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            DISTRICT OF COLUMBIA COURT OF APPEALS

                                   No. 17-PR-630

                           EMMA M. GOVAN, APPELLANT,

                                          v.

                    JULIE EBNER BROWN, ET AL., APPELLEES.

                          Appeal from the Superior Court
                            of the District of Columbia
                                    (LIT-12-14)

                         (Hon. Gerald I. Fisher, Trial Judge)

(Argued April 17, 2019                                          Decided May 28, 2020)

      Johnny M. Howard for appellant.

       Christopher G. Hoge, with whom Elena Iuga was on the brief, for appellee
Julie Ebner Brown.

      Robert E. Grant and James P. Lillis filed a statement in lieu of brief for
appellee Holy Comforter St. Cyprian Roman Catholic School.

     Before BLACKBURNE-RIGSBY, Chief Judge, MCLEESE, Associate Judge, and
STEADMAN, Senior Judge.

      BLACKBURNE-RIGSBY, Chief Judge: After an evidentiary hearing, Judge

Gerald Fisher denied appellant Emma M. Govan’s request to admit and enforce a

contested will executed by Emil Ebner on October 24, 2013 (the “2013 will”). The
                                         2

trial court ruled that the 2013 will was invalid because Mr. Ebner lacked

testamentary capacity, specifically finding that Mr. Ebner “would not have been able

to understand the terms of the document without explanation to him, and no such

evidence was presented.” We disagree, and we use this opportunity to clarify the

standard for testamentary capacity.



      A presumption exists in favor of testamentary capacity. See Morgan v.

Adams, 29 App. D.C. 198, 206 (D.C. Cir. 1907). However, a party may challenge

that presumption and invalidate a will by proving a lack of testamentary capacity.

See Brosnan v. Brosnan, 263 U.S. 345, 349-50 (1923).           To prove a lack of

testamentary capacity, a party must show, by a preponderance of the evidence, that

a testator did not have sufficient memory and mind at the time of executing a will to

generally know (1) the property owned, (2) the intended beneficiaries of that

property, and (3) the nature of the instrument being executed. See Thompson v.

Smith, 103 F.2d 936, 943-44 (D.C. Cir. 1939). As we explain in this opinion, the

presumption in favor of testamentary capacity is not rebutted merely by the absence

of evidence that a testator understood the particular testamentary document at issue.
                                            3

      We conclude that appellee Julie Ebner Brown failed to present evidence

sufficient to rebut Mr. Ebner’s testamentary capacity, which is presumed. 1

Accordingly, we reverse the decision of the trial court, vacate its order denying

appellant’s request to admit the 2013 will to probate, and remand for further

proceedings consistent with this opinion.



                    I.     Factual and Procedural Background



      Mr. Ebner passed away on December 27, 2013, at ninety-three years old,

leading to a dispute over which testamentary document, distributing his three homes

and significant wealth, the court should enter into probate. Appellant Emma M.

Govan, Mr. Ebner’s neighbor, filed a complaint seeking to enforce a 2013 will, while

appellee Julie Ebner Brown, Mr. Ebner’s niece and appointed personal

representative, sought to enforce a will he executed on August 7, 2002, which was

subsequently amended by two codicils. The 2013 will deviated in two significant

respects from the previous testamentary documents. First, it replaced appellee Holy

Comforter St. Cyprian Roman Catholic School with Ms. Govan as the residual


      1
         We find no merit to appellant’s remaining contentions that the trial court
erred in considering certain evidence regarding Mr. Ebner’s capacity, as well as its
admission of the expert testimony of Dr. Robert Goldstein. We address these issues
below.
                                           4

legatee. 2 Second, it shifted the burden to pay estate taxes onto the beneficiaries,

where the August 2002 will and codicils had allocated specific funds to pay those

costs.



         The trial court heard testimony concerning Mr. Ebner’s life that bore on his

mental capacity and the events leading up to, during, and following the preparation

and execution of the 2013 will. According to the testimony, which the trial court

credited, Mr. Ebner accumulated significant wealth throughout his life, including

three homes located in the District of Columbia. 3 Although Mr. Ebner was able to

live alone during the last decades of his life, he had issues that made it difficult for

him to be completely independent. He had a sixth-grade education and intellectual

challenges caused by a childhood trauma. Additionally, he had some physical

limitations and vision problems. Throughout his life, Mr. Ebner received assistance

from family members, including his nieces, appellee Ms. Brown and Lisa Winters.

