*1 186 appellant.
Azar, for appellee. McNalley, Fox, Grant, & Pаtrick J. for Fox COOK v. HUFF et al. S01A0756. SE2d Justice. Carley, February una- 1998, suffered a stroke and was
In Milton Cook July. August, will and he executed a new to return home until ble widow, Cook The will named his Kathleen died several months later. (Propounder), probate. executrix, and she filed the document for as years Propounder 53 and had four Mr. Cook and children. His three children tested the will on the ence. were married for (Caveators) marriage con- former ground Propounder’s alleged undue influ- probate probate, The court admitted the will to and Caveators appealed. jury a verdict The case was tried before a which returned judgment Propounder appeals entered on the for Caveators. from jury’s verdict. urges denying erred in that the trial court judgment
motions for directed n.o.v. and new trial. may grant if, A trial court new trial in the exercise motion for jury’s agаinst weight discretion, it finds was of its of the evidence. OCGA 5-5-21. such a verdict However, when a trial court denies appellate motion, court does not have the discretion ground. only grant “[W]e evidence a new trial on that can review the any [Cit.]” to determine if there is the verdict. evidence (1) (247 57) (1978). State, 583, Drake v. 241 Ga. The stan- SE2d appellate dard of review of the a motion for new trial on the to the denial of grounds general essentially applicable the same as that judgment denial of a motion for directed verdict or n.o.v. See Womack (2) (205 (1), (1974), Joseph’s Hosp., App. v. St. 131 Ga. 63-64 SE2d grounds, App. Withers, 420, overruled on other Herr v. 174) (1999). appellate only SE2d The courts “can set a verdict evidentiary grounds, being contrary aside, on as to law that any supported.” lacks which it could Gledhill v. (1) (162 824) (1932). App. Accordingly, Brown, we Ga. favorably evidence, must dеcide whether the when construed most product Caveators, demanded a that the will was not the undue influence. showing only opportunity Evidence that she had the to influence bequest her husband and that she under the receives a substantial terms of his will is not sufficient to show that she exercised undue (4) (529 Harvey Sullivan, influence over him. 889) (2000). question However, the of whether a will is the product generally influence for the factfinder. Mathis v. (3) (486 Hаmmond, Accordingly, jury only we would reverse the entered on the verdict if presents this case an to that rule. Undue influence exception general many through take forms and diverse “may operate channels. Souther, Dyer [Cit.]”
Moreover, its effect be by existence and can shown other than rarely circumstantial Skelton, evidence. Skelton v. 838) (1983). Therefore, ground
SE2d
when a will
contested on the
is
influence,
may
by
rangе
the
of
attack
be
wide
supported
(2).
testimony. Dyer Souther,
Here,
v.
at 264
there
supra
was evidence
of
between
and their
pre-existing animosity
Caveators
stepmother.
(1855).
Rutledge,
Cox v.
so as substitute her for that of husband in his last testament, will and of the all circumstances the including conduct and of the parties respect demeanor with to each other, their ages and mental comparative capacity, and especially any physical infirmity mental due to husband, age advanced of the may be taken into considera- tion. (5) (173 648) (1934). Trust Co. Ga. v. 641-642 SE Ivey, of
“ ‘[T]he amount of influence necessary
impaired
to dominate a mind
disease
by age
decidedly
or
less than that
control
required to
(Cits.)’
(5).
Skelton,
mind.
strong
supra
[Cits.]” Skelton v.
at 634 Mr.
elderly
will,
Cook was
at the time he executed
cоntested
he had
the
recently
debilitating
suffered a
stroke
was under
medication.
694) (1995).
Baker,
Thus,
Roberts v.
