Review of Georgia Cases on Testamentary Capacity

In Webb v. Reeves, 299 Ga. 760 (2016), Joseph Smith, an individual with schizophrenia, made a Will. At first glance the circumstances surrounding the Will appear suspect, but the Will was admitted to probate and the Georgia Supreme Court affirmed on appeal.

Joseph Tomas Schmidt, who was diagnosed with schizophrenia, began receiving VA disability benefits in 1973. Dale Groenenboom was appointed as his VA guardian and conservator. In 1997 Schmidt moved to a personal care home owned by Charles and Jerry Reeves. In 2010, Schmidt was hospitalized and, while there, made a Will leaving his estate to Groenenboom and the Reeves. After Schmidt died, the Will was submitted for probate and Schmidt’s town sister, Judith Webb filed a caveat. Webb argued that her brother lacked testamentary capacity and, specifically, that he was unaware of the extent of his estate. The probate court denied the caveat and admitted the Will for probate.

On appeal, the Georgia Supreme Court held that testamentary capacity does not require the testator to know the precise property holdings of which his estate consists, only that he be “capable of remembering generally what property … [is] subject to the will’s disposition.” Patterson-Fowlkes v. Chancey, 291 Ga. 601, 602, 732 S.E.2d 252 (2012). The record showed that Schmit was told his estate was large, but that he was generally uninterested in money. The Court found Schmidt “had enough knowledge about the nature and extent of his estate to sustain a finding that he had a decided and rational desire as to the disposition of his property.”

Schmidt was having memory problems around the time the Will was executed. He was not oriented to date, place or person. However, while some records suggest memory problems, others reflected variable states of mind around the time the Will was executed and that the records generally reflect that his state of mind improved while he was hospitalized. Therefore, even if Schmidt was not lucid at times, the record “does not demand a finding that he was not lucid when he executed the will.”

In Woods v. Stonecipher, 349 Ga. App. 698 (2019), Charlotte Blalock executed a Will in 2010 while her health was in decline. It named her granddaughter, Amber Stonecipher, as executor. When Stonecipher submitted the Will for probate, her aunt, Nancy Woods, filed a caveat. A de novo bench trial was held in Superior Court after appeal from the probate court ruling. The Court of appeals affirmed findings that Blalock was competent to make it and that she was neither under duress nor unduly influenced at the time.

Stonecipher, who was raised by Blalock, moved in with Blalock during the year before her death and was Blalock’s primary caregiver. Blalock told Stonecipher she wanted to update her Will. Stonecipher hired an attorney who reviewed Blalock’s prior Will and information Stonecipher passed on from Blalock. The attorney met with Blalock twice to discuss the Will’s terms and gave Blalock a draft to review. The final Will differed from Blalock’s prior Will by “naming Stonecipher executor; by giving the house in which Blalock then lived to Stonecipher; and by making Stonecipher the residual legatee.” The new Will was executed in the presence of the attorney and two neighbors who knew Blalock for years. Blalock also signed a self-proving affidavit. Blalock told the witnesses she was making changes to her Will, that she worked with the attoeny and that it was what she wanted. Blalock did not appear “confused or under duress, and it did not appear that she had been influenced to sign the new will.”

There was evidence of Blalock’s fragility around the time she signed the will; she was in failing health and under hospice care, on medication, confined to her bed, and sometimes confused. However, it was insufficient to rebut the presumption of testamentary capacity. Anything less than a total absence of mind does not destroy testamentary capacity. The fact that Blalock attempted to give away by Will proeprty she owned as joint tenants with right of survivorship did not compel a finding that Blalock was incapable of remembering generally what property was subject to disposition by Will. Citing Meadows, Webb, Patterson-Fowlkes, and Ashford.

Regarding undue influence, facilitating making the Will does not demonstrate undue influence. The opportunity to exert undue influence is insufficient to support a finding thereof. Mere suspicion is not enough and will not be allowed.