In 2000, Mr. Ebner executed a very broad power of attorney for Ms. Brown. From

2000 onward, both Ms. Govan and Ms. Brown assisted Mr. Ebner, including in



         2
        Appellee Holy Comforter St. Cyprian Roman Catholic School, though
named as a party, did not participate either before the trial court or this appeal.
         3
         Mr. Ebner began working as a paper boy, and he ended his career doing
book binding work. It appears that he inherited much of his wealth and properties,
and his wealth increased through investments made by family.
                                         5

business affairs and financial matters. In 2008, Mr. Ebner executed a second power

of attorney for health care for Ms. Brown, which also designated Ms. Govan as the

alternate.



      Ms. Brown testified that Mr. Ebner had difficulty understanding issues,

specifically complex matters, oftentimes needing things explained in more than one

way. For example, with respect to banking, while Mr. Ebner could deposit money

and write checks, he did not understand how to set up a bank account. Ms. Brown

testified that when Mr. Ebner signed a deed in 2010 to transfer ownership of one his

properties, he became upset because he was unsure whether to sign the document.

To calm him down and alleviate his concerns, Ms. Brown read the deed to him “line

by line,” stopping repeatedly to make sure he understood. At that time, Mr. Ebner

could not see well enough to read. Ms. Brown testified that she believed Mr. Ebner

was confused and had difficulty understanding things throughout 2013 and until his

passing in December of that year.



      Michael Davidson, Mr. Ebner’s long-time attorney, met with Mr. Ebner in

January 2013 to go over Mr. Ebner’s testamentary affairs and specifically to address

the payment of estate taxes as contemplated in the August 2002 will and its codicils.

Mr. Davidson followed up with Mr. Ebner in February 2013, at which time Mr.
                                          6

Ebner stated that he did not intend to make any changes. Mr. Davidson testified that,

during both conversations, Mr. Ebner “clearly understood” the nature of the

conversation.



      Ms. Brown testified to conversations that she had with Mr. Ebner in March,

May, and October 2013 during which Mr. Ebner discussed his finances and intent

on allocating his property upon his passing. Ms. Brown testified that Mr. Ebner told

her in March 2013 that he wanted Ms. Brown, Ms. Winter, and another niece each

to receive equal portions of his money.



      Renee Williams worked as an in-home nurse’s aide for Mr. Ebner

approximately three days per week in 2013. She testified that, in August 2013, Mr.

Ebner had no difficulty recalling events, could articulate the previous day’s affairs,

communicated how he felt, and was not confused. Dr. Mohammed Khan, Mr.

Ebner’s primary care doctor from January 2012 through his passing, managed Mr.

Ebner’s diabetes and chronic renal insufficiency and observed him during visits in

April 2013, September 2013, and November 2013. Dr. Khan testified that, during

those visits, Mr. Ebner was well oriented to time and place and did not appear to be

confused.
                                         7

       In September 2013, Ms. Govan took Mr. Ebner to meet with a different

attorney, Johnny M. Howard, regarding his testamentary affairs. Ms. Govan was

present for this meeting, along with Ms. Williams. Ms. Govan testified that Mr.

Ebner appeared “very alert” during this meeting, did not appear to be confused, and

talked with Mr. Howard and asked questions.



       A few days prior to Mr. Ebner’s birthday on October 8, 2013, Ms. Brown

arrived unannounced at Mr. Ebner’s home with many members of Mr. Ebner’s

extended family for a surprise party. During the party, Mr. Ebner was disheveled,

lost focus, appeared confused, did not recognize one family member whom he had

not seen in many years, stared off into space, and only responded to simple

questions. 4



       On October 17, 2013, Mr. Howard sent Mr. Ebner a draft will, two draft

transfer-on-death deeds (which, upon Mr. Ebner’s death, would have changed

ownership of two properties from Ms. Brown to Ms. Govan), and a draft revocation

of Ms. Brown’s 2000 power of attorney. Mr. Howard included among these papers

an explanation sheet for the transfer-on-death deeds.



       4
         Ms. Brown introduced into evidence a photograph from the October 2013
surprise party that depicted Mr. Ebner.
                                          8

      Mr. Ebner met again with Mr. Howard on October 24, 2013, at which time he

executed the 2013 will and the two transfer-on-death deeds. He did not execute the

revocation of Ms. Brown’s power of attorney. Ms. Govan, who attended the

meeting, testified that Mr. Ebner was “jolly” and talkative during the commute to

and from Mr. Howard’s office, appeared alert about the matters discussed during the

meeting, and did not appear to be confused. Vonda Burns and Vivian Gatling,

employees of law firms in the suite where Mr. Howard worked, testified that they

observed Mr. Ebner execute the will and also served as witnesses. Ms. Gatling

testified that it was Mr. Howard’s practice to read through every page of a will to his

client, though she did not clarify whether Mr. Howard did so with Mr. Ebner.



