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CASE 50-3
PRINE v. BLANTON
Supreme Court of Georgia, 2012
290 GA. 307, 720 S.E.2D 600
http://scholar.google.com/scholar_case?
q=Testamentary+Capacity+and+Power+&hl=en&as_sdt=2,34&as_ylo=2011&case=9029015898403998192&scil
h=0
Hunstein, J
[Debra Prine challenged the validity of her father's will on the grounds that he lacked
testamentary capacity and was operating under undue influence. Testator Melvin H.
Blanton's 1990 will and family trust divided the majority of his assets equally among his
four surviving children and a granddaughter who was the child of his deceased daughter. In
August 2008, Blanton met with his attorney and directed him to change his will and trust to
exclude Debra Prine, his one surviving daughter. On September 17, 2008, while in the
hospital, Blanton executed a new will and trust that left most of his property to his three sons
through the Blanton Trust and excluded Debra Prine as a beneficiary. The following day,
* * *
A testator possesses the mental capacity to make a will if he understands that he is
executing a document that will dispose of his property after death, is capable of
remembering the property that is subject to his disposition and the persons related to him by
blood and affection, and “‘has sufficient intellect to enable him to have a decided and
rational desire as to the disposition of his property.’” [Citation.] "The controlling
question . . . is whether the testator had sufficient testamentary capacity at the time of
executing the will." [Citation.]
* * *
In this case, the propounders [supporters of the will] presented the affidavit of the
attorney who drafted and witnessed the will stating that Blanton was of a sufficient sound
and disposing mind and memory at the time he instructed the attorney on how to prepare the
was signing his last will and testament and he appeared to be of sound and disposing mind
and memory at the time.
His treating physician testified in a deposition that during office visits in 2008 Blanton
was "sharp as a tack," showing no symptoms of mental instability, confusion, dementia,
hallucinations, or declining mental condition. Blanton was admitted to the hospital on
September 15, 2008, after he complained of abdominal pain and fever. Two days later he
executed the new will and trust amendment. His physician testified that Blanton was his
* * *
The caveator [opponent of the will] * * * relies on the affidavits of four lay witnesses.
These witnesses either did not see Blanton until after he was admitted into intensive care or
were vague about when they had seen him confused or hallucinating. The caveator testified
that she did not see her father in the hospital until after work on the day he executed his will,
he knew who she was at that time, and she had no knowledge of his mental condition earlier
in the day. Evidence that the testator was aged, ill, and in pain when he executed his will or
To invalidate a will, undue influence must amount to deception or coercion that destroys
the testator's free agency. [Citation.] The testator's choice of naming one relative instead of
another as the favored beneficiary is an insufficient reason to deny probate of the will.
[Citation.]
The caveator has not presented a genuine issue of material fact on the question of undue
influence. Blanton's attorney and the subscribing witnesses attested that they believed he
signed his will freely and voluntarily. His treating physician and other witnesses described
*** Chapter Outcome ***
Explain the formal requirements of making a valid will and the various ways a will may
be revoked.
Formal Requirements of a Will
By statute in all jurisdictions, a will must comply with certain formalities to
be valid. Such formalities not only indicate that the testator understood what
she was doing but also help prevent fraud.
Writing — A basic requirement is that a will be in writing. The writing may
be informal as long as it meets the basic statutory formalities. Valid wills
have been made on scrap paper and on an envelope.
Another document that is not in itself a will may, however, be incorporated
into a will by reference. To incorporate a memorandum into a will by
reference:
(1) the memorandum must be in writing;
(2) it must be in existence when the will is executed;
(3) it must be adequately described in the will; and
(4) it must be described in the will as being in existence.
Signature — A will must be signed by the testator; the signature veri,es
that the will has been executed. Most statutes require the signature to be at
the end of the will.
Revocation of a Will
By de,nition, a will is revocable by the testator — yet, in most jurisdictions,
certain formalities may be required for revocation. Under certain
circumstances, a will may be revoked by operation of law.
