James H. Lillard died on October 19, 2004, from the effects of cancer which had been diagnosed as terminal in January 2004. Appellants are the decedent’s children who were born or adopted 1 during his first mаrriage which ended in divorce in the early 1970s (“the Lillard children”). Appellees are the decedent’s stepchildren who were the biological children of the decedent’s second wife, whо he married in 1975 and to whom he was married until her death in 2002 (“the Owens children”). The children ranged in age from five to eighteen years when the decedent married his late wife, and neither parent adopted the children of the other. After the decedent’s death, the will he executed in his bedroom twelve days prior to his death (“the October will”) was submitted for probate in solemn form by the executors named therein, two of the Lillard children. The October will left most of the testator’s property to appellants, with bequests to the Owens children and an in terrorem clause. The Owens children filed a caveat in which they alleged the testator lacked testamentary capacity to execute the October will and was subjected to undue influence by the Lillard children. The Owens children propounded a will executed by the testator in February 2004 shortly after he had been diagnosed with terminal cancer and which named appellee Karl Owens and appellant Rex Lillаrd as co-executors (“the February will”), and the Lillard children filed a caveat. For the most part, the February will divided the testator’s property evenly among all the children, the exceptiоn being the devise of a house and an acre of land to two of the Lillard children (one of whom lived in the house), and the devise of the testator’s interest in a business run by two Lillard *620 children and partially owned by Karl Owens to those three children. When the testator executed the October will, he tore in half each page of the February will.
The trial court conducted a six-day trial which culminatеd in the jury’s return of a special verdict in which they found: (1) the October will was not a valid will; (2) the testator had not revoked the February will; and (3) the February will was a valid will. As a result of the verdict, the trial court entеred judgment sustaining the caveat to the October will, declaring the testator’s purported revocation of the February will was not his free and voluntary act, and finding the February will valid and the caveat thereto without foundation. The trial court ordered the February will admitted to record as the testator’s last will and testament, and Letters Testamentary issued to appellee Karl Owens аs executor of that will. The Lillards filed a motion for judgment notwithstanding the verdict/motion for new trial, which the trial court denied, and appellants filed a timely notice of appeal to this Court.
1. Aрpellants maintain the trial court erred when it denied their motion for j.n.o.v. and the portions of their motion for new trial in which they contended the evidence was insufficient to support a finding of unduе influence or lack of testamentary capacity. If there is any evidence to support the jury’s verdict, the appellate court will uphold the trial court’s denial of a motion for new trial based on sufficiency of the evidence.
Maddox v. Maddox,
“Testamentary capacity exists when the testator has a decided and rational desire as to the disposition of property.” OCGA § 53-4-11 (a). The subscribing witnesses testified thе testator was lucid when he signed the October will. Appellees presented evidence that in the weeks prior to and after his execution of the October will the testator was taking prеscribed narcotic drugs which had as possible side effects hallucination, disorientation, and impaired mental and physical performance, was taking an anti-depressant which could сause confusion, impaired mental concentration, and hallucination, was wearing continuously a duragesic patch, and likely had increased levels of the narcotics in his body due to his liver’s decreased eliminative function brought about by the cancer. A pharmacology expert opined that one with decreased liver function who took the level of pain medication reflected in the testator’s medical, hospice, and pharmacy records two weeks prior to death “would not be rationally sane.” A hospice worker who visited the testator two days before he executed the October will noted in the hospice records that the
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testator had difficulty completing his sentences, was somewhat forgetful, and denied having siblings, dеspite the existence of his sister. A person who visited the testator the day he executed the October will testified she saw one of the Lillard children repeatedly administer medicine to thе testator by means of an eye-dropper, the method by which one of the narcotic drugs was administered, and described the testator as “morphined up.” Inasmuch as there was evidencе upon which the verdict can be based, the trial court did not err when it denied the portion of appellants’ motion for new trial contending the testator had testamentary capaсity; and inasmuch as the jury was free to disbelieve whatever facts were inconsistent with its conclusion and the trial court could not substitute its conclusion for that of the jury and enter a j.n.o.v.
(King v. Brown,
“A will is not valid if anything destroys the testator’s freedom of volition, such as . . . undue influence whereby the will of another is substituted for the wishes of the testator.” OCGA § 53-4-12. In light of the testator’s physical condition and medicated status, a lеsser degree of influence would be required to overcome his free will.
Cook v. Huff,
2. During closing argument, counsel for the Owenses asked rhetorically “how could . . . the October will have been done right?” and proceeded to answer the question. Counsel for the Lillards obj ected to a portion of the аnswer as setting forth a legal requirement and contends on appeal that opposing counsel provided an incorrect legal opinion as to the standard of care a lаwyer must provide when preparing a will in Georgia. “Counsel is permitted wide latitude in closing argument and any limitation of argument is a matter for the [trial] court’s discretion.”
Brown v. State,
3. During appellees’ case-in-chief, the trial court permitted appellees to recall a witness prеviously cross-examined by counsel for appellees in order that counsel for appellees could impeach her by conviction. Appellants argue on appeаl the trial court abused its discretion when it permitted the witness to be recalled to the stand solely for the purpose of impeaching her. “ ‘The recalling of a witness for further examination at the instance of either party is always within the discretion of the trial judge’ [cit.]”
(Smith v. State,
4. Appellants’ remaining enumerated errors (the content of the jury charge on undue influence, the trial court’s conversation with the jury while delivering a “dynamite” charge, whether an expert’s opinion exceeded his expertise) were not preserved for appellate review in the absence of objection in the trial court. OCGA § 5-5-24 (a);
Byrd v. Shelley,
Judgment affirmed.
Notes
The decedent’s first wife brought a child with her to the marriage and the decedent adopted that child when he married the child’s mother.