      In December 2013, Mr. Ebner required hospitalization and surgery. Ms.

Govan and Ms. Brown both testified that, while he was in the hospital, they spoke

with Mr. Ebner regarding his financial matters. During one such conversation, Ms.

Brown testified that Mr. Ebner repeated his intention that his three nieces receive

equal portions of his money after he passed. Ms. Winters testified that Mr. Ebner

informed her during a telephone call in either November or December 2013 that he

wanted Ms. Govan to receive $100,000 and that he had created bank accounts in Ms.

Winters and Ms. Brown’s names. Mr. Ebner died on December 27, 2013.
                                         9

      On December 30, 2013, Mr. Howard filed the 2013 will with the Probate

Division of the Superior Court of the District of Columbia. On February 21, 2014,

Ms. Brown filed a petition for probate seeking to admit the August 2002 will and its

codicils. On April 7, 2014, Ms. Govan filed a complaint seeking to set aside the

August 2002 will and codicils and to enter the 2013 will into probate.



      At the hearing, Ms. Brown presented the expert testimony of Dr. Robert

Goldstein, a physician who practiced internal medicine with a specialty in

nephrology. Dr. Goldstein was also the parent of an attorney at the firm representing

Ms. Brown. Over appellant’s objection, Dr. Goldstein testified that Mr. Ebner

lacked capacity when executing the 2013 will. In forming his opinion, Dr. Goldstein

relied on Mr. Ebner’s medical records, the deposition transcripts of Ms. Brown and

Ms. Govan, conversations with Ms. Brown and Ms. Winters, and his fifty years of

medical experience. He testified that, by 2013, Mr. Ebner’s kidney disease, diabetes,

and visual impairment would have caused confusion, fatigue, and an inability to

focus. Dr. Goldstein opined that the cumulative impact of Mr. Ebner’s conditions

likely meant that he would not have understood or comprehended the contents of the

2013 will, even if the document had been read to him.
                                         10

      At the conclusion of the testimony, the trial judge found that the 2013 will

was properly executed pursuant to D.C. Code § 18-103 (2012 Repl.) because it was

in writing, signed by the testator, and attested to and ascribed in Mr. Ebner’s

presence by Ms. Burns and Ms. Gatling, two credible witnesses over the age of

eighteen.   However, the trial judge found that clear and convincing evidence

demonstrated that Mr. Ebner lacked testamentary capacity to execute the 2013 will

“because he did not understand its terms.” Specifically, he found no evidence that

Mr. Ebner read the will or that it was read to him or reviewed with him on the date

of execution.



      The trial court credited the testimony of Ms. Govan, Ms. Williams, and Dr.

Khan that, at or around the time Mr. Ebner executed the 2013 will, he did not have

mental difficulty making decisions and was oriented to time and place. The trial

court, however, also gave “significant weight” to the testimony of Ms. Brown and

Ms. Winters, who both felt that Mr. Ebner could not, on his own, understand

complex matters. The trial court noted that Ms. Brown began having concerns about

Mr. Ebner months in advance of October 24, 2013, similar to the concerns she had

during his October 2013 surprise birthday party. Importantly, the trial court credited

Ms. Brown’s testimony that, in executing a deed in 2010, she had to go “over it line-

by-line with him” to understand it. The trial judge gave little weight to the expert
                                         11

opinion of Dr. Goldstein because his opinion stemmed from generalities and because

he never examined Mr. Ebner or spoke with Dr. Kahn. Additionally, the trial court

noted “legitimate issues” about Dr. Goldstein’s bias due to his relationship with Ms.

Brown’s counsel.



      Based on this testimony, the trial court determined that Mr. Ebner was

“capable of understanding the terms of the October 24th will, but only if someone

took the time to carefully review the document with him and explain its terms,

literally going line-by-line with him through it.” Because the evidence did not

support this finding, the trial court found that Mr. Ebner lacked testamentary

capacity when he executed the 2013 will, and therefore denied Ms. Govan’s request

to admit it to probate. Instead, the trial court admitted the August 2002 will and its

two codicils to probate and ordered relief consistent with that finding. 5 This appeal

followed.




