Fleming v. Constantine , 265 Ga. 525 ( 1995 )

Sears, Justice.

Josephine Murray died testate in August 1993. Norma Fleming, the testator’s niece, and Irma Hutchinson, the testator’s sister, contested the probate of the will, contending that Murray lacked testamentary capacity. The trial court granted summary judgment to the will’s propounder, Katherine Constantine. We conclude that the caveators presented enough evidence of the testator’s unstable mental condition both before and after the will’s execution to create a jury question as to whether Murray was capable, when she executed the will, of rationally disposing of her property.¹ Therefore, we hold that the trial court erred in granting summary judgment to the pro-pounder.

Judgment reversed.

All the Justices concur, except Hunt, C. J., Benham, P. J., and Fletcher, J., who dissent.

1 See Kievman v. Kievman, 260 Ga. 853 (400 SE2d 317) (1991). See also Mallis v. Miltiades, 241 Ga. 404, 405 (245 SE2d 655) (1978).