Tuesday, July 10, 2018



[This material was Presented at NBI Conference on Probate & Trust Litigation at the Cobb Galleria, Atlanta, Georgia on June 26, 2018.  By Hugh  C. Wood]


All discussions of testamentary capacity concerning a will start at Georgia at O.C.G.A. § 53 4 11.
This statute states in total as follows:
O.C.G.A. § 53-4-11. Testamentary capacity
(a) Testamentary capacity exists when the testator has a decided and rational desire as to the disposition of property.
(b) An incapacity to contract may coexist with the capacity to make a will.
(c) An insane individual generally may not make a will except during a lucid interval. A monomaniac may make a will if the will is in no way connected with the monomania. In all such cases, it must appear that the will expresses the wishes of the testator unbiased by the insanity or monomania with which the testator is affected.
(d) Neither advancing age nor weakness of intellect nor eccentricity of habit or thought is inconsistent with the capacity to make a will.
Laws 1996, p. 504, § 10.

Testamentary capacity exists in Georgia when a testator has a "decided and rational desire … to dispose of property".  O.C.G.A. § 53-4-11(a).  This statute specifically separates out that the capacity to make a will is lower than the capacity to make a contract and provides specific allowance that an insane individual may make a will during a lucid period and even one suffering monomania may make a will.  As is stated in the Comments to the Michie Code and from headnotes, "the requirement for testamentary capacity is a modest requirement, as testamentary capacity may be possessed by weak-minded or feeble individuals, [ * * *] absence of mind does not destroy testamentary capacity.  Meadows v. Bean, 302 Ga. 494, 807 S.E.2d 339 (2017).

"In the context of testamentary capacity to execute a will, the controlling question is whether the testator had sufficient testamentary capacity at the time of executing the will.”  Ashford v. Van Horne, 276 Ga. 636, 580 S.E.2d 201 (2003).

The testator can distribute property via a will as long as he or she knows that it is a will.  The testator possesses testamentary capacity so long as he understands that he is executing a document that will dispose of his property after death.  He possesses testamentary capacity if he is capable of remembering the property that is subject to his distributions and the individuals that are to receive (the bounty).  Amerson v. Phal, 292 Ga. 79, 734 S.E.2d 399 (2012).

Great intellect is not required to prepare a will.  The testator has a decided and rational desire to dispose of his property.  He knows where it is going and he possesses "sufficient intellect" to make a will.  Manly v. Combs, 197 Ga. 768, 30 S.E.2d 485 (1944); Fowler v. Fowler, 197 Ga. 53, 28 S.E.2d 458 (1943).

How much mental capacity is required to make a will?

Not much.

        The weak have the same rights as the strong minded to dispose of their property by will.  Only a total absence of mind destroys testamentary capacity.  Griffin v. Barnett, 183 Ga. 152, 187 S.E. 828 (1936) decided under former Code § 113-205 (Code 1933).  The date and time of making the will is important to determine testamentary capacity.  It's not the general overall mental capacity of the individual for weeks, months and years but the mental capacity at the time the will is prepared.  The controlling issue is what is the condition of the testator's mind at the moment of the execution of the will.  Crews v. Crews, 219 Ga. 459, 134, S.E.2d 27 (1963).  The same mental capacity to pass an inheritance is also required for a disinheritance.  But the same testamentary that is required to create a will is also the one that is necessary to disinherit the child or spouse in probate.  Whitfield v. Pitts, 205 Ga. 259, 53 S.E.2d 549 (1949).  Dementia, by itself, will not eliminate the ability of an individual to make a will.  Bishop v. Kenny, 266 Ga. 231, 466 S.E.2d 581 (1996).
Although testatrix was diagnosed with primary degenerative dementia and general anxiety disorder in her advanced years, finding that she did not lack testamentary capacity to execute a will was supported by physician's testimony that testatrix was capable of reasoned decisions at the time she executed the will and testimony that the testatrix recognized her relatives and was able to articulate reasons she desired to execute the new will and leave her estate to her niece, which demonstrated a decided and rational desire regarding the disposition of her property.
Id. [Interpreting O.C.G.A. §§ 53-2-21 and 53-2-25.]


In the modern era there are basically three parts to a will.

1. The will has to be in writing.  There are no longer oral wills or purely holographic wills in Georgia.

2. The will needs to spell out a proper executor and define the proper distribution of the provisions of the testator's estate.  It needs to define the individuals to take (or default to the testator's heirs) and, generally, should have a rest residue and remainder clause.  [And in the modern age: Digital Rights].

