Opinion
5-21-0067
02-14-2022
In re ESTATE OF LAVERN D. ELAM, Deceased. v. Thomas Keith Steiner, Defendant-Appellant and Cross-Appellee. DeWayne E. Elam, Plaintiff-Appellee and Cross-Appellant,
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Fayette County. No. 16-P-26 Honorable J. Marc Kelly, Judge, presiding.
WHARTON, JUSTICE delivered the judgment of the court. Justices Welch and Cates concurred in the judgment.
ORDER
WHARTON, JUSTICE
¶ 1 Held: Where the trial court's finding, that Lavern D. Elam lacked testamentary capacity to execute a will, was not contrary to the manifest weight of the evidence, we affirm.
¶ 2 Lavern D. Elam (Lavern) died in May 2016, and shortly thereafter, DeWayne E. Elam (DeWayne) was issued letters of office for the intestate estate. Thereafter, Thomas Keith Steiner (Steiner) filed a petition to admit a will, purportedly executed by Lavern on the day before he died, that named Steiner as the executor. The will was admitted to probate. DeWayne continued to serve pursuant to the previously issued letters of office. DeWayne filed a petition to contest the validity of the purported will. After a bench trial, the court ruled that Lavern lacked testamentary capacity to execute the will at issue. From this order, Steiner appeals. DeWayne filed a cross-appeal alleging that the trial court's allowance of Dr. Roger Wujek's expert testimony, beyond the opinions disclosed in discovery, was erroneous. For the reasons stated in this order, we affirm. Therefore, we do not address the merits of DeWayne's cross-appeal.
¶ 3 I. BACKGROUND
¶ 4 A. Events and Pleadings Before Trial
¶ 5 Lavern was severely obese and suffered from back pain, congestive heart failure, diabetes, and chronic obstructive lung disease. He was admitted to, and then transferred from, Greenville Regional Hospital in Greenville, Illinois, to St. Luke's Hospital in Chesterfield, Missouri. Toward the end of his life, Lavern was informed by his treating physicians that his life could only be prolonged if he had a tracheotomy and was placed on a ventilator. Lavern refused to be put on a ventilator.
¶ 6 On May 1, 2016, Lavern purportedly executed a will while in St. Luke's Hospital. In this will, Lavern appointed Steiner as his executor. After payment of all debts, expenses, taxes, and administrative costs, he devised, bequeathed, and gave all assets to Steiner and Bret Aaron Steiner (Steiner's son) to be equally divided. The will contained a provision by which he generally and specifically disinherited all other persons who claimed to be his heirs, or who may lawfully be determined to be his heirs. The will was signed by Lavern and two witnesses, Raymond Neathery and Dean M. Skaleski. The next day, on May 2, 2016, Lavern died from respiratory failure, at the age of 53.
¶ 7 At the time of decedent's death, he was survived by his father, Lowell D. Elam, two brothers, DeWayne and Verlin G. Elam, and one sister, Kathy L. Elam. He owned real and personal property in Fayette County at the time of his death. Part of his real property was Fayette County farmland that he leased to a Vandalia farmer.
¶ 8 On May 16, 2016, DeWayne opened an estate in Fayette County circuit court and filed a petition for letters of administration, alleging that Lavern died without a will. The next day, the trial court entered orders declaring heirship and appointing DeWayne as the representative of Lavern's estate. Lavern's estate was to be independently administered. After DeWayne was appointed by the court, he requested, and the court approved, a farm lease to maintain the lease relationship between the Vandalia farmer and Lavern's estate.
¶ 9 On June 8, 2016, Steiner entered his appearance in the estate case. He filed a petition to admit Lavern's May 1, 2016, will to probate, a motion to prove up the will, and a motion to bar all of DeWayne's actions as the independent administrator of Lavern's estate. On July 26, 2016, the trial court entered the will to probate. The court also entered its order that maintained DeWayne as the representative of Lavern's estate but terminated independent administration and ordered supervised administration. Finally, the court appointed Steiner as a special administrator for the sole purpose of defending DeWayne's will contest.
