2020 Georgia Code
Title 53 - Wills, Trusts, and Administration of Estates
Chapter 4 - Wills
Article 2 - Testamentary Capacity
§ 53-4-11. Decided and Rational Desire; Incapacity to Contract; Insanity; Advanced Age or Eccentricity

1. Testamentary capacity exists when the testator has a decided and rational desire as to the disposition of property.
2. An incapacity to contract may coexist with the capacity to make a will.
3. An insane individual generally may not make a will except during a lucid interval. A monomaniac may make a will if the will is in no way connected with the monomania. In all such cases, it must appear that the will expresses the wishes of the testator unbiased by the insanity or monomania with which the testator is affected.
4. Neither advancing age nor weakness of intellect nor eccentricity of habit or thought is inconsistent with the capacity to make a will.

(Code 1981, §53-4-11, enacted by Ga. L. 1996, p. 504, § 10.)

- Capacity of parties to enter into contracts, § 13-3-20 et seq.

- For article, "The Georgia Law of Insanity," see 3 Ga. B.J. 28 (1941). For survey article on wills, trusts, guardianships, and fiduciary administration, see 59 Mercer L. Rev. 447 (2007). For note discussing early development of rules governing capacity to make will in Georgia, see 24 Ga. B.J. 257 (1961).

This section carries over the concepts of former OCGA Secs. 53-2-21, 53-2-23, and 53-2-25. Former Code Sec. 53-2-21 described the capacity necessary to make a will as including a "decided and rational desire" on the part of the testator: "decided, as distinguished from the wavering, vacillating fancies of a distempered intellect, and rational, as distinguished from the ravings of a madman, the silly pratings of an idiot, the childish whims of imbecility, or the excited vagaries of a drunkard." The changes from the former Code section are not intended to change the standard for determining testamentary capacity, but rather to eliminate from the Code language that was merely illustrative and, in some cases, outdated. The terms "insane" and "monomania," while of uncertain medical meaning, are retained because they have been defined or referred to often in Georgia case law.

Former OCGA Sec. 53-2-24 is not carried forward so that individuals who are suffering from disabilities such as hearing or speech impairments or visual impairments may make wills in the same way as individuals who do not suffer from such impairments.

ANALYSIS

• General Consideration
• Capacity to Contract versus Testamentary Capacity
• Insane Persons
• Intellect Necessary for Testamentary Capacity
• Monomaniacs
• Pleading and Practice

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, §§ 113-202, 113-204, and 113-205, and former O.C.G.A. §§ 53-2-21 and53-2-23 are included in the annotations for this Code section.

Capacity to make a contract is not identical with the mental capacity necessary to make a valid will; a person with mental capacity less than that required to make a contract may have that degree of mental capacity necessary to make a valid will. Smith v. Davis, 203 Ga. 175, 45 S.E.2d 609 (1947) (decided under former Code 1933, § 113-204).

Person has testamentary capacity who understands the nature of a testament or will, viz., that it is a disposition of property to take effect after death, and by one who is capable of remembering generally the property subject to disposition and the persons related to that person by the ties of blood and of affection, and also of conceiving and expressing by words, written or spoken, or by signs, or by both, any intelligible scheme of disposition. If the testator has sufficient intellect to enable the testator to have a decided and rational desire as to the disposition of the testator's property, this will suffice. Griffin v. Barrett, 183 Ga. 152, 187 S.E. 828 (1936) (decided under former Code 1933, § 113-205); Morgan v. Bell, 189 Ga. 432, 5 S.E.2d 897 (1939); Fowler v. Fowler, 197 Ga. 53, 28 S.E.2d 458 (1943) (decided under former Code 1933, § 113-204); Spivey v. Spivey, 202 Ga. 644, 44 S.E.2d 224 (1947);(decided under former Code 1933, § 113-205);(decided under former Code 1933, § 113-205).

As tending to illustrate the mental condition at that time, evidence of such condition at other times may be received; but when 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. Anderson v. Anderson, 210 Ga. 464, 80 S.E.2d 807 (1954) (decided under former Code 1933, § 113-204).

In order to execute a will it is necessary, as a minimum, that the testator have a rational desire as to the disposition of the testator's property. It takes a greater intellect to execute a deed. Joiner v. Joiner, 225 Ga. 699, 171 S.E.2d 297 (1969) (decided under former Code 1933, § 113-204).

