The statute, in this connection, may be, as the dissenting opinion intimates, "a positive recognition of the value of scientific disclosures", but the law respects the rights of persons, and permits even an insane person, during a lucid interval, to make a valid will. In Snyder v. De Remer, 143 Or. 414, 22 P.2d 877, the testatrix had chronic bronchitis and arteriosclerosis. Shortly before she executed her will, she had been quite ill with influenza, was coughing badly, and was delirious, but there was evidence that she had recovered from that illness.
We have also recognized that a will made by an insane person may be valid if made during a lucid interval. In Re Faling Will, 105 Or. 365, 445-446, 208 P. 715 (1922); Snyder v. DeRemer, 143 Or. 414, 417, 22 P.2d 877 (1933); In Re Southman's Estate, supra ( 178 Or at 480); 94 CJS 741, Wills § 36; 57 Am Jur 89, Wills § 77. In Pioneer Trust Co. v. Currin, 210 Or. 343, 348, 311 P.2d 445 (1957), we defined a "lucid interval."
It is true that, within a little less than two months after the execution of the Breding will the County Court adjudged Mrs. Perry incompetent, and appointed Mr. Allen her guardian. If she had testamentary capacity on July 30, 1941, as appellant insists, and also on August 5, 1941, as the lower court found and as, in our opinion, the evidence shows, the subsequent appointment of a guardian over her person and estate did not have the effect of an adjudication that she lacked testamentary capacity as of the time when she executed the Breding will. Cf. In re Sturtevant's Estate, 92 Or. 269, 178 P. 192, 180 P. 595; Clark v. Clark, 125 Or. 333, 267 P. 534; Snyder v. De Remer, 143 Or. 414, 22 P.2d 877. Ernest Allen performed the duties of his office as guardian of Mrs. Perry's estate with scrupulous exactitude.
The appointment of a guardian for one who is non compos mentis raises a presumption of mental infirmity; but, even in the case of guardianship for insanity, such presumption may be overcome by evidence that at the time of the execution of the will the testator was of disposing mind and memory. In re Lambert's Estate, supra; Snyder v. De Remer, 143 Or. 414, 22 P.2d 877; Clark v. Clark, 125 Or. 333, 267 P. 534; Collins v. Long, 95 Or. 63, 186 P. 1038, 8 A.L.R. 1370; In re Sturtevant's Estate, supra; Ames Will, 40 Or. 495, 67 P. 737. Even an insane person may make a valid will during a lucid interval.
The law lays upon those who claim that an insane person executed a will during a lucid interval of sanity the burden of establishing the asserted fact. In re Faling Will, 105 Or. 365, 208 P. 715; Snyder v. De Remer, 143 Or. 414, 22 P.2d 877. We are of the opinion, however, that the evidence in this case does not indicate that Mrs. Walther was insane, but rather that she was sane, although her mind was, from time to time, affected by her bodily illness. It appears that her mental condition continued to improve.
A will made by an insane person may be valid if made during a lucid interval. In re Faling Will, 105 Or. 365, 445-46, 208 P. 715 (1922); Snyder v. De Remer, 143 Or. 414, 417, 22 P.2d 877 (1933); In re Southman's Estate, 178 Or. 462, 480, 168 P.2d 572 (1946); Kastner v. Husband, 231 Or. 133, 136, 372 P.2d 520 (1962); Spencer v. Hamit, supra at 899. Although the proponent of a will has the burden of proving the testamentary capacity of the testator, a duly executed will gives rise to a presumption of competency. Spencer v. Hamit, supra.
"* * * [A] will made by an insane person may be valid if made during a lucid interval. In Re Faling Will, 105 Or. 365, 445-446, 208 P. 715 (1922); Snyder v. DeRemer, 143 Or. 414, 417, 22 P.2d 877 (1933); In Re Southman's Estate, supra ( 178 Or at 480); 94 CJS 741, Wills § 36; 57 Am Jur 89, Wills § 77." Kastner v. Husband, 231 Or. 133, 136, 372 P.2d 520 (1962).