Winifred Foster filed a “pre-death will contest” action during her lifetime to declare the validity of her will and her living trust dated June 26, 2007. The execution ceremony was videotaped. The circuit court upheld the validity of the documents.
Winifred’s granddaughter, Deirdre, appealed the circuit court’s determination alleging that: (1) the will was not properly executed; (2) the will was procured by her sister, Nayla, by undue influence; (3) collateral estoppel prevented Nayla from claiming Winifred was competent; and (4) the trial court ignored evidence of incompetence and lack of testamentary capacity.
On appeal, the court affirmed the trial court on the grounds that: (1) Deirdre’s failure to raise each argument at trial prevented ruling on each issue in Deirdre’s favor on appeal; (2) the will was validly executed and signed by two witnesses in Winifred’s presence; (3) publication was made by inference from Winifred’s explanation of her bequests to Nayla prior to execution; (3) Winifred’s attorney had contacted her about preparing the June 2007 documents, and Winifred had paid him directly for drafting the will and trust; (4) Winifred stated in the video that she intended Nayla to be the sole beneficiary under her will; (5) collateral estoppel did not apply to Nayla’s prior filing of a guardianship action for Winifred, because the issue had not actually been litigated and Winifred had not been finally adjudicated incompetent; (6) complete sanity in a medical sense at all times is not essential to testamentary capacity, provided capacity exists at the time the will is executed; and (7) the trial court had sufficient evidence to conclude that Winifred had the requisite capacity, based on video and witness testimony, at the time of the signing.