The appellant, John McMormick, appeals from a jury verdict upholding the probate of the will of his mother, Ms. Jean McCormick, and declining to set aside a quitclaim deed that his mother executed in favor of his sister, appellee Melinda Jeffers, at the same time the will was executed. The jury found, in particular, that Ms. McCormick was not under the undue influence of Jeffers when she executed the will and the deed. On appeal, Mr. McCormick contends, among other things, that his mother’s will was not properly executed in that the witnesses to the will did not sign the will in her presence, and that the trial court erred in denying his motion for a directed verdict on that ground. He also contends that the evidence unequivocally shows that Ms. McCormick was under the undue influence of Jeffers when she executed the will and deed, and that he is therefore entitled to a new trial. Because we conclude that the will was not properly executed, we reverse the judgment admitting the will to probate. However, because we find some evidence to support the jury’s finding that Jeffers did not unduly influence Ms. McCormick, we affirm the part of the judgment declining to set aside the deed. 1. OCGA § 53-4-20 b of the Revised Probate Code of 1998 provides that “a will shall be attested and subscribed in the presence of the testator by two or more competent witnesses.” In the present case, Mr. McCormick contends that Jeffers, as the propounder of the will, failed to carry her burden to show that the witnesses to the will signed the will in the presence of the testator.1 For the reasons that follow, we agree.
The evidence shows that the decedent signed her will while sitting in a chair in her bedroom, and that the two witnesses to the will were present in the bedroom when she did so. When one of the witnesses, Carol Ayers, was asked at trial if she had signed the decedent’s will in her presence, she Ayers testified that she signed something in the decedent’s presence in her bedroom and that other things were signed at the dining room table, but that she could not remember what she signed in the decedent’s presence. Ayers also testified that the decedent could not see what was done at the dining room table, and that she and the other witness, Diane Goldman, signed the will at the same time. On cross-examination, Ayers admitted that, in a deposition, she had stated that she signed the will at the dining room table and that, when she did so, Ms. McCormick was in her bedroom.
