This appeal is from the denial of a motion for judgment notwithstanding the verdict following a jury verdict denying probate to the last will and testament of Edd Holland. Edd’s son Arnold, as executor, propounded the will and Edd’s widow, Trevice, now deceased, and Edd’s other son Woodard filed a caveat asserting mistake of fact and undue influence. A jury denied probate to the will in a general verdict and the trial court denied Arnold’s motion for j.n.o.v. Appealing as executor of Edd’s estate, Arnold contends no evidence was presented authorizing the jury to find mistake of fact or undue influence, the grounds raised by the caveat, or to reject the will on the basis of lack of testamentary capacity or fraud, issues presented to the jury in the trial court’s instructions. On appeal from the denial of a motion for j.n.o.v., this court must determine whether, construing the evidence in a light most favorable to the party who obtained the jury verdict, there is any evidence to support the jury’s verdict.
Sims v. Sims,
1. “The propounder of a will has the burden of establishing a prima facie case, which includes showing . . . that at the time of its execution the testator apparently had sufficient mental capacity to make it. . . . [Cits.] When this has been done, the burden of proof shifts to the caveator. [Cits.]”
Singelman v. Singelmann,
2. In support of their claim of undue influence, appellees point to the facts the will was drafted by Arnold’s lawyer, Arnold suggested to Edd his will should be redone, Arnold was present in the lawyer’s office on some occasions when the will was discussed, the will’s disposition of Edd’s property conflicted with his previous declarations of his intended disposition, and Arnold received a larger share than Woodard or their deceased brother’s children. They also contend a confidential relationship existed between Edd and Arnold sufficient to raise a presumption of undue influence.
Undue influence sufficient to invalidate a will amounts to deception or force and coercion operating on the testator at the time of execution such that the testator is deprived of free agency and the will of another is substituted for his. Evidence showing only an opportunity to influence and a substantial benefit under the will does not show the exercise of undue influence.
Quarterman v. Quarterman,
There is no question an opportunity to influence existed because uncontradicted testimony established the fact Arnold told Edd his existing will was “a mess” and Arnold took Edd to Arnold’s lawyer to have a new will prepared. Likewise the provisions of the will providing for Arnold to receive the homeplace upon his mother’s death while Woodard, his sons, and the children of a deceased brother shared the proceeds from the sale of another property equal in value to the homeplace show a substantial benefit accruing to Arnold under the new will. However, an opportunity to influence and a substantial benefit are all the evidence shows.
A presumption of undue influence arises when it is shown that the will was made at the request of a person who receives a substantial benefit, who is not a natural object of the maker’s estate, and who held a confidential relationship with the testator. [Cit.] However, “[a] person standing in confidential relation to another is not prohibited from exercising any influence whatever to obtain a benefit to himself. The influence must be what the law regardsas undue influence. Such influence that. . . would give dominion over the will to such an extent as to destroy free agency, or constrain one to do against his will what he is unable to refuse.” [Cit.]
Andrews v. Rentz,
A cpnfidential relationship is one “where one party is so situated as to exercise a controlling influence over the will, conduct, and interest of another.” [Cit.] “Evidence showing only that the deceased placed a general trust and confidence in the primary beneficiary is not sufficient to trigger the rebut-table presumption that undue influence was exercised. . . . In order to give rise to the rebuttable presumption . . . , the evidence must show a confidential relationship wherein the primary beneficiary was capable of exerting the power of leadership over the submissive testator.” [Cits.]
White v. Regions Bank,
3. As to the fraud asserted by appellees to void the will, there is no evidence in the record showing any misrepresentations made by Arnold to Edd leading to his execution of the will. “The type of fraud that ‘will invalidate a will must be fraud which operates upon the testator, i.e., a procurement of the execution of the will by misrepresentations made to him. It exists only when it is shown that the testator relied on such a representation and was deceived.’ [Cit.]”
Edwards v. Shumate,
4. Although appellees frame one argument in terms of mistake oí fact, what they actually argue is that because Edd was illiterate, he could not have understood the provisions of the will and was, therefore, unaware of its contents. OCGA § 53-4-21 requires such an awareness: “Knowledge of the contents of a will by the testator is necessary to the validity of the will.” The only evidence regarding Edd’s knowledge of the content of his will was the testimony of the attorney who drafted the will. He testified Edd came to his office several times to work on the will and on the day the will was executed, he read the will to Edd and explained the meaning of each provision. To oppose that direct evidence, appellees offer only conjecture. “There was nc
evidence that the [testator] did not know the contents of the will, and the above-stated testimony established that [he] did.”
Whitfield v. Pitts,
“To set aside a will and thus deprive a person of the valuable right to make a will, a stringent standard must be met.”
Kendrick-Owens v. Clanton,
Judgment reversed.