Andrews v. Rentz

Carley, Justice,

concurring in part and dissenting in part.

This is a will contest between Patricia Ann Bignon Andrews, who is the testator’s daughter, and Mary W. Rentz, who is the testator’s primary beneficiary and his executrix, but who is unrelated to him by blood or marriage. After the will was offered for probate, Ms. Andrews filed a caveat on the grounds of the testator’s lack of testamentary capacity and of Ms. Rentz’s exercise of undue influence over him. When the will was admitted to probate, Ms. Andrews appealed to the superior court. The case was tried before a jury and, at the close of Ms. Andrews’ evidence, the superior court granted Ms. Rentz’s mo*785tion for a directed verdict. Ms. Andrews subsequently filed two appeals to this court. I concur in the dismissal of Case No. S96A0571, for the reasons given in Division 1 of the majority opinion. The majority addresses Case No. S96A0569 on the merits and I concur in Division 2, wherein the grant of a directed verdict on the ground of the testator’s lack of testamentary capacity is affirmed. To establish a lack of testamentary capacity in Georgia, there must be a showing of “a total absence of mind” at the time of the execution of the will and Ms. Andrews’ evidence was not sufficient to make such a showing. Anderson v. Anderson, 210 Ga. 464, 472 (80 SE2d 807) (1954). However, in my opinion, there was sufficient evidence from which a jury could find that Ms. Rentz exercised such undue influence over the testator as would invalidate his will. Accordingly, I believe that the trial court erred in directing a verdict as to that ground of the caveat and must, therefore, respectfully dissent to Division 3 of the majority opinion and to the judgment.

As the majority recognizes, the grant of a directed verdict is authorized only when the evidence as to a material issue is without conflict and the reasonable deductions therefrom would demand that verdict. Scoggins v. Strickland, 265 Ga. 417, 418 (2) (456 SE2d 208) (1995). It is also important to recognize, however, that, in making that determination in this case, the evidence must be construed most favorably for Ms. Andrews as the non-moving party. Francis v. Cook, 248 Ga. 225 (1) (281 SE2d 548) (1981). The grant of the directed verdict cannot be affirmed if there was “any evidence” which would authorize a jury to return a verdict in favor of Ms. Andrews on the issue of Ms. Rentz’s exercise of undue influence. Southern R. Co. v. Lawson, 256 Ga. 798, 799 (1) (a) (353 SE2d 491) (1987).

A caveat based upon the ground of undue influence “ ‘may be supported by a wide range of testimony, since such influence can seldom be shown except by circumstantial evidence.’ ” Skelton v. Skelton, 251 Ga. 631, 634 (5) (308 SE2d 838) (1983). Although the testator had sufficient mental capacity to execute a will, a mere diminution in, rather than a total absence of, his mental capacity is nevertheless relevant when considering the sufficiency of the circumstantial evidence of Ms. Rentz’s exercise of undue influence over him. This is true because “ ‘the amount of influence necessary to dominate a mind impaired by age or disease may be decidedly less than that required to control a strong mind. (Cits.)’ [Cits.]” Skelton v. Skelton, supra at 634 (5). Here, there was evidence that the elderly testator suffered from moderate brain atrophy, and that he also was highly susceptible to the influence of others. His wife made all of his decisions for him and he was unable to write a check. During his wife’s last illness, Ms. Rentz began helping with meals and other household duties. When the testator’s wife died in March 1988, Ms. Rentz continued to call on *786him, occasionally as often as three times a day. The testator not only came to rely upon Ms. Rentz to help him make his decisions, she began to write his checks and eventually her name was placed on his savings and checking accounts. Thus, a confidential relationship developed and the testator insisted that Ms. Rentz be present when family members visited. Approximately a month after the death of the testator’s wife in 1988, Ms. Rentz became actively involved in the plans for the preparation of the will which was executed that year. She made the appointment with the drafting attorney and took the testator to that appointment. She sat in during and participated in the substantive discussions regarding the testamentary disposition of the testator’s estate. In those discussions, Ms. Rentz often purported to act more as the testator’s independent surrogate than as a mere conduit for the expression of the testator’s own testamentary intent. Although the testator subsequently executed the 1991 will that is here at issue, the evidence of Ms. Rentz’s participation in the execution of the 1988 will is relevant evidence that, at least since that time, the testator was highly susceptible to her influence over the testamentary disposition of his estate. To ascertain whether undue influence was operative at the time a will was executed, “ ‘the state of things both before and after may be regarded.’ [Cits.]” Ehlers v. Rheinberger, 204 Ga. 226, 231 (2) (49 SE2d 535) (1948). Undue influence exercised prior to the execution of a will may continue to operate on the mind of the testator at the time of its execution. Adler v. Adler, 207 Ga. 394, 406 (7) (61 SE2d 824) (1950). Evidence of undue influence at other times may be offered to illustrate conditions existing when the will was executed. Sims v. Sims, 265 Ga. 55 (452 SE2d 761) (1995). See also Trust Co. v. Ivey, 178 Ga. 629, 641 (3) (173 SE 648) (1934). The evidence may not have demanded a finding that Ms. Rentz’s continuing influence over the elderly and dependent testator was “undue,” but it would, in my opinion, authorize such a finding and preclude the grant of a directed verdict in Ms. Rentz’s favor. Influence is “undue” if it was obtained by “ ‘superiority of will, mind, or character, which would give dominion over the will to such an extent as to destroy free agency. . . .’ ” DeNieff v. Howell, 138 Ga. 248, 249 (6) (75 SE 202) (1912). Accordingly, unlike the majority, I do not find it material that the testator likewise bequeathed Ms. Andrews only $200 in the 1988 will, since that will is no less susceptible to a caveat based upon Ms. Rentz’s alleged undue influence than is the 1991 will that is here at issue.

On the grounds of public policy, Georgia recognizes the rule that certain transactions are presumed to be the result of undue influence if there is a confidential relationship between the parties “and there exists great mental disparity with the one having the greater mentality reaping the benefit of the transaction ([cits.]). . . .” Weddle v. *787Webb, 224 Ga. 674 (164 SE2d 129) (1968). Here, there was a confidential relationship and, considering the evidence as to the age and mental condition of the testator and the control and domination of the testator by Ms. Rentz over a long period of time, a verdict in favor of Ms. Andrews was, in my opinion, authorized and a verdict in favor of Ms. Rentz was not demanded. Adler v. Adler, supra at 406 (7). As in Skelton v. Skelton, supra at 634 (5), there was circumstantial evidence tending to show more than a mere opportunity for Ms. Rentz to exert her influence over the testator and the issue of her exercise of undue influence over him in the execution of his will was a question of fact for the jury. Accordingly, I respectfully dissent to the affirmance of the grant of Ms. Rentz’s motion for a directed verdict as to that ground of Ms. Andrews’ caveat.

Decided May 28, 1996 — Reconsideration denied June 14, 1996. Charles E. LeGette, Jr., Walton Hardin, for appellant. John P. Wills, Ben B. Ross, for appellee.

I am authorized to state that Justice Sears joins in this opinion.