trary.” [Cits.]’ the will (1957). finding did not demand a evidence this Although it was sufficient of product Propounder’s was the Souther, v. jury Dyer of that question submission authorize the (2); Skelton v. Skel- Baker, at 904 supra (2); Roberts at supra a con- not demand evidence did Because the ton, at 633 supra in favor verdict jury’s to that returned verdict trary motions denied correctly Caveators, the trial court new trial. n.o.v. and directed of her motion the denial enumerates as error 2. Propounder con- transactions either of other to exclude evidence seeking limine She contends involving him. Cook personally ducted Mr. noted, however, jury As previously was not relevant. the evidence range of circumstantial to consider a broad permitted allegation involving contest trial of a will connection with the Souther, at 264 supra Dyer undue influence. the testa- of this kind to consider on an issue proper
“[I]t is of his beneficiary with the and associations dealings tor’s or weak- motives, strength habits, feelings; bounty; his or unreasonableness character; the reasonableness ness of *3 at the time the condition will; physical the his mental and conduct; made; generally every and was his manner will raised thе on the issue any light fact which will throw [Cit.] influence. [Cit.]” charge (1952). (2) (73 182) 428, Consid- 209 Ga. SE2d Brady, v. Stephens in of a claim ering the breadth of evidence admissible motion Propounder’s the trial court denied properly in limine. was to tes- objection, one of Caveators hearsay
3. Over a allowed home, she the funeral that, she and her husband arrived at tify when casket in our had told them to close the “[Propounder] learned that sustained, this tеs- been as objection should have Propounder’s face.” be allowed hearsay might While the witness timony inadmissible the coffin overheard direct that testify Propounder that she herself would the wit- closed, hearsay exception permit there is no which individual with some unidentified testify spoke ness to that she other reversal, To authorize a Propounder. who that order to attributed well as errone- however, evidentiary must be harmful as ruling the regarding evidence ous. the of the admissible Considering quantum (see v. Rut- which the Cox feelings parties the bad existed between signif- casket had no the reference to the closed ledge, supra), passing State, v. Busby on prejudicial impact Propounder. icant (1) rul- Thus, though even the 536, 538 SE2d App. erroneous, on the ing hearsay objection was the error was harmless. error Propounder enumerates as the trial court’s refusal allow her to call Mr. Cook’s as a stockbroker rebuttal witness because name did on in not the witness list appear pre-trial order. The order pre-trial controls “unless modified at the trial to prevent mani- (b). A injustice.” fest OCGA 9-11-16 trial court has some discretion matter, in the its decision to exclude a rebuttal witness will be affirmed unless discretion Lee, is abused. See Minnick (1) (329 182, App. SE2d did not attempt that, to shоw the trial the circumstances, court under its failure to allow the stockbroker result in testify would a manifest injustice. (6) (227 See Allstate 77) (1976). v. Reynolds, Ins. Co. App. SE2d Lee, Minnick Compare supra Instead, at 184 attorney that, informed trial court at the if outset Caveators’ counsel was I’ll “going object, [the send unlisted on witness] back.” When Caveators did raise an objection the trial court indicated it would not allow the to testify, Propoundеr’s stockbroker law- I’ll yer acquiesced “[w]ell, and stated send way him on his then.” circumstances, Under these we no abuse trial find of the court’s dis- (3) (484 cretion. Star Robinson, Gas v. Ga. App. 266) (1997), on reversed grounds, Ga. 102
5. The denial of motion summary Woodward, moot. Kicklighter v.
(1996). The sufficiency the evidence to authorize a finding of undue influence must be determined on the basis that submitted to and considered not that jury, which was before trial court at timе Propounder filed her for summary motion As judgment. dis- cussed trial produced Division on the of the case sufficient was to authorize the favor of Caveators and of the against probate concur, J., Judgment Fletcher, All except the Justices C. affirmed.
Sears, J., Hunstein, J., P. who dissent. Justice, Presiding dissenting. Sears,
My review of the record me to that the leads conclude Caveators to failed offer to sufficient overcome thе verdict, motions for directed judgment notwithstanding the Therefore, new I and trial. the trial erred in deny- believe that court motions, those and I ing respectfully dissent from the majority’s affirmance in this case.
