Walter Bechtold was adjudicated a mental incompetent on June 29, 1973. The incompetency proceeding was instituted by the present defendant, his sister Alice Williams, who was appointed and served as his guardian until his death on November 8, 1976. Plaintiffs in this action are the remaining siblings of Walter, who seek to set aside his last will and testament dated March 22, 1974, in which he left his entire estate to Alice Williams, and his September 26, 1975 conveyance of his home to Alice Williams.
This case raises for the first time the construction of N.J.S.A. 3A:6-39, which reads:
If the mental incompetent dies intestate or without any will except such as was executed after commencement of proceedings which ultimately resulted in the judgment of incompetency, and before a judgment has been entered adjudicating a return to competency, his property, real and personal, shall descend and be distributed as in the case of intestacy.*fn1
Plaintiffs argue that under this statute Walter's 1974 will is not entitled to probate and is of no effect as a valid testamentary disposition. Defendant argues that under the case law of New Jersey the standard for testamentary capacity is not as strict as for mental competency, and that the statute merely sets up a rebuttable presumption that the 1974 will is invalid. Defendant has submitted affidavits in support of her contention that Walter was never mentally incompetent, one of which is by the attorney who drew the 1974 will and the 1975 conveyance.
Initially we note that it was defendant herself who brought the incompetency proceeding in 1973 and that a physician testified at that hearing as follows:
In my opinion, he [Walter] is totally and permanently disabled mentally, and the prognosis is poor because of his mental deterioration, which is progressive. He is undoubtedly incapable of handling his own finances. I feel that the ultimate outcome is a vegetative existence associated with cerebral atrophy.
The legal effect of an adjudication of incompetency is that the ward is divested of all control and management of his property. Lommason v. Washington Trust Co. , 140 N.J. Eq. 207, 209 (E. & A. 1947). The only way a ward can be revested with legal capacity to manage his own affairs is through an adjudication that he has returned to competency. See N.J.S.A. 3A:6-43. No such proceeding was ever brought by Walter or on his behalf in spite of defendant's contention that the incompetency proceeding was simply an expedient device whereby she could care for her brother's physical needs.
In support of her argument that N.J.S.A. 3A:6-39 simply sets up a presumption of incapacity to execute a will after the commencement of incompetency proceedings, defendant cites American National Red Cross v. Lester , 129 N.J. Eq. 28 (E. & A. 1941). This case is not dispositive of the issue presented herein for two reasons. First, it was decided under a predecessor statute, the language of which
was less explicit; and second, the facts in Lester were significantly different. The statute under which Lester was decided provided that
All cases of idiocy and lunacy shall be determined by an inquest * * * and in case he or she shall die in his or her lunacy, such lands and tenements shall descend and go to his or her heirs, and the residue of the goods, chattels and profits, after payment of his or her just debts, shall go to and be ...