¶ 10 DeWayne filed, and later amended, his petition against Steiner, Verlin G. Elam, Lowell D. Elam, Kathy L. Elam, and Bret Aaron Steiner to contest the validity of the purported will. He alleged both that Lavern was incompetent on May 1, 2016, to execute his will and that Steiner exerted undue influence over Lavern.
¶ 11 On January 23, 2017, DeWayne filed his inventory of the personal and real property that had belonged to Lavern. None of the personal property had much value, but DeWayne estimated the farmland was valued at $700,000.
¶ 12 All parties stipulated to the admissibility of Lavern's medical records from St. Luke's Hospital and two depositions taken of Lavern's treating physicians. On December 31, 2018, counsel for Steiner and Bret Aaron Steiner filed an "opinion letter" from Roger Wujek, M.D., a family physician from Litchfield, Illinois, and indicated that Dr. Wujek would be expected to testify as an expert witness at trial. Based upon the St. Luke's Hospital medical records and the depositions of the physicians, Dr. Wujek opined that the medical notes indicated that Lavern could make decisions, including the decision to execute his will on May 1, 2016. DeWayne filed a motion to bar expert testimony and for a protective order on January 29, 2019. In response, Steiner argued that the existence of Dr. Wujek was not a surprise in that his attorney had communicated on more than one occasion with DeWayne's attorney to advise that an expert witness report was forthcoming. After a hearing held on February 15, 2019, the trial court denied the motion to bar the expert witness.
¶ 13 B. Trial
¶ 14 Trial began on November 30, 2020, and concluded on December 1, 2020. At the beginning of the trial, the court took judicial notice of two related court files. The first case was the April 28, 2016, guardianship for Lavern that DeWayne sought and was awarded. The guardianship petition was supported with an affidavit of Amala Kumar D. Augustine, M.D., one of Lavern's treating physicians, who indicated that Lavern was unable to take care of his personal affairs and needed to have a guardian appointed on his behalf. The second court file involved a 2013 contract dispute between DeWayne and Lavern. The court also took judicial notice of the court file in this case.
¶ 15 1. Testimony of Thomas Keith Steiner
¶ 16 Steiner was called as an adverse witness. He testified that he had known Lavern for approximately 30 years. Lavern and Steiner's father worked together at an area factory, and both men also raised hogs. Steiner and Lavern lived in Mulberry Grove about one mile from each other. In the four months prior to Lavern's final hospitalization, Steiner testified that Lavern was retaining water in his legs and had open sores. He changed the dressings on these sores. Steiner helped maintain and make repairs to Lavern's home and yard. He brought in Lavern's mail when requested. He brought Lavern food every night. He picked up prescriptions for him at an area pharmacy. Sometime in early 2016, he began taking Lavern to medical appointments. Prior to that time, Lavern's father and/or DeWayne's wife used to take him to the appointments, but that ended when Lavern's father stopped driving. Lavern asked Steiner to become his power of attorney over healthcare matters.
¶ 17 Steiner testified that the will was prepared by his sister-in-law, Brenda Duff, at his direction. Duff is not an attorney. Lavern never spoke to Duff, but Steiner testified that Lavern told him what he wanted in the will. Steiner then took the will to St. Luke's Hospital on May 1, 2016. Steiner also brought Raymond Neathery and Dean Skaleski to the hospital to witness the execution of the will. Steiner alternatively testified that he had no idea how the notary public, James Gould, came to be at St. Luke's Hospital on that date, and then testified that he "found" the notary and contacted him to come to Lavern's hospital room to notarize the will.
¶ 18 Steiner testified that Bret Aaron Steiner was his oldest son. He indicated that his son had done some work for Lavern, "but not much." Steiner stated that he did not know how he obtained the legal descriptions for the 200 acres of farmland. He guessed that he could have gotten the descriptions and the pin numbers from the Farm Service Agency office. He explained that while the tracts of land were connected, not all 200 acres were tillable. Steiner testified that Lavern's personal property was probably worth $15,000 to $20,000.
