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Testamentary capacity – Estate of Diaz

In re Estate of Diaz, 271 Ga. 742 (1999). Leanora Diaz (Diaz) died on April 3, 1997. During the year leading up to her death, her estranged husband served divorce papers on her. Her children begged her to get medical help and, after she refused, they tried to have her involuntarily committed. Following a hospital visit where she was diagnosed with mild clinical depression due to family discord, she was released. After her release, Diaz cut off communication with her children. She refused to see them and told them “they were “Judases” for forcing her to go to the hospital and stated that she might forgive them for what they did but she would never forget.”

Hospitalized for cancer in February 1997, Diaz called her brother and asked him to have her attorney draw up a new Will. The Will left her personal effects to her brother and all other property to her grandchildren.

Initially after her death, two of Diaz’s children were named as administrators of the estate. On April 15, 1997, O’Brien, her brother, filed a petition to probate the February 1997 will and codicil. Appellants objected claiming Diaz did not have sufficient mental capacity to dispose of her property and that the will and codicil were the result of O’Brien’s undue influence. The trial court rejected the children’s objections to the Will. On appeal they argued “Diaz did not possess the necessary testamentary capacity to execute a will because she was suffering from cancer and disease related delusions at the time she executed the 1997 will and codicil. The right to make a will is a valuable one, and a stringent standard must be met to deprive a person of this right. McConnell v. Moore, 267 Ga. 839, 841 (483 S.E.2d 578) (1997). Accordingly, a testator will be held not to possess the mental capacity to make a will based upon delusional behavior only if the testator suffers from an insane delusion, that is a delusion having no foundation in fact and that springs from a diseased condition of mind. Boney v. Boney, 265 Ga. 839, 840 (462 S.E.2d 725) (1995); see former O.C.G.A. § 53-2-21 (b).”

A review of the record demonstrates that the evidence is insufficient to make a clear and convincing showing that Diaz lacked the mental capacity to dispose of her property at the time she executed her February 1997 will and codicil. During the bench trial, Diaz’s doctor testified that he saw no evidence of delusions during her illness and she was coherent at each of his daily visits during the time she executed the will and codicil. He also testified that Diaz told him she was estranged from her husband and children and they were to be told nothing about her diagnosis and would have no part in her treatment. The witnesses to the signing of the will and codicil stated Diaz was coherent at all times while the will and codicil were being read to her, that she appeared to understand the meaning of their contents, and she did not appear to be delusional or overly medicated. Appellants’ allegations of arguably irrational behavior at times other than when the will and codicil were executed do not controvert the positive testimony of her medical doctor and the subscribing witnesses that at the time the will and codicil were executed Diaz seemed to understand the effect of the will and codicil, was capable of recognizing the property she possessed and the persons related to her, and was capable of making a rational disposition of her property. See Quarterman v. Quarterman, 268 Ga. 807 (1) (493 S.E.2d 146) (1997). The record clearly supports the probate court’s finding that Diaz possessed the necessary testamentary capacity at the time the will and codicil were executed.

Arguments concerning undue influence were also rejected. The record is devoid of any evidence that at the time Diaz executed her 1997 will and codicil she did not act of her own free will. To the contrary, the subscribing witnesses testified that Diaz voluntarily signed the will and codicil after they were read to her in their entirety and that she was talkative and polite at the time. Appellants themselves testified that Diaz was a strong-willed woman whose will was not easily overridden, that as early as October 1996 Diaz refused to discuss her physical condition with them, and after the attempted involuntary committal she independently cut off virtually all communication with them. Thus, the evidence shows at most an opportunity for O’Brien to exert undue influence over Diaz and not the requisite clear and convincing evidence that the will and codicil were the result of O’Brien’s undue influence.

Judgment affirmed.

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