Murchison v. Smith, S98A0588.

• Decision Date: 26 October 1998
• Docket Number: No. S98A0588.,S98A0588.
• Citation: 508 S.E.2d 641,270 Ga. 169
• Parties: MURCHISON v. SMITH et al.
• Court: Georgia Supreme Court

508 S.E.2d 641

270 Ga. 169

MURCHISON v. SMITH et al.

No. S98A0588.

Supreme Court of Georgia.

October 26, 1998.

Reconsideration Denied November 20, 1998.

B. Daniel Dubberly, III, Dubberly & McGovern, Glennville, for Dorothy Davis Murchison.

Caesar J. Smith, Soperton, pro se.

HINES, Justice.

This is an appeal from the judgment entered on a jury verdict in a will contest regarding the estate of Ms. Annie Bell Smith. For the reasons which follow, we affirm.

The elderly Ms. Smith was diagnosed with terminal lung cancer in December 1994. On January 31, 1995, she executed a will leaving the bulk of her estate to her brother-in-law, Caesar Smith and his wife Lois Smith, who were assisting Ms. Smith and providing her with care. The will also named Caesar Smith as sole executor. At the same time, Ms. Smith executed a general durable power of attorney empowering Caesar Smith to act as her attorney-in-fact.

Ms. Smith executed another will on March 10, 1995, while she was hospitalized. Ms. Smith's cousin, Dorothy Davis-Murchison, a college professor, had been coming to town to visit Ms. Smith since learning of her terminal illness, and Murchison was at the hospital at the time of the execution of the March will. This will made some specific bequests to friends and family members, including an invalid brother,¹ but left the bulk of the estate to Murchison. It provided a specific bequest to Murchison as well as naming her the residuary beneficiary. In the event that Murchison failed to survive the testatrix, the property was to go to Murchison's daughter. Murchison's name was also handwritten into a space provided for the recipient of any remaining balances on all bank accounts; the name "Lois Smith" had been written in the space but was lined through and initialed "A.B.S." There was also a handwritten provision, again apparently initialed by the testatrix, appointing Murchison as executor. The will bore Murchison's own initials on a change in a bequest to Ms. Smith's brother. The will made no mention of Caesar Smith or any provision for him or for his wife Lois; Ms. Smith later commented to Lois that Murchison had "rewritten her will" and that Lois was not mentioned.

Ms. Smith was released from the hospital, and on March 20, 1995, Murchison accompanied her to the probate court, where Ms. Smith's January will was on file. Ms. Smith was on oxygen and appeared to be clad in a nightgown or robe. Murchison did most of the talking. Ms. Smith's January will was withdrawn and a will dated March 10, 1995, was filed. Ms. Smith also executed a revocation of the power of attorney to Caesar Smith. The probate judge, who in his capacity as private counsel had drafted the January will, told Ms. Smith that he wanted to make a copy of the January will before she withdrew it. Murchison cautioned Ms. Smith to write "cancelled" or "revoked" on the January will. Ms. Smith wrote "revoked" across the January will, or it was written by the judge or Murchison at Smith's direction, and the judge made a copy of it. Murchison took photographs of Ms. Smith's actions in the probate court. The probate court records reflect that Murchison withdrew the March will on April 13, 1995.²

Ms. Smith died April 16, 1995. The original January will was not found after her death; Murchison maintained that Ms. Smith had torn it up. Caesar Smith petitioned to probate the copy of the January will. Murchison petitioned to probate the March will in common form and later filed a caveat to the probate of the January will. The probate court issued an order declaring that the January will was revoked by the testatrix and denied probate; the court also declared it had no authority to determine the validity of the March will offered for probate in common form. A de novo appeal to the superior court followed. After a two-day trial, a jury determined that the January will was not revoked, and the superior court entered judgment accordingly.

Murchison argues that she should have been granted a directed verdict because the evidence was uncontradicted that the testatrix revoked the January will, both by the execution of the subsequent March will and by destruction of the January will with the intent to revoke. But the evidence bearing on revocation was far from uncontradicted.