¶ 19 On May 1, 2016, while in Lavern's hospital room, Steiner testified that he saw Lavern read his will. As far as Steiner knew, Lavern understood the will's provisions. Steiner stated that he did not know whether Lavern had a previous will. He also indicated he was unaware that DeWayne had been named Lavern's guardian until trial. He testified that he did not know that DeWayne had instructed St. Luke's Hospital to allow no one into Lavern's room unless DeWayne was present.
¶ 20 Steiner acknowledged that in 2015, he had discussions with Lavern that involved Steiner building a home for Lavern. In exchange, Lavern was going to give Steiner the farm. Steiner testified that he had a contractor come out to the property to talk about the house, but that he did not go any further with the project.
¶ 21 Steiner denied that he had discussions with St. Luke's Hospital staff about moving Lavern to hospice care. He recalled that the hospital wanted to move Lavern to a different room, but that Lavern refused.
¶ 22 2. Testimony of Dr. Amala Kumar D. Augustine
¶ 23 Dr. Augustine testified that he is an internist and treated Lavern at St. Luke's Hospital pursuant to a referral from Dr. Kenneth Selke, who saw patients at the Greenville hospital. He testified that on occasion he has been asked to render an opinion as to a patient's competency. Dr. Augustine identified an affidavit that he signed on August 24, 2016, in this case. DeWayne brought the affidavit to him. In the affidavit, Dr. Augustine provided his medical opinion that as of May 1, 2016, Lavern lacked the ability to know the nature and extent of his property. He also lacked the ability to recognize his surroundings or the people around him.
¶ 24 Dr. Augustine testified that as of April 26, 2016, Lavern was "waxing in and out of consciousness" in that" [a]t times he would be awake and open his eyes and then drifts back into sleep." He testified that Lavern was "going downhill" at that point, and thus was not alert and oriented.
¶ 25 Dr. Augustine testified that when Lavern was transferred to St. Luke's Hospital in April 2016, he had terminal chronic obstructive lung disease. He stated that Lavern was on a ventilator, and he had a feeding tube. However, Lavern's status declined, and the only way to sustain his life was to add a tracheotomy with ventilator maintenance. Lavern refused the tracheotomy and then "took himself off" the ventilator, after which the partial pressure of carbon dioxide (pCO2) waste products began climbing to a high level. Lavern was then placed on a bilevel positive airway pressure device (BiPAP), an alternative device that assists a patient with breathing, but he was not able to be on the BiPAP 24 hours per day. When the BiPAP was removed, Lavern's oxygen levels would decrease. Dr. Augustine testified that eventually Lavern pulled out the BiPAP.
¶ 26 Dr. Augustine explained that if tests showed that Lavern's pCO2 levels were decreasing, that could be from the use of the BiPAP. However, if Lavern was on the BiPAP, and if his pCO2 levels were decreasing, his orientation and communication skills would return over a period of a few days. He testified that when a person's pCO2 levels increase, it is clinically like a state of alcohol intoxication. Dr. Augustine testified that this state of intoxication becomes an impairment when the patient is unable to care for himself. As an example, Dr. Augustine pointed to the fact that Lavern removed his BiPAP even though the BiPAP was crucial to his survival.
¶ 27 Dr. Augustine confirmed that his April 30, 2016, patient visit note indicated that Lavern was "alert and oriented." He also confirmed that he had not spoken with Lavern on May 1, 2016, because he was asleep when he visited, and that Dr. Selke's notes for May 1, 2016, indicated that Lavern was awake and having a conversation with his visitors. Dr. Augustine testified that he did not know what Lavern's mental state was on May 1, 2016, from 10 a.m. until 3 p.m. However, he testified that it would be difficult to conclude that a patient with pCO2 levels as high as Lavern's levels, and who died within 24 hours of respiratory failure, was competent enough to "make a document."
¶ 28 On cross-examination, Dr. Augustine testified that he did not have to be constantly in Lavern's presence to render the medical opinions he made in his affidavit. He explained again that the high level of pCO2 in Lavern's blood would correlate to someone who was intoxicated with alcohol. In addition to Lavern's elevated pCO2 levels, his potential hydrogen level (pH) plummeted, and in those last three days, he was on and off the BiPAP.