The evidence of record that the and Propounder shows Cook years, were married for and Cook in that was well known the Grif- fin community very as a and sometimes strong-willed, independent, overbearing February 1998, In individual. Cook suffered a stroke August In his for several months. hospitalization
that required generous bequest to make a more Cook the terms of his will changed devised, he had and to wife, his than previously to the Propounder, Caveators, children a for- his make a less generous bequest in January he Cook died than had devised. marriage, previously mer new executing five after his months approximately impact prima- stroke’s Cook was upon Thе record shows that the a and made diffi- it left him to wheelchair rily as confined physical, As a result physical phys- cult for him to certain tasks. perform for which was depression, ical Cook some he suffered impairment, record not medication. The does prescribed anti-depressant standard show, however, any impairment mental as that Cook suffered personal result Cook’s testified that physician of his strokе. stroke, and by the that acuity unimpaired Cook’s mental was in mental abilities. Other change stroke caused no whatsoever Cook’s stroke, testimony that even after his Cook witnesses’ established (to witness) affairs, one quote remained control of and firmly at his home and in his business affairs. continued to “rule roost” of those wit- testimony This evidence is consistent with who will. One to the will nessed Cook execute his new witness testified that known Cоok for more than and that before exe- years, he had will, stated, terms aloud I cuting the Cook read its and “that’s what testified had want.” Another witness to the will that she known Cook time,” he mind he clearly “for that was sound when executed long will, voluntarily. Similarly, and that he did so who attorney new will that he known Cook more drafted Cook’s testified had than that he met with to discuss when Cook the terms years, will, of the him explained new Cook to had beеn his wife for 53 and was entitled to a more years generous bequest than the Caveators were entitled receive.1 valuable, make a will is right extremely high
Because applied deprive right.2 standard must be order a testator Undue only influence a testator can be found to exist if such upon “a into that which his person doing [or her] influence constrained him him deprives best tells not to do and of his free agency the will own.”3 person substitutes of another for his Stated differ- ently, influence to deception must be tantamount “either or to attorney The record shows that Cook first told the that he did not want the Caveators will, thing” “a that he would receive damn under his new then stated leave each $5,000 bequest, Propounder, everything,” who Caveator a “deserved would receive @stsit6 remainder of his Julian, (1999); Spears, Bohlen v. Brooks Brooks, Bohlen, suprа; see
191 coercion, force and free destroying agency.”4 Undue influence can only invalidate a will if operates on the mind of the testator at the time he executes the document.5 Evidence of undue influence over the mind of a any testator at largely time is irrelevant and can- not invalidate a will.6 Moreover, this Court long has held that “the indulgence [the] mere suspicion of undue influence cannot be allowed”7 to supplant direct evidence on the issue.8
In this appeal, the Caveators based their claim of undue influ- (1) ence upon: speculation that the Propounder had attempted to influence Cook to change his will against wishes; his own presumption spousal with Cook relationship allowed her to exert such influence. Not are only these insufficient for a grounds claim of undue the recоrd is any void of evi- dence to show that the Propounder actually exerted undue influence over Cook at the time he executed his new will.
The Caveators’ chief witnesses were two medical experts who testified they had reviewed Cook’s medical records and theo- rized that an Cook, individual such as who was suffering from cer- tain physical ailments, might have experienced some delusion as a result of thоse However, ailments. the record shows that these experts had never examined Cook and had never even met Cook before his Rather, death. their testimony was based entirely upon records, Cook’s medical which were created several months before the new will was executed. such, As this evidence was irrelevant the issue of whether Cook was under undue influence at the time he executed the nеw will.9 As above, noted evidence concerning one’s susceptibility undue influence any at time that is remote to the execution of a will has no bearing on whether the will should be invalidated.10
Two witnesses also testified on behalf of the they Caveators that overheard the Propounder tell Cook that he should change his will to her, benefit and one of those witnesses testified that he overheard an argument betweеn Cook and the Propounder concerning whether Cook should change However, will. this evidence does not support the conclusion that Cook changed his will due to the Propounder’s undue influence. Nothing in our case law stood to prevent the Pro- - - was, pounder all, who after Cook’s wife from discussing the terms (143 Washington, Cook v. 166 Ga. 5 Bohlen, supra; Brooks, supra; Aycock, see Boland v. Moore, McConnell v. 7 McCоnnell, 841; Morsman, atGa. Dean v. 8 Brooks, supra. Brooks, Bohlen, supra; 10 McConnell, 267 Ga. at permitted Georgia the Pro- law with Cook’s will him.11 to seek beneficial
