A will must be freely and voluntarily executed. A will is not valid if anything destroys the testator's freedom of volition, such as fraudulent practices upon the testator's fears, affections, or sympathies; misrepresentation; duress; or undue influence whereby the will of another is substituted for the wishes of the testator.
(Code 1981, §53-4-12, enacted by Ga. L. 1996, p. 504, § 10.)
Law reviews.- For survey article on wills, trusts, guardianships, and fiduciary administration for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 459 (2003). For annual survey of law of wills, trusts, guardianships, and fiduciary administration, see 56 Mercer L. Rev. 457 (2004). For survey article on wills, trusts, guardianships, and fiduciary administration, see 59 Mercer L. Rev. 447 (2007). For comment on Ehlers v. Rheinberger, 204 Ga. 226, 49 S.E.2d 535 (1948), see 11 Ga. B.J. 348 (1949).
COMMENTThis section carries over and combines former OCGA Secs. 53-2-6 and 53-2-7.
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 3834, former Code 1933, §§ 113-208 and 113-209, and former O.C.G.A. 53-2-6 are included in the annotations for this Code section.
Purpose of undue influence rule.
- The undue influence rule not only does not challenge the right of the citizen to make a will, but contemplates added protection of that right, and works destruction to any disposition by will and testament of property by any person other than the person entitled to make disposition thereof. Franklin v. First Nat'l Bank, 187 Ga. 268, 200 S.E. 679 (1938) (decided under former Code 1933, § 113-208).
Freedom of volition essential for valid will.
- Anything which destroys freedom of volition invalidates a will, such as fraudulent practices or any undue influence whereby the will of another is substituted for the wishes of the testator. Crow v. Whitworth, 170 Ga. 242, 152 S.E. 445 (1930) (decided under former Civil Code 1910, § 3834).
Cited in Boyles v. Morgan, 168 Ga. 804, 149 S.E. 149 (1929); Scott v. Wimberly, 188 Ga. 148, 3 S.E.2d 71 (1939); Moreland v. Word, 209 Ga. 463, 74 S.E.2d 82 (1953); Northwestern Univ. v. Crisp, 211 Ga. 636, 88 S.E.2d 26 (1955); Kellar v. Edwards, 214 Ga. 633, 106 S.E.2d 787 (1959); Lee v. Boyer, 217 Ga. 27, 120 S.E.2d 757 (1961); Sweat v. Hughes, 219 Ga. 703, 135 S.E.2d 409 (1964); Akin v. Patton, 235 Ga. 51, 218 S.E.2d 802 (1975); Cames v. Joiner (In re Joiner), 319 Bankr. 903 (Bankr. M.D. Ga. 2004); Mosley v. Lancaster, 296 Ga. 862, 770 S.E.2d 873 (2015).
Essential Elements of Undue Influence
Time of submission of will for probate cannot be basis for undue influence.
- Fact that the propounder may have submitted will for probate sooner than might seem appropriate under the proprieties cannot be said to have any bearing upon the question as to whether or not the instrument was procured under undue influence at the time of its execution. Ehlers v. Rheinberger, 204 Ga. 226, 49 S.E.2d 535 (1948), for comment, see 11 Ga. B.J. 348 (1949) (decided under former Code 1933, § 113-208).
What constitutes undue influence.
- Undue influence, to invalidate a will, must amount to force or fear and must, in effect, make the will the mental offspring of some other person, and be operative on the mind of the testator at the time the will is executed. It must destroy the free agency of the testator and constrain the testator to do what is against the testator's will, but what the testator is unable to refuse. Trust Co. v. Ivey, 178 Ga. 629, 173 S.E. 648 (1934) (decided under former Code 1933, § 113-208); Crews v. Crews, 219 Ga. 459, 134 S.E.2d 27 (1963);(decided under former Code 1933, § 113-208).
Undue influence in procuring a will to be made must amount to moral coercion; it must destroy the free agency of the testator and constrain the testator to do what is against the testator's will but which the testator is unable to refuse. Griffin v. Barrett, 183 Ga. 152, 187 S.E. 828 (1936), later appeal, 185 Ga. 443, 195 S.E. 746 (1938) (decided under former Code 1933, § 113-208).
The undue influence which the law contemplates as a ground to invalidate a properly executed will must be such as amounts to fraud, deceit, force, or coercion, destroying the testator's free agency. It must also be operative at the time the will is executed, and not merely at some other time. Boland v. Aycock, 191 Ga. 327, 12 S.E.2d 319 (1940) (decided under former Code 1933, § 113-208).
