Ayers v. Cook

In the Supreme Court of Georgia
Decided: February 22, 2016
S15A1611. AYERS et al. v. COOK et al.
HINES, Presiding Justice.
Caveators James A. Ayers, Nancy Davis, and Debra Hilty (“Caveators”),
siblings of testator Donald Ayers (“Donald”), appeal from the judgment of the
superior court, entered after a jury verdict, upholding Donald’s last will and
testament that left the entirety of his estate to Donald’s remaining sibling, Carol
Ayers (“Carol”). For the reasons that follow, we affirm.
Construed to support the verdict, the evidence showed that Donald was
divorced with no children, and his four siblings were his closest relatives, but
discord between the siblings had developed during the last years of the life of
their mother. For three years preceding the execution of the will, Carol lived 50
miles from Donald and often accompanied him to medical appointments and on
errands; she visited him weekly, they spoke on the phone regularly, and she
sometimes wrote checks for him from a joint account. Donald had no will prior
to April 2009. After a discussion about Donald’s wishes for his property after
his death, Carol, using a form she found on the internet, prepared a will for
Donald which she gave him to review on April 15, 2009; it left the entirety of
his estate to Carol and named her as executor, and in the event she predeceased
him, named Carol’s daughter, Tammy Cook (“Tammy”), as beneficiary and
executor. Donald said that the will reflected exactly what he wished to do and
that same day, with Carol as a passenger, Donald drove to the Meriwether
County courthouse. There, two deputy clerks of the superior court witnessed the
will’s execution; after being informed that the will did not need to be filed with
the court, Donald and Carol left, taking the will with them. In sworn
interrogatory answers, both witnesses stated that, at the time Donald executed
the will on April 15, 2009, he acknowledged that the document he was signing
was his will, and that he appeared to be acting voluntarily in signing it, and to
be of sound and disposing mind.
Donald died on January 17, 2012. Carol filed the will for probate, and
Caveators asserted that at the time of the will’s execution, Donald was laboring
under the exercise of undue influence by Carol and Tammy (together
“Propounders”). The will was admitted to probate and Caveators appealed to
the superior court. A jury trial was held, the jury found the will to be valid, and
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the court entered judgment accordingly.
1. Caveators enumerate as error that the trial court improperly excluded
evidence related to the issue of undue influence. However, they do not cite any
evidence proffered to the court that was rejected, and do not attempt to put
before this Court what evidence they might have introduced. Rather, they
address an incident that happened during the opening statement of counsel for
Caveators when he stated that, should the jury find the will invalid, “Carol
Ayers will still get one-fourth of all the assets. That’s the law.” Propounders
objected, and in a bench conference, moved for a mistrial, stating that it was
improper to discuss the disposition of the estate. When asked if he wished to
respond, counsel for Caveators stated: “No, it’s admissible.” The court
acquiesced to the suggestion that the parties research the issue during the lunch
break, declared that it would address the matter later, and counsel for Caveators
proceeded with his opening statement.
At the end of the lunch break, the court stated that faced with an improper
comment from counsel, it would have to give a jury instruction, and that how the
estate would be divided if the will was invalid was not a relevant issue to the
matters being tried. Counsel for Propounders again moved for a mistrial, and
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counsel for Caveators stated that any instruction regarding an improper
statement was unnecessary because the court had already informed the jury that
the statements of counsel were not evidence, and counsel cited case law for the
proposition that evidence of the value of the estate, and how property came into
it, could be relevant to the reasonableness of the testator’s disposition.
However, counsel did not then articulate any reason why such issues would be
relevant in the trial of this case, does not do so now, and none is apparent from
the evidence at trial. While issues relevant to the question of undue influence
certainly “may be supported by a wide range of testimony,” Dyer v. Souther,
272 Ga. 263, 265 (2) (528 SE2d 242) (2000) (Citation and punctuation omitted),
that does not render matters relevant in a particular undue influence case
relevant in any and all other undue influence cases. See Johnson v. Burrell, 294
Ga. 301, 304 (2) (751 SE2d 301) (2013). As Caveators did not show in the trial
court why the disposition of Donald’s property in the event the will was found
invalid would be relevant to this case, they cannot attempt to make such
showing now. Williams v. State, 293 Ga. 750, 753 (3) (749 SE2d 693) (2013).
Accordingly, the trial court did not err in informing the jury that it was “highly
improper” for counsel for Caveators to attempt to inform the jury as to what
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would happen to Donald’s property if the jury invalidated the will. See
Morrison v. Morrison, 282 Ga. 866, 867(1), (655 SE2d 571) (2008); Mitchell
v. State, 271 Ga. 242, 243-244 (4) (516 SE2d 782) (1999).
