Probate, trust, guardianship and inheritance litigation
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What Does It Mean To Have Testamentary Capacity In Georgia?

Georgia law says that testamentary capacity exists “when the testator has a decided and rational desire as to the disposition of property.”   GA Code § 53-4-11.  The elements of  testamentary capacity in Georgia are that a testator must:

  • Understand that the will has the effect of distributing his property at the time of his death;
  • Be capable of remembering generally what property is subject to distribution by will;
  • Be capable of remembering those persons related to him; and
  • Be capable of expressing an intelligent scheme of distribution.

Georgia law also is explicitly clear that testamentary capacity can still exist if a testator is of advanced age, of below average intelligence, or eccentric. GA Code § 53-4-11.

How Do You Challenge a Georgia Will For Lack Of Testamentary Capacity?

The lack of testamentary capacity is one of the most commonly alleged grounds to invalidate a will.  In order to challenge a will for lack of testamentary capacity in Georgia, the challenger must allege that the testator was not capable of at least one of the elements listed above at the time that the will was executed.  It is not enough to allege that the testator was suffering from dementia and did not understand the property that he owned at the time of his death.

The lack of testamentary capacity must have existed at the time the will was executed.

“In the context of testamentary capacity to execute a will, the controlling question is whether the testator had sufficient testamentary capacity at the time of executing the will.”  Ashford v. Van Horne, 276 Ga. 636, 580 S.E.2d 201 (2003).

How Do You Prove Lack Of Testamentary Capacity In Georgia?

The challenge to a will based on lack of testamentary capacity under Georgia law must be supported with evidence.  Evidence of a lack of testamentary capacity can include:

  • Testimony from friends and family that spent time with the testator around the time that the challenged will was executed;
  • Medical records;
  • Testimony from the drafting attorney (although this is rarely helpful for the will challenger);
  • Testimony from treating medical providers.

Remember, all of this evidence should be from the time period that the Georgia will was executed.  If not, the evidence will not be considered relevant as to the testamentary capacity of the testator at the time the will was made.

In Mosely v. Warnock, the Georgia Supreme Court held that there was evidence to support a jury verdict finding that, at the time decedent executed the will, she was suffering from some degree of dementia and lacked the testamentary capacity required to execute a valid will under Georgia law.  The Court stated:

In support of her claim that Hilton was mentally incapable of making a will on June 28, 2004, Mosley showed that Hilton was a  95-year-old woman who had physically and mentally slowed in the last months of her life. Mosley and her husband testified that during the spring of 2004 Hilton would sometimes appear dizzy or confused and she slept more often. They cited two disparate episodes in support of their argument, one in which Hilton referred to Mosley’s husband by her deceased son’s name and another during which Hilton made a statement indicating that she believed her deceased husband was working in the yard. Mosley also introduced the testimony of a medical expert who, after reviewing Hilton’s medical records and the deposition testimony of several witnesses, concluded that Hilton would have suffered from some degree of dementia on June 28, 2004, the day the will was executed. Because this expert testimony, considered together with anecdotal evidence offered by Mosley and her husband, constituted at least some evidence in support of the jury’s verdict.

In Scott v. Gibson, the Georgia Supreme Court held that the challenger did not establish that the testator lacked testamentary capacity at the time the will was executed.  The Court focused on the necessity of presenting evidence to establish a lack of testamentary capacity at the time of the execution of the will, stating:

The witness was in the room only a part of the time. She testified to no conversation with the testatrix, and gave no facts on which to base her opinion that Mrs. Crawford was not capable of disposing of her property. Such testimony can not break down the positive testimony of the subscribing witnesses that at the time the will was executed, the testatrix was capable of making a testamentary disposition of her property. See Hillyer v. Ellis, 171 Ga. 300 ( 155 S.E. 180); Hill v. Deal, 185 Ga. 42 ( 193 S.E. 858). The evidence demanded the verdict.” See also Wood v. Lane, 102 Ga. 199, 200 ( 29 S.E. 180). This line of decisions, of which many more could be cited, recognizes not only that an insane person may make a will during a lucid interval (Code, § 113-204) but that a person may be feeble and suffering from an illness that to-day might cause sufficient reason to be wanting, and yet to-morrow or at another time even in the same day sufficient reason (mental capacity) would be present. They therefore hold that the issue is confined to the mental condition of the testator “at the time the will was executed.”


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