      5
         The trial court also found (1) insufficient evidence that Ms. Govan or Mr.
Howard unduly influenced Mr. Ebner, (2) the two transfer-on-death deeds signed by
Mr. Ebner at the October 24, 2013, meeting were valid, (3) no evidence of self-
dealing by Ms. Brown as the personal representative, and (4) Ms. Brown was entitled
to expenses and disbursements from Mr. Ebner’s estate related to the litigation,
pursuant to D.C. Code § 20-752 (2012 Repl.). These findings – including the trial
court’s further relief consistent with its order – are not before us on appeal, though
they may be affected by our disposition here.
                                          12

                             II.    Standard of Review



      In reviewing a trial court’s ruling following a bench trial or evidentiary

hearing, we “may review both as to the facts and the law, but the judgment may not

be set aside except for errors of law unless it appears that the judgment is plainly

wrong or without evidence to support it.” Ross v. Blackwell, 146 A.3d 385, 387

(D.C. 2016) (quoting D.C. Code § 17-305(a) (2012 Repl.)). We review the evidence

in the light most favorable to the prevailing party, and we defer to the trial court’s

credibility determinations unless clearly erroneous. Id. We review legal issues de

novo. See In re Ingersoll Tr., 950 A.2d 672, 692 (D.C. 2008). The issue of

testamentary capacity – like those of other challenges to a will’s validity, such as

undue influence – is a mixed question of law and fact. Id.; Dougherty v. Rubenstein,

914 A.2d 184, 192 (Md. Ct. Spec. App. 2007) (“The standard[] or test of

testamentary capacity is a matter of law while the question of whether the evidence

in the case measures up to that standard is a matter of fact.” (cleaned up)). 6




      6
          We find Maryland law to be persuasive because the District’s statutory
construction of capacity “was adopted from the Maryland Probate Act of 1798.”
Rossi v. Fletcher, 418 F.2d 1169, 1170 (D.C. Cir. 1969); see also Phelps v.
Goldberg, 313 A.2d 683, 684 (Md. 1974) (“It appears that District of Columbia law
and Maryland law on the subject of testamentary capacity are virtually identical, if
not identical.”).
                                         13

      The burden of proof regarding whether the testator, at the time of executing

the will, lacked testamentary capacity is on the party challenging the mental capacity

of the decedent, see Brosnan, 263 U.S. at 349-50, who must do so by a

preponderance of the evidence, see Thomas v. Young, 22 F.2d 588, 590 (D.C. 1927);

Morgan, 29 App. D.C. at 206; see also 3 William J. Bowe & Douglas H. Parker,

Page on the Law of Wills, § 29.35 (3d ed. 2004) (“To sustain the burden of proof”

of testamentary capacity, “a preponderance of the evidence is necessary.”); cf. Butler

v. Harrison, 578 A.2d 1098, 1100 (D.C. 1990) (affirming preponderance of the

evidence standard in holding that appellant failed to meet burden of proof to show

lack of mental capacity in executing a deed).



                             III.   Legal Framework



      We start with – and reaffirm – the basic presumption that all individuals have

sufficient testamentary capacity to make a will, a presumption that extends

throughout their life. See Brosnan, 263 U.S. at 349 (noting the “effective weight”

given “to the presumption of the testator’s sanity”); Morgan, 29 App. D.C. at 206

(“[T]he presumption of law is in favor of the sanity and capacity of the testatrix to

make a will . . . .”); see also Zook v. Pesce, 91 A.3d 1114, 1122 (Md. 2014) (“The

law presumes that every man is sane and has capacity to make a valid will.”) (quoting
                                          14

Arbogast v. MacMillan, 158 A.2d 97, 101 (Md. 1960)). 7 That presumption can be

challenged, however, and the burden to prove a lack of testamentary capacity lies

with the party challenging mental capacity. See Brosnan, 263 U.S. at 349; Morgan,

29 App. D.C. at 206; see also Zook, 91 A.3d at 1122 (“[T]he burden of proving the

contrary rests upon those who allege that he lacked mental capacity.”); cf. Butler,

578 A.2d at 1100-01 (noting that “the burden of proof is on the party asserting

incompetency” when challenging a person’s capacity to contract). The District’s

statute is predicated on this presumption, in that a will is not valid unless a testator

is “of sound and disposing mind” at the time of executing or acknowledging it. D.C.

Code § 18-102.      Here we clarify the criteria that define the presumption of

testamentary capacity.



      Testamentary capacity is the mental state that a person must possess at the

time of making a will for it to be valid, and we reaffirm that the threshold for

testamentary capacity is low. See Lewis v. Am. Sec. & Tr. Co., 289 F. 916, 919 (D.C.

