Undue Influence

In Smith v. Liney,2006 WL 1584149 (Ga. 2006), the deceased (Scherzer) left her son (Smith) only afew personal items, leaving the bulk of her estate to her daughter (Liney).When the daughter petitioned to have the will admitted to probate, the sonfiled a caveat on the grounds “that the will was the result of the undueinfluence of [the daughter]”

The court said:

In the present case, we conclude that allreasonable inferences from the evidence demand a finding that, under theforegoing standards, Scherzer’s will was not the result of the undue influenceof Liney, and that the trial court’s grant of a judgment notwithstanding theverdict was proper. The attorney who prepared Scherzer’swill testified that he discussed the contents of the will only with Scherzer;that Liney did not participate in those discussions; that Scherzer had no doubtabout what provisions she wanted in the will; and that Liney was not presentand did not participate in the execution of the will. Moreover, the attorney,the attorney’s paralegal, and several friends testified that they never saw anyindication that Liney attempted to influence Scherzer, and there was noevidence to the contrary. In addition, the record establishes that Liney didnot isolate Scherzer, but that, instead, hospice personnel, friends, and, onoccasion, family frequented Scherzer’s house betweenJuly 13, 2003, when Liney came to live with Scherzer, and July 29, the dayScherzer executed her will. Also, there is no evidence in the record that Lineypracticed any deception or any force and coercion onScherzer. Although the evidence shows that Liney had an opportunity toinfluence Scherzer, a mere opportunity to influence, even when coupled with asubstantial benefit under the will, is insufficient to establish undueinfluence. Finally, no presumption of undue influence arises in this case, asthe evidence shows that Liney was the natural object of Scherzer’s bounty and as there is no evidence that Liney activelyparticipated in preparing Scherzer’s will.