Our client filed a caveat (objection) to the probate of her father’s will, alleging that he lacked testamentary capacity to execute the will and that he had been unduly influenced to cut her out of the will by a manipulative grandson. The grandson was a signatory on several of his grandfather’s bank accounts, stayed at his grandfather’s home and cared for him, drove him to the attorney’s office to execute the will, and was present during the discussions concerning the contents of the will while the grandfather was taking medication that caused some impairment of reasoning ability and left him confused.

At the jury trial, the judge failed to give instructions to the jury regarding the existence of a confidential relationship between the grandson and the grandfather, pursuant to which there was a presumption of undue influence. Our client objected, and the Georgia Supreme Court subsequently ruled1 in our client’s favor, finding that the failure to give this instruction was a critical error. This case is one of a continuing line of cases in which the appellate courts have focused on the relationship between the parties and whether they were in a special relationship of trust, called a “confidential relationship,” because if they were, there is a presumption of undue influence and the burden of proof at trial shifts to the person who was in the confidential relationship with the decedent.