While the fact that a person did or did not become insolvent, displease one's family, or become dependent as the result of signing a deed is not evidence of mental capacity, yet if his or her mental capacity was so impaired that he or she did not know at the time whether such would or could be the case, then such person would not have the capacity to make a will much less the capacity to execute a deed. Joiner v. Joiner, 225 Ga. 699, 171 S.E.2d 297 (1969) (decided under former Code 1933, § 113-204).

- Despite the fact that the testator was old and frail, the testator did not lack testamentary capacity to change the will, disinheriting the testator's son. Harper v. Harper, 274 Ga. 542, 554 S.E.2d 454 (2001).

To establish incapacity in a grantor, one must be shown to have been, at the time, non compos mentis, in the legal acceptation of that term; which means not a partial but an entire loss of understanding. Joiner v. Joiner, 225 Ga. 699, 171 S.E.2d 297 (1969) (decided under former Code 1933, § 113-204).

Weak have the same rights as the prudent and strong-minded to dispose of their property by will, and anything less than a total absence of mind does not destroy that capacity. Griffin v. Barrett, 183 Ga. 152, 187 S.E. 828 (1936) (decided under former Code 1933, § 113-205).

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 the testator to have a rational desire as to the disposition of one's property, this is sufficient. The condition of the testator's mind at the time of the execution of the will determines whether the testator can make a valid will. Anderson v. Anderson, 210 Ga. 464, 80 S.E.2d 807 (1954) (decided under former Code 1933, § 113-204); Joiner v. Joiner, 225 Ga. 699, 171 S.E.2d 297 (1969);(decided under former Code 1933, § 113-204).

- When a testator, who had been diagnosed with terminal cancer, executed one will in February 2004 and another shortly before the testator's death in October 2004, there was sufficient evidence to support a jury's finding that the testator lacked testamentary capacity at the time the testator executed the October will; there was evidence that the testator was taking medication that had as possible side effects hallucination, disorientation, impaired mental performance, and confusion; that two days before the will was executed, the testator had difficulty completing sentences, was somewhat forgetful, and denied having siblings; and that on the day the will was executed, a witness, who described the testator as "morphined up," saw a beneficiary of the will repeatedly administer medicine to the testator via an eyedropper used to administer narcotics. Lillard v. Owens, 281 Ga. 619, 641 S.E.2d 511 (2007).

Trial court was authorized to conclude that a decedent's will was invalid based on the decedent's lack of testamentary capacity under O.C.G.A. § 53-4-11 based on evidence that the decedent was confused and disoriented, did not recognize family members, and had a car accident after which doctors found the decedent was unable to make decisions personally. Burchard v. Corrington, 287 Ga. 786, 700 S.E.2d 365 (2010).

Physical infirmities and weakness of intellect resulting from old age do not constitute mental incapacity to make a will, unless such weakness actually amounts to imbecility. Bailey v. Bailey, 204 Ga. 556, 50 S.E.2d 617 (1948) (decided under former Code 1933, § 113-205).

Condition of the testator's mind at the time of the execution of the will determines whether or not the testator can make a valid will. Griffin v. Barrett, 183 Ga. 152, 187 S.E. 828 (1936) (decided under former Code 1933, § 113-205).

- In a will contest, it was error to grant propounders' motion for judgment notwithstanding the verdict as there was some evidence that the 95-year-old decedent lacked testamentary capacity, including expert testimony that the decedent suffered from some degree of dementia and testimony that the decedent appeared confused and spoke of deceased relations as if the relatives were alive. Mosley v. Warnock, 282 Ga. 488, 651 S.E.2d 696 (2007).

- An unnatural or unreasonable disposition of one's property is not of itself sufficient to justify a finding that a testator was lacking in testamentary capacity. Watkins v. Jones, 184 Ga. 831, 193 S.E. 889 (1937) (decided under former Code 1933, § 113-205).

Reasonableness or unreasonableness of the disposition of a testator's estate has strong evidential value on the issue as to the testator's testamentary capacity and when the extent of the mental weakness is in doubt. Ellis v. Britt, 181 Ga. 442, 182 S.E. 596 (1935) (decided under former Code 1933, § 113-205).

When to the probate of a will a caveat has been filed on the grounds of testamentary incapacity or undue influence, and there is doubt as to the extent of weakness of intellect, the reasonableness or unreasonableness of the disposition of the estate may be considered by the jury. In the trial of such issue the source from which the property disposed of by the will came into the decedent's possession may be shown. Shaw v. Fehn, 196 Ga. 661, 27 S.E.2d 406 (1943) (decided under former Code 1933, § 113-205).