Cir. 1923). To be of “sound and disposing mind” and thereby have testamentary

capacity, a testator must have sufficient memory and mind to generally know (1) the

property owned, (2) the intended beneficiaries of that property, and (3) the nature of



      7
       D.C. law requires that a person making a will be at least eighteen years old.
See D.C. Code § 18-102 (2012 Repl.).
                                          15

the instrument being executed. See Thompson, 103 F.2d at 943 (quoting Lewis, 289

F. at 919); Barbour v. Moore, 4 App. D.C. 535, 547 (D.C. 1894) (finding a testator

to be “of sound and disposing mind” if he “possess[es] memory and mind enough to

know what property he owns and desires to dispose of, and the person or persons to

whom he intends to give it, and the manner in which he wishes it applied by such

person, and, generally, fully understands his purposes and the business he is engaged

in, in so disposing of his property”). While this court has not yet clarified the

standard for testamentary capacity, the standard as articulated by our predecessor

courts comports with the “standard . . . agreed upon, in substance, by the great weight

of authority.” 1 William J. Bowe & Douglas H. Parker, Page on the Law of Wills,

§ 12.21 (2d. 2003) (“Testator must have sufficient strength and clearness of mind

and memory to know, in general, without prompting, the nature and extent of the

property of which he is about to dispose, and nature of the act which he is about to

perform, and the names and identity of the persons who are to be the objects of his

bounty, and his relation towards them.”). A testator need not be “endowed with a

high order of intellect, nor even an intellect measuring up to the ordinary standards

of humanity; nor . . . [a] perfect memory, and a mind wholly unimpaired by age,

sickness, or other infirmities.” Morgan, 29 App. D.C. at 206. Even the weak, aged,
                                         16

powerless, ignorant, and uninformed have the right to create a testamentary

document. See Thompson, 103 F.2d at 944-45. 8



      Testamentary capacity is tested at the time a testator executes a will. Barbour,

4 App. D.C. at 547. In determining such capacity, the trial court may consider

evidence of the testator’s state of mind before, at the time of, and after the will is

executed. See id. at 548. This includes evidence of any factor that may otherwise

bear on mental capacity, such as age, impairment of mental faculties, memory loss,

illness, physical condition, sedation, or other use of drugs or medication. See

Thompson, 103 F.2d at 945; McCartney v. Holmquist, 106 F.2d 855, 856 (D.C. Cir.

1939). Evidence of any one or more of these factors alone, however, does not rebut

the presumption of testamentary capacity when there is no indication that, at the time

the testator executed a will, such factor impaired the testator or his or her

understanding of the predicate knowledge of testamentary capacity. See Thompson,

103 F.2d at 945.




      8
          See also Rossi, 418 F.2d at 1171 (affirming that persons subject to
conservatorship may have testamentary capacity to make a will); D.C. Code § 21-
2002(d) (2012 Repl. & 2019 Supp.) (As applied to guardianship and protective
proceedings, “[a]n individual shall be presumed competent and to have the capacity
to make legal, health-care, and all other decisions,” unless determined otherwise).
                                          17

      Moreover, testamentary capacity is not defined by the testator’s understanding

of the testamentary document. In fact, our determination of testamentary capacity

has never turned on the complexity of the document at issue, the difficulty of its

terms, or the testator’s understanding of it. “The standard of testamentary capacity

does not mean that [the] testator must be able to understand the meaning of all the

technical legal terms which are employed by counsel in drafting [the] testator’s will,

under his general instructions.” 1 Bowe & Parker, supra, § 12.21. We believe it to

be too high a burden to require that a testator be able to fully comprehend the

document he or she signs. Id. Such a requirement would conflict with our standard

for testamentary capacity, which only requires that a testator “generally” understand

the nature of the instrument being executed. See Thompson, 103 F.2d at 943;

Barbour, 4 App. D.C. at 547 (requiring only that a testator “generally, fully

understands his purposes and the business he is engaged in, in so disposing of his

property”); see also In re Weir’s Estate, 475 F.2d 988, 991-92 (D.C. Cir. 1973)

(noting that standard for testamentary capacity is whether the testator understood

“precisely what he was doing when he executed the contested will”); 1 Bowe &

Parker, supra, § 12.21 (“It is sufficient if [the] testator understands the legal effect
                                          18

and intent of the instrument as a whole, and if the instrument is so drawn as to

express [the] testator’s intent.”). 9


       9
          We are careful to distinguish between testamentary capacity, as explained
here, and testamentary intent. Generally, “a will may not be admitted to probate
where a purported testator is entirely ignorant of the contents of his will, indicating
a lack of testamentary intent.” In re Estate of Turpin, 19 A.3d 801, 806 (D.C. 2011).
But “[t]here is a presumption that a testator knows the contents of a properly
executed will.” Mann v. Cornish, 185 F.2d 423, 424 n.4 (D.C. Cir. 1950) (citing
Lipphard v. Humphrey, 209 U.S. 264-268-69 (1908)); see also Wood v. Martin, 641
A.2d 853, 854 (D.C. 1994) (noting that a properly signed and executed will gives
“rise to the presumption that [a] testator knew the contents of the will regardless of
his inability to read”). The presumption in favor of testamentary intent “must
prevail,” although it may be rebutted if there is “proof of fraud, undue influence, or
want of testamentary capacity attending the execution of the will.” Lipphard, 209
U.S. at 269.

