Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, §§ 113-201 and 113-206, and former O.C.G.A. §§ 53-2-20 and53-2-22 are included in the annotations for this Code section.

When testamentary capacity is the issue, capacity must be determined by the condition of the mind at the time of the execution of the will. Hill v. Deal, 185 Ga. 42, 193 S.E. 858 (1937) (decided under former Code 1933, § 113-201).

Though, as tending to illustrate the condition of the mind, evidence may be received as to what was the mental capacity at a prior or a subsequent time, yet if it be certain from all the testimony that at the time of the execution of the instrument there was no want of testamentary capacity, the instrument offered will not be refused probate on the ground of lack of sound and disposing mind and memory. Hill v. Deal, 185 Ga. 42, 193 S.E. 858 (1937) (decided under former Code 1933, § 113-201).

Although evidence as to the mental capacity at a time prior or subsequent to the execution of the will may be shown to illustrate the condition of the testator's mind, still the controlling question to be determined, when testamentary capacity is the issue, is whether the testator had sufficient testamentary capacity at the time of executing the will. Spivey v. Spivey, 202 Ga. 644, 44 S.E.2d 224 (1947) (decided under former Code 1933, § 113-201).

Neither age and physical impairments, nor declarations made subsequent to the execution of the will and contrary to the will's terms are sufficient alone to raise issues of mental incapacity. Irvin v. Askew, 241 Ga. 565, 246 S.E.2d 682 (1978) (decided under former Code 1933, § 113-201).

What is mental capacity to make a will is a question of fact.

- On the trial of an issue of devisavit vel non, whether the alleged testator had mental capacity to make a will at the time of signing the paper is a question for decision by the jury, and a witness cannot testify as to such legal conclusion. Morgan v. Bell, 189 Ga. 432, 5 S.E.2d 897 (1939) (decided under former Code 1933, § 113-201).

Capacity to make a contract is not identical with the mental capacity necessary to make a valid will; a person with mental capacity less than that required to make a contract may have that degree of mental capacity necessary to make a valid will. Smith v. Davis, 203 Ga. 175, 45 S.E.2d 609 (1947) (decided under former Code 1933, § 113-201).

Understanding nature of testament.

- Person has testamentary capacity who understands the nature of a testament or will, viz., that it is a disposition of property to take effect after death, and by one who is capable of remembering generally the property subject to disposition and the persons related to that person by the ties of blood and of affection, and also of conceiving and expressing by words, written or spoken, or by signs, or by both, any intelligible scheme of disposition. If the testator has sufficient intellect to enable the testator to have a decided and rational desire as to the disposition of the testator's property, this will suffice. Morgan v. Bell, 189 Ga. 432, 5 S.E.2d 897 (1939) (decided under former Code 1933, § 113-201); Spivey v. Spivey, 202 Ga. 644, 44 S.E.2d 224 (1947);(decided under former Code 1933, § 113-201).

Testimony as to mental status is necessarily opinionative, and the law requires that before a will can be probated, and subscribing witnesses shall be inquired of as to apparent capacity or noncapacity; the fact that a witness witnesses a will qualifies the witness to give an opinion on that subject. Franklin v. First Nat'l Bank, 187 Ga. 268, 200 S.E. 679 (1938) (decided under former Code 1933, § 113-201).

When the testimony of both expert and nonexpert witnesses was insufficient to overcome the positive testimony of two of the subscribing witnesses, the testimony of the other subscribing witness being inconclusive, that at the time the will was executed the testator apparently had testamentary capacity, the evidence demanded a verdict in favor of the propounder. Spivey v. Spivey, 202 Ga. 644, 44 S.E.2d 224 (1947) (decided under former Code 1933, § 113-201).

When there is an issue as to the testamentary capacity of the testator, the opinion as to the sanity of the testator may be given in evidence by a witness who attested the will without first stating the facts upon which one bases such opinion. Brooker v. Brooker, 208 Ga. 387, 67 S.E.2d 117 (1951) (decided under former Code 1933, § 113-201).

When although the pleadings raised an issue as to testamentary capacity of the testator, not a single witness testified that the testator was not of sound and disposing memory at the time of executing or acknowledging the will, there was no evidence to carry this issue to the jury. Brooker v. Brooker, 208 Ga. 387, 67 S.E.2d 117 (1951) (decided under former Code 1933, § 113-201).

Presumption favoring testamentary capacity is necessarily a rebuttable presumption, and the capacity of the testator is always a proper subject of inquiry. Franklin v. First Nat'l Bank, 187 Ga. 268, 200 S.E. 679 (1938) (decided under former Code 1933, § 113-201).

Burden is on the propounder to show the factum of the will, free and voluntary action, and apparent testamentary capacity, and when this is shown, together with the presumption of testamentary capacity which exists in the absence of proof, a prima facie case for the propounder is made out. Franklin v. First Nat'l Bank, 187 Ga. 268, 200 S.E. 679 (1938) (decided under former Code 1933, § 113-201); Johnson v. Sullivan, 247 Ga. 663, 278 S.E.2d 640 (1981);(decided under former Code 1933, § 113-201).

While the presumption in favor of testamentary capacity exists, the presumption alone is not sufficient to make out for the propounder a prima facie case. Franklin v. First Nat'l Bank, 187 Ga. 268, 200 S.E. 679 (1938) (decided under former Code 1933, § 113-201); Johnson v. Sullivan, 247 Ga. 663, 278 S.E.2d 640 (1981);(decided under former Code 1933, § 113-201).