In Lawson v. Lawson, 288 Ga. 37 (2010), Syble Lawson executed a new Will in 2004. She died in December 2005. The 2004 Will named Chris Lawson, Syble’s son, as executor. Her other son, John, filed a caveat; John’s son, Jason, joined the caveat. A caregiver also filed a caveat alleging that a prior Will leaving him a life estate in realty should be admitted for probate. The 2004 Will revoked prior Wills.

Evidence showed that Chris phoned Syble every day and visited several times each week. He drove Syble to her attorney’s office, but was not present when the Will was executed. “Other than contacting the attorney at testator’s direction, there is no evidence that appellee had any involvement in the decision to create the will or any input into its contents.” The attorney had known Syble for 40 years and drafted Wills she executed in 1984 and 1995. The terms of the 2004 Will were substantially the same as the earlier Wills and left her estate to a natural object of her bounty. Regarding whether there was undue influence, “[e]very witness who was questioned on the subject acknowledged testator’s strong will and mental soundness, stating, e.g., that she was mentally “sharp as a tack till she died” and that “[i]t would be real hard to convince her to do something that she didn’t want to do.”” Regarding the caregiver’s claim, the 2004 Will revoked all prior Wills. Summary judgment was affirmed because “appellants failed to come forth with any evidence that appellee attempted to influence the making or the contents of testator’s will.”

In Kersey v. Williamson, 284 Ga. 660 (2008), a jury decided that Andrew Roderick Dean’s 2006 Will was valid. The caveators appealed, challenging jury instructions on testamentary capacity and undue influence as repetitive and in excess.  “[C]harging the jury that “[a] stringent standard must be met in order to set aside the Will, because to do so is to deprive a person of the valuable right to dispose of his property as he wishes,” did not increase caveator’s burden of proof. It “merely reminded the jury that a certain standard of proof had to be met in order to invalidate a will.” The charge was a correct statement of law. The charge that “[e]ven evidence of a weak and vacillating mind is insufficient to raise a jury issue with respect to a testator’s capacity, … correctly informed it that, even when the testator possesses some less-than-optimal mental characteristics, this is not enough to invalidate a will on the basis of lack of testamentary capacity.” The charge that “[t]he indulgence of mere suspicion of undue influence cannot be allowed” is a correct statement of law. The Court makes it clear that a correct statement of law in a jury charge is not error, that it is not error to refuse to charge an incorrect statement of law, and that requests to charge must be timely submitted.

In Meadows v. Beam, 302 Ga. 494 (2017), a jury found that Dorothy Rita Beam lacked testamentary capacity at the time she executed her 2014 Will. The trial follwed Dorothy Marian Meadows’s petition to probate the Will, followed by a caveat filed by her siblings, John Beam, Jr., Margaret Beam, and Jayne Heggen. Marian appealed, arguing the evidence does not support a finding that Decedent lacked testamentary capacity. The Georgia Supreme Court agreed and reversed.

Dorothy was hospitalized in 2013 when she was 90. She exhibited confusion and forgetfulness during her hospitalization. She also made strange statements regarding job offers, including one to work at Kroger; she had played bingo there with her husband, but her husband was dead and bingo was no longer played at the Kroger store. Following hospitalization, Dorothy went for a short rehab stay and one of the caveators cleaned Dorothy’s home to make it safer. Things were donated to charity and Dorothy accused one of the caveators of stealing. She also believed a different caveator stole CDs, attempted to withdraw money and mismanaged money, later revoking his power of attorney. Dorothy misidentified her tax preparer and complained about a sister-in-law who had been dead for 15 years. She was confused regarding other issues, including being able to identify which daughter she spoke with on the phone. Dorothy’s prior Will divided her estate equally among her four children. However, in April 2014, Decedent executed a will naming Marian as executor and devising property to her children, except to John, with a majority of her estate going to Marian.

At trial, caveator introduced testimony from a board-certified forensic psychiatrist. He reviewed medical records, depositions and affidavits before offering the opinion that Dorothy had a potentially weakened state of mind, lacked testamentary capacity in that she was operating under a “fixed false belief” that Caveators were stealing from her, and was unduly influenced into executing the 2014 will and codicil.