Undue influence or fraud, to invalidate the will, must amount to force or fear and must, in effect, make the will the mental offspring of some other person, and must be operative on the mind of the testator at the time the will is executed. Butler v. Lashley, 197 Ga. 461, 29 S.E.2d 508 (1944) (decided under former Code 1933, § 113-208).
Undue influence which operates to invalidate a will is such influence as amounts either to deception, or to force and coercion, destroying free agency. Butler v. Lashley, 197 Ga. 461, 29 S.E.2d 508 (1944) (decided under former Code 1933, § 113-208); Ehlers v. Rheinberger, 204 Ga. 226, 49 S.E.2d 535 (1948); Morgan v. Ivey, 222 Ga. 850, 152 S.E.2d 833 (1967), for comment, see 11 Ga. B.J. 348 (1949) (decided under former Code 1933, § 113-208); Sauls v. Estate of Avant, 143 Ga. App. 469, 238 S.E.2d 564 (1977) (decided under former Code 1933, § 113-208);(decided under former Code 1933, § 113-208).
To be sufficient to invalidate a will on the ground of undue influence, the evidence must show that such influence amounted to fear, force, overpersuasion, or coercion, to the extent of destroying the free agency and will power of the testator, and in effect made the will the mental offspring of another; and it must be shown that the undue influence was operative on the mind of the testator at the time the will was actually executed and published. Bailey v. Bailey, 204 Ga. 556, 50 S.E.2d 617 (1948) (decided under former Code 1933, § 113-208); Sweat v. Hughes, 219 Ga. 703, 135 S.E.2d 409 (1964);(decided under former Code 1933, § 113-208).
Undue influence in procuring a will may exist in many forms, and it may be operated through diverse channels; the existence and effective power of undue influence is not always susceptible of direct proof, but may be proved by circumstantial evidence. Stephens v. Brady, 209 Ga. 428, 73 S.E.2d 182 (1952) (decided under former Code 1933, § 113-208).
Such influence that is obtained by flattery, importunity, superiority of will, mind, or character, which would give dominion over the will to such an extent as to destroy free agency, or constrain one to do against one's will what one is unable to refuse, such is the kind of influence which the law condemns as undue. Sauls v. Estate of Avant, 143 Ga. App. 469, 238 S.E.2d 564 (1977) (decided under former Code 1933, § 113-208).
There can be no fatally undue influence without a person incapable of protecting oneself as well as a wrongdoer to be resisted. Morgan v. Ivey, 222 Ga. 850, 152 S.E.2d 833 (1967) (decided under former Code 1933, § 113-208); Sauls v. Estate of Avant, 143 Ga. App. 469, 238 S.E.2d 564 (1977);(decided under former Code 1933, § 113-208).
Undue influence must exist at time of execution of will.
- Evidence of undue influence over the mind and will of the testator at another time will not invalidate a will. Only such influence which exists at the time of the purported will's execution destroys the testator's freedom of volition so as to invalidate a will. Crews v. Crews, 219 Ga. 459, 134 S.E.2d 27 (1963) (decided under former Code 1933, § 113-208).
It must be shown that the undue influence was operative on the mind of the testator at the time the will was actually executed and published. Morgan v. Ivey, 222 Ga. 850, 152 S.E.2d 833 (1967) (decided under former Code 1933, § 113-208); Sauls v. Avant, 143 Ga. App. 469, 238 S.E.2d 564 (1977);(decided under former Code 1933, § 113-208).
For undue influence to be a proper ground of caveat, it must exist at the time of the will's execution. Pendley v. Pendley, 251 Ga. 30, 302 S.E.2d 554 (1983) (decided under former O.C.G.A. § 53-2-6).
Undue influence exercised prior to execution of the paper may continue to operate on the mind of the testator until the paper is actually executed; and if upon account thereof the testator executes a paper in which the will of the person exercising the influence is substituted for that of the testator, the paper will be void, though the influence commenced at an antecedent date. Trust Co. v. Ivey, 178 Ga. 629, 173 S.E. 648 (1934) (decided under former Code 1933, § 113-208).
Undue influence of wife may continue subsequent to death of wife.
- If the undue influence was exercised by a wife, the effect thereof may have continued after her death and may have been operative upon her husband at the time he executed the paper shortly after her death. Trust Co. v. Ivey, 178 Ga. 629, 173 S.E. 648 (1934) (decided under former Code 1933, § 113-208).
Undue influence is a question of fact requiring jury consideration.
