Capacity to execute a deed; Persinger v Holst; Presumption of capacity & burden on challenger; In re Wawrzyniak’s Estate; Proving incapacity from condition before/after & exception when there is evidence at execution; Burmeister v Russell; Weak-mindedness/age/illness insufficient to defeat conveyance; Kouri v Fassone; Waiver of unpreserved burden argument; Tolas Oil & Gas Exploration Co v Bach Servs & Mfg, Inc; Personal representative (PR); Functional Assessment Staging of Alzheimer’s Disease (FAST)

Holding that plaintiff (the decedent’s daughter and the PR of her estate) waived any burden-of-proof challenge and that the evidence did not overcome the presumption of capacity, the court affirmed the judgment upholding the decedent’s quitclaim deed to her other daughter (defendant-Darlene) and her grandsons (also defendants). The decedent had four children. After one son died, she drafted a deed leaving her homestead and roughly 80 acres to the remaining children, but the original instrument was never recorded or found. In 2009, Darlene moved in with the decedent and eventually became her full-time caregiver. In 2017, the decedent was diagnosed with unspecified dementia and later received hospice services. At defendants’ request an attorney prepared a new deed conveying the home and land to defendants, which decedent executed at home before a notary. She died in 2018. Plaintiff sued alleging incapacity and undue influence. The trial court found the decedent competent and entered judgment for defendants. On appeal, as a preliminary matter, the court found that plaintiff waived her burden of proof argument. Turning to the merits, it stated the correct rule that “‘the presumption is that the testator has mental capacity, and the burden of proof is upon a party assailing such capacity,’” and it applied the deed-capacity test requiring “sufficient mental capacity to understand the business in which [she] engaged, to know and understand the extent and value of [her] property, and how [she] wanted to dispose of it, and to keep these facts in [her] mind long enough to plan and effect the conveyances . . . .” The court declined to treat diagnosis or age as dispositive, explaining that it would not create a bright-line rule whereby such conditions “automatically overcomes the presumption of capacity.” It highlighted in a footnote medical testimony that the decedent’s FAST scores “did not necessarily indicate memory loss or confusion.” Crediting witnesses with daily contact, including hospice staff, a neighbor, and family members, the court found that the decedent could communicate her wishes, expressed frustration with plaintiff’s limited involvement, voiced gratitude for Darlene’s care, and told several people she intended to leave the property to defendants. The notary confirmed that the decedent “understood what she was doing” at execution. The court emphasized that the record showed the decedent “always knew who she was, where she was, and with whom she was speaking until her death,” and that plaintiff did not carry her burden to prove lack of capacity by a preponderance of the evidence.