dissenting.
I respectfully dissent, as I believe there is evidence from which the jury could properly find undue influence and fraud.
The majority notes there is no direct evidence that Bohlen exercised undue influence over Spears at the time of her execution of the 1992 will. However, a caveat based on undue influence may properly be supported by circumstantial evidence, as such influence can seldom be shown except by circumstantial evidence. Skelton v. Skelton, 251 Ga. 631, 634 (5) (308 SE2d 838) (1983). To require that there be direct evidence of undue influence operating on the testatrix’ mind at the time she executes her will is contrary to both the law and common sense; influence that has been exerted over a period of time so as to become pervasive will not necessarily manifest itself at the time of execution. Determining whether such influence was actually operating on the testatrix at the time of execution is the role of the factfinder.
Evidence was presented that in 1991 and 1992, Bohlen told others that Spears was devoid of funds, and that she stated the same. However, in addition to her ownership in the family land, the testatrix had liquid assets of approximately $300,000. Bohlen testified that he knew nothing of the testatrix’ business affairs before 1994, *326when according to his testimony he first used the power of attorney. However, there was other testimony that in 1991 and 1992, he was not only stating that he knew Spears to be devoid of funds, but had also attended meetings between the testatrix and her accountant, beginning with the preparation of the testatrix’ 1991 tax returns.
After Spears moved to the retirement center, Bohlen and his wife took primary responsibility for Spears’ movements and schedule; although Spears could walk about town, she no longer drove. Spears reported to one nephew that Bohlen’s wife told her she would be left without the Bohlens’ care if the testatrix did not behave herself and do what Bohlen’s wife said. To one friend, the testatrix expressed a great fear of going into a nursing home, expressed relief that the 1992 will was signed, and stated, that because of it, she “thought that she wasn’t going to have to go.” The testatrix displayed confusion and agitation about the preparation of a new will, telling friends and family that she was being pressured to prepare a new will, specifically saying to one nephew that Bohlen was pressuring her for a new will. She also stated to several people that the Bohlens would not permit her to return to live on the family farm, and there was evidence that the Bohlens prevented her from attending her church. There was also evidence that Spears stated to several witnesses that she wished the land to stay in the Spears name.
In addition, medical evidence showed that in 1996, the testatrix was determined to have severe Alzheimer’s disease, with related “severe agitation worse in the past several years.” In 1990, she was discovered to have some atrophy of the brain, and the physician who cared for her at that time testified she was not capable of complex reasoning about her business affairs, and was subject to being confused by others. This evidence of a diminution in mental capacity is relevant to the question of Bohlen’s exercise of undue influence because the influence necessary to dominate a mind impaired by age or disease may be decidedly less than that required to control a strong mind. Skelton, supra at 634 (5).
Although the majority characterizes evidence of Spears’ weak mental state as “slight,” the responsibility to weigh the evidence is the jury’s, not this Court’s. Whether undue influence was operating on Spears at the time she executed the 1992 will must be decided on the evidence. Essentially, the majority has weighed the evidence supporting a finding of undue influence and found that, in the majority’s opinion, it is wanting. But the question is whether the jury could have found undue influence from the evidence presented. Viewed in favor of the nonmovant caveators, it could, and the court did not err in allowing the issue to be resolved by the jury.
Similarly, there is also evidence from which the jury could infer that the will was procured by fraud, which may also be shown by cir*327cumstantial evidence. See Stephens v. Brady, 209 Ga. 428, 435-436 (2) (73 SE2d 182) (1952). Testimony showed Bohlen was representing to other family members that the testatrix had no money, and that she believed this herself. Such a belief would allow Bohlen to exert his influence on the testatrix and substitute his will for hers. Further, there was testimony that Bohlen and his immediate family had misrepresented the actions of certain of the caveators, including those who had been prominent beneficiaries under previous wills. This issue, too, was properly for the jury’s resolution.
Decided December 4, 1998 — Reconsideration denied December 17,1998. Sell & Melton, Jeffrey B. Hanson, John D. Comer, E. R. Lambert, for appellant. James E. Carter, Ted D. Spears, for appellees.I am authorized to state that Chief Justice Benham and Justice Hunstein join in this dissent.