pounder bequest lowing in order her influence to exercise long fol- between to choose as Cook was able so from Cook,12 acceding testamentary wishes original intentions shows explained in this case above, As of Propounder.13 that Cook was making capable time he executed choice at the his new entirely Georgia preeminent law, it is treatise on noted As *6 spouses with to one another permissible regard make entreaties to for respective dispositions wills: of their to he has lived with whom to his wife of a husband The relation many years to con- influence is difficult that undue is such importunity greatest persuasion and where the ceive even [and] second mere fact that the . . exercised . have been wife is made beneficiary beneficiary large to or the sole marriage does not of the former the children exclusion of presumption raise influence.14 recognized spouses previously consult each Court has This attempt respective regard to and even to their other with wills,15 dispositions regard made with one another influence therеin.16 century ago: by half and a Court more than As stated this by alleged respect to have been obtained to a will With undue influence by person, hon- unlawful for a . . . it is not procure persuasion, a will favor of to intercession est by testator, another; it, neither is to induce himself persuasion may though flattering speeches; be for fair and dispositions employed will, not in a this does induce the legal If a wife . . . has in the sense. tо influence amount ascendancy gained husband, and so rivaled an over such good pleasure him, such an is a law to that her his affections impeaching a will made never a reason for influence can 11 Furthermore, argued the terms of with the about if it is true that Cook mentally inca will, very Cook was the Caveators’ claim that fact would tend belie his change against capable being will his own wishes. pacitated forced to 12 (5th ed.). 50, Georgia, p. Redfeam, Administration in 59 § Wills and (1967). (152 833) Ivey, Morgan Fears, Redfeam, Mosley SE supra, pp. 115-116. See 319) (1940) (“It entirely proper Aycock, Boland v. other’s wishes in each other and endeavor to meet each and wives should consult husbands wills”). Ivey, making Co. Ga. v. of their Trust 16 Boland, favor, in her even to the exclusion of the residue of his fam- Nor it ily. will, would be safe to set aside a on the ground [undue] influence . . [or] . taken аdvantage of the testator wife, by although proved should be that she possessed a powerful influence over his mind and conduct in the gen- eral concerns of life.17
Stated in terms, more contemporary it is permissible spouses discuss their other, wills with each to state their opinions regarding each other’s testamentary dispositions, and to seek favorable bequests from each Spouses other. can influence each other with regard important issues such as estate planning and testamentary dispositions. To characterize that influence as “undue” contrary not only to well-established precedent Court, from this but also to sound public policy.
In conclusion, I believe that the majority opinion gives undue credence to the speculation upon which the Caveators’ claims are based.181 also believe that the evidence submitted the Caveators fails to show that the Propounder used deception, force or coercion in order to destroy Cook’s free agency, thereby procuring will influence.19 In the Caveators’ largely evidence is irrele- vant to the issue of whether Cook was under undue influence at the time he executed his new will.20 I believe that Finally, majority *7 errs by failing to view this case in the context of a spousal relation- Once ship.21 appeal this is viewed within the context proper according to this Court’s own directives concerning the burden that must be carried to establish the existence of undue it is clear that Propounder was entitled to either verdict, a directed a notwithstanding Therefore, or a new I trial. dissent, I respectfully am authorized to state that Chief Justice Fletcher and Justice Hunstein in join this dissent. July 16, 2001 Decided September
Reconsideration
denied
2001.
House,
Potts v.
20 McConnell, supra. See Redfearn, Potts, supra; Wallace, appellant. for
Howard P. III, Johnston, appellees. William G. Johnston & Shepherd BETTY v. BETTY. S01A0603.
Sears, Presiding Justice. in to consider two this case discretionary appeal granted We ruling the trial court erred The first is whether questions. a child custodian of Betty, legal Mr. is appellee, fact that (c) under OCGA 19-6-15 circumstance marriage special § is another (6)1 child and does child for the Betty рay support Mr. does not when is question child. The second custody of the physical not have Betty’s past Mr. due court erred whether the trial marriage is previous to an adult child from a obligation child support (c) 19-6-15 We conclude circumstance under OCGA § a special child, child unaccompanied by of one Betty’s legal custody that Mr. not constitute a custody, special does payments physical supрort (c) that, hand, (6), 19-6-15 on the other circumstance under Mr. § child does consti- to an adult support obligation due child Betty’s past erred in ruling Because the trial court tute a circumstance. special constituted a cir- legal special Mr. status as custodian Betty’s child cumstance, ruling support, the trial court’s on we reverse with this opinion. remand for consistent proceedings (c) (6), court permitted Under OCGA 19-6-15 a trial § (b) in 19-6-15 if a guidelines child set forth support deviate from the to another house- party’s support obligations trial court finds that a either excessive or support make the amount of “presumptive hold (c) (6), held that subsection we have inadequate.” considering justify children . . . will not mere fact of additional [t]he range. question in the The essential guideline reduction renders the support obligation pre- whether this additional аmount of excessive. The trial court sumptive support the relevant cir- only by examining answer this all question cumstances, the sources of for the new including *8 (c) (6) provides as follows: OCGA 19-6-15 (c) down, up vary support, the final award of child from The trier of fact shall (b) paragraph upon range of this Code section enumerated in of subsection following special presence circum- written of one or more of the inadequate: presumptive amount of either excessive or stances makes
(6) party’s support obligations to another household. A