McCormick v. Jeffers, No. S06A0682.
| Decision Date | 20 November 2006 |
| Docket Number | No. S06A0682. |
| Citation | 637 S.E.2d 666 |
| Parties | McCORMICK v. JEFFERS et al. |
| Court | Georgia Supreme Court |
Emory Freddie Sanders Sr., Ziva Peleg Bruckner, Capers, Dunbar, Sanders & Bruckner, Augusta, for Appellant.
William J. Williams, Johnston, Wilkin & Williams, Augusta, for Appellee.
The appellant, John McMormick, appeals from a jury verdict upholding the probate of the will of his mother, Ms. Jean McCormick, and declining to set aside a quitclaim deed that his mother executed in favor of his sister, appellee Melinda Jeffers, at the same time the will was executed. The jury found, in particular, that Ms. McCormick was not under the undue influence of Jeffers when she executed the will and the deed. On appeal, Mr. McCormick contends, among other things, that his mother's will was not properly executed in that the witnesses to the will did not sign the will in her presence, and that the trial court erred in denying his motion for a directed verdict on that ground. He also contends that the evidence unequivocally shows that Ms. McCormick was under the undue influence of Jeffers when she executed the will and deed, and that he is therefore entitled to a new trial. Because we conclude that the will was not properly executed, we reverse the judgment admitting the will to probate. However, because we find some evidence to support the jury's finding that Jeffers did not unduly influence Ms. McCormick, we affirm the part of the judgment declining to set aside the deed.
1. OCGA § 53-4-20(b) of the Revised Probate Code of 1998 provides that "[a] will shall be attested and subscribed in the presence of the testator by two or more competent witnesses." In the present case, Mr. McCormick contends that Jeffers, as the propounder of the will, failed to carry her burden to show that the witnesses to the will signed the will in the presence of the testator.1 For the reasons that follow, we agree.
The evidence shows that the decedent signed her will while sitting in a chair in her bedroom, and that the two witnesses to the will were present in the bedroom when she did so. When one of the witnesses, Carol Ayers, was asked at trial if she had signed the decedent's will in her presence, she (Ayers) testified that she signed something in the decedent's presence in her bedroom and that other things were signed at the dining room table, but that she could not remember what she signed in the decedent's presence. Ayers also testified that the decedent could not see what was done at the dining room table, and that she and the other witness, Diane Goldman, signed the will at the same time. On cross-examination, Ayers admitted that, in a deposition, she had stated that she signed the will at the dining room table and that, when she did so, Ms. McCormick was in her bedroom.
Diane Goldman testified that she and Ayers witnessed the decedent sign her will in a chair in her bedroom, but that, because there was no place in the bedroom for Ayers and her to sign, they signed the will at the dining room table. Goldman testified that she saw Ayers sign at the dining room table. According to Goldman, the dining room table was about fifteen feet from the bedroom door; that to her knowledge, Ms. McCormick never left the bedroom; and Ms. McCormick could not see the dining room table from the bedroom.
The notary who signed the will testified that she and the witnesses to the will signed the will at the dining room table and that Ms. McCormick was in the bedroom when they did so.
Finally, Ms. Jeffers testified that, although the decedent got up from her chair to use a bathroom that adjoined her bedroom while the witnesses were signing the will in the dining room, the decedent could not see what Ayers and Goldman were doing at the dining room table. Although the dissent correctly notes that Jeffers testified on re-direct that the decedent could see into the dining room when she got up to use the bathroom, Jeffers also testified immediately thereafter that, from where her mother was standing at that time, "there was no way that [the decedent] could see" the witnesses sign the will at the dining room table and that the decedent could not, "unless she could look through a wall," see the witnesses sign the will. Jeffers added that she believed that the decedent saw Ayers sign one place on her will that Ayers initially missed. Jeffers stated that this happened after Ayers had gone back to the decedent's room after leaving the dining room table.
Based on the foregoing evidence, it is clear that Ms. McCormick did not see the witnesses sign her will and could not have done so without leaving her bedroom and walking toward the dining room. The question is whether, under these facts, the witnesses can be said to have signed the will "in the presence of the testator" within the meaning of OCGA § 53-4-20(b) of the 1998 Probate Code.