When, in probate proceeding, there is nothing in the testimony taken as a whole to support a finding that when the will was executed testator did not possess testamentary capacity, it was therefore erroneous to submit that issue to the jury. Brumbelow v. Hopkins, 197 Ga. 247, 29 S.E.2d 42 (1944) (decided under former Code 1933, § 113-205).

On the propounding of a will, where the question is insanity, monomania, or undue influence, the unreasonableness of the disposition of the will is always a question to be considered by the jury. A reasonable disposition of property, without more, strongly indicates mental capacity to make a will. An unreasonable disposition of property may indicate a lack of mental capacity to make a will. It follows that a reasonable or unreasonable disposition of property, regardless of the nature of the insanity or inability alleged, should be given much consideration by the jury, if any doubt exists from the evidence as to the testator's ability to make the alleged will. Yarbrough v. Yarbrough, 202 Ga. 391, 43 S.E.2d 329 (1947) (decided under former Code 1933, § 113-205).

The reasonableness, or unreasonableness of a will, while a legitimate subject of investigation by a jury in case of doubt as to the testator's capacity to make a will, is not to be considered until such a doubt has been first created by other evidence. Yarbrough v. Yarbrough, 202 Ga. 391, 43 S.E.2d 329 (1947) (decided under former Code 1933, § 113-205).

- Evidence presented at trial was sufficient for the trial court to find, as a matter of fact, that the decedent had the necessary mental capacity to revoke a 1988 will because the record showed that the relevant circumstances had changed significantly in the 16 years since the execution of the 1988 will, giving the decedent good reasons to want to revoke the old will such as several people listed in the 1988 will having died, including both of the co-executors named. Mosley v. Lancaster, 296 Ga. 862, 770 S.E.2d 873 (2015).

Cited in Crow v. Whitworth, 170 Ga. 242, 152 S.E. 445 (1930); Shankle v. Crowder, 174 Ga. 399, 163 S.E. 180 (1932); Baucum v. Harper, 176 Ga. 296, 168 S.E. 27 (1933); Martin v. Martin, 185 Ga. 349, 195 S.E. 159 (1938); Peretzman v. Simon, 185 Ga. 681, 196 S.E. 471 (1938); Orr v. Blalock, 195 Ga. 863, 25 S.E.2d 668 (1943); Brazil v. Roberts, 198 Ga. 477, 32 S.E.2d 171 (1944); Yarbrough v. Yarbrough, 202 Ga. 391, 43 S.E.2d 329 (1947); Norman v. Hubbard, 203 Ga. 530, 47 S.E.2d 574 (1948); Ehlers v. Rheinberger, 204 Ga. 226, 49 S.E.2d 535 (1948); Lee v. Boyer, 217 Ga. 27, 120 S.E.2d 757 (1961); English v. Shivers, 220 Ga. 737, 141 S.E.2d 443 (1965); Powell v. Thigpen, 230 Ga. 760, 199 S.E.2d 251 (1973); Bishop v. Kenny, 266 Ga. 231, 466 S.E.2d 581 (1996).

Capacity to Contract versus Testamentary Capacity

Different capacities involved.

- An incapacity to contract is not inconsistent with the capacity to make a will. Griffin v. Barrett, 183 Ga. 152, 187 S.E. 828 (1936), later appeal, 185 Ga. 443, 195 S.E. 746 (1938) (decided under former Code 1933, § 113-202).

Capacity to make a contract is not identical with the mental capacity necessary to make a valid will; a person with mental capacity less than that required to make a contract may have that degree of mental capacity necessary to make a valid will. Smith v. Davis, 203 Ga. 175, 45 S.E.2d 609 (1947) (decided under former Code 1933, § 113-202).

It takes a greater quantum or higher degree of mentality to make a contract than it does to make a will. Anderson v. Anderson, 210 Ga. 464, 80 S.E.2d 807 (1954) (decided under former Code 1933, § 113-202).

While the fact that a person did or did not become insolvent, displease one's family, or become dependent as the result of signing a deed is not evidence of mental capacity, yet if his or her mental capacity was so impaired that he or she did not know at the time whether such would or could be the case, then such person would not have the capacity to make a will, much less the capacity to execute a deed. Joiner v. Joiner, 225 Ga. 699, 171 S.E.2d 297 (1969) (decided under former Code 1933, § 113-202).

Person is insane when he or she is not possessed of mind and reason equal to a full and clear understanding of the nature and consequence of his or her act in making the contract. Joiner v. Joiner, 225 Ga. 699, 171 S.E.2d 297 (1969) (decided under former Code 1933, § 113-202).

