Govan v. Brown

228 A.3d 142

Emma M. GOVAN, Appellant,

v.Julie Ebner BROWN, et al., Appellees.

No. 17-PR-630

District of Columbia Court of Appeals.

Argued April 17, 2019

Decided May 28, 2020

Johnny M. Howard, Washington, for appellant.

Christopher G. Hoge, with whom Elena Iuga, Washington, was on the brief, for appellee Julie Ebner Brown.

Robert E. Grant and James P. Lillis, Bethesda, MD, filed a statement in lieu of brief for appellee Holy Comforter St. Cyprian Roman Catholic School.

Before Blackburne-Rigsby, Chief Judge, McLeese, Associate Judge, and Steadman, Senior Judge.

Blackburne-Rigsby, Chief Judge:

After an evidentiary hearing, Judge Gerald Fisher denied appellant Emma M. Govan's request to admit and enforce a contested will executed by Emil Ebner on October 24, 2013 (the "2013 will"). The trial court ruled that the 2013 will was invalid because Mr. Ebner lacked testamentary capacity, specifically finding that Mr. Ebner "would not have been able to understand the terms of the document without explanation to him, and no such evidence was presented." We disagree, and we use this opportunity to clarify the standard for testamentary capacity.

A presumption exists in favor of testamentary capacity. See Morgan v. Adams , 29 App. D.C. 198, 206 (D.C. Cir. 1907). However, a party may challenge that presumption and invalidate a will by proving a lack of testamentary capacity. See Brosnan v. Brosnan , 263 U.S. 345, 349-50, 44 S.Ct. 117, 68 L.Ed. 332 (1923). To prove a lack of testamentary capacity, a party must show, by a preponderance of the evidence, that a testator did not have sufficient memory and mind at the time of executing a will to generally know (1) the property owned, (2) the intended beneficiaries of that property, and (3) the nature of the instrument being executed. See Thompson v. Smith , 103 F.2d 936, 943-44 (D.C. Cir. 1939). As we explain in this opinion, the presumption in favor of testamentary capacity is not rebutted merely by the absence of evidence that a testator understood the particular testamentary document at issue.

We conclude that appellee Julie Ebner Brown failed to present evidence sufficient to rebut Mr. Ebner's testamentary capacity, which is presumed.¹ Accordingly, we reverse the decision of the trial court, vacate its order denying appellant's request to admit the 2013 will to probate, and remand for further proceedings consistent with this opinion.

I. Factual and Procedural Background

Mr. Ebner passed away on December 27, 2013, at ninety-three years old, leading to a dispute over which testamentary document, distributing his three homes and significant wealth, the court should enter into probate. Appellant Emma M. Govan, Mr. Ebner's neighbor, filed a complaint seeking to enforce a 2013 will, while appellee Julie Ebner Brown, Mr. Ebner's niece and appointed personal representative, sought to enforce a will he executed on August 7, 2002, which was subsequently amended by two codicils. The 2013 will deviated in two significant respects from the previous testamentary documents. First, it replaced appellee Holy Comforter St. Cyprian Roman Catholic School with Ms. Govan as the residual legatee.² Second, it shifted the burden to pay estate taxes onto the beneficiaries, where the August 2002 will and codicils had allocated specific funds to pay those costs.

The trial court heard testimony concerning Mr. Ebner's life that bore on his mental capacity and the events leading up to, during, and following the preparation and execution of the 2013 will. According to the testimony, which the trial court credited, Mr. Ebner accumulated significant wealth throughout his life, including three homes located in the District of Columbia.³ Although Mr. Ebner was able to live alone during the last decades of his life, he had issues that made it difficult for him to be completely independent. He had a sixth-grade education and intellectual challenges caused by a childhood trauma. Additionally, he had some physical limitations and vision problems. Throughout his life, Mr. Ebner received assistance from family members, including his nieces, appellee Ms. Brown and Lisa Winters. In 2000, Mr. Ebner executed a very broad power of attorney for Ms. Brown. From 2000 onward, both Ms. Govan and Ms. Brown assisted Mr. Ebner, including in business affairs and financial matters. In 2008, Mr. Ebner executed a second power of attorney for health care for Ms. Brown, which also designated Ms. Govan as the alternate.

Ms. Brown testified that Mr. Ebner had difficulty understanding issues, specifically complex matters, oftentimes needing things explained in more than one way. For example, with respect to banking, while Mr. Ebner could deposit money and write checks, he did not understand how to set up a bank account. Ms. Brown testified that when Mr. Ebner signed a deed in 2010 to transfer ownership of one his properties, he became upset because he was unsure whether to sign the document. To calm him down and alleviate his concerns, Ms. Brown read the deed to him "line by line," stopping repeatedly to make sure he understood. At that time, Mr. Ebner could not see well enough to read. Ms. Brown testified that she believed Mr. Ebner was confused and had difficulty understanding things throughout 2013 and until his passing in December of that year.

