Murchison v. Smith, 270 Ga. 169 (1998). Ms. Annie Bell Smith was diagnosed with terminal lung cancer in December 1994. On January 31, 1995, she executed a will leaving the bulk of her estate to her brother-in-law, Caesar Smith and his wife Lois Smith, who were assisting Ms. Smith and providing her with care. Ms. Smith executed another will on March 10, 1995, while she was hospitalized. Ms. Smith’s cousin, Dorothy Davis-Murchison, a college professor, had been coming to town to visit Ms. Smith since learning of her terminal illness, and Murchison was at the hospital at the time of the execution of the March will. This will made some specific bequests to friends and family members, including an invalid brother, but left the bulk of the estate to Murchison.
After she was released from the hospital, Ms. Smith went to the probate court with Ms. Murchison to withdraw her January Will and file the Will dated March 10, 1995. She appeared to be dressed in a nightgown. The probate Judge, who acted as private counsel and had drafted the January Will asked to make a copy before it was withdrawn. At Ms. Murchinson’s urging, Ms. Smith wrote “revoked” across the top of the January Will before it was copied. Ms. Smith then died one month later in April 1995.
Ceasar Smith offered a copy of the January Will, while Murchison petitioned to probate the March Will in common form. The court found that the January Will was revoked, but also found it had no authority to determine the validity of the March Will offered in common form. An appeal to superior court followed where a jury found that the January Will was not revoked. Judgment was entered accordingly.
The issue of revocation is dependent upon evidence of the testatrix’s mental capacity in March 1995, the time of alleged revocation and of execution of the second will. The questions of mental capacity at the time of the March will and the intent to revoke the January will are inextricably bound by the doctrine of dependent relative revocation. That is, “if it is clear that the cancellation and the making of the new will were parts of one scheme, and the revocation of the old will was so related to the making of the new as to be dependent upon it, then if the new will be not made, or if made is invalid, the old will, though canceled, should be given effect, if its contents can be ascertained in any legal way.” Havird v. Schlachter, 266 Ga. 718 (470 S.E.2d 657) (1996), citing Carter v. First United Methodist Church of Albany, 246 Ga. 352 (271 S.E.2d 493) (1980). Evidence of the testatrix’s diminished mental capacity is likewise relevant to the issues of duress and Murchison’s exercise of undue influence because the [*172] amount of influence which may dominate a mind impaired by age or disease may be decidedly less than that required to control a strong mind. Skelton v. Skelton, 251 Ga. 631, 634 (5) (308 S.E.2d 838) (1983).
It is not essential to establish testamentary incapacity by someone who was present when the will was signed or who saw the testator the day the will was executed. A party can demonstrate that the testator lacked testamentary capacity at the time of a will’s execution by showing the testator’s state of mind within a reasonable period of time both before and after the events in question. Kievman v. Kievman, 260 Ga. 853 (400 S.E.2d 317) (1991). See also Horton v. Horton, 268 Ga. 846 (492 S.E.2d 872) (1997); Fleming v. Constantine, 265 Ga. 525 (457 S.E.2d 714) (1995). What is more, a court must allow the issue of testamentary capacity to go to the jury when there is a genuine conflict in the evidence regarding the testator’s state of mind. Mallis v. Miltiades, 241 Ga. 404 (245 S.E.2d 655) (1978).
Caesar Smith introduced testimony that Ms. Smith’s health and mental state had been deteriorating since her cancer treatments began in late January or early February 1995. Witnesses described her as depressed, very irritable, fearful, “not too clear,” and that sometimes she “just rambled,” and her mind had begun to waver. A physician inquired if she was “senile” because of her responses. In March 1995, Ms. Smith was said to be crying constantly, unclear in thought, “speaking out in different tones of voices,” hallucinating at times, and susceptible to any suggestion. A witness testified that on March 19, 1995, the day before Murchison accompanied Ms. Smith to the probate court to withdraw the January will and file the later one, Ms. Smith’s state of mind was “in and out, going and coming.” There was also testimony that Murchison had Ms. Smith sign or initial a document on April 13, 1995, three days before Ms. Smith died, while Smith was hospitalized, on constant pain medication, and “about dead” and “out of it.”
This testimony covering a reasonable period before and after the time of execution of the March will and immediately prior to the alleged revocation of the January will created a genuine conflict in the evidence regarding the state of Ms. Smith’s mind at the time she executed the March will and caused “revoked” to be scrawled across the January will. Thus, inferences could be drawn by the jury establishing a lack of the requisite mental capacity, and consequently, the lack of intent to revoke the January will. Dunn v. Sneed, 260 Ga. 763, 764 (400 S.E.2d 10). (1991); Havird v. Schlachter, supra. Moreover, the jury was authorized to find that the statutory presumption of revocation was rebutted by clear and convincing evidence. McBride v. Jones, 268 Ga. at 870 (2). Accordingly, the trial court correctly refused to direct a verdict in favor of Murchison.
Because there was sufficient evidence to support a finding of Ms. Smith’s lack of testamentary capacity, and therefore, lack of intent to revoke the January will, there is no need to address the sufficiency of the evidence with regard to the allegations of duress and Murchison’s undue influence. See Horton v. Horton, 268 Ga. at 847 (2).
Affirmed.
