A jury trial was held to determine whether Mildred Hilton had testamentary capacity to execute a new Will. After the jury found she lacked capacity, the trial court determined that the verdict was incorrect and entered judgment notwithstanding the verdict. Alternatively, the judge also entered an order granting a new trial.

Under Georgia law, a testator possesses the mental capacity to make a will if she understood that a will had the effect of disposing of her property at the time of her death, was capable of remembering generally what property was subject to disposition by will and remembering those persons related to her, and was capable of expressing an intelligent scheme of disposition. See Quarterman v. Quarterman, 268 Ga. 807 (1) (493 SE2d 146) (1997); Arnau v. Cochran, 257 Ga. 550, 551 (1) (361 SE2d 173) (1987); OCGA § 53-4-11 (a) (“[t]estamentary capacity exists when the testator has a decided and rational desire as to the disposition of property”). The controlling question is “whether the testator had sufficient testamentary capacity at the time of executing the will.” Spivey v. Spivey, 202 Ga. 644, 652 (2) (44 SE2d 224) (1947).

On appeal, the court held there was some evidence to support the jury verdict, so the trial court committed error by entering a judgment notwithstanding the verdict. This evidence included apparent hallucinations and doctor’s testimony that Hilton suffered from dementia on the date the Will was executed. However, there was also evidence that would have allowed the jury to rule that the Will was valid. The attorney who drafted Hilton’s will testified that he believed Hilton was mentally competent both prior to and on the day of the execution of the will. He stated that in June 2004 Hilton came to his office for the purpose of having a new will drafted. They discussed Hilton’s prior will, which she brought with her to the meeting, the property to be included in the estate, and the manner in which she wished to dispose of her estate, as well as where certain items of property could be located. They also had a lengthy discussion concerning the details of a trust Hilton wished to establish via the will for the benefit of her disabled grandson. The attorney further testified that when Hilton returned to his office on June 28, 2004, to sign the will, she was frail but able to identify her property and her family, and she was capable of expressing a scheme for the disposition of her estate. In addition, several witnesses testified that at or near the time Hilton made the will, she was of clear mind and would have been capable of possessing a decided and rational desire for the disposition of her property. In light of this evidence, the trial court was permitted to grant a new trial.