dissenting.
In 1995, before her death in April, Ms. Annie Bell Smith executed a will in January and yet another in March. Appellee, who is Ms. Smith’s brother-in-law, presented a copy of the January will for probate. Appellant, who is Ms. Smith’s cousin, filed a caveat asserting that the testatrix had revoked that will. A jury found that Ms. Smith did not revoke the will, and the trial court entered judgment on that verdict in Appellee’s favor. On appeal, Appellant enumerates as error the denial of her motion for a directed verdict. Thus, the dis-positive issue is not the validity of the as yet unprobated March will, but the sufficiency of the evidence to support the jury’s finding that Ms. Smith did not revoke her January will. In my opinion, the evidence demanded a finding that Ms. Smith did revoke that will and, therefore, the trial court erred in failing to grant a directed verdict in favor of Appellant. Accordingly, I dissent to the majority’s affirmance of an erroneous judgment entered on the jury’s unauthorized verdict for Appellee.
Under applicable Georgia law, Ms. Smith could effectuate an express revocation of her January will by her subsequent actions. Former OCGA § 53-2-72 (b). Such subsequent action could take the form of any destruction or obliteration of the original of the January will or a duplicate thereof, accomplished by Ms. Smith or her agent with the requisite intent to revoke. Former OCGA § 53-2-74. It is undisputed that Ms. Smith retrieved the original of her January will from the files of the probate court and that, in the presence of the probate judge, she wrote or caused to be written “Revoked” across the face of a copy thereof which thereafter remained on file in the probate court. See Singleton v. Shewmake, 184 Ga. 785, 787 (1) (193 SE 232) (1937). Compare Howard v. Hunter, 115 Ga. 357 (41 SE 638) (1902). Moreover, it also is undisputed that Appellee was unable to produce the original of the January will after Ms. Smith’s death because she destroyed that document after retrieving it from the probate court. Accordingly, not only was there uncontradicted evidence of an express revocation affixed to the face of a copy of the January will, the undisputed evidence of Ms. Smith’s destruction of the original of that will also gave rise to a strong presumption of a valid express revocation, which presumption Appellee could rebut only by *174producing clear and convincing evidence to the contrary. Former OCGA § 53-3-6 (b); Scott v. Maddox, 113 Ga. 795, 798 (2) (39 SE 500) (1901). Compare OCGA § 53-4-46 (b) (establishing a “preponderance of the evidence” standard for rebuttal of the presumption of revocation). “Clear and convincing evidence” “is an intermediate standard of proof, requiring a higher minimum level of proof than the preponderance of the evidence standard, but less than that required for proof beyond a reasonable doubt. [Cits.]” Clarke v. Cotton, 263 Ga. 861, 862, fn. 1 (440 SE2d 165) (1994).
Because Ms. Smith was in the final stages of lung cancer, there naturally was some evidence that her physical and mental health deteriorated between January of 1995 and her eventual death in April of that year. However, in order to rebut the strong presumption of a valid express revocation of the January will, it was necessary for Appellee to make a clear and convincing showing that, after Ms. Smith executed that document, she lost her “testamentary capacity to annul the same, and that such mental incapacity continued up to the time of [her] death.” Saliba v. Saliba, 201 Ga. 577, 580 (40 SE2d 511) (1946). A review of the record shows that the evidence is wholly insufficient to make a clear and convincing showing that, at no time during the relevant three-month period, did Ms. Smith have the mental capacity to make a valid determination to revoke her January will. Compare Mallis v. Miltiades, 241 Ga. 404 (245 SE2d 655) (1978) (addressing the unrelated issue of testamentary capacity on the single date of execution of a contested will).
There also was some evidence that, between Ms. Smith’s execution of the January will and her death, Appellant had the opportunity to influence her. Again, however, the burden was on Appellee to make a clear and convincing showing that Appellant exercised “undue” influence to obtain Ms. Smith’s presumptively valid express revocation of her January will. See Batton v. Watson, 13 Ga. 63 (2) (1853). Appellant is one of several beneficiaries under the provisions of the unprobated March will and, therefore, she has an interest in the revocation of the January will. However, the March will evidences a more equitable and reasonable testamentary disposition of the estate than did the January will, which left the bulk of the estate to Appellee and disinherited Ms. Smith’s invalid brother for whom she was the care-giver. See Quarterman v. Quarterman, 268 Ga. 807, 808 (2) (493 SE2d 146) (1997). Thus, the evidence shows, at most, a mere opportunity for Appellant to have had an influence upon Ms. Smith. The transcript does not reveal the requisite clear and convincing proof that Ms. Smith expressly revoked her January will as the result of Appellant’s undue influence. See Quarterman v. Quarterman, supra (summary judgment). Compare Batton v. Watson, supra.
The record shows that there is undisputed evidence of Ms. *175Smith’s intent to effect an express revocation of her January will by placing “Revoked” on the face of a copy thereof and by destroying the original itself, coupled with an insufficiently rebutted strong presumption that the revocation of the will was valid. Whether the presumption of revocation created by former OCGA § 53-2-74 was rebutted by clear and convincing evidence is generally, but not invariably, deemed to be a jury question. Looney v. Looney, 199 Ga. 415 (34 SE2d 520) (1945). I submit that this is one of those rare cases, like Looney, in which a directed verdict in favor of Appellant was mandated by Appellee’s failure to meet his evidentiary burden. Therefore, I must respectfully dissent to the majority’s affirmance of the judgment entered on the jury’s verdict for Appellee.
Decided October 26, 1998 — Reconsideration denied November 20,1998. Lubberly & McGovern, B. Daniel Dubberly III, for appellant. Caesar J. Smith, pro se.I am authorized to state that Presiding Justice Fletcher and Justice Hunstein join in. this dissent.