- It cannot be said as a matter of law that undue influence shown to have been exerted by the wife was not operative upon the husband at the time he executed his will, where the wife died only a short time before the paper was executed. Trust Co. v. Ivey, 178 Ga. 629, 173 S.E. 648 (1934) (decided under former Code 1933, § 113-208).
Mere absence of direct evidence and circumstances showing that the propounder practiced fraud or undue influence at or about the time the last will was executed did not demand a finding in favor of the propounder since there was evidence, direct and circumstantial, from which the jury could have drawn the conclusion that the last will as executed by the testator resulted from prior fraud and undue influence practiced by the propounder upon the testator, and that these prior actions of the propounder controlled the mind of the testator at the time the testator executed the last will. Stephens v. Brady, 209 Ga. 428, 73 S.E.2d 182 (1952) (decided under former Code 1933, § 113-208).
Trial court properly denied the motions for a directed verdict and for a judgment notwithstanding the verdict filed by the executors of a will and trust because there was sufficient evidence to support the jury's finding that the documents were invalid as a product of undue influence based on the executors taking complete control of the elderly testator and isolating the testator from the testator's sons, as well as substituting desires and having the testator sign a new will and trust, which benefitted the executors and excluded the testator's wife and sons. Davison v. Hines, 291 Ga. 434, 729 S.E.2d 330 (2012).
Will propounder was not entitled to a directed verdict in a will caveat as the evidence established a question for the jury on the issue of undue influence because there was more than merely an opportunity for the propounder to influence the testator; there was also evidence of the testator's diminished mental faculties and an established confidential relationship between the propounder and the testator. Odom v. Hughes, 293 Ga. 447, 748 S.E.2d 839 (2013).
No undue influence when attorney not agent of propounder.
- When attorney who drafted the will was not an agent of the propounder, and since no agent of the propounder was present when the will was executed, an inference is assumed that there was no undue influence at the crucial time of execution. Norton v. Georgia R.R. Bank & Trust, 248 Ga. 847, 285 S.E.2d 910 (1982), aff'd, 253 Ga. 596, 322 S.E.2d 870 (1984) (decided under former O.C.G.A. § 53-2-6).
Fraud
Fraud is a distinct head of objection to the validity of a will, from importunity and undue influence; usually they are the very opposites of each other. Both are equally destructive of the validity of a will. Stephens v. Brady, 209 Ga. 428, 73 S.E.2d 182 (1952) (decided under former Code 1933, §§ 113-208, 113-209).
Fraud, to invalidate a will, must amount to force or fear and must, in effect, make the will the mental offspring of some other person, and must be operative on the mind of the testator at the time the will is executed. Butler v. Lashley, 197 Ga. 461, 29 S.E.2d 508 (1944) (decided under former Code 1933, § 113-209).
Fraud must affect testator's plan in making will.
- There was no fraud when the basis for such claim was the attorney's failure to inform testator as to the powers and fees of an executor, matters which did not affect the testator's plan in making the testator's will. Yancey v. Hall, 265 Ga. 466, 458 S.E.2d 121 (1995) (decided under former Code 1933, § 113-209).
Trial court properly granted a will beneficiary summary judgment on the issue of fraud because there was no evidence in the record that would create a genuine issue of material fact as to fraud since the alleged two misrepresentations were not shown to have been relied upon by the testator when the will was created. Johnson v. Burrell, 294 Ga. 301, 751 S.E.2d 301 (2013).
Representations of infidelity sufficient to raise presumption of fraud.
- For one to represent to a wife that her husband is unfaithful to his marital vows, and giving to another the love and affection due his wife, whether the representation of infidelity be true or false, is likely to strongly influence her in the disposition of the property she may leave; hence, the evidence on behalf of the caveators was sufficient on the issue of fraud to have gone to the jury. Stephens v. Brady, 209 Ga. 428, 73 S.E.2d 182 (1952) (decided under former Code 1933, § 113-209).
Effect of fraud practiced prior to execution of will.
- Mere absence of direct evidence and circumstances showing that the propounder practiced fraud at or about the time the last will was executed did not demand a finding in favor of the propounder where there was evidence, direct and circumstantial, from which the jury could have drawn the conclusion that the last will as executed by the testator resulted from prior fraud practiced by the propounder upon the testator, and that these prior actions of the propounder controlled the mind of the testator at the time the testator executed the last will. Stephens v. Brady, 209 Ga. 428, 73 S.E.2d 182 (1952) (decided under former Code 1933, § 113-209).
Fraud established.
