Opinion
No. CV 97 0406971 S
September 22, 2004
MEMORANDUM OF DECISION
The instant matter, a de novo appeal from the Probate court of Madison's admission of the decedent's will to probate, was tried to the court on May 20 and 21, 2004. The court heard final arguments on June 4, 2004.
The sole issue before the court is whether the decedent Matthew Flanagan possessed or lacked testamentary capacity on September 16, 1995, when he executed his will while a patient in the coronary care unit at Yale-New Haven Hospital. Said will disinherited the decedent's two children from a previous marriage, plaintiffs herein.
It is established law in Connecticut that the burden of proof with respect to due execution and testamentary capacity is on the proponent(s) of the will (the defendant estate in this case). Wheat v. Wheat, 156 Conn. 575, 578 (1968). "The well established test for testamentary capacity is whether the testator had mind and memory sound enough to know and understand the business upon which he was engaged at the time of execution." City National Bank and Trust Co.'s Appeal, 145 Conn. 518, 521, 144 A.2d 338 (1958); Kirk v. Wood House, No. CV-02-0469544, 2003 Ct.Sup. 10308, judicial district of New Haven, September 3, 2003. The ultimate determination as to whether a testator has measured up to this test is a question for the trier of fact. Stanton v. Grigley, 177 Conn. 558, 564 (1979).
Whether or not the will in question is valid involves three questions: (1) Was the will executed with the requisite legal formalities? (2) Did the testator have testamentary capacity? and (3) Did the testator execute the will freely without undue influence, fraud or mistake? Rockwell's Appeal from Probate, 54 Conn. 119, 120 (1886). Questions (1) and (3) are not at issue in this case. The will is challenged solely on the claim that the testator's physical condition and the treatment that was being administered to him at the time of execution precluded said testator having testamentary capacity at the time of execution.
The facts leading up to the decedent's admission to Yale-New Haven Hospital up to the time of execution of his will are not contested apart from his condition at the time of execution. He was admitted to Yale-New Haven on the evening of September 14, 1995, and gave a history upon admission of not feeling well for several days, experiencing dizziness, nausea, weakness and diaphoresis. Upon arrival at the emergency room he was found to have atrial fibrillation which deteriorated into ventricular tachacardia. He was admitted with a diagnosis of antero-septal myocardial infarct, a diagnosis which was unconfirmed.
On the second day of hospitalization, September 15, 1995, the decedent spontaneously went into atrial fibrillation and then arrested requiring intubation which was followed by reversion to a sinus rhythm. Cardiac catheritization followed which revealed substantial blockage of two coronary arteries. Upon return to the cardiac care unit and, on September 16, the day of execution of said will, the decedent had an endotracheal tube, a nasogastric tube, a right central venous line, a Swan Ganz catheter and an intra-aortic balloon pump in place, and he was breathing with the aid of a ventilator. He was being administered versed, a sedative and fentanyl, an opiod analgesic whose analgesic properties, like all analgesic agents, vary with the dosage administered.
Evidence before the court included the testimony of Robert Thomas the son-in-law of the decedent's third wife, Carol Flanagan. Thomas testified that in the morning of September 25, he visited with the decedent who told Thomas to contact an attorney for the purpose of preparing a will leaving his entire estate to his wife of 17 years, Carol Flanagan and appointing his wife executor of his estate. This conversation took place prior to the decedent's cardiac arrest on said date. An examination of the hospital record for the next day, September 16, reveals at 7:05 a.m.: "Pt currently in NSR [normal sinus rhythm] No complications since last p.m. Alert and able to answer question." Another note on the 16th states "Pt. awake and alert." The significance of these notes by nursing personnel is two fold: First, they are observations recorded by healthcare staff trained to make such observations, and second they lend credence to the testimony of those witnesses who witnessed the decedent's execution of the will as well as family members who testified as to their observations of the decedent on September 16, 1995.
The testimony before the court revealed that execution of the will took place between 10:00 a.m. and 11:00 a.m. on September 16. The will was witnessed by Debra L. Thomas, wife of Robert Thomas and daughter of Carol Flanagan, widow and sole legatee, and Scott Auger, whose mother had been married to the decedent prior to Carol Flanagan's marriage. Debra Thomas testified that she in the company of her sister and her mother brought the will to the decedent's room at 8:30 a.m. on September 16. Scott Augur and Kim Augur were already in the room. The decedent greeted her by nodding his head and hugged his wife. He could not talk because of an endotracheal tube attached to a ventilator which interfered with laryngeal function. He could not read either because of severe diabetic retinopathy. Consequently Debra Thomas read his will to the decedent, following which the decedent "motioned with his hand to come over to the bed." The decedent had a pen and paper which he used to communicate through note writing. The decedent then signed his will.