In order to execute a will it is necessary, as a minimum, that the testator have a rational desire as to the disposition of one's property. It takes a greater intellect to execute a deed. Joiner v. Joiner, 225 Ga. 699, 171 S.E.2d 297 (1969) (decided under former Code 1933, § 113-202).

An incapacity to contract is not inconsistent with the capacity to make a will. Griffin v. Barrett, 183 Ga. 152, 187 S.E. 828 (1936) (decided under former Code 1933, § 113-205).

Insane Persons

Insanity defined.

- Person is insane when he or she is not possessed of mind and reason equal to a full and clear understanding of the nature and consequence of his or her act in making the contract. Joiner v. Joiner, 225 Ga. 699, 171 S.E.2d 297 (1969) (decided under former Code 1933, § 113-204).

Issue of mental capacity to make a will is confined to the mental condition of the testator at the time the will was executed. Scott v. Gibson, 194 Ga. 503, 22 S.E.2d 51 (1942) (decided under former Code 1933, § 113-204).

Not only may an insane person make a will during a lucid interval, but a person may be feeble and suffering from an illness that today might cause sufficient reason to be wanting, and yet tomorrow or at another time even in the same day sufficient reason (mental capacity) would be present. Scott v. Gibson, 194 Ga. 503, 22 S.E.2d 51 (1942) (decided under former Code 1933, § 113-204).

Although evidence as to the mental capacity at a time prior or subsequent to the execution of the will may be shown to illustrate the condition of the testator's mind, still the controlling question to be determined, when testamentary capacity is the issue, is whether the testator had sufficient testamentary capacity at the time of executing the will. Spivey v. Spivey, 202 Ga. 644, 44 S.E.2d 224 (1947) (decided under former Code 1933, § 113-204).

To make one incapable of making a will from insanity there must be a "total deprivation of reason." However old, feeble, weak-minded, capricious, or notionate one may be, if one "be able to have a decided and rational desire as to the disposition of his property," one is not wanting in testamentary capacity. Spivey v. Spivey, 202 Ga. 644, 44 S.E.2d 224 (1947) (decided under former Code 1933, § 113-205).

- In a dispute concerning the distribution of the decedent's estate, the evidence was legally insufficient to sustain the verdict finding that the decedent lacked testamentary capacity because there was no evidence that the decedent lacked the ability to form a decided and rational desire as to the disposition of the decedent's property; and the caveators expressly disclaimed that the decedent was insane or suffered from monomania, and, instead, they merely argued that the decedent suffered from delusions; however, the caveators' claim nevertheless failed as the case law was clear that not every delusion deprived one of testamentary capacity, rather, it had to be an insane delusion, but none of the decedent's delusions were insane ones. Meadows v. Beam, 302 Ga. 494, 807 S.E.2d 339 (2017).

- An epileptic, when not in the throes of an attack of epilepsy, is not less capacitated than a lunatic in a lucid interval, and it is well settled law that a lunatic during a lucid interval may make a will. Anderson v. Anderson, 210 Ga. 464, 80 S.E.2d 807 (1954) (decided under former Code 1933, § 113-204).

When testamentary capacity is the issue, it must be determined by the condition of the mind at the time of the execution of the will. Hill v. Deal, 185 Ga. 42, 193 S.E. 858 (1937) (decided under former Code 1933, § 113-202).

To establish incapacity in a grantor, the grantor must be shown to have been, at the time, non compos mentis, in the legal acceptation of that term; which means not a partial but an entire loss of understanding. Joiner v. Joiner, 225 Ga. 699, 171 S.E.2d 297 (1969) (decided under former Code 1933, § 113-202).

When, in a probate proceeding, there is nothing in the testimony taken as a whole to support a finding that when the will was executed testator did not possess testamentary capacity, it was erroneous to submit that issue to the jury. Brumbelow v. Hopkins, 197 Ga. 247, 29 S.E.2d 42 (1944) (decided under former Code 1933, § 113-202).

Law does not withhold from the aged, the feeble, the weak-minded, the capricious, or the notionate, the right to make a will, provided such person has a decided and rational desire as to the disposition of one's property. Hill v. Deal, 185 Ga. 42, 193 S.E. 858 (1937) (decided under former Code 1933, § 113-202).