By conceding that none of Dorothy’s delusions were insane delusions, caveators failed to rebut the presumption of testamentary capacity. Initially, caveators admitted that the Will was self-proved. That carries with it a presumption that the will and codicil were executed with the requisite testamentary formalities, including testamentary capacity. This, together with their express disclaimer that Dorothy was insane or suffered from monomania, prevented caveators from claiming Dorothy was of unsound mind. Instead, they were merely arguing that Dorothy suffered from delusions. Not every delusion deprives one of testamentary capacity; rather, it must be an insane delusion. By conceding that Dorothy’s delusions were not insane delusions, caveators’ claim failed as a matter of law. (Insane declusions are defined at footnote 3).

It is worth noting that footnote four acknowledges that Dorothy may have prepared her Will based on false information from Marion and may have been duped by Marion. However, fraud, duress, or undue influence were not before the court on appeal.

In Smith v. Davis, 203 Ga. 175 (1947), the Court affirmed a jury verdict in an appeal from Superior Court. L.E. Smith died on December 7, 1944. Apparently in the days preceding, he executed two different Wills, one on December 1, 1944 and the other on December 5, 1944. Both were submitted for probate in solemn form. The two proceedings were consolidated for trial. That decision was reversed in Smith v. Davis, 200 Ga. 317 with the Court ruling that the later Will must be considered first. The Superior Court subsequently found that the December 5th Will was not L.E. Smith’s Will, so the trial proceeded on the December 1st Will and caveats to it.

Initially, the only issue on a Petition to probate a Will in solemn form is whether there is, or isn’t a Will. This meant that a technical objection to caveator’s status under the Will (she was Smith’s widow and filed a Petition for Year’s Support) was separate from determination of the Will’s validity.

Regarding the caveat based on incapacity, Smith’s widow alleged Smith suffered from Bright’s disease and that, on the date the Will was executed, was suffering from uremia, that his mind was cloud and his intellect impaired. She also alleged Smith suffered from an insane delusion, namely that Lonnie Perkins was his son. However, “testimony of the attending physicians, one of whom was present when the will was executed, the subscribing witness, and others who saw and observed the testator at the time his will was executed and immediately prior thereto.” The record showed, though that for 25 years Smith had told other that Perkins was his illegitmate son and that he intended to provide for him in the disposition of his estate. This had been accepted by members of the family as true. There was also evidence that Perkins lived in Smith’s home and that Perkins and Smith visited each other. Accordingly, failure to charge on monomania was not error.

The following charge was not error: “I charge you, gentlemen, that the very nature of a will requires that it be freely and voluntarily executed, not necessarily months before, but what was his mental capacity at the time of the alleged execution of the will? Hence, anything which destroys this freedom of volition invalidates a will, such as fraudulent practices upon testator’s fears, affections or sympathies, duress or undue influence, whereby the will of another is substituted for that of the testator.”

A portion of a subsequent charge was attacked as error, but when read as a whole, the Court found that the jury was correctly charged on the issue of testamentary capacity. The inital charge was : “Be the testator wise or unwise, he is capable of willing his property unless totally deprived of reason. If a testator be not a lunatic, idiot, or mentally incompetent, he may make a will, so far as capacity is concerned.” It was supplemented as follows: “The amount of intellect necessary to constitute testamentary capacity is that which is necessary to enable the party to have a decided and rational desire as to the disposition of his property. His desire must be decided as distinguished from the wavering, vacillating fancies of a distempered intellect. It must be rational as distinguished from the ravings of a madman, the silly prating of an idiot, the childish whims of imbecility, or the excited vagaries of a drunkard.”