Destruction or Alteration — Destroying a will, such as by burning or
tearing it, is strong evidence that the testator intended a revocation. In
some jurisdictions partial obliterations will serve as a partial revocation. Any
substituted words will not be effective without reexecution and reattestation.
One question that the courts have addressed is whether a will should be
viewed as destroyed or just mislaid if it is missing from the decedent's
personal effect.
CASE 50-4
GOLINI v. BOLTON
Court of Appeals of South Carolina, 1997
326 S.C. 333, 482 S.E.2d 784
http://scholar.google.com/scholar_case?case=1467799972510374304&q=482+S.E.2d+784&hl=en&as_sdt=2,34
Howard, J.
[Willie Mae Arant executed her Last Will and Testament on August 5, 1992, in her home
with two witnesses present. The original will could not be found after Arant’s death, so a
copy of the will was filed and admitted in Calhoun County Probate Court. The will left the
bulk of the estate to Melvin Bolton, Arant’s nephew, and Kent Sutcliffe, Arant’s grandson.
Mary Lou Golini, Arant’s only surviving daughter, filed suit challenging the probate of the
will on the ground that because the original will could not be found, it had been destroyed
with the intent to revoke.
The probate court found Arant’s will had not been revoked because it was returned to her
attorney’s office after it was executed and it was lost sometime after that. Furthermore, the
probate court found that Arant thought she had the original in her possession but did not.
The probate court found that Arant always indicated where her will was located and copies
of her will were found in those locations after her death. Golini appealed to circuit court.
The circuit court affirmed the probate court.]
* * *
“A will or any part thereof is revoked * * * by being burned, torn, canceled, obliterated,
or destroyed, with the intent and for the purpose of revoking it by the testator or by another
person in his presence and by his direction.” [Citation.] Revocation by an act or by a
subsequent instrument must be accompanied by an intention to revoke, and, without the
intention, revocation does not take place. [Citation.]
destroyed by another without authority to do so.” [Citation.] If the testator was known to
have her last will in her possession or had ready access to it, and it cannot be found on her
death, it is presumed, rebuttably, that she destroyed it and thereby revoked it * * *. [T]he
evidence to rebut the presumption must be clear and convincing. * * *
From a review of the record, this court finds evidence which reasonably supports the
factual findings of the probate court including the fact Arant was not in possession of her
will. Both witnesses to the will’s execution testified they were the only ones present when
Arant signed her will and Arant had possession of the will when they left her home. Arant
told the witnesses to the will she intended to have the will taken to her attorney’s office.
Attorney Thomas Culclasure drafted two wills for Arant. He prepared the first will,
Culclasure maintained a card file for all wills he drafted in his practice. The card for
Arant states that Arant signed her will August 5, 1992, and that “Mrs. Arant has the
original.” This handwritten notation was written by Culclasure’s secretary. Culclasure’s
practice was to put any original wills he kept in his lock-box at the bank. He searched the
lock-box and all his office files but was unable to locate Arant’s original will. Culclasure did
not know who may have picked up the will from his office but he thought the will had been
given to someone.
Kent Sutcliffe, Arant’s grandson, testified Arant kept her important papers in a little
chest and that she kept a sealed envelope in there which he thought contained her will.
Sutcliffe’s stepmother, Beth, testified Arant was a very organized person and kept her
important papers in a little desk in her dining room * * *. After Arant’s death, Bolton
retrieved the two sealed envelopes from the two locations and took them to the probate court
judge to have them opened. Only then did he discover the envelopes contained copies of
Arant’s will but neither contained the original. Bolton also checked Arant’s personal
lock-box at the bank but the original will was not there.
Numerous witnesses also testified that Arant and Golini did not get along and that Arant
stated on numerous occasions she intended to leave Golini out of her will.
* * *
AFFIRMED.