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 the testator to have a rational desire as to the disposition of the testator's property, this is sufficient. The condition of the testator's mind at the time of the execution of the will determines whether the testator can make a valid will. Anderson v. Anderson, 210 Ga. 464, 80 S.E.2d 807 (1954) (decided under former Code 1933, § 113-202); Joiner v. Joiner, 225 Ga. 699, 171 S.E.2d 297 (1969);(decided under former Code 1933, § 113-202).

"Decided" means a mental capacity to frame a desire that is certain, or with distinct limits, and "rational" means that the desire must be consistent with reason. Spivey v. Spivey, 202 Ga. 644, 44 S.E.2d 224 (1947) (decided under former Code 1933, § 113-202).

"Decided" does not connote stubbornness, or even mental strength; it simply means that the mind must have capacity enough to frame a desire that is certain, or one that has distinct limits. Hill v. Deal, 185 Ga. 42, 193 S.E. 858 (1937) (decided under former Code 1933, § 113-202).

To be rational does not mean that the desire must spring from a strong intellect, but that it is consistent with reason. Hill v. Deal, 185 Ga. 42, 193 S.E. 858 (1937) (decided under former Code 1933, § 113-202).

Attention is to be given, not so much to the abstract state of the mind, as to the mind's capacity for the precise thing in hand. For a man may say and do things which a medical man would take as evidence of insanity, and yet it may be that one is nevertheless able to have a decided rational desire as to the disposition of one's property. Hill v. Deal, 185 Ga. 42, 193 S.E. 858 (1937) (decided under former Code 1933, § 113-202); Spivey v. Spivey, 202 Ga. 644, 44 S.E.2d 224 (1947);(decided under former Code 1933, § 113-202).

- Person has testamentary capacity who understands the nature of a testament or will, viz., that is a disposition of property subject to disposition and the persons related to the person by the ties of blood and of affection, and also of conceiving and expressing by words, written or spoken, or by signs, or by both, any intelligible scheme of disposition. Griffin v. Barrett, 183 Ga. 152, 187 S.E. 828 (1936) (decided under former Code 1933, § 113-202); Morgan v. Bell, 189 Ga. 432, 5 S.E.2d 897 (1939); Spivey v. Spivey, 202 Ga. 644, 44 S.E.2d 224 (1947) (decided under former Code 1933, § 113-202);(decided under former Code 1933, § 113-202).

Petition to probate the will was properly granted as the decedent had testamentary capacity because the evidence did not show a total absence of mind and the attorneys who took part in the preparation and/or execution of the will testified that the decedent appeared to understand what the decedent was doing and to be of sound mind when the decedent signed the document. O'Callaghan v. Samples, 354 Ga. App. 42, 840 S.E.2d 139 (2020).

Condition of the testator's mind at the time of the execution of the will determines whether or not the testator can make a valid will. Griffin v. Barrett, 183 Ga. 152, 187 S.E. 828 (1936) (decided under former Code 1933, § 113-202).

Though, as tending to illustrate the condition of the mind, evidence may be received as to what was the mental capacity at a prior or a subsequent time, yet if it be certain from all the testimony that at the time of the execution of the instrument there was no want of testamentary capacity, the instrument offered will not be refused probate on the ground of lack of sound and disposing mind and memory. Hill v. Deal, 185 Ga. 42, 193 S.E. 858 (1937) (decided under former Code 1933, § 113-202).

- In a probate case, when the decedent was diagnosed with schizophrenia in 1973, the probate court did not err in denying the sister's caveat and in admitting the will to probate as the decedent did not lack testamentary capacity because the decedent had enough knowledge about the nature and extent of the decedent's estate to sustain a finding that the decedent had a decided and rational desire as to the disposition of the decedent's property; the medical records reflected that the decedent's state of mind improved close in time to the execution of the will; and, even if there was some evidence that the decedent was not lucid at times, the record did not demand a finding that the decedent was not lucid when the decedent executed the will. Webb v. Reeves, 299 Ga. 760, 791 S.E.2d 35 (2016).

Monomaniacs

Monomania defined.

- Monomania exists when one, because of partial insanity, becomes imbued with an hallucination or delusion that something extravagant exists which has no existence whatever, and is incapable of being permanently reasoned out of that conception. Moreland v. Word, 209 Ga. 463, 74 S.E.2d 82 (1953) (decided under former Code 1933, § 113-204).

- Monomania is a mental disease; an insane delusion such as will deprive one of testamentary capacity. Monomania must be distinguished from an expressed desire to exclude a person from a will because of ill will, bad judgment, animosity, prejudice, or other conditions of mind which can be coexistent with sanity. Russell v. Fulton Nat'l Bank, 248 Ga. 421, 283 S.E.2d 879 (1981) (decided under former Code 1933, § 113-204).

