Eloise Collins died on December 10, 2006. In July 2007, Lydia Swain, Collins’ goddaughter, filed a petition to probate two instruments alleged to be Collins’ will: an unwitnessed letter written in 1999 detailing how Collins wanted her property distributed after her death and a partially filled-out commercial will form that, while properly witnessed, did not address distribution of property. A number of Collins’ first cousins collectively, Lee challenged the will and the trial court initially granted judgment on the pleadings in their favor, finding that the two documents could not form a valid will. Swain appealed and this Court held that there was a genuine issue of material fact as to whether the two documents, considered together, created a valid will. Swain v. Lee, 287 Ga. 825 700 SE2d 541 2010 “Swain I”. On remand, a jury found that the two instruments were indeed “the true Last Will and Testament of Eloise Harley Collins.” Lee brought this appeal, claiming that the trial court erred by failing to grant summary judgment or a directed verdict, improperly instructing the jury on the law regarding codicils, and refusing to include a number of requested instructions in its charge to the jury. We disagree and affirm the trial court’s verdict in favor of Swain.
1. In Swain I, this Court properly acknowledged that the testamentary intent is the most relevant question in this case and that intent “is to be gathered from the whole instrument, read in light of the surrounding circumstances.” Id. at 827 citing OCGA § 53-4-3. We concluded that “Swain presented a potentially viable claim that the documents she presented for probate could be read together to create a valid will.” Id. at 826. Under the circumstances, we held the validity of the will was a question of fact and that judgment on the pleadings was inappropriate. Id. at 827.