3. The will must be properly attested.  Some of the largest fights concern the lack of proper attestation on the will.  For a will to be done in Georgia (and in most other states) the testator must sign in front of two sui juris witnesses.  The witnesses must see the testator sign the will and they must know it's an important document.  The cases differ on whether they have to know that it's a will.  If the witnesses are not present at the time the testator signs or they're in different locations the will attestation fails.

The statute that governs the writing and minimal terms of a will reads:

O.C.G.A. § 53-4-20. (Revised Probate Code of 1998) Required writing; signing; witnesses; codicil
(a) A will shall be in writing and shall be signed by the testator or by some other individual in the testator's presence and at the testator's express direction. A testator may sign by mark or by any name that is intended to authenticate the instrument as the testator's will.
(b) A will shall be attested and subscribed in the presence of the testator by two or more competent witnesses. A witness to a will may attest by mark. Another individual may not subscribe the name of a witness, even in that witness's presence and at that witness's direction.
(c) A codicil shall be executed by the testator and attested and subscribed by witnesses with the same formality as a will.


Any discussion of undue influence or duress, in Georgia, should start with the code section defining same.

O.C.G.A. § 53-4-12 defined what is the voluntary execution of a will.

Free and Voluntary Execution Required

A will must be freely and voluntarily executed.  A will is not valid if anything destroys the testator's freedom of volition, such as fraudulent practices upon the testator's fears, affections or sympathies; misrepresentations; duress; or undue influence whereby the will of another is substituted for the wishes of a testator.

In its most basic form “undue influence” constitutes an outside individual influencing the testator (at the time of execution of the will) to make a distribution (or even make the will itself) in a way that conforms to the wishes of the outside third party as opposed to the testator.

Undue influence has been defined by Georgia courts over 150 years.  Most recently the Georgia Court of Appeals stated that undue influence is:

Undue influence which overturns an otherwise legal contract [or will] is the exercise of sufficient control over the person, the validity of whose act is brought into question, to destroy his free agency and to constrain him to do what he would not have done if such control had not been exercised."  (Citation and punctuation omitted.)  Cobb v. Garner, 158 Ga.App.110, 111 (1), 279 S.E.2d 280 (1981).  To maintain a claim of undue influence, the requisite control must operate on the mind of the person at the time he or she is executing the document in question.  See Simmons v. Norton, 290 Ga. 223, 224, 719 S.E.2d 421 (2011).  However, a claim of undue influence "may be supported by a wide range of testimony such as influence can seldom be shown except by circumstantial evidence."  (Citation and punctuation omitted.)  Skelton v. Skelton, 251 Ga. 613, 634 (5), 308 S.E.2d 838 (1983).  Furthermore, as our Supreme Court has acknowledged, evidence as to the facts and circumstances that occurred before and after the execution of the documents at issue may be considered by the trier of fact when determining whether undue influence existed at the time the documents were executed.  See Knox v. Knox, 213 Ga. 677, 679 – 680 (2), 101 S.E.2d 89 (1957).
Slosberg v. Giller, 341 Ga.App. 581, 582, 801 S.E.2d 332 (2017).

In definitions prior to Slosberg, supra, Georgia defined undue influence as that which amounts to “force or fear” over the testator.  Undue influence invalidating a will must amount to force or fear in effect to make the mental offspring of some other person and it must be operative on the testator's mind at the time the will was executed.  Gornto v. Gornto, 217 Ga. 136, 121 S.E.2d 139 (1961).  It must be the type of fear, force or over persuasion that destroys the testator's free agency and willpower at the time of the making of the will.  Bailey v. Bailey, 204 Ga. 556, 50 S.E.2d 617 (1948).  See also Butler v. Lashley, 197 Ga. 461, 29 S.E.2d 508 (1944).

For additional definitions of Undue Influence see: Redfearn Wills and Administration in Georgia § 4:8, Undue Influence.

1. Vulnerability of the Testator to Influence

While not controlling, the vulnerability of the testator to outside influence such as failing mind, poor health and other mental or physical enfeeblements are evidence that may lead toward the finding of undue influence.  Brown v. Bryant, 220 Ga. 80, 137 S.E.2d 36 (1964).

Mere persuasion to draft a will is not undue influence.  The fact that someone other than the testator requests or even slightly pressures the testator to take action is not enough to constitute undue influence.  Simple persuasion to create a will or write a will in a certain way even if that persuasion is constant and accompanied by tears and entreaties does not, in and of itself, constitute "undue influence".  There must be something else.  Morgan v. Ivey, 222 Ga. 850, 152 S.E.2d 833 (1967).

