Dyer v. Souther

• Decision Date: 27 March 2000
• Docket Number: No. S99A1294.,S99A1294.
• Parties: DYER et al. v. SOUTHER.
• Court: Georgia Supreme Court

528 S.E.2d 242

272 Ga. 263

DYER et al. v. SOUTHER.

No. S99A1294.

Supreme Court of Georgia.

March 27, 2000.

Beltran & Associates, Frank J. Beltran, Charlotte K. Perrell, Atlanta, for appellant.

Carey, Jarrard & Walker, Jack M. Carey, Gainesville, for appellee.

HINES, Justice.

This is an appeal by the defendant caveators in a contest over the validity of the last will and testament of Blanch Dyer, who died in 1994. The case was tried before a jury and at the close of the evidence, the superior court directed verdicts in favor of the plaintiff propounder on the caveators' claims that the will was not properly signed and executed on January 12, 1987, and that it was the product of undue influence. The court did not direct a verdict on the question of testamentary capacity and it was submitted to the jury. The jury returned a verdict in favor of the propounder, finding that the document at issue was the last will and testament of Blanch Dyer. However, we reverse the judgment entered on the jury's verdict because the superior court erred in directing a verdict on the issue of undue influence.¹

Ms. Dyer was the last of 11 children and never married. She died at age 74 and was survived by numerous nieces and nephews, and over 70 great nieces and nephews. She lived at the Dyer homeplace where she was born, and which she had inherited. Under the will at issue, Ms. Dyer bequeathed and devised all of her property to the propounder Souther, a great nephew.² Souther was also named as executor. In the event that Souther did not survive Ms. Dyer, the property was to go to Souther's mother, who was not a blood relative of Ms. Dyer. Ms. Dyer's nieces and nephews, collectively "Dyer," filed the caveat to the will.

1. It was not error to deny the caveators' pretrial "Motion for Reassignment to a Superior Court Judge Outside the Judicial Circuit." The motion was not accompanied by the required evidence by affidavit setting forth the facts upon which the motion was founded. Uniform Superior Court Rule 25.

2. In order for a will to be valid, it must be freely and voluntarily executed, and anything which destroys the freedom of volition, such as undue influence, causes the will to be invalid. Stephens v. Brady, 209 Ga. 428, 432(2), 73 S.E.2d 182 (1952). Undue influence to procure a will may take many forms and may operate through diverse channels. Id. Moreover, the existence and effective power of undue influence can rarely be shown except by circumstantial evidence. Skelton v. Skelton, 251 Ga. 631, 634(5), 308 S.E.2d 838 (1983). Thus, "[a]n attack on a will as having been obtained by undue influence may be supported by a wide range of testimony, ... [including evidence of] a confidential relation between the parties, the reasonableness or unreasonableness of the disposition of the testator's estate, old age, or disease affecting the strength of the mind, tending to support any other direct testimony or any other proved fact or circumstance going to show the exercise of undue influence on the mind and will of the testator.... While the 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, 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. [Cits.]" Skelton v. Skelton, supra at 634(5), 308 S.E.2d 838, quoting Fowler v. Fowler, 197 Ga. 53(2), 28 S.E.2d 458 (1943); Perkins v. Edwards, 228 Ga. 470, 475, 186 S.E.2d 109 (1971). What is more, the question of undue influence is generally for the factfinder. Mathis v. Hammond, 268 Ga. 158, 160(3), 486 S.E.2d 356 (1997). And a directed verdict is authorized only when "there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict." OCGA § 9-11-50(a); Scoggins v. Strickland, 265 Ga. 417, 418(2), 456 S.E.2d 208 (1995).

There was circumstantial evidence sufficient to raise the issue of undue influence. It was shown, among other things, that propounder Souther's property was close to the Dyer homeplace and around the time of making the will, Souther was regularly at the homeplace; Souther rented farm property from Ms. Dyer, and in the summer of 1986, Ms. Dyer complained to a relative that Souther had not paid her anything for having his cows on the land; shortly before making the will Ms. Dyer commented to a niece that she would never make a will, there was "no way" that Souther was going to get everything, and that Souther would be "getting nothing"; around Christmas 1986, she told a nephew that "they're after me" and "they're trying to get me to make a will"; Souther made Ms. Dyer's appointment with the attorney about the will; subsequent to execution of the will, Ms. Dyer lived with Souther's mother prior to Ms. Dyer entering a nursing home; Ms. Dyer executed a power of attorney in favor of Souther and Souther drove her to the attorney's office in order to accomplish it; Ms. Dyer put certificates of deposit jointly in Souther's name and, in 1989, approximately five years prior to her death, Souther cashed all of them in on the same day; Souther received approximately $167,800 in payments from Medicaid, private insurance benefits, and Ms. Dyer's funds, but Souther was able to document only $97,000 actually used for Ms. Dyer's expenses. The caveators also presented evidence of Ms. Dyer's mental impairment and degree of dementia around the time of the will: she appeared confused, exhibited atypical behavior, and seemed to be "not the same person." Also Ms. Dyer could not read or write, nor...