Showing of hallucinations or insane delusions is essential to proving monomania. Hammett v. Reynolds, 243 Ga. 669, 256 S.E.2d 354 (1979) (decided under former Code 1933, § 113-204).

Testator's belief that a spouse had been intimate with another does not amount to an insane delusion so as to constitute monomania. Hammett v. Reynolds, 243 Ga. 669, 256 S.E.2d 354 (1979) (decided under former Code 1933, § 113-204).

- When caveat to application to probate a will brought by child of testator alleged mental incapacity due to monomania, the evidence showing that the testator had without cause maintained an antagonistic attitude toward caveator even before she was born, by physical attacks upon her mother, and continued numerous acts of cruelty toward the caveator for about 30 years, and the substance of this voluminous evidence was stated as a basis for a hypothetical question which was propounded to a psychiatrist, and upon which the psychiatrist gave the opinion answer that the testator suffered monomania as to the caveator, there was a conflict in the evidence rendering it reversible error to direct a verdict in favor of the propounder of the will. Duncan v. Mayfield, 209 Ga. 882, 76 S.E.2d 805 (1953) (decided under former Code 1933, § 113-204).

- Evidence of the testator's lack of trust of her daughter and her daughter's companion, and concern that the companion was taking advantage of her daughter, was not sufficient to establish monomania. Joseph v. Grisham, 267 Ga. 677, 482 S.E.2d 251 (1997) (decided under former O.C.G.A. § 53-2-23).

Burden is on the propounder to show the factum of the will, free and voluntary action, and apparent testamentary capacity, and when this is shown, together with the presumption of testamentary capacity which exists in the absence of proof, a prima facie case for the propounder is made out. Franklin v. First Nat'l Bank, 187 Ga. 268, 200 S.E. 679 (1938) (decided under former Code 1933, § 113-202).

When the witnesses, both for the propounder and the caveator, testified to the effect that the deceased had perfectly normal periods up until a very short time before death, almost all the facts relied upon to establish the mental incapacity of the deceased occurred after the will was executed, most of them very shortly before death, the only doctor who testified said that the next year after the will was executed the deceased was perfectly normal, and on the date the will was executed, the deceased went to the office of the deceased's attorney and in a perfectly intelligent manner furnished the information for the preparation of the will, all of the subscribing witnesses testifying that the deceased was perfectly normal the day the will was executed, the evidence was not sufficient to carry the burden placed by law upon the caveator. Orr v. Orr, 208 Ga. 431, 67 S.E.2d 209 (1951) (decided under former Code 1933, § 113-202).

Upon the trial of an issue arising upon the propounding of a will and a caveat thereto, the burden, in the first instance, is upon the propounder of the alleged will to make out a prima facie case, by showing the factum of the will and that at the time of the will's execution the testator apparently had sufficient mental capacity to make the will, and, in making the will, acted freely and voluntarily. When this is done, the burden of proof shifts to the caveator. Cornelius v. Crosby, 243 Ga. 26, 252 S.E.2d 455 (1979) (decided under former Code 1933, § 113-202).

While the presumption in favor of testamentary capacity exists, the presumption alone is not sufficient to make out for the propounder a prima facie case. Franklin v. First Nat'l Bank, 187 Ga. 268, 200 S.E. 679 (1938) (decided under former Code 1933, § 113-202).

There is no less reason to presume sane action in the execution of a will than in other instances of human relations and conduct. Franklin v. First Nat'l Bank, 187 Ga. 268, 200 S.E. 679 (1938) (decided under former Code 1933, § 113-202).

Presumption favoring testamentary capacity is necessarily a rebuttable presumption, and the capacity of the testator is always a proper subject of inquiry. Franklin v. First Nat'l Bank, 187 Ga. 268, 200 S.E. 679 (1938) (decided under former Code 1933, § 113-202).

- In a will contest, the caveator was properly prevented from cross-examining the executor as to the effect of the will's in terrorem clause as the uncontroverted testimony showed that the testator was of sound mind and was not influenced by the desires of others, and evidence as to the effect of the forfeiture provision would not have been probative of either undue influence or the lack of testamentary capacity. Caswell v. Caswell, 285 Ga. 277, 675 S.E.2d 19 (2009).

- Law, in its zealousness always to safeguard the rights of a deceased testator, although presuming testamentary capacity, deems it wise not to rely solely upon that presumption, but to make inquiry into the immediate circumstances of the execution of the will from those who were present at the time. Franklin v. First Nat'l Bank, 187 Ga. 268, 200 S.E. 679 (1938) (decided under former Code 1933, § 113-202).

