Glaze v. Lemaster, No. S05A0656.

• Decision Date: 23 May 2005
• Docket Number: No. S05A0656.
• Citation: Glaze v. Lemaster, 613 S.E.2d 617, 279 Ga. 361 (Ga. 2005)
• Parties: GLAZE v. LEMASTER.
• Court: Georgia Supreme Court

279 Ga. 361

613 S.E.2d 617

GLAZE v.LEMASTER.

No. S05A0656.

Supreme Court of Georgia.

May 23, 2005.

Robert Lee Mack, Jr., Glaze Harris Arnold & Mack, PC, Jonesboro, for Appellant.

Joseph M. Todd, Jonesboro, for Appellee.

HUNSTEIN, Justice.

After executorEric Lemaster propounded the will of Lillie Payne, George Glaze filed a caveat contending, inter alia, that the will was invalid because it was not properly executed, that Payne lacked the requisite testamentary capacity and that the will was not freely and voluntarily executed.After a bench trial the probate court rejected the caveat and found the will to be valid.Because the evidence adduced supports the probate court's judgment, we affirm.

1.Appellant contends that the will was not properly executed because Payne did not follow the procedure set forth in the attestation clause.Although that clause recited that Payne signed the will in the presence of both witnesses and that both witnesses signed in the presence of each other the uncontroverted evidence established that only one witness, Cavenaugh, was present when Payne signed the will¹ and that Clark later signed as a witness after Payne sought him out, presented him with the signed will and informed him it was her will.²"`It is not the writing that makes the will legal and binding, but the testamentary intent crystallized and expressed in the writing.'[Cit.]"Hickox v. Wilson,269 Ga. 180, 181, 496 S.E.2d 711(1998).We agree with the probate court that Payne's testamentary intent here was clear and that her deviation from the procedure set forth in the attestation clause does not serve in itself to invalidate the execution of the will.Id.

2.In support of his argument that Payne lacked the requisite testamentary capacity, appellant points to evidence that within weeks of signing the will, Payne was hospitalized in a confused mental state, which subsequently required the appointment of a guardian.However, the probate court was authorized to credit the testimony of the signing witnesses that Payne possessed the requisite capacity at the time she and they signed the will, as well as appellee's testimony that while Payne's mental condition was normal when she executed the will, it underwent a dramatic and permanent change for the worse some weeks later when Payne fell in her home and hit her head, requiring her hospitalization."A trial court's factual findings in a non-jury trial may not be set aside unless clearly erroneous.[Cits.] Where, as here, the findings of the probate court are supported by any evidence, they will not be disturbed on appeal.[Cit.]"Fletcher v. Ellenburg,279 Ga. 52, 56(1), 609 S.E.2d 337(2005).

3.Contrary to appellant's arguments, Payne's disparaging comments about appellee made after the mental decline that followed her fall did not conclusively rebut the evidence presented at trial and credited by the probate court that at the time the will was executed, Payne knew the contents of her will and validly expressed her testamentary wishes through that document when she left her estate to appellee's teenaged son, with whom she had had a close relationship since he was a child.

4.Appellant contends the trial court erred by finding that Payne executed her will freely and voluntarily because appellee exercised undue influence over Payne based on their "confidential relationship."We disagree.The trial testimony of the subscribing witnesses supports the probate court's finding that Payne's will was freely and voluntarily executed.SeeAshford v. Van...