2. During the discussion of the opening statement of Caveators, see
Division 1, supra, the trial court announced its intention to instruct the jury to
put aside counsel’s statement and to “explain to [the jury] what this trial is
about”; Caveators did not object. In addition to instructing the jury not to heed
counsel’s statement regarding the disposition of Donald’s property in the event
the will was found to be invalid, the court instructed the jury on the concepts of
the testator’s freedom of volition and undue influence, and that these were
matters for the jury’s determination; the court also stated that the influence
necessary to invalidate the will would be such that Carol
just is really controlling [Donald’s] thoughts and what he does. The
fact that she may help him – be helping him in different ways is not
sufficient, okay. It is – it’s the – it is the – this kind of
extraordinary control. So it’s dangerous for me to give you that
interpretation.
A bench conference ensued in which counsel for Caveators questioned whether
that was a correct statement of law and asserted that matters such as whether
Carol wrote checks for the decedent, drove him to medical appointments, or
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helped in his home were relevant for the jury’s consideration, that there was no
support in case law for an instruction regarding “extraordinary control,” and that
the jury could consider a wide range of evidence under an appropriate
instruction. At the close of the bench conference, the court instructed the jury:
I told you what I was doing was kind of dangerous, but at the end
of this case I am going to charge you exactly what the law is, and
that will override anything I’ve said in this case if I have misstated
the law in any way, and the only thing I know of that could’ve been
misstated was those last few off-the-cuff remarks that I made, and
I’m not telling y’all which way to rule in this case. That’s y’all’s
decision.
In the court’s final instructions, it charged the jury on the law of undue
influence, and Caveators do not assert that those instructions were erroneous.
Caveators assert that the trial court’s instruction that included reference
to “extraordinary control” was reversible error. However, it is axiomatic that
jury instructions must be considered as a whole when determining if there is
reversible error. Lee v. Swain, 291 Ga. 799, (2) (a) (733 SE2d 726) (2012). The
court was clear that the jury was not to base its decision on the court’s earlier
remarks regarding “extraordinary control,” but rather on the court’s final
instructions, and essentially repudiated its reference to “extraordinary control.”
See Akin v. Patton, 235 Ga. 51, 52 (218 SE2d 802) (1975); Executive Committee
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of the Baptist Convention v. Ferguson, 213 Ga. 441, 443 (1) (99 SE2d 150)
(1957). Read as a whole, the court’s instructions to the jury were sufficiently
clear and did not mislead it. See Arrington v. Collins, 290 Ga. 603, 607 (2) (724
SE2d 372) (2012).
3. Finally, Caveators contend that the trial court erred in making
“extraneous comments throughout the trial” that confused the jury. Many of the
comments complained of have been addressed above, see Divisions 1 and 2,
supra, or were not objected to at trial by Caveators.1 See Francis v. Francis, 279
Ga. 248, 248–249 (611 SE2d 45) (2005). The Caveators did object to the trial
court’s charging the jury that “[a] will is a very simple document. It doesn’t
have to be initialed on every page, it doesn’t have to be notarized, it doesn’t
have to go through a lot of formalities that lawyers do go through, so I want you
to understand that in listening to this.” Although Caveators mentioned in their
objection to the final jury charge the court’s reference to a will as a “simple
1
In fact, during closing argument, Propounders mentioned Donald’s level of mental
competency, and Caveators asked to approach the bench. There, Caveators objected that the issue
before the jury was only undue influence and not whether Donald was competent to make a will.
The trial court then instructed the jury that such was the case and that the only issue related to
competency raised in the case was Donald’s mental state “such that it would make him subject to
undue influence”; rather than object to what Caveators now contend was a misleading instruction,
they thanked the trial court for giving it.
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document,” they did so only in the context of complaining that the court had not
ordered its instructions in the manner Caveators understood it would, an
argument they do not repeat in this Court. See Williams, supra. Rather, in this
Court they assert that error exists because the trial court’s use of the phrase “a
very simple document” echoed the closing argument of the Propounders that this
was “really a simple case,” and that short wills were to be preferred.2 To the
extent that Caveators’ objection below encompassed this issue, id., it does not
show a violation of OCGA § 9-10-73 as Caveators assert. Assuming that an
objection under that Code section was preserved for appellate review, see
Mahsa, Inc. v. Al–Madinah Petroleum, Inc., 276 Ga. App. 890, 894 (2) (a) (625
SE2d 37) (2005), the charge did not express an opinion as to what had been
proved, or endorse the Propounders’ view of the case, but rather was directed
to instructing the jury regarding the formalities of a valid will. See Separk v.
2
The will at issue was two pages long.
3
OCGA § 9-10-7 reads:
It is error for any judge, during the progress of any case, or in his charge to the jury,
to express or intimate his opinion as to what has or has not been proved. Should any
judge violate this Code section, the violation shall be held by the Supreme Court or
Court of Appeals to be error, the decision in the case shall be reversed, and a new
trial shall be granted in the court below with such directions as the Supreme Court
or the Court of Appeals may lawfully give.
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Caswell Builders, 209 Ga. App. 713, 714-715 (4) (434 SE2d 713) (1993).
Further, the court instructed the jury that nothing that it had said or done during
the trial should be interpreted as intimating, hinting, or suggesting how the case
should be decided, see Cline v. Lee, 260 Ga. App. 164, 171(3) (581 SE2d 558)
(2003), and there is no error.
Judgment affirmed. All the Justices concur.
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