Morrison v. Morrison

O.C.G.A. § 53-4-44, which became effective on January 1, 1998, means that the presumption of revocation arises only when a material portion of the original will suffers obliteration or destruction.

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This is an appeal from a judgment rejecting caveats to a will and admitting the will to probate. Following the death in 2004 of W. Lee Morrison, Jr. hereinafter, Testator, his 1998 will was propounded by the executor named in the will, Testator’s son Ralph, the appellee herein. Testator’s son Alexander, the appellant herein, filed a caveat, as did a guardian ad litem representing Testator’s incapacitated son James. The will provided significant benefits to appellee, created trusts for the benefit of two of the Testator’s four sons, appellant and Lee, and did not provide for James. The issues addressed at trial were undue influence and revocation. The claim of undue influence was based on appellee’s alleged role in selecting the attorney who drafted the 1998 will and his alleged participation with that attorney in preparing the will. The revocation claim was based on documents showing the Testator’s planned execution of a new will more favorable to appellant and his brother Lee than was the 1998 will. During the trial of the caveats, the issue of revocation was decided in favor of appellee by the grant of summary judgment, and a jury decided the undue influence issue in appellee’s favor. Appellant appeals from the judgment entered for appellee.

1. At the beginning of the second day of trial, appellant moved for a mistrial on the basis of his contention the trial court had expressed opinions on what the evidence had proved and on the credibility of witnesses in violation of OCGA § 9-10-7, which provides in pertinent part as follows: “It is error for any judge, during the progress of any case, or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved.” Our review of the transcript persuades us the trial court did not violate OCGA § 9-10-7.

Morrison v. Morrison

O.C.G.A. § 53-4-44, which became effective on January 1, 1998, means that the presumption of revocation arises only when a material portion of the original will suffers obliteration or destruction.

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