Charge that the presumption is always in favor of a mental capacity to make a will, where elsewhere in the charge the jury was instructed that the burden was on the propounder to establish the factum of the will, that it was freely and voluntarily made, and that the testator apparently had sufficient mental capacity to make a will, as a prerequisite to the making out by the propounder of a prima facie case was not error. Franklin v. First Nat'l Bank, 187 Ga. 268, 200 S.E. 679 (1938) (decided under former Code 1933, § 113-202).

Evidence of testator's mental condition at times other than the signing of the will does not controvert positive testimony of subscribing witnesses unless it would be proof of testamentary incapacity at the time the will was signed. Russell v. Fulton Nat'l Bank, 248 Ga. 421, 283 S.E.2d 879 (1981) (decided under former Code 1933, § 113-202).

Trial court properly denied a granddaughter's motion for judgment notwithstanding the verdict following a jury verdict upholding the last will and testament of her grandmother giving the bulk of her estate to her grandson because a videotape of the execution of the will, the will's witnesses, and other evidence established the grandmother's testamentary capacity. Patterson-Fowlkes v. Chancey, 291 Ga. 601, 732 S.E.2d 252 (2012).

Ruling upholding the 2010 will was affirmed because subscribing witnesses stated in an affidavit that the testatrix was mentally competent when the will was executed, it was self-proved, and contained an affidavit complying with O.C.G.A. § 53-4-24, which created a presumption that the will was executed with the requisite testamentary formalities, including that the testatrix had sufficient mental capacity to do so, and the challenger failed to rebut that presumption. Woods v. Stonecipher, 349 Ga. App. 698, 824 S.E.2d 633 (2019).

Affidavit of neurologist found sufficient to create issue of fact as to testamentary capacity. Baldwin v. First Tenn. Bank, 251 Ga. 561, 307 S.E.2d 919 (1983) (decided under former O.C.G.A. § 53-2-21).

- In a will contest action, the trial court did not abuse the court's discretion in admitting the three wills executed by the decedent as the wills were relevant to the issue of whether the trust agreement that was executed was a result of undue influence and the objector expressly conceded at the end of trial that the decedent's capacity to execute the trust agreement and related deeds was no longer an issue before the jury. Horton v. Hendrix, 291 Ga. App. 416, 662 S.E.2d 227 (2008), cert. denied, No. S08C1574, 2008 Ga. LEXIS 780 (Ga. 2008).

For charge defining testamentary capacity, see Manley v. Combs, 197 Ga. 768, 30 S.E.2d 485 (1944) (decided under former Code 1933, §§ 113-202, 113-205).

Sanity or insanity is a proper subject for opinion evidence. Espy v. Preston, 199 Ga. 608, 34 S.E.2d 705 (1945) (decided under former Code 1933, § 113-202).

Testimony as to mental status is necessarily opinionative, and the law requires that before a will can be probated, the subscribing witnesses shall be inquired of as to apparent capacity or noncapacity; the fact that a witness witnesses a will qualifies the witness to give an opinion on that subject. Franklin v. First Nat'l Bank, 187 Ga. 268, 200 S.E. 679 (1938) (decided under former Code 1933, § 113-202).

When there is conflicting evidence as to testamentary capacity to make a will, and sufficient evidence to establish the absence of testamentary capacity, the verdict of the jury finding in favor of the caveat will not be set aside on the ground that there is lack of evidence to support the verdict. Manley v. Combs, 197 Ga. 768, 30 S.E.2d 485 (1944) (decided under former Code 1933, § 113-202).

While ordinarily the sufficiency of the reasons given by witnesses for their opinions as to a person's sanity or insanity cannot be determined as a matter of law by the court, but is a question for the jury, yet, where it plainly and indisputably appears that the reasons are insufficient, the court may on review so hold as a matter of law. Espy v. Preston, 199 Ga. 608, 34 S.E.2d 705 (1945) (decided under former Code 1933, § 113-202).

When there was no testimony of any expert witnesses showing or tending to show mental incapacity of the testator, and the testimony of every nonexpert witness to that effect was based on acts, conduct, and sayings of the testator which did not within themselves show mental incapacity to make a will, such testimony was therefore insufficient to support a verdict finding for the caveators. Espy v. Preston, 199 Ga. 608, 34 S.E.2d 705 (1945) (decided under former Code 1933, § 113-202).

