Brooks v. Julian , 271 Ga. 766 ( 1999 )

Sears, Justice.

Emma Lou Brooks and Sherrill Sheffield, propounders of the 1994 will of their mother, Lynell Moore, appeal the trial court’s judgment denying probate based upon the jury’s finding that the will was procured by undue influence. Having closely reviewed the record, we conclude that because there was insufficient evidence to support the jury’s finding, the trial court erred in denying the propounders’ motion for judgment notwithstanding the verdict. Therefore, we reverse.

Until 1991, Lynell Moore lived alone in rural Montgomery County, Georgia, while three of her four adult daughters lived in Florida, and one daughter lived in North Carolina. The evidence of record overwhelmingly indicates that Moore was quite independent, capable of handling her own affairs, and in good mental and physical health. Moore owned two parcels of property used for timber production and certificates of deposit valued at roughly $140,000. Moore had no will at that time, and listed no beneficiaries on her CDs.

In 1991, Moore’s daughter Sarah Lancaster (a caveator) moved from Florida to Moore’s home town. One month later, Lancaster’s name was added to her mother’s checking account, and she was authorized to enter her mother’s safe deposit box without her mother being present. Also in April 1991, Moore listed each of her four daughters as beneficiaries on her CDs. Between April 1991 and July 1993, Lancaster entered her mother’s safe deposit box several times without her mother being present, as she was authorized to do. In 1993, Moore made her first will, in which she devised everything to her four daughters in equal shares. Moore’s eldest daughter, Brooks, was named executor of the will.

On August 8, 1994, Brooks received a telephone call from the manager of a bank where her mother maintained an account. Telephone records confirm that a call lasting approximately nine minutes was made from the bank to Brooks’s residence on that day. Brooks claims the manager told her that she should come to her mother’s home town immediately in order to look after her mother’s financial interests. When Brooks arrived, she and Moore went to the bank, and discovered that Moore’s safe deposit box had been emptied. Moore and Brooks then met with the attorney who had drafted the 1993 will. As a result of that meeting, a letter was sent to Lancaster telling her to cease all contact with her mother. The attorney testified that at the time of their August 1994 meeting, Moore was competent, although she was clearly angry with both Lancaster and her daughter, Peggy Julian, whom Moore believed sympathized with Lancaster.

On August 26, 1994, Moore had a second meeting with the same attorney. She met alone with the attorney, and instructed him to redraft her will so as to leave her entire estate to her daughters Brooks and Sheffield (collectively “Propounders”), and to disinherit her daughters Lancaster and Julian (collectively “Caveators”). Again, Brooks was named executor of the will. Moore executed the new will (“the 1994 will”) on that same day. Both the lawyer and his administrative assistant were well acquainted with Moore, having dealt with her professionally for a number of years. They both testified that Moore appeared altogether competent at the time the 1994 will was drafted and executed, and that they perceived nothing out of the ordinary in Moore’s behavior on the day she directed that her will be changed. They also testified that Moore instructed that her will be changed because she believed Lancaster had attempted to control her affairs, and had taken items both from her safe deposit box and her home.¹

Lancaster testified at trial that before the bank manager telephoned Brooks, she had accompanied Moore to the bank because Moore wanted to transfer the money invested in matured CDs she kept in the bank’s safe deposit box to another bank which offered a slightly higher interest rate. Lancaster testified that Moore was adamant about obtaining the best possible interest rate on her investments, and that when she helped her mother remove the certificates from the safe deposit box, she was merely doing as her mother wished. She also testified that her mother had lost her key to the deposit box, and had become upset when bank officials had to drill the box open. Despite a private investigation into the matter, conducted at Brooks’s direction, no evidence of wrongdoing by Lancaster was ever uncovered. In time, all of Moore’s investments were accounted for and the record contains no direct evidence that her finances were misappropriated.

Moore died in January 1996. Probate of the 1994 will was challenged by the Caveators. The probate court admitted the 1994 will for probate, and the Caveators appealed to the Superior Court of Montgomery County. At the conclusion of evidence, the trial court directed a verdict in favor of the Propounders on the issues of mistake of conduct and actual fraud in the making of the 1994 will, but allowed the issue of undue influence to go to the jury. After the jury returned a verdict in favor of the Caveators on that issue, the trial court denied the Propounders’ j.n.o.v. motion and motion for new trial.²

Because the right to make a will is extremely valuable, a high standard must be applied in order to deprive a testator of that right.³ Undue influence upon a testator can be found to exist only if such influence constrained or coerced “ ‘a person into doing that which his [or her] best judgment tells him not to do and deprives him of his free agency and substitutes the will of another person for his own.’ ”⁴ Undue influence can invalidate a will only if it operates on the mind of the testatrix at the time she executes the document.⁵ Evidence of undue influence over the mind of a testatrix at any other time cannot invalidate a will.⁶

