specially concurring, with whom MACY, Justice, joins.
I agree with the result reached by the majority. I wholeheartedly agree with the majority’s conclusion that “[a] properly drawn inference, contrary to direct testimony, can serve to structure a genuine issue of material fact.” I part with the majority, however, when it ventures into an unnecessary and troublesome discussion concerning sequential inferences and their questionable application to summary judgment proceedings.
I see no reason to inject further uncertainty into the area of summary judgment. The majority’s discussion of sequential inferences does just that. Particularly troubling are the following statements:
“The result is that an inference may be drawn from an inferential fact, that is a fact that itself was inferred, when the prior inference excludes any other reasonable theory or alternative inference. A mere probability that the prior fact exists is not sufficient to sustain the next sequential inference.” (Emphasis added.)
In my view, conclusions such as what is “reasonable” and what is a “mere probability” should be left to the trier of fact.
The majority explains that while the materials submitted by appellant could support an inference of general incapacity, eccentricity, senility, or insane delusions, these inferences are insufficient to establish lack of testamentary capacity, which is a different concept. Then the majority states that “[i]t is necessary to incorporate a sequential inference if a lack of testamentary capacity in any respect is to be inferred from the Barker affidavits.” The following potential “sequential inference” is then identified: Evidence of general incapacity, eccentricity, senility, and/or insane delusions may be sufficient to establish lack of testamentary capacity. This is precisely the idea which the majority rejects as a matter of substantive law. The eviden-tiary concept of “sequential inferences,” cannot possibly affect our discussion of this case. It can only serve to further confuse the law of summary judgment. I would simply hold that appellant, even with the benefit of all favorable inferences, failed to establish a genuine issue of material fact.