The caveators, sons of the testator, raised claims of undue influence and revocation. The undue influence claim was based on the role the executor, another son, played in selecting the attorney who drafted his father’s 1998 will and his alleged participation in preparing the will. The trial court excluded much evidence the caveators attempted to present, including evidence of the testator’s conduct years later, since it was not probative of whether the will was a product of undue influence when it was executed. Further, the trial court denied a request to charge the jury that there was a presumption of undue influence, since the caveators introduced no evidence showing either that the testator was weak, and hence susceptible to undue influence, or that the executor occupied a dominant position with regard to his father. On appeal, the Supreme Court upheld the trial court’s rulings on the admissibility of evidence and jury instructions. The revocation claim was based on documents showing that the testator planned to execute a new will. The testator had marked up a copy of his will, making changes and noting specific bequests, and had sent a letter to the executor requesting that the new bequests be given effect if he died before his new will was executed. The Supreme Court held that O.C.G.A. § 53-4-44 permits a presumption of revocation only if the original will or a material portion of the original will suffers destruction or obliteration. (A predecessor statute allowed for the destruction of “the original will or a duplicate.”) Thus, the testator’s markings on a copy did not raise the presumption of revocation.