The issues before the jury were whether the testatrix had the intent to revoke the January will, and whether any revocation of the January will and the connected execution of the March will were the result of duress or undue influence. The jury had to determine whether the evidence showed that Ms. Smith had effected an express revocation of her January will. See former OCGA §§ 53-2-72, 53-2-74. It also had to consider the application of former OCGA § 53-3-6, which provides that

if a will is lost during the testator's lifetime, destroyed without the consent of the testator during the testator's lifetime, or lost or destroyed subsequent to the death of the testator, a copy of the will, clearly proved to be such by the subscribing witnesses and other evidence, may be admitted to probate in lieu of the original. In such cases, the presumption is that the will was revoked by the testator, but the presumption may be rebutted by clear and convincing proof.³

Smith v. Srinivasa, 269 Ga. 736, 506 S.E.2d 111 (1998.) Whether the presumption of revocation is overcome by clear and convincing proof is "determined by the trier of fact, and in reviewing the verdict, `the evidence must be accepted which is most favorable to the party in whose favor the verdict was rendered.' [Cit.] The presumption of revocation may be rebutted by circumstantial as well as direct evidence, including declarations of the testatrix. [Cit.]" McBride v. Jones, 268 Ga. 869, 870(2), 494 S.E.2d 319 (1998).

The issue of revocation is dependent upon evidence of the testatrix's mental capacity in March 1995, the time of alleged revocation and of execution of the second will. The questions of mental capacity at the time of the March will and the intent to revoke the January will are inextricably bound by the doctrine of dependent relative revocation. That is, "[i]f it is clear that the cancellation and the making of the new will were parts of one scheme, and the revocation of the old will was so related to the making of the new as to be dependent upon it, then if the new will be not made, or if made is invalid, the old will, though canceled, should be given effect, if its contents can be ascertained in any legal way." Havird v. Schlachter, 266 Ga. 718, 470 S.E.2d 657 (1996), citing Carter v. First United Methodist Church of Albany, 246 Ga. 352, 271 S.E.2d 493 (1980). Evidence of the testatrix's diminished mental capacity is likewise relevant to the issues of duress and Murchison's exercise of undue influence because the amount of influence which may dominate a mind impaired by age or disease may be decidedly less than that required to control a strong mind. Skelton v. Skelton, 251 Ga. 631, 634(5), 308 S.E.2d 838 (1983).

It is not essential to establish testamentary incapacity by someone who was present when the will was signed or who saw the testator the day the will was executed. A party can demonstrate that the testator lacked testamentary capacity at the time of a will's execution by showing the testator's state of mind within a reasonable period of time both before and after the events in question. Kievman v. Kievman, 260 Ga. 853, 400 S.E.2d 317 (1991). See also Horton v. Horton, 268 Ga. 846, 492 S.E.2d 872 (1997); Fleming v. Constantine, 265 Ga. 525, 457 S.E.2d 714 (1995). What is more, a court must allow the issue of testamentary capacity to go to the jury when there is a genuine conflict in the evidence regarding the testator's state of mind. Mallis v. Miltiades, 241 Ga. 404, 245 S.E.2d 655 (1978).

Caesar Smith introduced testimony that Ms. Smith's health and mental state had been deteriorating since her cancer treatments began in late January or early February 1995. Witnesses described her as depressed, very irritable, fearful, "not too clear," and that sometimes she "just rambled," and her mind had begun to waver. A physician inquired if she was "senile" because of her responses. In March 1995, Ms. Smith was said to be crying constantly, unclear in thought, "speaking out in different tones of voices," hallucinating at times, and susceptible to any suggestion. A witness testified that on March 19, 1995, the day before Murchison accompanied Ms. Smith to the probate court to withdraw the January will and file the later one, Ms. Smith's state of mind was "in and out, going and coming." There was also testimony that Murchison had Ms. Smith sign or initial a document on April 13, 1995, three days before Ms. Smith died, while Smith was hospitalized, on constant pain medication, and "about dead" and "out of it."

This testimony covering a reasonable period before and after the time of execution of the March will and immediately prior to the alleged revocation of the January will created a genuine conflict in the evidence regarding the state of Ms. Smith's mind at the time she executed the March will and caused "revoked" to be scrawled across the January will. Thus, inferences could be drawn by the jury establishing a lack of the requisite mental capacity, and consequently, the lack of intent to revoke the January will. Dunn v. Sneed, 260 Ga. 763, 764, 400 S.E.2d 10 (1991); Havird v. Schlachter, supra. Moreover, the jury was authorized to find that the statutory presumption of revocation was rebutted by clear and convincing evidence. McBride v. Jones, at 870(2), 494 S.E.2d 319. Accordingly, the trial court correctly refused to direct a verdict in favor of Murchison.

Because there was sufficient evidence to support a finding of Ms. Smith's lack of testamentary capacity, and therefore, lack of intent to revoke the...