, based on the evidence of
the will itself and the attorney who prepared the will, as well as the
testimony of Siebert's neighbor and his financial advisor, that Siebert at least
knew the general nature and extent of his property and the natural objects
of his bounty.  Determinations of credibility and the weight of the evidence
are within the sole province of the fact finder.  Appeal of Waning, 151 Me.
239, 253, 117 A.2d 347, 355 (1955). Although there may be conflicting
testimony susceptible to two permissible views, the evidence does not
compel a finding that Garrett, as the contestant, overcame the presumption
of testamentary capacity. See Estate of Dodge, 576 A.2d 755, 757 (Me.
1990); Estate of Mitchell, 443 A.2d 961, 963 (Me. 1982).
	The entry is:
				Judgment affirmed.

Attorney for appellant: Jonathan B. Huntington, Esq. Douglas M. Smith, Esq. Eaton, Peadbody, Bradford & Veague, P.A. P O Box 460 Dover-Foxcroft, ME 04426 Attorney for appellees: Brent R. Slater, Esq. 115 Franklin Street, Suite 2A Bangor, ME 04401