¶ 29 3. Testimony of DeWayne E. Elam
¶ 30 DeWayne testified that his brother weighed 500 pounds at his death and suffered from back problems, breathing problems, diabetes, congestive heart failure, and sores on his lower legs. DeWayne testified that by January 2016, his brother's ability to walk had seriously diminished, and eventually he needed help with meals and assistance at home. He confirmed that he did not go to help his brother.
¶ 31 DeWayne testified that he had informed St. Luke's Hospital that no visitors other than immediate family were to be allowed to visit Lavern. He later learned that Steiner had been allowed to see Lavern and that Steiner had obtained a power of attorney over Lavern's health matters. Shortly before his brother's death, he received a phone call from St. Luke's Hospital staff advising him to get to the hospital because it was not expected that Lavern would live much longer. DeWayne signed paperwork at the hospital to allow the hospital to perform various procedures for Lavern's health.
¶ 32 DeWayne was asked about the earlier contractual litigation between the two brothers. He testified that he had a written agreement signed by Lavern, DeWayne, DeWayne's wife, and an attorney. Pursuant to the agreement, DeWayne agreed to build Lavern a one-bedroom pole barn house where he would live until his death. DeWayne would pay the $60,000 in construction materials. Lavern would be responsible for the power bill and renter's insurance. DeWayne would be responsible for taxes and all other associated bills. During the second year of the contract, DeWayne was supposed to pay Lavern a set monthly amount, and upon Lavern's death, the house would be presumptively paid in full, and DeWayne would own the house. The agreement further provided that over time he would pay Lavern an additional $265,000 for Lavern's farmland. After the contract was drawn up, Lavern appeared at the attorney's office when the contract would be signed, and he informed DeWayne that he had changed his mind. The breach of contract lawsuit followed. DeWayne confirmed that his breach of contract suit against Lavern remained pending. He further acknowledged that if the court determined that Lavern's purported will was invalid, he may make a claim against the intestate estate based upon that contract.
¶ 33 DeWayne testified that from April 17, 2016, through April 30, 2016, he typically traveled to St. Luke's Hospital every day. He could not recall if he went to St. Luke's Hospital on May 1, 2016. Each visit was late in the day because he farmed during the day. DeWayne testified that his wife and sister went with him. One time, his father joined them. During that visit, DeWayne testified that he remembered his father asking Lavern if he had a will. Lavern informed his father that he did not have a will and did not plan to have one prepared. Later in April 2016, DeWayne and his wife asked Lavern the same question and received the same answers. Lavern asked DeWayne about taking care of his bills. He also spoke with Lavern about burial wishes. DeWayne testified that his brother was not "in a real good state of mind to talk" about personal things. The conversations he had with Lavern were centered on getting Lavern's affairs in order because the physicians had indicated that Lavern was nearing death.
¶ 34 4. Motion for Directed Verdict
¶ 35 At the conclusion of DeWayne's testimony, he rested his case. In response, Steiner's attorney made an oral motion for a directed verdict. He argued that he had established Lavern's capacity to execute his will and that Steiner had not exerted undue influence upon Lavern. The court stated that DeWayne "presented sufficient evidence to rebut the presumption that the testator had the capacity to enter into the will." However, the court directed a verdict for Steiner on the issue of undue influence because the court found that the evidence did not support the existence of a fiduciary relationship. In response, DeWayne's attorney filed a motion to reconsider. The trial court then granted the motion to reconsider and allowed the undue influence charge to remain part of DeWayne's case.
¶ 36 5. Additional Testimony of DeWayne E. Elam
¶ 37 In Steiner's case, he recalled DeWayne. DeWayne testified that about four to five days before Lavern passed, he spoke to him about getting his bills paid and about his impending funeral costs. DeWayne confirmed that his wife was present during this conversation. He testified that his brother asked about their father and DeWayne's siblings, and that Lavern appeared to know who DeWayne and his wife were.