Subsequent Will — Execution of a subsequent will does not necessarily
revoke a prior will, except to the extent of any inconsistencies. If that is the
intent, a well-drafted subsequent will should say it revokes all prior wills.
Codicil -- is a subsequent will that augments or revises a prior will. It is
executed with all the formal requirements of a will, and the codicil and the
will are regarded as a single instrument.
The most frequent problem such an instrument raises involves the extent to
which its terms, if not absolutely clear, revoke or alter provisions in the will.
Effectiveness of Testamentary Provisions
Renunciation by the Surviving Spouse — Most states permit a surviving
spouse to renounce a will in order to permit taking a spouse's share of the
estate under the intestate succession laws, if that would be more
advantageous.
Abatement and Ademption of a Bequest —When the value of an estate
decreases after the execution of a will, some bequests may be abated. The
,rst items to abate in a will are the residue, or those items remaining after
provisions for speci,c (identi,able items) and general gifts. For example,
suppose John, after making gifts in speci,ed amounts to certain charities,
leaves “all the rest, residue, and remainder of my estate to my daughter,
*** Chapter Outcome ***
De,ne the following types of wills: (1) nuncupative, (2) holographic, and (3) soldiers’
and sailors’.
Special Types of Wills
Nuncupative Wills — An oral will made before witnesses that is generally
limited as to amount of property it can convey. Usually, the testator must be
suffering from a ,nal illness.
Holographic Wills — A handwritten, unwitnessed will which meets speci,c
statutory requirements is permitted by some states.
Soldiers' and Sailors' Wills — Less formal wills executed while on military
duty. Generally, they cannot convey title to real estate.
Conditional Wills — Takes e2ect as a will only on the happening of a
speci,ed contingency, which is a condition precedent to the operation of the
will.
*** Chapter Outcome ***
Describe intestate succession and the administration of decedents’ estates.
B. INTESTATE SUCCESSION
Property not effectively disposed of before death or by will passes in
accordance with the law of intestate succession. The law assures an orderly
transfer of title to property. The intent of an intestacy statute is to carry out
the probable wishes of the deceased. However, even if the statute’s
requirements run contrary to the clear intention of the decedent, the
intestacy statute will still govern the distribution — and the rules apply to the
excess portion of an estate where there is a will but no residuary clause.
The rules of descent vary widely among states. Generally, except for speci,c
statutory or dower rights of the widow, property passes in equal shares to
the decedent’s children living at the time of his death; the share of any child
is, one to whom property would descend by operation of law — and this rule
prevails today. Legally adopted children are, however, recognized as lawful
heirs of their adoptive parents.
Parents and collateral relatives (brothers and sisters, nieces and nephews,
aunts and uncles): Laws vary by state as to their rights. The rights of heirs
cannot reasonably be predicted without knowledge of the exact terms of the
statute.
NOTE: See Figure 50-3: Per Stirpes and Per Capita.
C. ADMINISTRATION OF ESTATES
The rules and procedures controlling the management of a decedent’s estate
are statutory; thus, they vary somewhat from state to state. But in all
jurisdictions the estate is managed and ,nally disbursed under the
supervision of a court. The procedure for managing the distribution of
decedents’ estates is referred to as probate, and the court that supervises
the procedure is often designated the probate court.
The ,rst legal step after death is usually to determine whether the deceased
left a will. If a will exists, the testator has likely named her executor in it. If
there is no will or if there is a will that fails to name an executor, the court
will, on petition, appoint an administrator. The closest adult relative who is a
resident of the state is entitled to be appointed the administrator.
Once approved or appointed by the court, the executor or administrator
holds title to all the personal property of the deceased and is accountable to
her creditors and bene,ciaries. The estate is his or her responsibility.
If the will is contested, the witnesses must prove it before the court by
testifying to the signing of the will by all signatories and by con,rming the
mental condition of the testator at the time she executed the will. If satis,ed
the will is proved, the court will enter a formal decree admitting the will to