- There was sufficient evidence to support the jury's finding that a testator's will was procured by fraud because the propounder and the propounder's wife encouraged the caveator and the caveator's spouse to go on vacation, and they embarked on a campaign to convince the testator that the caveator had stolen all the testator's money, left the testator broke, and abandoned the testator; those were misrepresentations, but the misrepresentations worked because the testator changed the testator's will to disinherit the caveator completely, and as a result of those misrepresentations, the testator went into the meeting with the attorney who drafted the will intending to leave the testator's entire estate to the propounder, and the testator would have done so were it not for the attorney's suggestion that the testator leave something to the caveator's children, who were the testator's grandchildren. McDaniel v. McDaniel, 288 Ga. 711, 707 S.E.2d 60 (2011).
Pleading and Practice
1. In General
Burden of proof shifts to caveator when prima facie case made by propounder of will.
- Upon the trial of an issue arising upon the propounding of a will and a caveat thereto, the burden, in the first instance, is upon the propounder of the alleged will to make out a prima facie case, by showing the factum of the will and that at the time of the will's execution the testator apparently had sufficient mental capacity to make the will, and, in making the will, acted freely and voluntarily. When this is done, the burden of proof shifts to the caveator. Cornelius v. Crosby, 243 Ga. 26, 252 S.E.2d 455 (1979) (decided under former Code 1933, § 113-208).
Cross examination of executor on effect of in terrorem.
- In a will contest, the caveator was properly prevented from cross-examining the executor as to the effect of the will's in terrorem clause as the uncontroverted testimony showed that the testator was of sound mind and was not influenced by the desires of others, and evidence as to the effect of the forfeiture provision would not have been probative of either undue influence or the lack of testamentary capacity. Caswell v. Caswell, 285 Ga. 277, 675 S.E.2d 19 (2009).
Jury question as to undue influence.
- It is for the jury to say under the circumstances, whether undue influence has been exercised. Bryan v. Norton, 245 Ga. 347, 265 S.E.2d 282 (1980) (decided under former Code 1933, § 113-208).
It is reversible error to charge on undue influence when there is no evidence to show that undue influence was exerted upon a testator, resulting in the testator making the will. Orr v. Blalock, 195 Ga. 863, 25 S.E.2d 668 (1943) (decided under former Code 1933, § 113-208).
2. Proof
Requirements for rebuttable presumption of undue influence.
- In order to give rise to the rebuttable presumption that a will is the void product of undue influence, the evidence must show a confidential relationship wherein the primary beneficiary was capable of exerting the power of leadership over the submissive testator. Crumbley v. McCart, 271 Ga. 274, 517 S.E.2d 786 (1999).
Use of circumstantial evidence permissible as proof of undue influence.
- Undue influence in procuring a will may exist in many forms, and it may be operated through diverse channels; the existence and effective power of undue influence is not always susceptible of direct proof and undue influence may be proved by circumstantial evidence. Stephens v. Bonner, 174 Ga. 128, 162 S.E. 383 (1932) (decided under former Civil Code 1910, § 3834).
Very wide range of testimony is permissible on the issue of undue influence, due to the fact that it seldom can be shown except by circumstantial evidence. It results from the circumstances and surroundings of the testator and the testator's associations with the person or persons exercising the undue influence. Peretzman v. Simon, 185 Ga. 681, 196 S.E. 471 (1938) (decided under former Code 1933, § 113-208); Bowman v. Bowman, 205 Ga. 796, 55 S.E.2d 298 (1949);(decided under former Code 1933, § 113-208).
It is proper to consider the testator's dealings and associations with the beneficiaries, the testator's habits, motives, feelings, the testator's strength or weakness of character, the testator's confidential, family, social, and business relations, the reasonableness or unreasonableness of the will, the testator's mental and physical condition at the time the will was made; the testator's manner and conduct, and generally every fact which will throw light on the issue raised by the charge of undue influence. Stephens v. Bonner, 174 Ga. 128, 162 S.E. 383 (1932) (decided under former Civil Code 1910, § 3834); Peretzman v. Simon, 185 Ga. 681, 196 S.E. 471 (1938); Fowler v. Fowler, 197 Ga. 53, 28 S.E.2d 458 (1943) (decided under former Code 1933, § 113-208); Stephens v. Brady, 209 Ga. 428, 73 S.E.2d 182 (1952);(decided under former Code 1933, § 113-208);(decided under former Code 1933, § 113-208).
In determining whether undue influence had been exercised by the wife, so as to substitute her will for that of her husband in his last will and testament, all of the circumstances including the conduct and demeanor of the parties with respect to each other, their comparative ages and mental capacity, and especially any physical and mental infirmity due to advanced age of the husband, may be taken into consideration. Trust Co. v. Ivey, 178 Ga. 629, 173 S.E. 648 (1934) (decided under former Code 1933, § 113-208).
Allegations of undue influence must be accompanied by the particular facts. Bare conclusions such as "fraud, scheme, device, and undue influence" are insufficient allegations in a caveat to present an issue. English v. Shivers, 219 Ga. 515, 133 S.E.2d 867 (1963) (decided under former Code 1933, § 113-208).
Where the caveat is stripped of allegations as to matters which do not appear to have had any bearing or influence upon the testator in the making of the testator's will and nothing remains except bare conclusions of the pleader as to fraud, scheme, device, and undue influence, the caveat does not provide sufficient issues to challenge the validity of the will. Marlin v. Hill, 192 Ga. 434, 15 S.E.2d 473 (1941) (decided under former Code 1933, § 113-208).
Allegations of a caveat need not in each instance furnish the exact or precise words and language employed for the purpose of unduly influencing the testator or the exact dates upon which this is said to have occurred. Levens v. Levens, 203 Ga. 646, 47 S.E.2d 748 (1948) (decided under former Code 1933, § 113-208).
Insufficient allegation of fraud or undue influence.
- Allegations in a caveat to the probate of a will, "that the deceased had been insane for six or seven years prior to his death, was insane at the time the alleged will was signed, if he ever signed it, and that said alleged will is only the will" of named beneficiaries and "ought not to be probated as the will" of the alleged testator, and that the caveator had paid for the funeral expenses of the decedent without any knowledge that the chief named beneficiaries "had had decedent make a will giving them everything he had, if he ever signed the will," were insufficient to present any issue as to fraud or undue influence. Hastings v. Hastings, 175 Ga. 805, 166 S.E. 192 (1932) (decided under former Civil Code 1910, § 3834).
Ruling upholding the 2010 will was affirmed because subscribing witnesses stated in an affidavit that the testatrix was mentally competent when the will was executed, it was self-proved, and contained an affidavit complying with O.C.G.A. § 53-4-24, which created a presumption that the will was executed with the requisite testamentary formalities, including that the testatrix had sufficient mental capacity to do so, and the challenger failed to rebut that presumption. Woods v. Stonecipher, 349 Ga. App. 698, 824 S.E.2d 633 (2019).
Allegations of mental incapacity require examination of reasonableness of will.
- When a will is attacked upon the grounds of the mental incapacity of the testator, and of undue influence in the procurement of the will, it is always proper to inquire whether the provisions of the will are just and reasonable, and in accord with the state of the testator's family relations, or the contrary. Knox v. Knox, 213 Ga. 677, 101 S.E.2d 89 (1957) (decided under former Code 1933, § 113-208).
Evidence required to show undue influence varies as to peculiar circumstances.
- Rules of evidence take into account the peculiar circumstances surrounding the issue of undue influence and acts, conduct, and circumstances may constitute undue influence when exercised on a person of failing mind, poor health, and other mental and bodily enfeeblements which would not be such undue influence as to void a will executed by a person of sound mind, good health, and intelligence. Bowman v. Bowman, 205 Ga. 796, 55 S.E.2d 298 (1949) (decided under former Code 1933, § 113-208).
Quantity of influence varies with the circumstances of each case, according to the relations existing between the parties and the strength or weakness of mind of the testator; thus, the amount of influence necessary to dominate a mind impaired by age or disease may be decidedly less than that required to control a strong mind. Bowman v. Bowman, 205 Ga. 796, 55 S.E.2d 298 (1949) (decided under former Code 1933, § 113-208).
Undue influence necessary to dominate a mind impaired by age, disease, or dissipation is less than that required to control a strong mind. Crews v. Crews, 219 Ga. 459, 134 S.E.2d 27 (1963) (decided under former Code 1933, § 113-208).
Mere confidential relationship insufficient as proof of undue influence.
- Person standing in a confidential relation to another is not prohibited from exercising any influence whatever to obtain a benefit to oneself. The influence must be what the law regards as undue influence; such influence that is obtained by flattery, importunity, superiority of will, mind, or character, which would give dominion over the will to such an extent as to destroy free agency or to constrain one to do against one's will what one is unable to refuse. Daniel v. Etheredge, 198 Ga. 191, 31 S.E.2d 181 (1944) (decided under former Code 1933, § 113-208); Bailey v. Bailey, 204 Ga. 556, 50 S.E.2d 617 (1948); Morgan v. Ivey, 222 Ga. 850, 152 S.E.2d 833 (1967) (decided under former Code 1933, § 113-208);(decided under former Code 1933, § 113-208).