When the testimony of both expert and nonexpert witnesses was insufficient to overcome the positive testimony of two of the subscribing witnesses, the testimony of the other subscribing witness being inconclusive, that at the time the will was executed the testator apparently had testamentary capacity, the evidence demanded a verdict in favor of the propounder. Spivey v. Spivey, 202 Ga. 644, 44 S.E.2d 224 (1947) (decided under former Code 1933, § 113-202).

As tending to illustrate the mental condition at that time, evidence of such condition at other times may be received; but when 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. Anderson v. Anderson, 210 Ga. 464, 80 S.E.2d 807 (1954) (decided under former Code 1933, § 113-202).

When two subscribing witnesses give positive testimony that testator had testamentary capacity at the time the will was executed, evidence of testator's mental condition at times other than the signing of the will will not controvert the positive testimony of the subscribing witnesses unless it is proof of testamentary incapacity at the time the will was signed. Yuzamas v. Yuzamas, 241 Ga. 577, 247 S.E.2d 73 (1978) (decided under former Code 1933, § 113-202).

Charge that "an insane person generally may make a will" is clearly an erroneous statement of the law. Milam v. Terrell, 214 Ga. 199, 104 S.E.2d 219 (1958) (decided under former Code 1933, § 113-204).

General rule is that a charge on legal principles must be adjusted to the pleadings and the evidence; hence when there was no evidence which would have authorized a verdict on the issue of monomania (because of testator's belief that beneficiary was the testator's illegitimate son) the failure to charge on that subject was not error. Smith v. Davis, 203 Ga. 175, 45 S.E.2d 609 (1947) (decided under former Code 1933, § 113-204).

- When all that the testimony of the witnesses for the caveator amounted to was that the testator was highly eccentric and that the testator had delusional ideas that people were trying to harm the testator, and the uncontroverted evidence showed that the testator not only conducted the testator's brokerage business while a patient in a mental institution, but that the testator continued to conduct the business until the testator's death approximately two years after execution of the will, and that the testator was not suffering from monomania about the testator's money, the caveator did not carry the burden of proving lack of testamentary capacity. Beman v. Stembridge, 211 Ga. 274, 85 S.E.2d 434 (1955) (decided under former Code 1933, § 113-204).

Question of whether the beliefs harbored by the testator were insane delusions springing from a disordered intellect, or merely illogical deductions from actual facts, was a question for the jury. Johnson v. Dodgen, 244 Ga. 422, 260 S.E.2d 332 (1979) (decided under former Code 1933, § 113-204).

RESEARCH REFERENCES

Am. Jur. 2d.

- 79 Am. Jur. 2d, Wills, §§ 47 et seq., 62 et seq., 70 et seq., 74 et seq., 105.

- 95 C.J.S., Wills, §§ 4 et seq., 9, 10.

- Epilepsy as affecting testamentary capacity, 16 A.L.R. 1418.

Admissibility and weight on issue of mental capacity or undue influence in respect of will or conveyance, of instruments previously executed by the person in question, 82 A.L.R. 963.

Construction and application of statutes authorizing the appointment of trust company as guardian, trustee, or administrator upon application or consent of one acting as such (or as executor), or one entitled to appointment as such, 105 A.L.R. 1199.

Admissibility of evidence of reputation on issue of mental condition, or testamentary or contractual incapacity or capacity, 105 A.L.R. 1443.

Relative weight of testimony of attesting witnesses in support of mental competency of testator, 123 A.L.R. 88.

Proper form of question to witness or of testimony of witness, as regards mental condition of person whose capacity to execute a will is in issue, 155 A.L.R. 281.

Admissibility of declaration by beneficiary named in will in support of claim of undue influence or lack of testamentary capacity, 167 A.L.R. 13.

Insane delusion as invalidating a will, 175 A.L.R. 882.

Admissibility in will contest of financial condition or needs of those constituting natural objects of testator's bounty, 26 A.L.R.2d 374.

Effect of guardianship of adult on testamentary capacity, 89 A.L.R.2d 1120.

Testamentary capacity as affected by use of intoxicating liquor or drugs, 9 A.L.R.3d 15.

Wills: testator's illiteracy or lack of knowledge of language in which will is written as affecting its validity, 37 A.L.R.3d 889.

Validity of testamentary exercise of power of appointment by donee sane when will was executed but insane thereafter, 19 A.L.R.4th 1002.

Alzheimer's disease as affecting testamentary capacity, 47 A.L.R.5th 523.