Brooks v. Julian

Hines, Justice,

dissenting.

I respectfully dissent because the evidence authorized the jury to find undue influence.

Generally, the question of undue influence is for the fact finder. Mathis v.• Hammond, 268 Ga. 158,160 (3) (486 SE2d 356) (1997). Evidence of the testatrix’s diminished mental capacity is relevant to the exercise of undue influence because the amount of influence which may dominate a mind impaired by age or disease may be decidedly less than that required to control a strong mind. Murchison v. Smith, 270 Ga. 169, 171-172 (508 SE2d 641) (1998).

The majority states that there is no direct evidence that Brooks exercised undue influence over the testatrix at the time of her execution of the 1994 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). See also Mathis, supra at 160 (3). McConnell v. Moore, 267 Ga. 839 (483 SE2d 578) (1997), cited by the majority, does not stand for the proposition that direct evidence of undue influence is necessary. While the undue influence must be operating on the testatrix’s mind at the time she executes her will, evidence of that influence is not confined to observations made at the instant the testatrix signs the will. Determining *771whether such influence was actually operating on the testatrix at the time of execution is the role of the fact finder, not this Court.

Viewing the evidence to support the verdict, as this Court is obligated to do, see Sims v. Sims, 265 Ga. 55 (452 SE2d 761) (1995), the evidence showed that within a month of the will’s execution, testatrix Moore appeared to be confused and deferred to Brooks in dealing with the attorney who was hired to investigate Lancaster’s involvement in Moore’s finances; the attorney believed Moore did not understand what was going on. Five months later, when Moore was administered a mental status questionnaire by a nurse, Moore did not know the date, the day of the week, her telephone number or address, her age, or the current or previous presidents of the United States. Evidence of the testatrix’s state of mind during a reasonable period of time before and after the execution of the will may be introduced to show her state of mind at the time of execution. Bishop v. Kenny, 266 Ga. 231 (1) (466 SE2d 581) (1996).

Evidence of Brooks’s behavior is also telling. She accompanied Moore to the attorney’s office the day the will was changed and Moore’s real property became titled in Brooks and Sheffield. When Brooks transferred some of Moore’s funds to a bank in Jacksonville, Florida, where Brooks resided, she showed the owner of the certificate of deposit as “EST OF MRS LYNELL M MOORE, INCAPACITATED”; this was done on August 31, 1994, five days after the will was executed. Although Brooks testified, in essence, that this was the bank’s normal way of listing ownership when the owner may not be capable of fully controlling the property during the period of deposit, this listing was only after Brooks described her mother’s situation to the bank. The jury was authorized to disbelieve Brooks’s explanation for the listing and find that at the time of the will’s execution, Brooks considered her mother to be incapacitated. Brooks also testified that her mother “was with me telling me” to arrange for the title to the testatrix’s real property to be put in Brooks’s and Sheffield’s names. As the jury could believe that Brooks in fact believed her mother to be incapacitated at this time, it could infer that Brooks was untruthful about Moore’s desires and that Brooks exerted undue influence on her incapacitated mother to effect the property transfer and the change in the will.

Additionally, the attorney who investigated Lancaster’s involvement with the testatrix’s finances testified that he informed Brooks that he found no evidence of wrongdoing; he did not communicate directly with Moore. But Brooks testified that she received no information from the attorney. Accordingly, it was for the jury to resolve this conflict in the evidence, and the jury was authorized to conclude that Brooks had received information that there was no evidence of impropriety by Lancaster, and yet did not relay that information to *772Moore. Also, the jury had the benefit of viewing Brooks’s demeanor while testifying, and could judge for itself her credibility, as well as that of the other witnesses. To, in essence, grant judgment notwithstanding the verdict in this case usurps the jury’s role, ignores precedent from this Court, and miscasts the evidence at trial. I would not do it.

Decided November 15, 1999 Reconsideration denied December 17, 1999. Straughan & Straughan, Mark W. Straughan, for appellants. William T. Whatley, for appellees.

I am authorized to state that Justice Carley joins in this dissent.