OCGA § 53-4-20 of the 1998 Probate Code mirrors the language of the prior Probate Code regarding the requirement that witnesses sign the will in the presence of the testator.2 We have interpreted this former statute to mean that, from the place where the testatrix is situated (such as sitting in a chair or lying in a bed) when the witnesses sign the will, she must be able to see the witnesses sign the will if she desired to do so without changing her place.3 This test is referred to as the "line-of-vision" test,4 and under this test, "[i]t is not necessary for the testator to have watched the witnesses sign, as long as the testator could have watched them sign."5
Some courts and the Restatement, however, have adopted a less formal test for determining when witnesses sign "in the presence" of the testator.6 The Restatement refers to this test as the "conscious-presence" test. It
recognizes that a person can sense the presence or actions of another without seeing the other person. If the testator and the witnesses are near enough to be able to sense each other's presence, typically by being within earshot of one another, so that the testator knows what is occurring, the presence requirement is satisfied.7
Whatever the merits of this less rigid test, we do not have the authority to adopt it. The language of a revised Code section such as OCGA § 53-4-20 must be construed to be consistent with existing law unless a contrary intent is clear from the language of the new Code section.8 Here, no such contrary intent appears. In fact, the reporter for the Revised Probate Code, who also was its primary drafter, has stated that "Code section 53-4-20 establishes requirements for the actual execution of a will and essentially maintains the previous Code's formalities."9
Thus, under § 53-4-20(b), from where Ms. McCormick was situated in the bedroom or bedroom doorway, she must have been able to see the witnesses sign her will if she had the desire to do so. Because the evidence unequivocally establishes that she could not do so, any presumption of proper execution arising from the will's attestation clause has been rebutted by clear proof that the will was not properly executed,10 and the judgment approving the will must be reversed.
2. Mr. McCormick contends that the trial court erred in permitting Jeffers to testify, over his objection, regarding gifts that Ms. McCormick made to Mr. McCormick during her life. However, because other witnesses testified to these gifts, without objection, Mr. McCormick cannot show harm from any error alleged to have occurred from Jeffers's testimony.11
3. Contrary to Mr. McCormick's contention, we conclude that the trial court did not err in admitting evidence of declarations made by the testator. The evidence in question was relevant to the issue of undue influence and to explain the testator's disposition of her property.12
4. Mr. McCormick contends that the trial court erred in not granting him a new trial, as, according to Mr. McCormick, the evidence, without dispute, showed that the deed was the result of the undue influence of Jeffers. If a party moves for a new trial after a jury verdict on the ground that the verdict is against the weight of the evidence, and the trial court denies the motion, this Court, on review, must affirm that denial if there is any evidence to support the verdict.13 Moreover, "[f]or undue influence to be sufficient to invalidate a [deed], it must amount to deception or force and coercion that operates on the [grantor] when she is executing [the deed] so that the [grantor] is deprived of free agency and the will of another is substituted for that of the [grantor]."14 In the present case, even assuming there was a confidential relationship between Jeffers and Ms. McCormick that gave rise to a rebuttable presumption of undue influence,15 there was some evidence to rebut that presumption, and some evidence on which the jury could have relied to conclude that Ms. McCormick's deed was not the result of undue influence by Jeffers.
In this regard, several witnesses testified that they had known Ms. McCormick for four years or longer; that her mental abilities had not declined over the years these witnesses had known her; that her mind was clear and sharp on the day she executed the will and deed; that she signed the will and deed of her own free will; and that Ms. McCormick was not under any duress when she executed the will and deed. In addition, appellee Anne Snider16 testified that Jeffers had "absolutely not" influenced Ms. McCormick's disposition of her property, and that, in fact, Ms. McCormick had influenced Jeffers, as Ms. McCormick was a strong, powerful, opinionated woman and had her full mental capacities until the day of her death.
Because the foregoing constitutes some evidence by which the jury could have found that Ms. McCormick was not under the undue influence of Jeffers when she executed her will and deed, we are not authorized to reverse the trial court's denial of Mr. McCormick's motion for new trial.
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