Arnau v. Cochran

257 Ga. 550 (1987)

361 S.E.2d 173

ARNAU et al. v. COCHRAN.

44569.

Supreme Court of Georgia.

Decided October 21, 1987.

Reconsideration Denied November 4, 1987.

Virgil C. Spence, for appellants.

Dupree & Staples, Hylton B. Dupree, Jr., A. Greg Poole, Mark A. Johnson, for appellee.

GREGORY, Justice.

Edgar Stanley Henry died October 26, 1982. Probate of his will was sought in the Probate Court of Cobb County. A caveat was filed by Elizabeth Arnau and others who are brothers and sisters of the deceased and his heirs at law. His wife predeceased him and he had no children. Grounds of the caveat were undue influence and lack of mental capacity to make a will. The probate court admitted the will to probate over the caveat.[1] The caveators appealed to the superior court where summary judgment[2] was granted to propounder. That judgment was appealed to this court. We affirm.

The record shows that testator served in the Army Air Corps in World War II where he received certain injuries for which he later obtained psychiatric treatment through the Veterans Administration. In February of 1965 and June of 1966 testator was evaluated by Dr. Lawrence T. Brannon, a psychiatrist. His diagnosis was that testator suffered from ". . . schizophrenic reaction, schizo-affective type, manifested by severe depression, agitation and thinking impairment." Dr. Brannon did not consider testator to be able at that time to manage his financial affairs and concluded that it was likely his condition was total and permanent. But, the doctor declined to predict what his future condition would be and he noted testator was lucid enough to furnish his occupational and medical history. It is the testimony of Dr. Brannon upon which caveators primarily rely in their challenge as to testator's mental capacity. Dr. Brannon did not treat testator nor did he have any further contact with him after June 1966.

The will was executed on February 6, 1978. In the interval since evaluation by Dr. Brannon testator was under the care of two other doctors. Dr. Talbert Williams, an internist, along with associates saw testator on occasions from December 1976 until February 6, 1978, the day preceding the execution of the will. Dr. Williams testified that testator's schizophrenia was in complete remission due to treatment, that he was functioning normally and able to attend to his affairs. Dr. Charles Preacher, a psychiatrist, saw testator at a Veterans Administration out-patient clinic from 1970 until he died in 1982 at intervals from two to six months apart. He considered testator to be lucid with logical and coherent thought processes and with no mental deficiency. *551 While he suffered from anxiety there were no symptoms of a schizophrenic condition.

The medical testimony of Dr. Brannon based upon testator's condition a dozen or more years before the execution of the will is completely overcome by testimony of Drs. Williams and Preacher. They explained that testator's condition was in remission due to treatment. Thus there is no medical evidence testator was rendered incompetent to make a will in 1978 by a condition which existed in 1965 and 1966.

A number of lay witnesses were deposed but a careful examination of their testimony fails to reveal any evidence of lack of mental capacity to make a will on February 7, 1978. Their testimony indicated testator had quirks, rambled a lot and repeated himself in conversations, did not get along with others well, wanted sympathy, sometimes got befuddled, did not seem to think straight about some things, drank alcohol, and pulled a knife on another. They also drew conclusions that he "didn't have enough sense to make a will" and was "never competent to do anything." But the facts given to support these conclusions fail to support them. Nor do the facts relate to the critical time of February 7, 1978.

Propounder offered the testimony of the scrivener and witness to the will. Their testimony if unrefuted would establish that testator possessed the required mental capacity to make a will.

1. One possesses the mental capacity to make a will if (1) he understands that a will has the effect of disposing of his property at the time of his death, (2) is capable of remembering generally what property is subject to his disposition by will, (3) and those persons related to him, and (4) is capable of expressing any intelligible scheme of disposition. Spivey v. Spivey, 202 Ga. 644, 651 (44 SE2d 224) (1947). The medical testimony in this case is unequivocal that testator possessed the requisite mental capacity on the date of the execution of the will. The existence of a condition which might have interfered with the ability to make a will some 12 years before simply did not exist at the time in question. Nothing said by the lay witnesses is evidence of a lack of sufficient mental capacity on the date the will was executed.

The burden carried, the trial court properly granted summary judgment as to mental capacity.

2. The caveators alleged the will was the result of undue influence. Propounder offered testimony of witnesses present at the execution of the will and other witnesses familiar with circumstances leading up to its execution. This testimony demonstrated an absence of undue influence. The evidence offered by caveators showed at most a motive and opportunity for beneficiaries under the will to have engaged in fraud and undue influence. This is insufficient to create an issue of fact. Dobbs v. Burnette, 250 Ga. 47, 49 (295 SE2d 836) (1982). *552 Summary judgment for propounder on the issue of undue influence was proper.

Judgment affirmed. All the Justices concur, except Bell, J., who dissents. Clarke, P. J., disqualified.

[1] The will disposed of the bulk of the property of testator by passing it to an attorney and his secretary. The attorney was not the scrivener of the will. Instead, he was a friend of testator who met him through a Masonic lodge. Over a number of years the attorney and his secretary befriended testator.

[2] Propounder filed a motion for partial summary judgment relating to other matters (whether the money in various bank accounts passes under the will) which was denied and from which there was no appeal.