2. Confidential Relationship

Confidential relationship is one element toward the potential finding of undue influence in a challenge to a will.  It is not conclusive.  A person standing in a confidential relation to another is not prohibited from exercising any influence whatever to obtain a benefit from himself and to invalidate a will.  The influence of a confidential relationship must rise to provable "undue influence" to overcome the making of the will.  Morgan, supra at 851; Bailey v. Bailey, 204 Ga. 556, 50 S.E.2d 617 (1948).

There is no presumption of undue influence merely because one occupying a confidential relationship with a testator drafts, assists or causes another to draft a will.  There is no presumption even if the confidential relation individual is named as executor.  White v. Irwin, 220 Ga. 836, 142 S.E.2d 255 (1965).  The undue influence must occur at the same "time" as the making of the will.  For undue influence to invalidate a will the timing must be such that it occurred at the execution of the will.  Morgan, supra.

Prior undue influence is not sufficient.  Prior undue influence, not occurring at the time of the making of the will, is not undue influence.  There must be direct evidence that the propounder of the will was subject to the undue influence at or about the time the will was executed and there could not be a mere showing that undue influence existed prior to the time that the will was drafted.  Stevens v. Brady, 209 Ga. 428, 73 S.E.2d 182 (1952).

3. Presumption of Undue Influence

The presumption of undue influence arises when a beneficiary under a will occupies a confidential relationship and is not the natural bounty of the testator.  It may also arise if that individual takes an active part in the planning, preparation of execution of the will.  Johnson v. Burrell, 294 Ga. 301, 751 S.E.2d 301 (2013).

To invalidate a will on the ground of undue influence, evidence must show that the influence amounted to fear, force, over persuasion or coercion to the extent of destroying free will, power of the testator and, in effect, making the will the mental offspring of another, and it must be shown that undue influence was operating on the mind of the testator at the time the will was executed and published.  Crawford v. Crawford, 218 Ga. 369, 128 S.E.2d 53 (1962). 

Notice that “fear and force” was a prior standard in Georgia – which may still be used.  The more nuanced modern standard is to “destroy free agency”.  Slosberg, supra.

4. Circumstantial Evidence Alone is not enough.

Circumstantial evidence or evidence which shows a mere opportunity to influence the testator is not enough to carry the burden of undue influence.  Odom v. Hughes, 293 Ga. 447, 478 S.E.2d 839 (2013).  Undue influence is a jury question.  Questions of undue influence over a testator are generally toward the finder of fact – the jury.  Johnson v. Burrell, 294 Ga. 301, 751 S.E.2d 301 (2013).

5. Undue Influence is a Jury Question.

Undue influence in the context of a caveat is generally questions for a jury.  Stevens v. Bonner, 174 Ga. 128, 162 S.E. 383 (1932).

Having said that the issues are primarily for a jury is aware that in Georgia obtaining a jury in probate is somewhat difficult.  This author assisted some lawyers with preparation of jury instructions a few years ago and was surprised to learn that the jury trial being tried in probate in a metro county was the first jury trial allowed by the court in nine (9) years before that trial.  While that doesn't have anything to do with the technical statement that undue influence should be tried to a jury it does speak volumes for the fact that obtaining a jury trial is difficult in probate.

The type of difficult arises not in the way the law or the uniform probate rules are designed.  Rather, it is an intense desire by the probate courts to continue to shoehorn disputes into mediation, alternative dispute resolution and sometimes arbitration.  It's just simply difficult to get an issue to a jury.


Medical witnesses, in the context of probate litigation, almost always arise in an issue associated with was (or whether) the testator was in his or her right mind the time the will and contract was drafted.  Or, was the testator subject to undue influence at the time the will or contract was drafted.
If the litigators who filed the caveat on undue influence are good lawyers, expect a request for third-party medical requests to come out in discovery.  A Caveat Fill in Form is attached.  Exhibit A.  That is, the party with the burden of proof in undue influence almost always seeks to obtain request in discovery or subpoena the physician's records concerning the testator and his or her final illness.  The most common physician records subpoenaed are the treating physician.  And while I found that the treating physician is always in the mix, there seems to be now (maybe because people live so long in nursing homes) the primary physician assigned to the nursing home.  Many times there will be alternate physicians such as neurologists, ophthalmologists, psychiatrists, psychologists and other records that are relevant to determination of undue influence.  However, I cannot recall a single case where the family physician/treating physician (however long ago the testator saw the doctor) was not part of the request for medical records.