       Therein lies the intersection between intent and capacity: a want of
testamentary capacity can rebut the presumption of testamentary intent that arises
when a will is properly executed. However, a testator’s knowledge of the contents
of a will, while a predicate for testamentary intent, is not dispositive of the separate
issue of testamentary capacity. Therefore, we reject appellee Brown’s request that
we “take guidance” from Crafton v. Harris, 9 Tenn. App. 561 (Ct. App. 1929),
because that case turned on “the determinative question” of “whether the testator
understood the legal effect of the provisions of said will,” i.e., had the requisite
testamentary intent, id. at 562 (and where the court summarily rejected the challenge
to testamentary capacity, id. at 563). While a testator’s knowledge of the contents
of a will is “an essential ingredient of intent,” Turpin, 19 A.3d at 807 (quoting 1
Bowe & Parker § 5.8), it is ultimately not necessary evidence to prove testamentary
capacity.

       In this case, we are not tasked with determining the question of Mr. Ebner’s
testamentary intent, as that issue was not raised by the trial court, argued by the
parties, or addressed on appeal. See Thornton v. Northwest Bank of Minn., 860 A.2d
838, 842 (D.C. 2004) (“It is fundamental that arguments not raised in the trial court
are not usually considered on appeal. This court will deviate from this principle only
in exceptional situations and when necessary to prevent a clear miscarriage of justice
apparent from the record.” (cleaned up)).
                                          19

      While the complexity of a testator’s property may be relevant to testamentary

capacity inasmuch as capacity requires that a testator know his or her property, the

legal document purporting to devise such property – and the complexity of such

document – is not dispositive of the issue. Indeed, we employ lawyers, scriveners,

and other professionals to draft complicated documents that devise and divide

property upon death without requiring that a testator understand the complexities of

the document itself. Cf. Conrades v. Heller, 87 A. 28, 32 (Md. 1913) (noting that

“many wills would be invalid” if it was required that the testator understand the

meaning of all the technical terms used therein, “especially those involving intricate

trusts, which oftentimes dispose of large estates in terms which give judges and

attorneys trouble in determining their meaning and legal effect”).         Of course,

evidence demonstrating that the testator read his or her will (or had it read to him or

her) and understood its terms may have strong evidentiary value as to affirmative

proof of capacity. But the lack of such evidence is not a necessary criterion – nor a

definitive one – to rebut the presumption in favor of it.



      In sum, we reaffirm the presumption in favor of testamentary capacity, a low

threshold of mental capacity. When a party attempts to rebut that presumption by

challenging the testator’s mental capacity in order to invalidate a will, that party

must show, by a preponderance of the evidence, that the testator did not have
                                          20

sufficient memory or mind to generally know (1) the property he or she owns, (2)

the persons to whom he or she intends to give it, and (3) the nature of the instrument

being executed, e.g., a will.    An understanding of the resulting testamentary

document – including its complex legal jargon – is not dispositive to a court’s

analysis of whether a testator is “of sound and disposing mind.”



                                    IV.    Analysis



      We cannot reconcile the trial court’s ruling with the above-clarified standard

for testamentary capacity. Although the trial court determined that the 2013 will

was properly executed, it found that appellee proved by clear and convincing

evidence that Mr. Ebner lacked testamentary capacity because he did not understand

the terms of the document, reasoning that he neither read the will prior to signing it

nor had it read to him.



      At the outset, it was not necessary that Ms. Brown demonstrate lack of

testamentary capacity “by clear and convincing evidence,” in that the burden of

proof is only by a preponderance of the evidence. See, e.g., Thomas, 22 F.2d at 590.

Rather, invalidating a will on the issue of testamentary capacity merely requires

showing that Mr. Ebner – at the time he executed the 2013 will – did not generally
                                         21

understand the property he owned, to whom he wanted to give it, and the nature of

the instrument he signed.



