In re Estate of Washburn
690 A.2d 1024 (1997).

Katherine F. Washburn, the testatrix, executed three wills that were put in evidence before the probate court:

(1) October 1986: She left $1,000 bequests to several named individuals and provided that her Portsmouth home, personal effects, and the residue of her estate should go to her sister, Margaret Fay, or in default thereof to her niece, Catherine Colonna (petitioner).
(2) March 1992: She left $1,000 bequests to certain named individuals; $5,000 to the respondent, her caretaker and companion; and the residue to petitioner.
(3) April 1992: She left $5,000 bequests to the petitioner and another individual and provided that the respondent receive the residue, which included the testatrix’s home and personal estate.

Washburn’s niece challenged the testamentary capacity of Washburn to execute the April ’92.

The probate court found that Washburn was suffering from Alzheimer’s disease at the time of the execution of the April 13, 1992 will, thus she lacked the testamentary capacity to make the will.

Did Washburn lack the testamentary capacity to make the will?

Yes. Affirmed.


  • Respondent unsuccessfully asserted that:
    1. The evidence produced by the petitioner was insufficient to rebut the presumption of due execution of the will in question.
    2. No reasonable trier of fact could have found that the testatrix lacked the testamentary capacity to execute her will in April 1992.
  • The court held that the niece offered satisfactory evidence to rebut the presumption of capacity:
    • The medical testimony offered by Dr. Levy and Dr. Christo established that, at a minimum, Washburn suffered from some degree of Alzheimer’s in April 1992.
    • Further testimony by petitioner’s lay witnesses indicated confusion, forgetfulness, and a lack of competency at the time in question.
    • Washburn’s second and third wills were executed just over three weeks apart and contained vastly different provisions.
    • There were discrepancies between statements the testatrix made as to how she wished to dispose of her property and the wills she signed.

This case was an example of the minority rule, where the burden of persuasion is placed upon the proponent to show testamentary capacity. Compare to Wilson v. Lane.