 Forms to Take Deposition of Medical Records or Attorney with Records is attached at Exhibit B.

Generally the expert needs to have seen the deceased testator as a patient.  But that is not a hard and fast rule.  Expert testimony is not a mechanism by which hearsay forms the sole basis of an expert's opinion to be placed before a jury.

If the testimony is admitted the "expert's" lack of personal knowledge presents a jury question as to the weight to be accorded the expert's opinion.  Roberts v. Baker, 265 Ga. 902, 903, 463 S.E.2d 694 (1995);  King v. Browning, 246 Ga. 46, 47, 268 S.E.2d 653 (1980).

In a case where a caveat successfully blocked the presentation of a will, appeal was taken over the improper admission of expert's testimony.  The Supreme Court found that a foundation had been laid, the expert's testimony was presented to the jury; the will was found to be the product of undue influence and the caveat sustained.  Roberts, supra. Earl contends that the trial court erred in allowing into evidence the videotaped deposition of Caveators' expert, Dr. Davis, because Davis based his opinion solely upon the inadmissible hearsay of other experts' opinions, thereby acting as a mere conduit.  The contention fails.  The doctor's opinion was not premised solely on the out of-court opinions of other medical personnel.  Davis reviewed Roberts' medical records, which were admitted at trial without objection, testified that his opinion was based on his experience and his review of the records as a whole.  See Doctor's Hospital v. Barner, 195 Ga.App. 152, 159, 392 S.E.2d 897 (1990).  Even when "an expert's testimony is based on hearsay, the lack of personal knowledge on the part of the expert does not mandate the exclusion of the opinion but, rather, presents a jury question as to the weight which should be assigned the opinion.  The evidence should go to the jury for whatever it's worth.  [Cits.]"  King v. Browning, 246 Ga. 46, 47, 268 S.E.2d 653 (1980).
Roberts, supra at 903.

While perhaps admissible, experts' opinions are based solely upon a review of medical records and had no personal contact with the decedent are "entitled to little weight".  Burns v. Kaboul, 107 Pa. Super. 289, 595 A.2d 1153 (1991).

E. Litigation Avoidance For Estate Planners

Litigation avoidance in its most theoretical aspect is to create an entity or document that routes around and outside of probate.  Drafting documents that go through probate, such as a will, exposed both the testator, the beneficiaries, the estate and perhaps the drafter to litigation in probate.

As a matter of theory any entity that has a perpetual existence or lives on outside of probate will overcome the requirements of probate.

For example, creating and using a limited liability company (LLC) to accomplish certain activities desired by a family or by the testator will route around probate.  That is, whatever the LLC is able to accomplish during the lifetime of the testator (assuming that the LLC does not become administratively dissolved) will be able to continue on in the life of a perpetual entity such as an LLC.  This also applies as a matter of theory for an Inc.

A discussion of trusts and family limited partnerships goes beyond this small outline.  However, they both have perpetual existence and the use of a trust routes both the corpus of the trust and the trustees around and outside of probate.  The trustees, of course, would be subject to their own fiduciary duties perhaps to be litigated in Superior Court instead of Probate Court.

Another issue that this author sees in the area of real estate is to avoid tenancy in common, if possible, in probate.  Tenancy in Common gives on a partial ownership.  Whereas Joint tenancy with right of survivorship (JTWROS) gives complete ownership at death.  JTWROS allows the property to jump directly to the surviving joint tenant without the necessity of probate.  For some reason, this title ownership always comes up in the settlement of the estate.  Those beneficiaries who had expected to own part of the land in the joint tenancy right of survivorship and do not are always surprised to learn that the party on the joint tenancy right of survivorship takes without operation of probate.

Also, pay on death (POD) accounts at banking institutions and financial institutions allow the survivor of a joint account to take and own it all.  This author is not a fan of PODs because there generally is still distrust in the family structure and always seem to end up in the allegations of misuse (whether founded or unfounded) in the settlement of an estate.



Revised Handbook for the Probate Judges of Georgia.  (2017) (1142 pages)

Revised Handbook for Probate Judges in Georgia

A Form Fill-in for a Caveat is Attached.   Exhibit A

Form Request for Production of Documents [Medical Records]; and,
Forms to Take Deposition of Medical Records or Attorney with Records.

Exhibit B.


No comments: