Bishop v. Kenny
| Citation | 466 S.E.2d 581,266 Ga. 231 |
| Decision Date | 12 February 1996 |
| Docket Number | No. S95A1515,S95A1515 |
| Parties | BISHOP v. KENNY. |
| Court | Supreme Court of Georgia |
Wills. Chatham County Probate Court Trial Judge: R.M. McDuffee.
Virginia E. Patterson, Savannah, for Bishop.
Joseph P. Brennan, Brennan & Wasden, Savannah, for Kenny.
May Madison Bishop died on March 1, 1993, at the age of 86. In a will, executed on June 5, 1990, she bequeathed her entire estate to her niece, Pauline Kenny (Kenny). When Kenny offered the will for probate in solemn form, the testatrix's granddaughter and legal guardian, Mary Anton Bishop (Bishop), filed a caveat to the probate of the will, alleging that it was the product of the undue influence of Kenny, and that the testatrix lacked testamentary capacity at the time the will was executed. After a bench trial, the probate court determined that the evidence established that the testatrix had testamentary capacity when she executed the 1990 will, and ordered that it be probated in solemn form. Bishop appeals the probate court's order denying her caveat.
1. Contrary to Bishop's assertions, the probate court did not err by excluding testimony regarding Bishop's reasons for becoming the testatrix's guardian two years after the execution of the 1990 will. Bishop argued that the testimony was admissible to establish the testatrix's mental capacity at the time the will was executed. "[T]estimony relating to a reasonable period of time before and after the execution of the will may be introduced to show the testator's state of mind at the time of execution." Estes v. Perkins, 239 Ga. 636(3), 238 S.E.2d 423 (1977). The probate court admitted expert testimony that the testatrix was diagnosed with degenerative dementia approximately three months after the execution of the will. However, testimony concerning the testatrix's diminished mental capacity two years after the execution of the will was too remote. See Estes, supra ().
2. Bishop contends that the probate court erred in excluding testimony concerning the source of and history surrounding the testatrix's real property. This court has long held that:
where there is an issue of fact as to the testamentary capacity of the maker of a will, evidence showing the source from which property disposed of by the will came into the decedent's possession is relevant and material to show whether the provisions of the will are just and reasonable, and accord with the state of the testator's family relations.
Cook v. Sheats, 222 Ga. 70, 73, 148 S.E.2d 382 (1966). The record shows that the probate court received testimony that the real property involved was purchased by the testatrix and her husband as part of a larger parcel of property. Other testimony admitted established that the testatrix and her husband divided the larger parcel and deeded a lot to their son, and later deeded a lot to their grandson. The transcript of the trial indicates that Bishop sought to introduce testimony concerning her belief that she and her brother were going to receive the testatrix's real property. Since that testimony concerned neither the source of the testatrix's property, nor the testamentary capacity of the testatrix at the time she executed the will, the probate court did not err in excluding the testimony as irrelevant.
3. Bishop also contends that the probate court erred in excluding testimony regarding the existence and contents of a prior will in which she claims the testatrix bequeathed her estate to her son, and then to her grandchildren. This contention fails.
The attorney who drafted the 1990 will testified that he destroyed the original of a prior will of the testatrix, but retained a copy of the prior will in his files. He produced the copy of the will for the court, and testified that the testatrix, in the prior will, left her entire estate to her husband, and if he predeceased her, then to her son. Bishop sought to introduce testimony about an alleged "second" prior will, which purportedly made a substantially different disposition of the testatrix's estate than the other prior will and the 1990 will. However, the record in no way indicates that Bishop tendered the second prior will, or explained its absence. Accordingly, the probate court sustained Kenny's "best evidence rule" objection and disallowed the proffered testimony.
It is true that this court has encouraged admitting a "wide latitude" of evidence where a testatrix's mental capacity to make a will is in question, or the issue of undue influence has been raised. Ambler v. Archer, 230 Ga. 281, 291, 196 S.E.2d 858 (1973).
If it can be said that evidence of a prior will in any manner tends to throw light on the mental capacity of the testatrix at the time she executed the will in question or on the question of undue influence in procuring the subsequent will then evidence as to such prior will would certainly be admissible.
Ambler, supra at 291, 196 S.E.2d 858. However, Ambler did not create an exemption to all requirements of admissibility respecting prior wills.
OCGA § 24-5-4 requires that "[t]he best evidence which exists of a writing sought to be proved shall be produced, unless its absence shall be satisfactorily accounted for." This rule is applicable "only where the contents of the writings are in issue." Pryor v. State, 238 Ga. 698, 707, 234 S.E.2d 918 (1977). See also Young v. State, 226 Ga. 553, 176 S.E.2d 52 (1970). Although Bishop did not seek to introduce testimony about the alleged second prior will to establish the testatrix's testamentary disposition, the contents of this alleged prior will were nonetheless placed in issue by Bishop. Counsel for Bishop specifically questioned witnesses concerning the contents of the alleged prior will. Accordingly, Bishop was required to either produce the will or satisfactorily explain its...
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...in issue, as in a dispute regarding the contents of a contract, deed, will, search warrant, or prior conviction. See Bishop v. Kenny, 266 Ga. 231, 466 S.E.2d 581 (1996) (rule applies to wills); Jefferson Pilot, etc., Co. v. Prickett, 176 Ga.App. 810, 338 S.E.2d 19 (1985); State v. Mincey, 1......
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...overall scheme of disposition as supported by the evidence of record regarding the testators' intent. See Bishop v. Kenny, 266 Ga. 231, 234(3)(a), 466 S.E.2d 581 (1996). 3. Lastly, Roger Dyer contends that the superior court erred in differentiating between the "homeplace" and "farm," there......
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Brooks v. Julian, S99A1050.
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...Court of Georgia "has encouraged admitting a `wide latitude' of evidence where . . . the issue of undue influence has been raised." Bishop v. Kenny.12 Thus, prior wills may be admitted in cases alleging that the testator was unduly influenced in executing the will in question. See id. at 23......