¶ 38 6. Testimony of Raymond D. Neathery
¶ 39 Raymond D. Neathery testified that he witnessed the execution of Lavern's will. He testified that he saw Lavern and the other witness sign the will. Neathery indicated that he was present when the notary public notarized the will.
¶ 40 Upon arrival at Lavern's room on May 1, 2016, Lavern was asleep. Neathery testified that when Lavern woke up, he identified every person present. He testified that Lavern ordered his lunch from a menu. Neathery stated that the men talked about farming. Lavern asked Steiner about his hogs and the Farm Service Agency. During this conversation, Lavern asked the men about a fellow farmer, Wayne Roe, of Mulberry Grove. Neathery testified that Lavern was awake the entire time he was there, and he described Lavern's behavior as normal.
¶ 41 Neathery testified that he had only known Lavern for a little over a year. He met Lavern through Steiner. Neathery testified that he worked for Steiner on the farm.
¶ 42 Neathery stated that when the notary public arrived, Lavern read the will. Lavern did not ask any questions about the will. After he finished reading the will, Lavern signed the document.
¶ 43 On cross-examination, Neathery was impeached with his deposition testimony when he testified that Lavern read the will out loud, and upon finishing, Lavern asked Steiner "if that's what he wanted." In the deposition testimony, Neathery stated that Steiner responded to Lavern in the affirmative.
¶ 44 Neathery testified that he had heard Lavern say that he wanted to give everything to Steiner and that he did not want his brothers to receive the land. In exchange for Lavern's land, Neathery testified that Steiner was supposed to build or pay for a house for Lavern. He confirmed that Steiner did not build Lavern a house.
¶ 45 7. Testimony of Dean Skaleski
¶ 46 Dean testified that he had known Lavern for two to three years. He testified that he recognized his own signature as a witness to Lavern's will. He stated that he, Neathery, and Steiner drove together to the hospital. Skaleski confirmed that upon arrival in his room, Lavern was asleep. When Lavern woke up, he was able to identify the men in the room. Skaleski confirmed that Lavern ordered something to eat. He also stated that a nurse had been in the room shortly after they arrived, and then a doctor briefly came into the room while they were there. They talked about farming in general, the livestock market, and a farming neighbor, Mr. Roe. Skaleski noted that the conversation he had with Lavern on May 1, 2016, was like conversations he had with Lavern outside of the hospital.
¶ 47 Skaleski testified that during the hospital visit, the will was presented to Lavern. Lavern read part of the will silently and read part of the will out loud. Then, Lavern signed the will.
¶ 48 8. Testimony of James W. Gould
¶ 49 James W. Gould, a Missouri notary public, testified that he remembered notarizing Lavern's will in the hospital room. Gould testified that he asked to see driver's licenses for Lavern and the witnesses. He noted that Lavern's license was expired. Gould testified that he asked and confirmed with Lavern that he was signing the will of his own volition. He stated that Lavern did not read the will while he was present.
¶ 50 9. Arguments About Medical Testimony
¶ 51 After Gould finished his testimony, Steiner's attorney referenced a deposition of Dr. Kenneth Selke and argued that Dr. Selke's testimony differed from Dr. Augustine's testimony. Dr. Selke testified that if the pCO2 level improved, cognitive ability could return. On May 1, 2016, Dr. Selke saw Lavern in the room with the men before Lavern executed his will. Steiner's attorney argued that Dr. Selke testified that he was "sure" that Lavern had the ability to know what was going on when he woke up.
¶ 52 10. Testimony of Roger A. Wujek, M.D.
¶ 53 Dr. Wujek testified that he had just retired after practicing medicine for 41 years as a family physician. He had retained his license to practice medicine and was board certified in family practice. The trial court noted its acceptance of Dr. Wujek as an expert in the field of medicine.
¶ 54 Dr. Wujek testified that when he was a practicing physician, he treated many patients with similar respiratory conditions. Although he had never seen Lavern as a patient, he reviewed the St. Luke's Hospital medical records, as well as deposition transcripts of his treating physicians. He testified about the function of carbon dioxide and oxygen levels in the blood that can either result in a patient being alert or a patient being asleep and not cognizant. He provided his medical opinion that at some point the nursing staff had increased Lavern's oxygen supply too high, which resulted in Lavern sleeping and being in a "stuporous state" on April 25, 2016.