In King v. Brown, 280 Ga. 747 (2006), Palmer Rufus Bell made a Will in July 2002 where the execution was videotaped. That Will left the bulk of his estate to two of his six children, Pamela Bell King and Patsy Bell Brown. One month later, King and Brown were appointed guardians of the person of their father. In January 2003, King took over their father’s care after his house burned. By this time, the decedent was suffering from dementia. On February 28, 2003, a new Will was executed and the execution was video taped. The 2003 Will left substantially all of the estate to King and disinherited Brown. After King filed a petition to probate the 2003 Will, Brown filed a caveat. The case went to trial where the jury rendered a general verdict that the 2003 Will was invalid, meaning they did not state whether the judgment was based on testamentary incapacity, undue influence, or both.

King appealled. Primarily she argued the jury charge was errant. She also argued the trial court should have granted her motion for  judgment notwithstanding the verdict because the subscribing witnesses testified the decedent was lucid at the time the Will was signed. The Court rejected that argument finding there was abundant evidence on which the jury could base its verdict including the videotape. The jury was allowed to draw its own conclusions regarding lucidity or incapacity.

King argued that a charge instructing the jury that a will may be void if procured through misrepresentation or fraud should not have been given because there was no evidence of such conduct. The Court found otherwise because there was some evidence that misrepresentations were made to the decedent that Brown was stealing his money. This should be compared with Meadows v. Beam, 302 Ga. 494 (2017), reviewed above on this page, where there were similar facts. In that case the issue wasn’t resolved because it wasn’t part of the appeal.

Although not discussed, it is interesting that one month after the 2002 Will was executed, King and Brown were appointed as guardians. Technically this is of no moment since the guardianship statute indicates that appointment of a guardian is not a determination that an individual lacks the ability to execute a Will. But it would be evidence calling the testator’s capacity into question.

In Gardner v. Lamback, 47 Ga. 133 (1872), the Supreme Court found that a jury charge was proper and affirmed the decision below. The Court observed that people differ on what is sane and what is not. “There is not a man living who has not done acts which others pronounce insane; and, on the other hand, insanity sometimes eludes all ordinary inquiry.” The Court held that charging the jury that particular delusions deprive a testator of capacity is inappropriate and that doing so would “be an assumption by the Judge of the powers of the jury.” The Judge does not weigh facts or the credibility of testimony when there is a jury.

“A large majority of wills are made in the last hours of life, a time necessarily of pain, trial and disturbance. And it is a wise provision of the law that whilst it takes great precaution to prevent fraud and imposition, it does not withdraw the testamentary privilege until the reason itself be gone. It is a precious right, and one that should be guarded with jealous care, that the aged and infirm, the weak minded and eccentric shall have this security for care and attention on a sick bed. … To make one incapable of making a will from insanity, he. must be “ non compos mentis,” there must be a “total deprivation of reason.” However old, feeble, weak minded, capricious, notionate he may be, if he “be able to have a decided and rational desire as to the disposition of his property,” he is not wanting in testamentary capacity.” Although the charge requested would be improper, there would be no harm in telling the jury that “a testator is free to do as he pleases.”

In Curry v. Sutherland, 279 Ga. 489 (2005), the Georgia Supreme affirmed admission of a Will for probate. Paul Curry was 86 when he executed a Will in 2002. He named his caregiver as executor, his caregiver and two friends as equal beneficiaries, and specifically excluded his daughter, Mary Nann Curry. Mary filed a caveat alleging incapacity and undue influence. The propounders of the Will filed a motion for summary judgment, which was granted. Mary appealed.

Regarding undue influence, Mary relied on a line in the medical record containing the word “dementia.” However, the record show no context and did not indicate whether it was the result of an examination or a conversation with the family. It did not indicate whether the condition continued to exist at the time the Will was executed. “Without such information, the presence of that word alone does not indicate a mental condition that would meet the standard for a finding of lack of capacity.” Mary’s evidence did not meet the standard in Holland v. Holland, 277 Ga. 792, 795(4), 596 S.E.2d 123 (2004), which was “To set aside a will and thus deprive a person of the valuable right to make a will, a stringent standard must be met.” Further, the testator’s accountant and attorney testified that the testator knew what he was doing and that he was asked about leaving his property in trust for his daughter. The testator indicated that “her alcoholism had created problems between them, and that if she received any money she would drink herself to death.” Further, the testator made provisions for his daughter during his life.