Merely showing that the persons receiving substantial benefits under the instrument sought to be propounded occupied a confidential relationship to the testator and had an opportunity to exert undue influence is insufficient to show undue influence. Crews v. Crews, 219 Ga. 459, 134 S.E.2d 27 (1963) (decided under former Code 1933, § 113-208).
Trial court properly granted a will beneficiary summary judgment on the issue of undue influence because the caveators failed to come forward with any evidence that the beneficiary attempted to influence the making or the contents of the testator's will despite the existence of a confidential relationship. Johnson v. Burrell, 294 Ga. 301, 751 S.E.2d 301 (2013).
Presumption arises when such beneficiary is not natural object of maker's bounty.
- When a person obtaining a substantial benefit under a will occupies a confidential relationship toward the maker of the will and is not a natural object of the maker's bounty, a presumption of undue influence arises if it is shown that the will was made at the request of such person. Bryan v. Norton, 245 Ga. 347, 265 S.E.2d 282 (1980) (decided under former Code 1933, § 113-208).
Representation of infidelity between spouses as undue influence.
- For one to represent to a wife that her husband is unfaithful to his marital vows, and giving to another the love and affection due his wife, whether the representation of infidelity is true or false, is likely to strongly influence her in the disposition of the property she may leave; hence, the evidence on behalf of the caveators was sufficient on the issues of fraud and undue influence to have gone to the jury. Stephens v. Brady, 209 Ga. 428, 73 S.E.2d 182 (1952) (decided under former Code 1933, § 113-208).
Presumption of undue influence is rebuttable.
- Presumption of undue influence based on the existence of confidential relations between the beneficiary and the testator and the active participation of the beneficiary in the execution of the will is rebuttable by any evidence showing that the testator acted freely and voluntarily in making the testator's will and not under the coercion of the person charged with undue influence. Bryan v. Norton, 245 Ga. 347, 265 S.E.2d 282 (1980) (decided under former Code 1933, § 113-208).
Requirements for rebuttable presumption.
- Caveator, who was disinherited under father's will, failed to show that the caveator's brother, who inherited, or the caveator's brother's son, exerted undue influence over testator. Harper v. Harper, 274 Ga. 542, 554 S.E.2d 454 (2001).
Honest persuasion and argument, even to the extent of importunity, is not undue influence. Sweat v. Hughes, 219 Ga. 703, 135 S.E.2d 409 (1964) (decided under former Code 1933, § 113-208).
Persuasion is not undue influence.
- Honest persuasion to make a will of a certain kind, though constant and importunate and though accompanied by tears and entreaties, does not constitute undue influence, in the absence of fraud or duress, even though the testator yields to the influence in order to have quiet or peace of mind, or to keep the respect or love of members of the testator's family; provided the testator is in a mental condition to make a choice between following the testator's original intention or of yielding the testator's view in favor of the wishes of the other person. Boland v. Aycock, 191 Ga. 327, 12 S.E.2d 319 (1940) (decided under former Code 1933, § 113-208).
Honest persuasion to make a will of a certain kind, though constant and importunate and though accompanied by tears and entreaties, does not constitute undue influence, in the absence of fraud or duress, provided the testator is in a mental condition to make a choice between following the testator's original intention or of yielding the testator's view in favor of the wishes of the other person. Ehlers v. Rheinberger, 204 Ga. 226, 49 S.E.2d 535 (1948) (decided under former Code 1933, § 113-208); Morgan v. Ivey, 222 Ga. 850, 152 S.E.2d 833 (1967); Sauls v. Estate of Avant, 143 Ga. App. 469, 238 S.E.2d 564 (1977) (decided under former Code 1933, § 113-208);(decided under former Code 1933, § 113-208).
Mere opportunity does not constitute undue influence.
- Evidence which does no more than show opportunities for exerting influence falls short of showing the exercise of undue influence required to invalidate a will. Orr v. Blalock, 195 Ga. 863, 25 S.E.2d 668 (1943) (decided under former Code 1933, § 113-208); Bailey v. Bailey, 204 Ga. 556, 50 S.E.2d 617 (1948); Brown v. Bryant, 220 Ga. 80, 137 S.E.2d 36 (1964) (decided under former Code 1933, § 113-208); Morgan v. Ivey, 222 Ga. 850, 152 S.E.2d 833 (1967);(decided under former Code 1933, § 113-208);(decided under former Code 1933, § 113-208).
Evidence of the caveators on the question of whether the paper propounded for probate was the result of undue influence exercised over the mind of the testator failed to present an issue for the jury; it showed no more than a mere opportunity to exercise undue influence, which is not sufficient. Bailey v. Bailey, 204 Ga. 556, 50 S.E.2d 617 (1948) (decided under former Code 1933, § 113-208).