Kim Augur Yother, a step daughter of Carol Flanagan was working at Yale-New Haven Hospital as a respiratory therapist during the decedent's hospitalization. She testified that she visited the decedent at 8:00 a.m. on September 16. Carol Flanagan was there. The decedent wrote two notes, "did anybody call" and "check the tube."
The court heard testimony from two experts. Dr. James Merikangas, board certified in both neurology and psychiatry, testified for the plaintiffs, and Dr. Jack Hauser, board certified in internal medicine and in cardiology testified in support of the will. Dr. Merikangas testified that the decedent could not have had testamentary capacity because on the day in question, he had been given and was being maintained on Versed, a sedative and Fentanyl, "a potent anesthetic," since his cardiac arrest on September 15, which were required so that the patient could tolerate his endotracheal tube.
Dr. Hauser countered that the nurses' notes reflected mental status, and that on September 15, during the 7 p.m. to 7 a.m. shift, a nurse had noted "pt. responds `yes and no' appropriately," and that on September 16, a cardiology fellow had noted "NSR alert and able to answer questions." Dr. Hauser regarded the above record notations as evidence of the decedent "not being intellectually impaired and being able to understand and communicate." Therefore, Dr. Hauser concluded that the decedent possessed the requisite testamentary capacity at the time of his execution of his will.
The court has a difficult task in attempting to determine which expert is the more worthy of belief. The expert witnesses who testified were not participants in the care and treatment of the decedent during his hospitalization. In fact at no time did either physician examine the decedent. Whether an expert's opinion, is to be accepted or rejected by the trier, i.e., the court, in whole or in part must be determined in the light of all the other evidence in the case. All the other evidence, apart from the expert testimony, in the case came from witnesses who were present and observed the decedent on the day and day before he executed his will. All other witnesses testified that the decedent was conscious and reacting appropriately thereby exhibiting requisite understanding during the process of execution.
The court is of the opinion that the credibility of the experts in this case depends to a considerable extent upon the actual dosage of Fentanyl being administered to the decedent on September 16, 1995 up to the time of execution and during the execution of the will. Dr. Merikangas testified that the dosage was 200 millequivalents per minute — which is stated on at least two entries in the hospital record. Dr. Hauser testified that such a dosage of Fentanyl is never used and can be fatal. He opined that the actual dosage provided to the decedent was an infusion of 200 micrograms per hour, which dosage would provide analgesia not anesthesia and is, also noted in the hospital record. Dr. Hauser's testimony enhances the credibility of the non-medical witnesses who testified based upon their observations. Dr. Merikangas's testimony would destroy the credibility of all such witnesses.
On a page bearing the date of 9-15-95 n.p.n 7:00-7:30 A. "fentanyl 200 meg/per min."
Surprisingly, the decedent survived this hospitalization and at least one subsequent admission to Yale-New Haven Hospital and died on July 5, 1996. The will at issue was a simple will with one beneficiary, the decedent's wife of 17 years. His instructions to Robert Thomas were, therefore, uncomplicated and did not require a sophisticated thought process. Furthermore, making one's spouse the sole legatee of one's will to the exclusion of children is far from rare.
Connecticut law holds that a "[testator] may be competent to make a will though he has not mental capacity sufficient for the management or transaction of business generally," and further that "some mental impairment could occur and still leave the [testator] with a sound mind within the definition of testamentary capacity . . ." Doolittle v. Upson, 138 Conn. 642, 645 (1952).
There was no question that Matthew Flanagan was a seriously ill patient at the time of the execution of his will. The court, however, in the face of testimony from those in his room on September 16, 1995, that he was conscious, aware of his surroundings, aware that he was in the process of signing his will and nodded his head appropriately when read the contents of the will, cannot find that he lacked the necessary testamentary capacity at the time of execution. Furthermore, the court finds that the defendant Estate of Matthew Flanagan, proponent of the will, through the testimony of Dr. Hauser and the non-professional witnesses, have satisfied its burden of proof and has proved by a preponderance of the evidence that Matthew Flanagan had the requisite testamentary capacity on September 26, 1995 when he executed his will.
Skolnick, J.