The record in this matter is void of any direct evidence that Brooks exerted undue influence over Moore at the time Moore executed the 1994 will. To the contrary, the attorney who drafted the 1994 will at Moore’s direction and his assistant who witnessed the 1994 will, both of whom were well acquainted with Moore, testified that Moore understood what she was doing at the time she changed her will, and made the changes voluntarily and of her own free choice after reflecting upon the consequences of her actions. The lawyer specifically testified that he had no doubt that Moore possessed the capacity to fully understand what she was doing at the time she executed the 1994 will. He also testified that in his dealings with her, Moore behaved like a “very strong-minded person . . . [not] very susceptible to being controlled” by others, and that her behavior on August 26, 1994, was consistent with that characterization. The lawyer’s assistant testified that when she changed her will, Moore acted in a clear headed, determined and purposeful manner, and did not appear to be under the control of anyone else.

Caveators urge that Brooks’s arrival in Georgia immediately before Moore changed her will is suspicious and gives rise to an inference of undue influence. However, this Court has long held that “the indulgence of [the] mere suspicion of undue influence cannot be allowed”⁷ to supplant direct evidence on the issue. Similarly, the mere existence of a confidential relationship between Brooks and Moore also is insufficient to invalidate the 1994 will.⁸

Caveators point to two witnesses who claim they perceived instances when Moore acted as if she were confused. However, neither of those purported instances relates directly to Moore’s state of mind on August 24, 1994, when she executed her 1994 will.⁹ Nor do either of the alleged instances indicate that Brooks exerted undue influence over Moore. Accordingly, the uncontradicted evidence concerning Moore’s August 26,1994, redrafting and execution of her will is that she directed her lawyer to change the will and executed it knowingly, freely, and voluntarily; that Brooks did not participate in the preparation or execution of the will; and that Moore was of sound mind at the time the will was prepared and executed.¹⁰

As noted above, no evidence shows conclusively that Lancaster engaged in wrongdoing with respect to Moore’s finances and investments. Despite this, Moore indicated to her attorney that she was changing her will in August 1994 to disinherit two of her daughters because she believed that Lancaster was “trying to take her business over.” Even though Moore might have been mistaken in that belief, it is clear that such a mistake resulted “from an error of judgment after investigation or from negligent or wilful failure to make a proper investigation by means of which the truth could be readily and surely ascertained”¹¹ before execution of the 1994 will. As such, even if Moore’s belief in Lancaster’s deception was inaccurate, it affords no basis for invalidating the 1994 will.

For the reasons discussed above, and in light of the principle that a stringent standard must be met in order to deprive a person of the valuable right to make a will, we conclude that the evidence was insufficient to support a finding of undue influence and deprive Moore of her right to make a will of her own choosing. The evidence being insufficient, the trial court erred in denying the Propounders’ motion for judgment notwithstanding the verdict.

Judgment reversed.

All the Justices concur, except Carley and Hines, JJ., who dissent.

1 At this same time, Moore executed a deed to her home and a 200 acre parcel of land in favor of Propounders, after reserving a life estate to herself. This Court has previously ruled that the Caveators cannot maintain a suit to cancel those deeds unless and until they prevail on their challenge to the probate of the 1994 will. Julian v. Brooks, 269 Ga. 167 (495 SE2d 569) (1998).

2 At trial, the Caveators entered into the following stipulation, which was read to the jury before the introduction of evidence:

Caveators admit a prima facie case and, in so doing, admit the execution with due formality of a paper purporting to be a will by a person apparently of sound mind at the time of execution and that they, the Caveators, assume the burden of going forward with evidence to overcome the rebuttable presumption that the testatrix had the requisite capacity with proof of undue influence or fraud or mistake as to the conduct of either or both of the Caveators who are heirs at law of the testatrix.

The trial court then explained to the jury, “All that means is that they have assumed the burden of rebutting the presumption that the will was created by someone of sound mind.”

3 Bohlen v. Spears, 270 Ga. 322, 324 (509 SE2d 628) (1998) (quoting McConnell v. Moore, 267 Ga. 839, 840 (483 SE2d 578) (1997)).

4 Bohlen, supra; McConnell, supra.

5 Bohlen, supra; McConnell, supra; Boland v. Aycock, 191 Ga. 327, 329 (12 SE2d 319) (1940).

6 McConnell, 267 Ga. at 841.

7 McConnell, 267 Ga. at 841 (quoting Dean v. Morsman, 254 Ga. 169, 173 (327 SE2d 212) (1985)).

8 Id.

9 One of the instances was recounted by a witness who did not know Moore and could not state exactly when he observed Moore behaving confused, only that he believed it was in the “August 1994 time frame” The other instance was alleged by a different witness to have occurred five months after execution of the 1994 will.

10 See Bohlen, 270 Ga. at 324.

11 Yancey v. Hall, 265 Ga. 466, 470 (458 SE2d 121) (1995).