When testimony shows at most only an opportunity on the part of a brother to impose his wishes upon his sister, the testator, the opportunity alone is insufficient to establish undue influence. Whitfield v. Pitts, 205 Ga. 259, 53 S.E.2d 549 (1949) (decided under former Code 1933, § 113-208).
It is not sufficient to establish undue influence to show merely that the persons receiving substantial benefits under the instrument sought to be propounded occupied a confidential relationship to the testator and had an opportunity to exert undue influence. Bowman v. Bowman, 205 Ga. 796, 55 S.E.2d 298 (1949) (decided under former Code 1933, § 113-208); Gornto v. Gornto, 217 Ga. 136, 121 S.E.2d 139 (1961);(decided under former Code 1933, § 113-208).
Sufficient evidence to find testator unduly influenced. See Skelton v. Skelton, 251 Ga. 631, 308 S.E.2d 838 (1983) (decided under former O.C.G.A. § 53-2-6).
No lack of testamentary capacity.
- Daughter failed to show lack of testamentary capacity despite the fact that the testator's medical record contained the word "dementia" without an indication as to whether it was used as a diagnosis, a report from family members, or a matter for concern at later examinations; the testator's accountant and lawyer testified that the testator was aware of the property the testator possessed and of the relatives and that the testator expressed an intelligent scheme of disposition. Curry v. Sutherland, 279 Ga. 489, 614 S.E.2d 756 (2005).
Undue influence established.
- Evidence did not demand a verdict contrary to that returned by the jury, which found that in executing a new will that favored the appellants over the appellees, the testator had been subject to undue influence by the appellants; there was evidence that the testator was cared for 24 hours a day by the appellants, who administered medication to the testator; that an appellant was with the testator during visits; that the appellees felt uncomfortable when visiting; that an appellant had the testator's financial power of attorney, wrote checks on the testator's accounts, and kept the testator's books; that two of the appellants had an attorney draft the new will and provided the attorney with an estate distribution plan; that the new will was witnessed by a neighbor and two cousins of the appellants; that an appellant administered a narcotic to the testator on the day the new will was executed; that the appellants did not inform the appellees of the new will; and that the terms of the new will were inconsistent with the testator's repeated statements to others that the parties were to be treated equally. Lillard v. Owens, 281 Ga. 619, 641 S.E.2d 511 (2007).
Trial court correctly denied an executor's motion for directed verdict in an action wherein the child of the testator filed a caveat and objection to the probate of the testator's last will and testament on the grounds that the will was the product of undue influence as sufficient evidence existed to support the conclusion that undue influence was used to have the testator bequeath the only asset, namely a home, to the caregiver who was hired by the executor. The record established that the executor blocked calls from the testator's child, refused to let the child see the testator, and a confidential relationship was established between the caregiver and the testator as the caregiver took an active role in the planning, preparation, and execution of the will. Bean v. Wilson, 283 Ga. 511, 661 S.E.2d 518 (2008).
Evidence regarding the circumstances and surroundings of the testator and the testator's associations authorized the jury's finding that the testator's will was the product of undue influence because the propounder and the propounder's wife encouraged the caveator and the caveator's wife, who had moved in with the testator and the testator's wife and provided the care they needed, to leave the state for a vacation, and in their absence the propounder poisoned the testator's mind against the caveator, telling the testator falsely that the caveator had stolen all the caveator's money, that the testator was broke, and that the caveator had abandoned the testator and would not return; acting under the influence of the propounder and the propounder's wife, the testator secured a restraining order that prevented the caveator from seeing the testator for six months after the caveator returned, and the testator's will radically changed the distribution of the estate envisioned by the testator in a previous will by changing the will to disinherit the caveator completely. McDaniel v. McDaniel, 288 Ga. 711, 707 S.E.2d 60 (2011).
RESEARCH REFERENCES
Am. Jur. 2d.
- 79 Am. Jur. 2d, Wills, § 371 et seq., § 394 et seq.
Undue Influence in Execution of Will, 36 POF2d 109.
C.J.S.- 95 C.J.S., Wills, §§ 343, 345 et seq., 686 et seq.
ALR.
- Fraud as distinguished from undue influence as ground for contesting will, 28 A.L.R. 787; 92 A.L.R. 790.
Presumption and burden of proof as to undue influence on testator, 66 A.L.R. 228; 154 A.L.R. 583.
