FEHN et al. v. SHAW, administrator

Supreme Court of Georgia1945-09-08No. No. 15248

199 Ga. 747

Summary · law.co

Holding. The trial court properly directed a verdict for the will's proponent because the evidence presented by the challengers did not establish that the testator lacked mental capacity at the time the will was executed. The judgment was affirmed.

Challengers to a will argued that the testator lacked mental capacity when executing the document. Non-expert witnesses testified about the testator's general condition months before the will was signed, describing him as forgetful, irritable, and occasionally drinking, though none could definitively speak to his mental state on the date of execution. One witness who saw the testator near the time of signing reported his condition was satisfactory. A physician testified about physical health but expressly declined to assess mental capacity.

The court established that when challenging testamentary capacity, the critical question concerns the testator's mental state at the moment of signing. While evidence of mental condition at other times may be considered, it cannot override positive testimony from witnesses to the will unless it affirmatively proves incapacity at the time of execution. The court found the challengers' evidence fell short of this standard. The fact that the testator deviated from an earlier will by leaving property to his third wife rather than following the previous arrangement with his second wife was insufficient to demonstrate mental incapacity.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Timing requirement for assessing testamentary capacity
Sufficiency of non-expert testimony about testator's mental condition
Whether changed disposition of property evidences mental incapacity
Standard for challenging will validity based on alleged incapacity

Procedural posture

The trial judge directed a verdict in favor of the party defending the will's validity, and the challengers appealed.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Atkinson, Justice.

(After stating the foregoing facts.) The

caveators offered a number of non-expert witnesses, who testified to having seen the testator several months before the will was executed, and stated that he began to break after the death of his second wife and was in bad. condition mentally. The reasons given to support this non-expert testimony were that the testator was old, crippled, forgetful, easy to get mad, high-tempered, got to drinking, was more childish, frequently changed his mind, rambled in his conversations, jumping from one subject to another, and that sometimes he did not recognize the witnesses, although they had associated with him many times theretofore. None of the witnesses gave testimony sufficient to establish that the testator was mentally incapable of having a rational desire to dispose of his property. One witness thought that “it was just . . an old man gone bughouse.” Another witness did not think he had enough judgment to know what he was doing in his business. These witnesses stated that they did not know what his mental condition was on March 20, 1939, the date when the will was executed. .V third witness said that after the death of his second wife, Louise, which was some eleven months before the will was executed, he was “unsound of mind because he did not know his right mind.” This-witness added that she did not remember the date when he became of unsound mind. Still another witness thought his mind got worse because “he just wandered around about the place,” but, when asked the direct question, the witness stated that she did not know whether he was capable of having intelligent ideas about making a will and disposing of his property.The only witness for the caveators who testified that he saw tfie testator the month when the will was executed said that his mental condition on March 20, 1939, was pretty good, and he was all right at that time. While a physician testified concerning the testator’s physical condition several months before the will was executed, he stated that he did not examine the testator from a standpoint of sanity, and declined to say whether or not he had sufficient mental capacity to enter into contracts and attend to his own business.

Where testamentary capacity is the issue, the controlling question to be determined is the condition of the mind at the time of the execution of the will. As tending to illustrate the mental condition at that time, evidence of such condition at other times may be received; but where it is sought to establish testamentary incapacity by such evidence, it does not controvert the positive testimony of the subscribing witnesses unless it would be proof of testamentary incapacity at the time the will was signed. Hillyer v. Ellis, 171 Ga. 300 (155 S. E. 180); Hill v. Deal, 185 Ga. 42 (193 5. E. 858); Scott v. Gibson, 194 Ga. 503, 504 (22 S. E. 2d, 51); Orr v. Blalock, 195 Ga. 863 (25 S. E. 2d, 668); Brumbelow v. Hopkins, 197 Ga. 247 (2) (29 S. E. 2d, 42); Lyons v. Bloodworth, 199 Ga. 44 (33 S. E. 2d, 314); Davis v. Aultman, 199 Ga. 129 (33 S. E. 2d, 317).

Applying the above principle to the evidence in this case, there was nothing in the testimony taken as a whole, including that of the physician, which would have authorized a finding that when the will was executed Mr. Eehn did not possess testamentary capacity.

While the evidence showed that the testator devised his property to a third wife after having previously executed, on January 6, 1933, a joint will with his second wife, who was the stepmother of the caveators, which will provided that all of their property should go to the survivor, and, if anything remained after the death of the survivor, it should go to the caveators, this was not sufficient to show such an unreasonable disposition of the property as would authorize the jury to find that the testator was mentally incapable of making a will.

Accordingly, the trial judge did not err in directing a verdict in favor of the propounder.

Judgment affirmed.

All the Justices concur, except Bell, O. J., Jenkins, P. J., and Head, J., who dissent.