Mosley v. Warnock, S07A0791.

• Decision Date: 09 October 2007
• Docket Number: No. S07A0791.,S07A0791.
• Citation: 651 S.E.2d 696,282 Ga. 488
• Parties: MOSLEY v. WARNOCK et al.
• Court: Georgia Supreme Court

282 Ga. 488

651 S.E.2d 696

MOSLEY v. WARNOCK et al.

No. S07A0791.

Supreme Court of Georgia.

October 9, 2007.

M. Francis Stubbs, Stubbs & Associates, Reidsville, for Appellant.

Malcolm F. Bryant, Jr., Vidalia, for Appellee.

THOMPSON, Justice.

Executors J'mon Warnock and Florence Overstreet offered for probate the 2004 last will and testament of their sister, Mildred Hilton. Jamie Mosley, Hilton's granddaughter, filed a caveat challenging Hilton's testamentary capacity. A jury found Hilton lacked testamentary capacity at the time the will was executed and entered a verdict in favor of Mosley. The trial court thereafter granted the propounders' motion for judgment notwithstanding the verdict and conditionally granted a new trial in the event the court's judgment notwithstanding the verdict was determined to have been granted in error. See OCGA § 9-11-50(c). Mosley appealed from the trial court's order and for the reasons that follow, we reverse in part and affirm in part.

1. The appellate standard for reviewing the grant of a judgment notwithstanding the verdict is "whether the evidence, with all reasonable deductions therefrom, demanded a verdict contrary to that returned by the factfinder." Bagley v. Robertson, 265 Ga. 144, 145, 454 S.E.2d 478 (1995). See Pendley v. Pendley, 251 Ga. 30-31, 302 S.E.2d 554 (1983); OCGA § 9-11-50(a). If there is any evidence to support the jury's verdict, viewing the evidence most favorably to the party who secured the verdict, it is error to grant the motion. Hart v. Fortson, 263 Ga. 389, 389-390, 435 S.E.2d 45 (1993).

Under Georgia law, a testator possesses the mental capacity to make a will if she understood that a will had the effect of disposing of her property at the time of her death, was capable of remembering generally what property was subject to disposition by will and remembering those persons related to her, and was capable of expressing an intelligent scheme of disposition. See Quarterman v. Quarterman, 268 Ga. 807(1), 493 S.E.2d 146 (1997); Arnau v. Cochran, 257 Ga. 550, 551(1), 361 S.E.2d 173 (1987); OCGA § 53-4-11(a) ("testamentary capacity exists when the testator has a decided and rational desire as to the disposition of property"). The controlling question is "whether the testator had sufficient testamentary capacity at the time of executing the will." Spivey v. Spivey, 202 Ga. 644, 652(2), 44 S.E.2d 224 (1947).

In support of her claim that Hilton was mentally incapable of making a will on June 28, 2004, Mosley showed that Hilton was a 95-year-old woman who had physically and mentally slowed in the last months of her life. Mosley and her husband testified that during the spring of 2004 Hilton would sometimes appear dizzy or confused and she slept more often. They cited two disparate episodes in support of their argument, one in which Hilton referred to Mosley's husband by her deceased son's name and another during which Hilton made a statement indicating that she believed her deceased husband was working in the yard. Mosley also introduced the testimony of a medical expert who, after reviewing Hilton's medical records and the deposition testimony of several witnesses, concluded that Hilton would have suffered from some degree of dementia on June 28, 2004, the day the will was executed. Because this expert testimony, considered together with anecdotal evidence offered by Mosley and her husband, constituted at least some evidence in support of the jury's verdict, the trial court erred by granting the motion for judgment notwithstanding the verdict.

2. Following the mandate of OCGA § 9-11-50(c)(1), the trial court also ruled on propounders' motion for new trial, granting the motion based on its determination that the verdict was contrary to the weight of the evidence. See OCGA § 9-11-50(c)(1) (if motion for judgment notwithstanding...