Admissibility and weight on issue of mental capacity or undue influence in respect of will or conveyance, of instruments previously executed by the person in question, 82 A.L.R. 963.
Undue influence by third person in which immediate beneficiary did not participate, 96 A.L.R. 613.
Form and particularity of allegations to raise issue of undue influence, 107 A.L.R. 832.
Admissibility of evidence on question of testamentary capacity or undue influence in a will contest as affected by remoteness, relative to the time when the will was executed, of the facts or events to which the evidence relates, 124 A.L.R. 433.
Admissibility of declarations of testator on issue of undue influence, 148 A.L.R. 1225.
Admissibility of declaration by beneficiary named in will in support of claim of undue influence or lack of testamentary capacity, 167 A.L.R. 13.
Rights and remedies against one who induces, prevents, or interferes in the making, changing, or revoking of a will, or holds the fruits thereof, 11 A.L.R.2d 808.
Judgment denying validity of will because of undue influence, lack of mental capacity, or the like, as res judicata as to validity of another will, deed, or other instrument, 25 A.L.R.2d 657.
Admissibility in will contest of financial condition or needs of those constituting natural objects of testator's bounty, 26 A.L.R.2d 374.
Drawing will or deed under which he figures as grantee, legatee, or devisee as ground of disciplinary action against attorney, 98 A.L.R.2d 1234.
Presumption or inference of undue influence from testamentary gift to relative, friend, or associate of person preparing will or procuring its execution, 13 A.L.R.3d 381.
Wills: undue influence in gift to testator's attorney, 19 A.L.R.3d 575.
Solicitation of testator to make a will or specified bequest as undue influence, 48 A.L.R.3d 961.
Existence of illicit or unlawful relation between testator and beneficiary as evidence of undue influence, 76 A.L.R.3d 743.
Liability in damages for interference with expected inheritance or gift, 22 A.L.R.4th 1229.
Action for tortious interference with request as precluded by will contest remedy, 18 A.L.R.5th 211.
Attorneys at law: disciplinary proceedings for drafting instrument such as will or trust under which attorney-drafter or member of attorney's family or law firm is beneficiary, grantee, legatee, or devisee, 80 A.L.R.5th 597.
ARTICLE 3 EXECUTION AND ATTESTATION
Law reviews.
- For article suggesting that nuncupative wills should no longer be recognized in Georgia, see 11 Ga. L. Rev. 297 (1977). For survey article on wills, trusts, guardianships, and fiduciary administration, see 60 Mercer L. Rev. 417 (2008). For annual survey on wills, trusts, guardianships, and fiduciary administration, see 61 Mercer L. Rev. 385 (2009).
RESEARCH REFERENCESDecedent's Gift to Heir as Advancement, 35 POF2d 357.
Proof of Decedent's Intent That Inter Vivos Gift to Heir Constitutes Advancement, 83 POF3d 295.
ALR.
- Governing law of will as affected by change of domicil after its execution, 57 A.L.R. 229.
Admissibility and credibility of testimony of subscribing witness tending to impeach execution of will or testamentary capacity of testator, 79 A.L.R. 394.
Necessity that attesting witnesses to will subscribe in presence of each other, 99 A.L.R. 554.
Law in effect at time of execution of will or at time of death of testator as controlling, 129 A.L.R. 859.
Soldiers' and seamen's wills, 147 A.L.R. 1297; 148 A.L.R. 1384; 149 A.L.R. 1451; 149 A.L.R. 1452; 150 A.L.R. 1417; 150 A.L.R. 1418; 151 A.L.R. 1453; 152 A.L.R. 1450; 154 A.L.R. 1447.
Effectiveness of nuncupative will where essential witness thereto is beneficiary, 28 A.L.R.2d 796.
Validity of will written on disconnected sheets, 38 A.L.R.2d 477.
Weight and effect of presumption or inference of due execution of will, 40 A.L.R.2d 1223.
"Attestation" or "witnessing" of will, required by statute, as including witnesses' subscription, 45 A.L.R.2d 1365.
Effect of failure of attesting witness to observe testator's capacity, 69 A.L.R.2d 662.
Validity of will as affected by fact that witnesses signed before testator, 91 A.L.R.2d 737.
What amounts to "last sickness" or the like within requirement that nuncupative will be made during last sickness, 8 A.L.R.3d 952.
Requirement that holographic will, or its material provisions, be entirely in testator's handwriting as affected by appearance of some printed or written matter not in testator's handwriting, 37 A.L.R.4th 528.
Proper execution of self-proving affidavit as validating or otherwise curing defect in execution of will itself, 1 A.L.R.5th 965.