¶ 55 Dr. Wujek disagreed with Dr. Augustine's opinion that it could take a few days for Lavern's pH to compensate if Lavern was placed on a BiPAP. He testified that in his experience, an acute rise in carbon dioxide levels could be reversed with treatment utilizing either a BiPAP machine or a ventilator. Dr. Wujek testified that this could mean that while Lavern was sleeping in the morning, he could be fully cognizant by afternoon once the elevated carbon dioxide level was corrected. Overall, he stated that Lavern's affect could change hourly depending upon whether he was receiving an appropriate amount of oxygen. He described an end-of-life respiratory illness as being an up and down process, instead of a straight linear decline. Therefore, he disagreed with Dr. Augustine's assessment that Lavern's condition was in a steady decline. Dr. Wujek also took issue with Dr. Augustine's opinion that Lavern was not competent on May 1, 2016, to execute his will. Dr. Wujek questioned Dr. Augustine's reliance on the older test results to establish a lack of competence on May 1, 2016. Further, while Lavern was asleep and "not arousable" when Dr. Augustine stopped in his room on May 1, 2016, Dr. Wujek stated that Lavern could have been completely cognizant later that day when he executed his will.
¶ 56 Dr. Wujek also disagreed with Dr. Augustine's acceptance of Lavern's competence to refuse the reintroduction of a ventilator in late April 2016. He argued that if Lavern was competent in late April 2016 to make an end-of-life decision about the ventilator, then he was competent to execute his will the following week.
¶ 57 Dr. Wujek also testified to his history with other end-stage patients. He stated that patients will often have a final "good day," to get their affairs in order. He testified that he believed that is what happened with Lavern on May 1, 2016, and that after he executed his will-got his affairs in order-he "gave up."
¶ 58 On cross-examination, Dr. Wujek acknowledged that he based his medical opinions about Lavern's competency to execute his will on the lab values. He agreed that he had no idea whether the lab values in these medical records were accurate. Dr. Wujek agreed that he had no independent knowledge of whether Lavern consistently wore his BiPAP mask.
¶ 59 Dr. Wujek acknowledged that the wife of one of the attorneys representing Steiner worked at the medical practice where he had practiced until his recent retirement. He also acknowledged that he was being compensated by Steiner for the time spent in reviewing the medical records and depositions, and for appearing in court.
¶ 60 11. Judgment
¶ 61 On February 2, 2021, the trial court entered its written judgment. The court considered all evidence presented at trial and concluded that Lavern lacked the testamentary capacity to execute his will due to his ongoing chronic lung disease. In reaching this conclusion, the trial court indicated that it relied upon Dr. Augustine's evidence deposition. The court stated that Dr. Augustine was Lavern's treating physician and had no interest in the will contest proceedings. Dr. Augustine provided the court with an affidavit in which he assessed that, before May 1, 2016, Lavern was no longer able to make his own decisions. DeWayne was then appointed temporary guardian of Lavern. Dr. Augustine's opinion that Lavern was incapable of making decisions predated Lavern's execution of the will. The court noted that Steiner provided his own expert witness, Dr. Wujek, but that it found Dr. Augustine's opinion to have more credibility than Dr. Wujek's opinions. The court found that Dr. Augustine's testimony about Lavern's waxing and waning of consciousness supported the conclusion that Lavern was not capable of making a valid judgment. Additionally, the court noted that Steiner had not consulted with any of Lavern's providers about whether Lavern was competent to execute a will. The court found that Steiner snuck in to get the will signed by using his power of attorney, despite DeWayne's request that no one should be allowed in Lavern's presence. The court stated:
"This act of sneaking in to get the Will signed without consulting any of Lavern Elam's doctors leaves the Court questioning the credibility of his testimony regarding Lavern Elam's mental capacity on May 1, 2016 and that of his friends that accompanied him that day, [whose observations] Dr. Wujek used *** to counter Dr. Augustine's opinion."