      The evidence credited by the trial court requires a finding that Mr. Ebner had

testamentary capacity. Mr. Howard, Ms. Govan, Ms. Burns, and Ms. Gatlin were

all in the room when Mr. Ebner executed the 2013 will. Ms. Govan testified that

Mr. Ebner was “jolly” and talkative during the commute to meet with Mr. Howard

on October 24, 2013, appeared alert during the discussion with Mr. Howard, and did

not appear to be confused.      Ms. Brown presented no contradictory evidence

concerning Mr. Ebner’s mental state at that meeting. The trial court credited

testimony from Ms. Govan, Ms. Williams, and Dr. Khan that, at and around the time

he executed the 2013 will, Mr. Ebner did not have any mental difficulty and was

oriented to time and place. The trial judge also noted that Mr. Davidson, Mr. Ebner’s

former attorney, believed that, during meetings in January and February 2013, “Mr.

Ebner understood exactly what was going on, that he was making knowledgeable,

intelligent decisions,” particularly concerning payment of estate taxes.        This

evidence requires a finding, and does not rebut the presumption, in favor of

testamentary capacity.
                                            22

      Moreover, the evidence demonstrates that Mr. Ebner knew his property and

to whom he wanted to devise it. Both Ms. Brown and Ms. Winters testified to

conversations they had with Mr. Ebner throughout 2013, even in the weeks prior to

his passing in December 2013, during which Mr. Ebner discussed his property,

specifically money in bank accounts, and how he wanted it allocated, to Ms. Brown,

Ms. Winters, and Ms. Govan, among others. Additionally, during the October 2013

meeting with Mr. Howard, Mr. Ebner signed transfer-on-death deeds, which devised

his property upon his passing. The evidence demonstrates that Mr. Ebner understood

his property – to include money and real property – and understood who the intended

beneficiaries of that property should be.



      While the trial court gave “significant weight” to the testimony of Ms. Brown

and Ms. Winters that Mr. Ebner could not, on his own, understand complex matters,

we are not persuaded that this evidence rebuts the presumption in favor of

testamentary capacity, or any of the predicate facts. Many business people, and

people more advanced in years, receive significant assistance from others, including

family members, in handling their affairs. It appears that Mr. Ebner was no different.

Evidence that Mr. Ebner had difficulty handling his affairs on his own, particularly

financial and business matters, does not refute a finding of testamentary capacity
                                         23

when it was otherwise evident that Mr. Ebner understood the nature and extent of

his property, but merely needed assistance in accomplishing his goals. 10



      Appellee presented little evidence to rebut the presumption in favor of

testamentary capacity, let alone disprove it. The primary evidence credited by the

trial court concerning Mr. Ebner’s mental state in October 2013 was Ms. Brown’s

testimony as to Mr. Ebner’s demeanor during a surprise birthday party in early

October 2013 (weeks prior to the October 24, 2013, meeting), during which she

contends that Mr. Ebner was disheveled, lost focus, appeared confused, did not

recognize a family member, stared off into space, and only responded to simple

questions. We find this testimony to have little probative value on the issue of

testamentary capacity. See Weir’s Estate, 475 F.2d at 991 (noting that evidence

showing testator “dressed conservatively, was occasionally forgetful, sometimes

untidy . . . , and had some strange habits” to be “speculative and meaningless” in a

challenge to testamentary capacity).



      10
           We note also that Mr. Ebner’s difficulty understanding complex matters
was an issue that persisted throughout his life and not just during the timeframe in
which he executed the 2013 will. The evidence demonstrated that, for years, he
successfully managed his significant wealth and properties, albeit with assistance
from others. Therefore, evidence that Mr. Brown and other family members assisted
Mr. Ebner with his financial and business matters from 2000 onward would have the
same evidentiary import with respect to any of the earlier testamentary documents
in this case.
                                          24

      Importantly, the trial court credited Ms. Brown’s testimony that, in executing

a deed in 2010, she had to go “over it line-by-line with him” so that he understood.

While it is unclear whether Mr. Ebner read or was read the 2013 will prior to signing

it, or whether he fully understood all its terms, neither of these findings demonstrate

a lack of testamentary capacity. Evidence concerning Mr. Ebner’s understanding of

the underlying testamentary document does not disprove testamentary capacity.

Specifically, such evidence did not undermine the above-credited evidence that Mr.

Ebner generally knew the property he owned, to whom he wanted to give it, or that

he knew he was signing a will. For this reason, the trial court’s reliance on Ms.

Brown reading the 2010 deed to Mr. Ebner “line-by-line” is not determinative of his

testamentary capacity.



