Burchard v. CorringtonBurchard v. Corrington
In 1982, Ruth Hоpe Burchard prepared a Will. Seventeen years later, with the assistance of Henry Burchard, 1 Ruth prepared a new will, in which Henry, who would havе received nothing under the 1982 Will, was to receive approximately one-seventh of Ruth’s estate. Following Ruth’s death, Henry filed a Petition to Probate the 1999 Will in the Probate Court of Walker County, and three of Ruth’s heirs — her great niece, Gayle Burchard Corrington, and her great nephews, Gary Burchard and Douglas Davis (hereinafter collectively the “Burchards”) — filed a Caveat to the probate of the 1999 Will. Following a hearing, the probate court entеred an order in favor of Henry. The Burchards appealed to the Superior Court of Walker County, and, following a bench trial, the superior court entered an order finding that Ruth did not have the mental capacity to make the 1999 Will and that Ruth was under undue influence at the time that the Will was created. The superior court accordingly declared the 1999 Will invalid, prompting Henry to appeal. For the reasons that follow, we affirm.
Viewed in the light most favorable to the superior court’s decision, the record reveals that, in April 1996, the Burchards visited Ruth, and, at that time, Ruth appeared puzzled аnd had difficulty recognizing these familiar members of her family. Two weeks later, the Burchards visited Ruth again, and Ruth appeared disoriented and confused, аnd she had no recollection of the Burchards’ prior visit to her. Soon after this visit, on May 1, 1996, Ruth was in a car accident in which she suffered severe injuries. At thе time of the accident, Ruth was 84 years old. A doctor who examined Ruth after the accident noted that she was disoriented, confused, and not cоmpetent to make any decisions, legal or otherwise, on her own behalf. After her release from the hospital, Ruth moved into Henry’s home. In August 1996, Henry sеt up a conservatorship in Tennessee
Three months latеr, Henry and his wife successfully petitioned the Walker County Probate Court to have the Tennessee conservatorship transferred to Georgia, keeping them as Ruth’s guardians, and to have Ruth declared incapable of managing her estate because she ££lack[ed] sufficient. . . capаcity to make significant responsible decisions concerning [her] person.” In connection with this petition, a doctor examined Ruth and determined that she was exhibiting mental and physical signs that were consistent with Alzheimer’s dementia. Ruth died on January 7, 2006.
1. Henry contends that there is no evidence to support the superior court’s determination that Ruth lacked the testamentary capacity to make the 1999 Will. See, e.g.,
Norman v. Hubbard,
However, ££[e]vidence of incapacity at a reasonable time prior to and subsequent to a will’s execution creates an issue of fact as to capacity at the time of execution. . . [and a fact finder must] determine capacity where there is any genuine conflict of evidence regarding the testator’s capacity.” (Citations omitted.)
Sullivan v. Sullivan,
it is [not] essential to establish incapacity by someone whо was present when the will was signed or who saw the testator the day the will was executed. Evidence as to the state of mind of the testator prior to and subsequent to the date of the execution of the will may illustrate the incompetency of the testator at the time of its execution. Wherе a condition of incapacity is shown to exist prior to the execution of a will, and it is further shown that this condition continues for a period of timе subsequent to the date of execution, it is evidence showing incapacity at the time of execution, and controverts the positive evidеnce of the subscribing witnesses, thus making an issue of fact.
Ware v. Hill,
Herе, despite the fact that one of the witnesses to the 1999 Will testified that she believed that Ruth was competent to execute the 1999 Will at the time that she executed it, the factfinder “was not bound to reach the same conclusion based on the evidence before it.”
Sullivan,
supra,
Based on this evidence, the trial court was authorized to conclude that the 1999 Will was invalid based on Ruth’s lack of testamentary capacity to make it. See
Ware,
supra,
2. In light of our disposition in Division 1 that evidence supported the trial court’s conclusion that the 1999 Will was invalid due to Ruth’s lack of testamentary capacity, we need not address the question whether еvidence also supported the trial court’s conclusion that Ruth was subjected to undue influence that would have likewise invalidated the 1999 Will. See, е.g.,
Borenstein,
supra,
Judgment affirmed.
Notes
Henry Burchard is the son of Ruth’s deceased brother-in-law.