Regarding undue influence, even when a confidential relationship exists, “to support a claim of undue influence, any influence shown must be “influence that … would give dominion over the will to such an extent as to destroy free agency, or constrain one to do against his will what he is unable to refuse.”” Mary’s evidence was limited to the confidential relationship itself. At most it showed an opportunity to influence, but there was no evidence of any undue influence either at the time of execution of the will, or near it.

In Kendrick-Owens v. Clanton, 271 Ga. 731 (1999), a jury returned a general verdict in favor of caveators to a Will finding it was invalid due to undue influence and lack of testamenty capacity. The Georgia Supreme Court set aside the verdict, finding there was insufficient evidence to support the verdict.

Alene Kendrick executed a Will on March 6, 1996. She died in November 1996, leaving most of her estate to her youngest daughter, Carolyn Kendrick-Owens. When carolyn submitted the Will for probate, the decedent’s other daughter, Dora Clanton Sharpe, and son, William Clanton, filed a caveat. The case went to trial with a jury, but because the verdict form did not specify the basis for the verdict, it was impossible to know whether it was based upon undue influence or lack of testamentary capacity or both.

A stringent standard must be met to set aside a Will. Regarding undue influence, “[i]nfluence is considered undue only if “`it constrains or coerces a person into doing that which his best judgment tells him not to do and deprives him of his free agency and substitutes the will of another person for his own.’ [Cit.]” Sims v. Sims, 265 Ga. 55, 56, 452 S.E.2d 761 (1995). Moreover, a will can be invalidated only by such undue influence as operates on the testatrix’s mind at the time she executes the document. Boland v. Aycock, 191 Ga. 327, 329, 12 S.E.2d 319 (1940).” Although there was evidence that Carolyn had a domineering personality, no witness testified that they ever heard her discuss the issue of decedent’s Will with the decedent. The decedent’s attorney and her physician both testified she was lucid when the Will was signed. Her attorney met privately with the decedent on two occasions; first when she explained changes she wanted from her prior Will and again when she reviewed and executed the new Will. The attorney explained the Will and testified it was his opinion that she understood it and executed it freely and voluntarily. The attorney testified that he never discussed the Will with Carolyn. “Having reviewed the record, and bearing in mind that a will can be invalidated only when undue influence operates on the testatrix’s mind at the time she executes her will, we conclude that the evidence is insufficient to show that, at the time Alene executed her will, Kendrick-Owens constrained or coerced Alene into making a will that Alene’s judgment told her not to do or that Kendrick-Owens deprived Alene of her free agency and effectively substituted her will for that of Alene.” Mere opportunity to influence is not sufficient to prove undue influence and the indulgence of mere suspicion of undue influence cannot be allowed. Evidence of undue influence at a time other than when the Will was executed does not invalidate a Will.

In Scott v. Gibson, 194 Ga. 503 (1942), Annie Roan executed a Will that did not name an executor. She died on April 21, 1936 and Robert Lee Scott petitioned that he be appointed administrator with the will annexed. Roan placed her mark on the Will since she could not read. Roan’s Will stated: “It is my desire that all of my property, both real and personal, be divided equally between three persons: Robert Lee Scott, Emily Walker, and Jessie Groom. These three people, besides being of my kin, have taken care of me in my illness. I do give them the above for love and affection. To my son Orry Gibson, who has never been of any financial assistance to me, I leave the sum of one dollar.”

Roan’s son filed a caveat. He claimed his mother was not of sound mind, that she did not sign the Will freely and that the mark was not his mother’s signature. The Probate court admitted the Will and an appeal to superior court followed. A jury found in favor of the caveator. The Georgia Supreme Court reversed.