Law, in its zealousness always to safeguard the rights of a deceased testator, although presuming testamentary capacity, deems it wise not to rely solely upon that presumption, but to make inquiry into the immediate circumstances of the execution of the will from those who were present at the time. Franklin v. First Nat'l Bank, 187 Ga. 268, 200 S.E. 679 (1938) (decided under former Code 1933, § 113-201).

Charge that the presumption is always in favor of a mental capacity to make a will, where elsewhere in the charge the jury was instructed that the burden was on the propounder to establish the factum of the will, that it was freely and voluntarily made, and that the testator apparently had sufficient mental capacity to make a will, as a prerequisite to the making out by the propounder of a prima facie case was not error. Franklin v. First Nat'l Bank, 187 Ga. 268, 200 S.E. 679 (1938) (decided under former Code 1933, § 113-201).

Affidavit of neurologist found sufficient to create issue of fact as to testamentary capacity. See Baldwin v. First Tenn. Bank, 251 Ga. 561, 307 S.E.2d 919 (1983) (decided under former O.C.G.A. § 53-2-20).

Designation of beneficiaries to annuities.

- A 15-year old ward had the authority to designate beneficiaries to the ward's annuities. Bacon v. Smith, 222 Ga. App. 542, 474 S.E.2d 728 (1996) (decided under former O.C.G.A. § 53-2-22).

Cited in Brumbelow v. Hopkins, 197 Ga. 247, 29 S.E.2d 42 (1944); Lee v. Boyer, 217 Ga. 27, 120 S.E.2d 757 (1961); Sweat v. Hughes, 219 Ga. 703, 135 S.E.2d 409 (1964).

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 113-206, are included in the annotations for this Code section.

When an inmate donates the inmate's body by will, and the body is not claimed, notice should be posted on the courthouse door for 24 hours and the board should be notified of the name of the school or college specified by the inmate in the inmate's will. 1965-66 Op. Att'y Gen. No. 66-84 (decided under former Code 1933, § 113-206).

Am. Jur. 2d.

- 79 Am. Jur. 2d, Wills, §§ 2, 47 et seq., 53, 54, 62 et seq.

Intentional Omission of Child from Will, 6 POF2d 95.

Determination of Heirship, 12 POF2d 459.

Mentally Disordered Testator's Execution of Will During Lucide Interval, 18 POF2d 1.

Decedent's Gift to Heir as Advancement, 35 POF2d 357.

Lack of Testamentary Capacity by Reason of Insane Delusion, 40 POF2d 339.

Alzheimer's and Multi-Infarct Dementia - Incapacity to Execute Will, 17 POF3d 219.

AIDS Dementia - Incapacity to Execute Will, 19 POF3d 335.

Proof of Incompetency, 62 POF3d 197.

Determination of Heirship, 68 POF3d 93.

Proof of Decedent's Intent That Inter Vivos Gift to Heir Constitutes Advancement, 83 POF3d 295.

C.J.S.

- 95 C.J.S., Wills, §§ 3, 4 et seq.

ALR.

- Will of blind person, 9 A.L.R. 1416; 37 A.L.R. 603.

Epilepsy as affecting testamentary capacity, 16 A.L.R. 1418.

Admissibility of evidence other than testimony of subscribing witnesses to prove due execution of will, or testamentary capacity, 63 A.L.R. 1195.

Construction and application of statutes authorizing the appointment of trust company as guardian, trustee, or administrator upon application or consent of one acting as such (or as executor), or one entitled to appointment as such, 105 A.L.R. 1199.

Necessity of affirmative evidence of testamentary capacity to make prima facie case in will contest, 110 A.L.R. 675.

Admissibility of evidence on question of testamentary capacity or undue influence in a will contest as affected by remoteness, relative to the time when the will was executed, of the facts or events to which the evidence relates, 124 A.L.R. 433.

Illustrations of instructions or requested instructions as to effect of unnaturalness or unreasonableness of provisions of will on question of testamentary capacity or undue influence, 137 A.L.R. 989.

Soldiers' and seamen's wills, 152 A.L.R. 1450.

Proper form of question to witness or of testimony of witness, as regards mental condition of person whose capacity to execute a will is in issue, 155 A.L.R. 281.

Admissibility of declaration by beneficiary named in will in support of claim of undue influence or lack of testamentary capacity, 167 A.L.R. 13.

Admissibility and probative force, on issue of competency to execute an instrument, of evidence of incompetency at other times, 168 A.L.R. 969.

Insane delusion as invalidating a will, 175 A.L.R. 882.

Admissibility of testator's declarations upon issue of genuineness or due execution of purported will, 62 A.L.R.2d 855.

Admissibility, on issue of testamentary capacity, of previously executed wills, 89 A.L.R.2d 177.

Effect of guardianship of adult on testamentary capacity, 89 A.L.R.2d 1120.

Testamentary capacity as affected by use of intoxicating liquor or drugs, 9 A.L.R.3d 15.

Wills: testator's illiteracy or lack of knowledge of language in which will is written as affecting its validity, 37 A.L.R.3d 889.

Partial invalidity of will: may parts of will be upheld notwithstanding failure of other parts for lack of testamentary mental capacity or undue influence, 64 A.L.R.3d 261.

Convict's capacity to make will, 84 A.L.R.3d 479.