      As a legal matter, the trial court’s ruling that the transfer-on-death deeds were

valid supports our decision. “The capacity required to make . . . a transfer on death

deed is the same as the capacity required to make a will.” D.C. Code § 19-604.08

(2012 Repl. & 2019 Supp.). While a finding of capacity for a transfer-on-death deed

is not sufficient alone to support a finding of testamentary capacity, in that the facts

supporting capacity as to each will necessarily be different (i.e., the property,

beneficiaries, and document involved), it is persuasive. Here, the trial court ruled

that the deeds were valid, thereby affirming that Mr. Ebner had sufficient capacity
                                          25

to make them, and neither party takes issue with that decision. The deeds transferred

ownership of two of Mr. Ebner’s properties upon his death to Ms. Govan, rather than

Ms. Ebner, demonstrating Mr. Ebner’s knowledge of his property and to whom it

wanted to give it. The trial court noted that the transfer-on-death deeds were

“consistent with what Mr. Ebner had been seeking to do all along” and that the deeds

were not “so complex that he couldn’t understand what [they] meant.” While these

findings do not necessarily require a finding of capacity, they lend support to the

conclusion that with respect to the transfer-on-death deeds Mr. Ebner was able to

understand his property, who would receive it, and the nature of the underlying

transaction, providing a sufficient basis to support a finding of testamentary capacity

with respect to the 2013 will.



      Therefore, we conclude that the trial court erred in finding that Mr. Ebner

lacked testamentary capacity because he did not read the 2013 will, have it read to

him, or understand it. The preponderance of the evidence credited by the trial court

requires a finding that Mr. Ebner had testamentary capacity: that on and around

October 24, 2013, Mr. Ebner understood the nature of his property (money and real

property), understood to whom he wanted to give it (including Ms. Govan, Ms.

Brown, and Ms. Winters, among others), and understood that he was signing a will.
                                            26

Therefore, we reverse the decision of the trial court that Mr. Ebner lacked

testamentary capacity at the time he executed the 2013 will. 11



                              V.     Expert Designation



      We find no error in the trial court’s decision to admit Dr. Goldstein’s expert

testimony. We review the trial court’s admission of expert testimony for abuse of

discretion, only disturbing that ruling if it is “manifestly erroneous.” Dickerson v.

District of Columbia, 182 A.3d 721, 726 (D.C. 2018). The “goal” of the trial court’s

role as a gatekeeper “is to deny admission to expert testimony that is not reliable,”

and to admit that which is “derived from reliable principles that have been reliably

applied.” Motorola, Inc. v Murray, 147 A.3d 751, 755, 757 (D.C. 2016) (en banc).


      11
          Appellant also argues that trial court erred in considering evidence that had
“no temporal proximity” to the date the will was executed (evidence showing Mr.
Ebner’s sixth-grade education, the photograph from the October 2013 party, and Mr.
Ebner’s unspecified childhood trauma) because “the drafter of a will would not
likely have been privy” to this information. We review a trial court’s decision to
admit evidence for abuse of discretion. See Jackson v. George, 146 A.3d 405, 420
(D.C. 2016). While we analyze testamentary capacity at the time a testator executes
a will, evidence of mental capacity preceding that date may be probative of a
testator’s capacity. See Barbour, 4 App. D.C. at 548. Whether and how much
weight to afford that evidence is left to the factfinder. See In re H.R., 206 A.3d 884,
887 (D.C. 2019) (Under D.C. Code § 17-305(a), this court “review[s] the evidence in
the light most favorable to the trial court’s finding, giving full play to the right of the
judge, as the trier of fact, to determine credibility, weigh the evidence, and draw
reasonable inferences.” (cleaned up)). We find no abuse of discretion in the trial
court’s consideration of this evidence.
                                          27

“While a physician need not be a specialist” in a particular field to provide expert

testimony, “he or she must still be a qualified physician and have familiarity with

the particular subject matter in order to render an expert medical opinion.”

Dickerson, 182 A.3d at 729. The trial court admitted Dr. Goldstein as an expert in

internal medicine, and specifically nephrology, because of his knowledge and

experience in those subject areas. We find no error in that decision. Appellant

primarily challenges the evidentiary basis underlying Dr. Goldstein’s expert opinion,

such as his failure to speak with certain people or review certain records; the trial

court properly understood these concerns as relevant to the weight to afford the

opinion, rather than its admissibility. See, e.g., Russell v. Call/D, LLC, 122 A.3d

860, 868 (D.C. 2015) (noting that “lack of textual support” supporting expert

opinion, e.g., from peer-reviewed journals or data that provides the highest degree

of certainty, “may go to the weight, not the admissibility of the expert’s testimony”).

Therefore, we will not disturb the trial court’s decision here.



                                  VI.   Conclusion



      We conclude that appellee Ms. Brown failed to establish that Mr. Ebner lacked

testamentary capacity. We therefore reverse the decision of the trial court and vacate
                                       28

its order denying appellant’s request to admit the 2013 will to probate. We remand

for further proceedings.



                                                  So ordered.