Lay opinions regarding whether a Will-maker had capacity to make a Will are legal conclusions and cannot support a jury verdict on that issue. The decision regarding testamentary capacity belongs to a jury and lay witnesses cannot testify regarding the ultimate question of law. Citing Peavey v. Crawford, 182 Ga. 782 (4) (187 S.E. 13), the Court said: “Where the subscribing witnesses testified that the will was executed in proper form, and that the testatrix was of sound and disposing mind and memory, and their testimony upon this point was not controverted, a verdict probating the will was demanded.” Referring to a different case, the Court noted that testimony regarding the testator’s mental condition before and after a Will was executed “can not break down the positive testimony of the subscribing witnesses that at the time the will was executed, the testatrix was capable of making a testamentary disposition of her property.” Although facts regarding other conditions and events  may be received to “illustrate conditions existing at the time the will was executed, still after all the question is, was the testator in condition to make a will at the time he made it?” Since the caveator’s witnesses could not testify regarding conditions at the time the Will was executed, their testimony could not support rejection of the Will and the evidence demanded that it be admitted for probate.

In an interesting divergence, the Court said:

There can be in law no justification of a refusal to probate a will executed with the required formality, and freely and voluntarily, by a person not otherwise disabled or incompetent, but merely because a man had left practically all of his estate to one child, giving to the others a dollar apiece (Watkins v. Jones, 184 Ga. 831, 193 S.E. 889); or because the will appeared to be unreasonable and unfair (Dyar v. Dyar, 161 Ga. 615, 131 S.E. 535); or because the testator had some peculiarities and eccentricities (Stancell v. Kenan, 33 Ga. 56); or because the instrument was signed by an aged and decrepit person (Hill v. Deal, 185 Ga. 42,193 S.E. 858); or by one in his last illness when his physical powers had almost left him (Cook v. Washington, 166 Ga. 329, 143 S.E. 409); or by one of weak intellect (Gardner v. Lamback, 47 Ga. 133); or by one shown to lack the necessary mental capacity at some time subsequent to the date of the execution of the will (Hillyer v. Ellis, 171 Ga. 300, 155 S.E. 180).

In Anderson v. Anderson, 210 Ga. 464 (1954), a war veteran who was epileptic and under a VA guardianship, executed a Will. The caveator argued “the testator had been rated by the Veterans’ Administration as both insane and incompetent, and therefore he could not make a will.’ A directed verdict was entered in favor of the Will and the caveator appealed. The Supreme Court upheld the directed verdict because the caveator’s witnesses could not contradict the testator’s capacity at the time the Will was executed. “The evidence of the subscribing witnesses was sufficient to make out a prima facie case of testamentary capacity upon the part of the testator to make a valid will. The weak have the same rights as the strong-minded to dispose of their property by will, and anything less than a total absence of mind does not destroy that capacity. If the testator has sufficient intellect to enable him to have a rational desire as to the disposition of his property, this is sufficient. And the condition of the testator’s mind at the time of the execution of the will determines whether he can make a valid will” A claim of undue influence was also rejected because “Undue influence, to invalidate a will, . . must, in effect, make the will the mental offspring of some other person, and must be operative on the mind of the testator at the time the will is executed.”

In Evans v. Arnold, 52 Ga. 169 (1874), an appeal followed a jury trial where the losing party objected to the jury charge. A Will was submitted for probate in comon form and, although the probate was not final as to parties in interest without notice, “there is a good deal of authority to the effect that all persons who get notice are barred, whether made formal parties or not.”

“The general rule of law undoubtedly is that one is presumed’ sane until the contrary is shown, and this may also be said of the rule that he who holds the affirmative of a proposition must prove his assertion. But when one comes into a court of justice to give the property of a deceased person a different direction from that given by the law, he takes upon himself to prove all the conditions on which his right depends.” But in the case of a Will,”when one comes into a court of justice to give the property of a deceased person a different direction from that given by the law, he takes upon himself to prove all the conditions on which his right depends.” This means a party submitting a Will disinheriting an heir at law must initially prove capacity at the time the Will was executed. “The practice is to put the witnesses upon the stand to ask them as to the execution, and then to ask questions bringing forward the state of the testator’s capacity.” Still, testators are allowed to be foolish; but it was error “to withdraw from the jury the consideration of the striking fact that the property of the testatrix, by the very terms of even this provision, for this sole blood kin, goes to strangers, to the exclusion of her children.”