Michael Davidson, Mr. Ebner's long-time attorney, met with Mr. Ebner in January 2013 to go over Mr. Ebner's testamentary affairs and specifically to address the payment of estate taxes as contemplated in the August 2002 will and its codicils. Mr. Davidson followed up with Mr. Ebner in February 2013, at which time Mr. Ebner stated that he did not intend to make any changes. Mr. Davidson testified that, during both conversations, Mr. Ebner "clearly understood" the nature of the conversation.

Ms. Brown testified to conversations that she had with Mr. Ebner in March, May, and October 2013 during which Mr. Ebner discussed his finances and intent on allocating his property upon his passing. Ms. Brown testified that Mr. Ebner told her in March 2013 that he wanted Ms. Brown, Ms. Winter, and another niece each to receive equal portions of his money.

Renee Williams worked as an in-home nurse's aide for Mr. Ebner approximately three days per week in 2013. She testified that, in August 2013, Mr. Ebner had no difficulty recalling events, could articulate the previous day's affairs, communicated how he felt, and was not confused. Dr. Mohammed Khan, Mr. Ebner's primary care doctor from January 2012 through his passing, managed Mr. Ebner's diabetes and chronic renal insufficiency and observed him during visits in April 2013, September 2013, and November 2013. Dr. Khan testified that, during those visits, Mr. Ebner was well oriented to time and place and did not appear to be confused.

In September 2013, Ms. Govan took Mr. Ebner to meet with a different attorney, Johnny M. Howard, regarding his testamentary affairs. Ms. Govan was present for this meeting, along with Ms. Williams. Ms. Govan testified that Mr. Ebner appeared "very alert" during this meeting, did not appear to be confused, and talked with Mr. Howard and asked questions.

A few days prior to Mr. Ebner's birthday on October 8, 2013, Ms. Brown arrived unannounced at Mr. Ebner's home with many members of Mr. Ebner's extended family for a surprise party. During the party, Mr. Ebner was disheveled, lost focus, appeared confused, did not recognize one family member whom he had not seen in many years, stared off into space, and only responded to simple questions.⁴

On October 17, 2013, Mr. Howard sent Mr. Ebner a draft will, two draft transfer-on-death deeds (which, upon Mr. Ebner's death, would have changed ownership of two properties from Ms. Brown to Ms. Govan), and a draft revocation of Ms. Brown's 2000 power of attorney. Mr. Howard included among these papers an explanation sheet for the transfer-on-death deeds.

Mr. Ebner met again with Mr. Howard on October 24, 2013, at which time he executed the 2013 will and the two transfer-on-death deeds. He did not execute the revocation of Ms. Brown's power of attorney. Ms. Govan, who attended the meeting, testified that Mr. Ebner was "jolly" and talkative during the commute to and from Mr. Howard's office, appeared alert about the matters discussed during the meeting, and did not appear to be confused. Vonda Burns and Vivian Gatling, employees of law firms in the suite where Mr. Howard worked, testified that they observed Mr. Ebner execute the will and also served as witnesses. Ms. Gatling testified that it was Mr. Howard's practice to read through every page of a will to his client, though she did not clarify whether Mr. Howard did so with Mr. Ebner.

In December 2013, Mr. Ebner required hospitalization and surgery. Ms. Govan and Ms. Brown both testified that, while he was in the hospital, they spoke with Mr. Ebner regarding his financial matters. During one such conversation, Ms. Brown testified that Mr. Ebner repeated his intention that his three nieces receive equal portions of his money after he passed. Ms. Winters testified that Mr. Ebner informed her during a telephone call in either November or December 2013 that he wanted Ms. Govan to receive $100,000 and that he had created bank accounts in Ms. Winters and Ms. Brown's names. Mr. Ebner died on December 27, 2013.

On December 30, 2013, Mr. Howard filed the 2013 will with the Probate Division of the Superior Court of the District of Columbia. On February 21, 2014, Ms. Brown filed a petition for probate seeking to admit the August 2002 will and its codicils. On April 7, 2014, Ms. Govan filed a complaint seeking to set aside the August 2002 will and codicils and to enter the 2013 will into probate.

At the hearing, Ms. Brown presented the expert testimony of Dr. Robert Goldstein, a physician who practiced internal medicine with a specialty in nephrology. Dr. Goldstein was also the parent of an attorney at the firm representing Ms. Brown. Over appellant's objection, Dr....