concurring in result.
I reluctantly concur in the result reached by the majority opinion. I do so with the understanding that a parent may, in his will, disinherit a child without laboring under an insane delusion. Here, the testator did not simply omit John, Jr., from his will, he specifically acknowledged his existence but stated he was to receive nothing. Thus, although I agree with the majority opinion that the doctrine of res judicata does not prohibit John, Jr., from asserting that the testator is his natural father, that is far from the end of the matter. Here, because the will specifically recognized John, Jr., but left him nothing, and there is uncontradicted evidence that the testator told a niece that he would not have left John, Jr., any property even if he were his son, John, Jr., must prove not only that he is John Flaherty’s son but also that John Flaherty lacked the necessary capacity to make a will, thus permitting John, Jr., to inherit under the statutes governing a decedent who dies intestate.
Although the issue of whether or not a testator lacks testamentary capacity is a question of fact, I assume it requires more than an allegation of an insane delusion to require a trial as to the testator’s capacity to make a will. Here, the petitioner gave us few facts from which a conclusion of insane delusion could be gleaned other than that the testator had refused to speak with John, Jr., or have anything to do with him. There are parents who readily acknowledge their offspring but refuse to speak to them or have anything to do with them. Surely that alone does' not indicate the parent is suffering from an insane delusion. There *912is, however, an indication that because of the granting of the motion for summary judgment, apparently on the doctrine of res judicata, discovery was not complete.
In sum, although I am willing to reverse for the purpose of completing discovery, I am skeptical that the evidence adduced in the record before us to support the claim that the testator suffered an insane delusion would be sufficient to prohibit summary judgment on the issue of testamentary capacity.
GIERKE, J., concurs.