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Testamentary capacity – Ashford v. Van Horne

Ashford v. Van Horne, 276 Ga. 636 (2003). Dr. Alexander Ashford and his wife were estranged after marrying in 1968. Mrs. Ashford filed for divorce in 1999 after a lengthy separation. Dr. Ashford died in 2001 during the divorce proceedings. In 1988, Dr. Ashford’s sister drove him to see an attorney. There, Dr. Ashford produced his existing Will, a memorandum containing instructions regarding the disposition of his property, and an audiotape. When Dr. Ashford returned with additional instructions, he met alone with his attorney. At all meetings Dr. Ashford and his attorney met alone. A new Will was executed on July 1, 1999, which was not considered favorable by Mrs. Ashford. She received one-half of Dr. Ashford’s military retirement and the marital home, while a million dollar IRA went to one sister and an IRA with $300,000 went to two other sisters. Dr. Ashford also established a trust for medical research. The residue his his estate went in four equal shares to his sisters and his nephews.

Mrs. Ashford filed a caveat alleging lack of testamentary capacity, monomania, undue influence, and unreasonableness. The parties waived judgment in the probate court and went to superior court where the court granted summary judgment to Dr. Ashford’s sister, the propounder of his 1999 Will. On appeal, the Court initially held that the burden had shifted to Mrs. Ashford, stating as follows:

The testator possessed the mental capacity to make a will if he “understood that a will had the effect of disposing of [his] property at the time of [his] death, was capable of remembering generally what property was subject to disposition by will and remembering those persons related to [him], and was capable of expressing an intelligent scheme of disposition.” Quarterman v. Quarterman, 268 Ga. 807 (1) (493 S.E.2d 146) (1997). The controlling question is “whether the testator had sufficient testamentary capacity at the time of executing the will.” (Emphasis supplied.) Spivey v. Spivey, 202 Ga. 644, 652 (2) (44 S.E.2d 224) (1947). A propounder has satisfied its burden of establishing a prima facie showing of testamentary capacity by offering testimony of the subscribing witnesses that the testator appeared to be of sound mind and that he acted freely and voluntarily when he executed his will. Singelman v. Singlemann, 273 Ga. 894 (1) (548 S.E.2d 343) (2001). The burden then shifts to the caveator to show that a genuine issue of material fact remains as to testamentary capacity. Id.; McGee v. Ingram, 264 Ga. 649 (2) (448 S.E.2d 439) (1994).

Both witnesses, his attorney and an associate, offered affidavits averring that Dr. Ashford was of sound mind at the time the Will was executed. “[T]hey had lengthy discussions regarding the disposition of his estate as well as the tax consequences, and that the testator thoroughly understood the consequences of his testamentary plan. It was Gibson’s policy to make an assessment of the competency of the client in these circumstances and he was “completely satisfied that Dr. Ashford was fully cognizant of the effect of the Last Will and Testament that he was publishing and executing on that date, did so freely and voluntarily, and was competent to do so.”

The Court dismissed Mrs. Ashford’s claims regarding monomania. “Monomania is a diseased condition of the mind . . . which can be co- existent with sanity. The monomaniac is subject to hallucinations and insane delusions as to one or a few subjects and yet is perfectly rational as to others; he believes in the reality of events which have never occurred and in things which do not exist, and he is incapable of being permanently reasoned out of his erroneous conceptions.” The evidence Mrs. Ashford produced were “commonplace hostilities in a failing marriage and did not occur at the time the will was made.”

Regarding Mrs. Ashford’s claims of undue influence, the fact that propounder drove Dr. Ashford to see his attorney is of no moment. The “testimony of the subscribing witnesses shows that the propounder was neither present nor did she participate when the testator reviewed and executed his will, and that he appeared to be acting of his own free will. It follows that summary judgment was properly granted on the claim of undue influence.”

Under Georgia law, a testator may give all his property to strangers to the exclusion of his spouse and descendants. “Simply because the testator chose to bequeath the majority of his estate to other relatives rather than to his estranged wife during the period of their separation does not invalidate his will on grounds of unreasonableness.”

Summary Judgment was affirmed.

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