¶ 62 The court noted that because of its conclusion that Lavern lacked testamentary capacity to execute the will, it did not need to determine the issue of whether Steiner exercised undue influence over Lavern. However, the court stated that the evidence was not "so strong and unequivocal and unmistakable as to lead to but one conclusion that the will was a product of undue influence."
¶ 63 II. ANALYSIS
¶ 64 "The standard of review in a bench trial is whether the judgment is against the manifest weight of the evidence." Chicago's Pizza, Inc. v. Chicago's Pizza Franchise Ltd. USA, 384 Ill.App.3d 849, 859 (2008); Jackson v. Bowers, 314 Ill.App.3d 813, 818 (2000)." 'A judgment is against the manifest weight of the evidence only when the opposite conclusion is apparent or when findings appear to be unreasonable, arbitrary, or not based on evidence.'" Chicago's Pizza, Inc., 384 Ill.App.3d at 859 (quoting Judgment Services Corp. v. Sullivan, 321 Ill.App.3d 151, 154 (2001)); Comm v. Goodman, 6 Ill.App.3d 847, 853 (1972). "As the trier of fact, the trial judge was in a superior position to judge the credibility of the witnesses and determine the weight to be given to their testimony." Chicago s Pizza, Inc., 384 Ill.App.3d at 859. Furthermore, we find that it is important to stress that the trier of fact is in a better position to resolve any conflicts in the testimony and draw inferences from the facts. People v. Gray, 2017 IL 120958, ¶ 35; People v. Bradford, 2016 IL 118674, ¶ 12. Therefore, we will not substitute our judgment for that of the trial court on questions involving the weight of the evidence or the credibility of the witnesses. Id.
¶ 65 At issue in this case was whether Lavern E. Elam was competent to execute his will. A testator's competence to execute a will is presumed unless proven otherwise. In re Estate of Harn, 2012 IL App (3d) 110826, ¶ 26. "To set aside a will on the grounds of lack of testamentary capacity, the petitioner must demonstrate that at the time the will was executed the testator lacked sufficient mental ability to know he was making a will, to know and remember the natural objects of his bounty, to comprehend the character and extent of his property and to make disposition of his property according to a plan formed in his own mind." In re Estate of Roeseler, 287 Ill.App.3d 1003, 1013 (1997). Evidence to prove a lack of testamentary capacity must be connected to a time at or near the time of the execution of the will. Harn, 2012 IL App (3d) 110826, ¶ 26. A set time frame for the "at or near" execution of the will standard has not been established by case law. Kuster v. Schaumburg, 276 Ill.App.3d 220, 227 (1995) (citing Manning v. Mock, 119 Ill.App.3d 788, 804 (1983)). The party who asserts the lack of a testamentary capacity bears the burden of proof. Id.
¶ 66 During trial, the depositions of Dr. Augustine and Dr. Selke were presented to the court. In addition, the court heard live testimony from witnesses DeWayne, Steiner, Raymond D. Neathery, Dean Skaleski, James W. Gould, and Dr. Roger Wujek.
¶ 67 Steiner, Neathery, and Skaleski testified that at the time when they arrived at the hospital with the will, Lavern was oriented, talkative, and recognized the three men. In addition, they testified that he understood that he was going to sign his will. The notary public, Gould, testified that he had never met Lavern before that date, but that he seemed to understand that he was signing a will. Dr. Selke testified that he checked on Lavern's health status on the same date that Lavern signed his will. Dr. Selke had no independent recollection about that date, but from his notes, he testified that Lavern was awake on May 1, 2016, speaking, and indicated that he wanted something to eat and that he wanted to sit in a chair. In addition, Dr. Selke testified that his notes indicated that Lavern knew who he was and seemed to know the identity of his visiting friends. However, Dr. Selke testified that he did not perform any tests or procedures to determine Lavern's competency, did not know Lavern well enough to be able to render an opinion as to Lavern's competence, and was not able to render an opinion as to whether Lavern was competent on May 1, 2016.
