This is аn appeal from a judgment rejecting caveats to a will and admitting the will to probate. Following the death in 2004 of W. Lee Morrison, Jr. (hereinafter, Testator), his 1998 will was propounded by the executor named in the will, Testator’s son Ralph, the appellee herein. Testator’s son, Alexander, the appellant herein, filed a caveat, as did a guardian ad litem representing Testator’s incapacitated son James. The will provided significant benefits to appellee, created trusts for the benefit of two of the Testator’s four sons, appellant and Lee, and did not provide for James.
The issues addressed at trial were undue influence and revocation. The claim of undue influence was based on appellee’s alleged role in selecting the attorney who drafted the 1998 will and his alleged participation with that attorney in preparing the will. The revocation claim was based on documents showing the Testator’s planned execution of a new will more favorable to appellant and his brother Lee than was the 1998 will. During the trial of the caveats, the issue of revocation was decided in favor of appellee by the grant of summary judgment, and a jury decided the undue influence issue in appellee’s favor. Appellant appeals from the judgment entered for appellee.
1. At the beginning of the second day of trial, appellant moved for a mistrial on the basis of his contention the trial court had expressed opiniоns on what the evidence had proved and on the credibility of witnesses in violation of OCGA § 9-10-7, which provides in pertinent part as follows: “It is error for any judge, during the progress of any case, or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved.” Our review оf the transcript persuades us the trial court did not violate OCGA § 9-10-7.
The statements by the trial court which appellant contends amounted to comments on the evidence occurred in the course of cross-examination by appellant’s counsel of the attorney who drafted the will at issue. While questioning the witness about Testator’s intent in limiting distributions to appellant and his brother Lee to income from the estate, appellant’s counsel repeatedly asked whether different provisions could have been made, prompting the trial court to intervene in an effort to limit counsel to relevant issues and to prevent counsel from asking the same question multiple times with slight changes in wording. When appellant’s counsel persisted in asking questions about a contradiction between the witness’s deposition testimony and his testimony at trial after the witness had already addressed the contradiction, the trial court sought to prevent counsel from arguing with the witness. The trial court stopped
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counsel from questioning the witness about a provision in a previous will of Testator’s which was not carried over into the will at issue. Contrary to appellant’s assertion, the remarks were not direсted to the evidence or to the credibility of witnesses, but to the conduct of the cross-examination by appellant’s counsel, and were rulings on objections or sua sponte efforts by the trial court to control the trial. Pertinent remarks made by a trial court in discussing the admissibility of evidence оr explaining its rulings do not constitute prohibited expressions of opinion.
Starks v. Robinson,
2. Citing
Cook v. Huff,
3. Appellant enumerates as error the trial court’s denial of his request to charge the jury on the presumption of undue influence that arises where a confidential relationship existed between testator and beneficiary, with the testator being of weak mentality аnd the beneficiary occupying a dominant position. See
Crumbley v. McCart,
4. Appellant introduced into evidence a рacket of papers which the evidence shows appellee found in Testator’s home after Testator had become incapacitated by his final illness. The packet consisted of a photocopy of a conformed copy of the will at issue with markings on it, a series of notes regarding specific bequests, and a letter from Testator to appellee. In the letter, Testator requested appellee, in the event Testator died before his new will could be executed, to give effect to the changes he marked on the copy of his will, whether or not it was legal to do so. The evidence showed appellee did not comply with Testator’s request. At appellee’s request, the trial court instructed the jury that whether appellee could have or should have complied with his father’s wishes was not relevant to the issue of undue influеnce. Appellant objected to that charge and enumerates as error the giving of the charge.
Appellant contends the question of whether appellee should have complied with his father’s wishes is relevant to the issue of undue influence because it illustrates the conduct and demeanor of the parties with respect to each other as Cook v. Huff, supra, permits. Appellant also attempts to connect the evidence to the issue of undue influence by characterizing appellee’s inaction as a breach of fiduciary duty on account of sеlf-interest in maintaining property in the estate to be devised to him under a will he procured for his own benefit. The nexus between appellee’s failure to comply with Testator’s request, according to appellant, is that both the procurement of the will and the refusal to comply with the request to ignore the will demonstrate appellee’s self-interested manipulation of Testator for appellee’s own benefit.
The evidence of the conduct and demeanor of the parties with respect to each other which
Cook v. Huff,
supra, found relevant was evidence rеlating to the time in which the alleged undue influence occurred, not to events occurring years later. Appellant has offered no applicable authority supporting the relevance to a claim of undue influence of events occurring years after the execution of the will, and we have found none. In
Barber v. Holmes,
5. Finally, appellant contends the trial court erred in granting summary judgment to appellee on the issue of revocatiоn during the presentation of appellant’s case-in-chief. In arguing the trial court was wrong procedurally in granting the motion, appellant relies on this Court’s decision in
Akins v. Couch,
Summary judgment orders which do not dispose of the entire case are considered interlocutory and remain within the breast of the court until final judgment is entered. They are subject to revision at any time before final judgment unless the court issues an order “upon express direction” under OCGA§ 9-11-54 (b).
(Citation and punctuation omitted.)
Canoeside Properties v. Livsey,
The substantive issue regarding revocation was whether Testator’s act in 2003 of marking on a copy of his 1998 will the changes he wanted made in a new will constituted a revocation of the 1998 will. OCGA § 53-4-44, which was enacted in 1996 and became effective January 1, 1998, provides as follows:
An express revocation may be effected by any destruction or obliteration of the will done by the testator with an intent tо revoke or by another at the testator’s direction. The intent to *870 revoke shall be presumed from the obliteration or cancellation of a material portion of the will, but such presumption may be overcome by a preponderance of the evidence.
Prior to the enactment of that statute, the question of revocation by destruction or obliteration of a material portion of a will was controlled by OCGA § 53-2-74, which provided in pertinent part that “[a]n express revocation may be effected by any destruction or obliteration of [the] original will or a duрlicate ..., done by the testator or by . . . his direction with an intention to revoke . . . .” The difference between “the will” in the current version of the statute and “the original will or a duplicate” in the former statute is the point on which the grant of summary judgment was based. 1 Appellee contended, and the trial court agreed, that the change in the statutory language precludes the presumption of intent to revoke if the change is not made on the original will signed by the testator. Appellant argues, as he did at trial, that the change in the statute was immaterial and effected no change in the previоus law to the effect that a revocation could result from an obliteration on a duplicate of a will. Although no appellate decision on the question appears, a commentator has opined that the change means the presumption of intent to revoke arises only from destruction or obliteration of the original will:
The former Code allowed the act of destruction or revocation to be performed on the will “or a duplicate thereof.” Former OCGA § 53-2-74 (GCA § 113-404). The use of the term “duplicate” was the source of some confusion until the Supreme Court clarified that the term refers to any copy of the will, whether the copy is signed or not. [Cit.]... The current Code provision does not include any reference to a “duplicate.” Thus, a revocation may be effected only by a destruction or obliteration of the actual will.
1 Redfearn Wills and Administration in Georgia (6th ed. 2000), § 5-15, Revocation by Destruction or Obliteration, pp. 108-109, fn. 1. Upon reflection, we agree with the treatise that the change in the statute means the presumption of revocation arises only when a material portion of the original will suffers obliteration or destruction. In
Horton v. Burch,
Judgment affirmed.
Notes
No argument is made that the obliterations were not material or that the presumption, if it arose, could have been rebutted, and appellant’s counsel agreed that if the presumption of revocation did not arise, summary judgment on the issue of revocation was proper.