In Beman v. Stembridge, 211 Ga. 274 (1955), the testimony of subscribing witnesses made out a prima facie case of testamentary capacity. An old provision of the Code required close strutiny of Wills where a testator made no provision for his wife of child. In this case, the testator had no children and was seperated from his wife. The Will included a note stating:

“I am informed that it will be necessary to give my legal wife a certain share of my estate and I am sorry that this is true. I am not able to avoid the thought that if she had brought to our marriage the love, the enthusiasm, and the willingness to work that I felt; our answer would have been different. After mature consideration, it is my unqualified belief that she married me for what she hoped to get out of the marriage in a financial way. I give and bequeath to my legal wife the minimum that the law requires. One dollar.”

The caveator was in the midst of divorcing the testator when he died. She admitted under cross-examination that she was unsure she spoke with the testator on the date the Will was siged. She assumed the burden of proving lack of testamentary capacity. Opinions from lay witnesses could not overcome testimony from the subscribing witnesses that the testator had capacity to execute a Will. The evidence was insufficient to support a verdict for the caveator. The Court reversed with direction to enter a judgment of directed verdict in favor of the propounders.

In Stephens v. Bonner, 174 Ga. 128 (1932), Mrs. Bonner submitted her deceased husband’s Will for probate and the decedent’s daughter filed a caveat. The case was heard by agreement in superior court. At the conclusion of the evidence, the trial court directed a verdict for the wife and the daughter appealed, arguing the case should have gone to a jury on the following issues: undue influence exercised over the testator by the propounder, and furthermore on account of an aversion, prejudice, and bias which developed into monomania, whereby the will of Mrs. Julia Dunn Bonner was substituted for that of the testator himself. Although other caselaw suggests any evidence caveator had would not be relevant to testator’s capacity at the time this Will was executed, the Court reversed finding that evidence of undue influence is usually circumstantial.

‘A very wide range of testimony is permissible on the issue of undue influence. This is due to the fact that undue influence seldom can be shown except by circumstantial evidence. It results from the circumstances and surroundings of the testator and his associations with the person or persons exercising the undue influence. For this reason it is proper, on this issue, to consider the testator’s dealings and associations with the beneficiaries; his habits, motives, feelings; his strength or weakness of character; his confidential, family, social, and business relations; the reasonableness or unreasonableness of the will; his mental and physical condition at the time the will was made; his manner and conduct; and generally every fact which will throw light on the issue raised by the charge of undue influence.’ . .

The second ground based on alleged undue influence also contained the other allegations hereinbefore stated. ‘Is it a mere conclusion to allege’that one of two daughters has represented to a father that the other daughter does not love the father? Love is and ever has been one of the most powerful motives that rule the human mind. In all history nothing has so wrung the parental heart with grief as the belief that a child is undutiful, unworthy, and unloving. Love has led to the greatest tragedies. It has destroyed cities and empires. In all ages in song and story love and unrequited love have been painted as the ruling passions of men and women. Next to love, perhaps, comes the desire for money, and the jealousies and suspicions that too often arise on the passing of a parent or ancestor whose worldly possessions are to be distributed among expectant heirs. We think that to allege in a caveat that one daughter has convinced a father that the other daughter does not love the father is to allege a fact and a most potent fact likely to influence the father in the execution of his will.”

Although this might be helpful, generally, in showing what evldence can be relevant in these cases, the Will at hand was executed a few days after the propounder married the testator on June 4, 1923. The opinion then states that “All these years she has known of the existence of the caveatrix.” (emphasis added). It is unclear how any of the evidence caveator might have would relate back years to question capacity and undue influence at the time the Will was executed.