¶ 68 Dr. Augustine testified that he was Lavern's treating physician during his last hospitalization at St. Luke's Hospital. He testified that Lavern was morbidly obese and that he was suffering from final stage respiratory disease. Dr. Augustine explained that after April 26, 2016, when Lavern declined to be treated again with a ventilator, waste products began to build up in his system. He testified that with the increase of waste products in Lavern's system, his health was in decline, and he was headed toward death. Dr. Augustine acknowledged that with this condition, there could be a waxing and waning of consciousness which could explain Dr. Selke's report that Lavern was awake and talking with his friends on May 1, 2016. He described the buildup of waste products as creating a state of "intoxication." Lavern executed his will less than 24 hours before he died due to toxic waste buildup. Dr. Augustine did not believe that Lavern had the appropriate state of mind to make a judgment of that type on May 1, 2016.
¶ 69 Dr. Wujek was hired by Steiner to review Lavern's medical records and the depositions of Dr. Selke and Dr. Augustine. He disputed Dr. Augustine's opinion that once Lavern refused to use the ventilator that the wastes would continue to build up. Instead, he testified that use of the BiPAP could be sufficient to alleviate the medical issues and that, theoretically, Lavern could have been competent to execute his will on May 1, 2016. The trial court discounted Dr. Wujek's testimony because he had been hired by Steiner, he had never actually seen Lavern before or during his St. Luke's hospitalization, and he based his medical opinions solely upon the notes from the physicians who were treating Lavern. Of primary importance, Dr. Wujek could only base his opinion on the abnormal blood gas test results from a few days before Lavern executed the will, as there were no blood gas tests conducted after that date. While Dr. Wujek criticized Dr. Augustine's opinion that Lavern lacked competency to execute his will based upon the April 26, 2016, blood gas test results, Dr. Wujek did not have more recent improved blood gas test results that would support his conclusion that Lavern was competent on May 1, 2016.
¶ 70 The court noted that Dr. Augustine completed an affidavit that resulted in DeWayne being named Lavern's personal guardian, while Steiner claimed that Lavern asked him to be his power of attorney. The court commented that Lavern's family had expressly directed St. Luke's Hospital staff not to let anyone but immediate family visit with Lavern. Despite that request, and because Steiner allegedly had a power of attorney, he was not only able to go to Lavern's room, but he was also able to bring witnesses and a notary public. The court found that Steiner made no effort to discuss Lavern's health condition with his treating physicians to ascertain if Lavern had the capacity to execute a will. Steiner had his sister-in-law prepare the will and he found two buddies to accompany him to the hospital to serve as witnesses. Steiner hired a notary public to come to the hospital to witness the signing of the will. The court questioned the credibility of the testimony of Steiner, Neathery, and Skaleski about Lavern's competency on May 1, 2016, and noted that the accounts of these three witnesses were utilized by Dr. Wujek as further support for his opinion that Lavern was competent on May 1, 2016.
¶ 71 Having reviewed the record on appeal, including the pleadings, the trial transcript, and the depositions of Dr. Selke and Dr. Augustine, we do not find the trial court's conclusion, that Lavern lacked testamentary capacity, was contrary to the manifest weight of the evidence. Chicago s Pizza, Inc., 384 Ill.App.3d at 859 (quoting Judgment Services Corp., 321 Ill.App.3d at 154); Comm, 6 Ill.App.3d at 853. We do not find that "the opposite conclusion is apparent" or that the trial court's "findings appear to be unreasonable, arbitrary, or not based on evidence." (Internal quotation marks omitted.) Chicago's Pizza, Inc., 384 Ill.App.3d at 859. The trial court was able to observe the witnesses testify and analyze the competing medical opinions in reaching its carefully considered decision.
¶ 72 III. CONCLUSION
¶ 73 For the foregoing reasons, we affirm the judgment of the Fayette County circuit court. Because we conclude that the trial court's finding that Lavern D. Elam lacked testamentary capacity to execute his will is not contrary to the manifest weight of the evidence, we do not need to consider DeWayne E. Elam's cross-appeal.
¶ 74 Affirmed.