Hawkins V. Hodgess: 102 S. E. 2d 16 (1958)

Fred Nicks’ will is probably invalid because it was the product of undue influence. The O.C.G.A. concerning undue influence states “a will must be freely and voluntarily executed; anything which destroys the testator’s freedom of volition, such as ... any undue influence whereby the will of another is substituted for the wishes of the testator, invalidates a will.” O.C.G.A. § 53-2-6 (1995). To demonstrate undue influence, the individual contesting the will must show “both that the decedent was susceptible to undue influence and that undue influence was in fact exercised.” Hawkins v. Hodges, 102 S.E.2d 16 (Ga. 1958). In the case of Fred Nicks it is assumed that he was susceptible to undue influence. Nora Blake, the testator’s neighbor, probably

exercised undue influence on Fred Nicks.
In order to prove an individual exercised undue influence, evidence of more than just an opportunity or suspicion of exercise is required. Dean v. Morsman, 327 S.E.2d 212, 214 (Ga. 1985). When determining the presence of undue influence, courts have examined the circumstances surrounding the creation of the will, the exploitation of the relationship between the parties, and the reasonableness or unreasonableness of the disposition of the testator’s estate. Dyer v. Souther, 528 S.E.2d 242, 243 (Ga.2000).
When looking at the circumstances surrounding the creation of a contested will, Georgia courts have ruled that the force of will used by the influencer must destroy the free agency of the testator at the time of the will’s execution. King v. Young, 150 S.E.2d 631, 633 (Ga. 1966); Dean, 327 S.E.2d at 214. In Dean, the court reversed a lower court decision dismissing the propounder’s claim and stated that there was not sufficient evidence to submit the issue of undue influence to the jury. The court noted that even though the propounder accompanied the testator to the attorney’s office when the will was made, she only did so at the testators request and did not know their destination. Id. at 213. The propounder in Dean was also found not to have actively participated in the execution of the will, in that, although the propounder was present in the office when the will was executed, she was in a separate room and did not participate in the creation or execution of the will. Id. at 214. Conversely, in Skelton v. Skelton, 308 S.E.2d 838, 839 (Ga. 1983), the court found that influence was exercised during the creation of the will when the propounder suggested specific language to be included in the will and was present during the will’s execution.
In this case, Nora Blake’s presence and actions in the room during the creation of the will indicates undue influence. Like in Dean, Nora Blake twice took the testator to an attorney that she had known for many years. But unlike Dean, where the propounder was in a separate room during the execution of the will, Ms. Blake was in the same room with Mr. Nicks and the attorney during the will’s execution. In this case, Ms. Blake is more like the propounder in Skelton. During the execution of the will in question, the executing attorney testified that when he asked Mr. Nicks about leaving only $5,000 to his daughter, Mr. Nicks answered by stating his daughter was his only child and was a school teacher living in Alabama. Ms. Blake then quickly added that “Charlotte has a good job, but I don’t.” Although Mr. Nicks responded to the attorney’s question, he did not specifically answer why he was only leaving his daughter such a small amount of his estate. Instead, Ms. Blake answered the specific question the attorney asked, which is more like the sort of active influence the court found in Skelton and unlike the remote, passive presence of the pounder in Dean.
For exploitation of the relationship between the parties to exist the courts have ruled that merely having a close relationship with the testator will not suffice to prove undue influence was exercised.

Dean, 327 S.E.2d at 214. In Dean, the propounder had a close relationship with the testator in which she lived in the testator’s home, kept house for him, paid his bills, and attended to his personal and business affairs. The court ruled this insufficient to prove undue influence as the facts in question provided only mere suspicion of undue influence, which is not enough to prove that undue influence was actually exercised. However, in Hawkins, 102 S.E.2d at 17, the court did find evidence of undue influence after it was noted the propounder frequently stayed with the testator in the hospital for the two weeks prior to the execution of the will. The court ruled undue influence could have been exercised because the propounder tried to prevent other relatives of the testator from spending any time with testator and was overheard making statements to the testator that were described as playing on her emotions.

Id.
Although Ms. Blake, like the propounder in Dean, assisted Mr. Nicks with household tasks, running errands, and paying bills, she also frequently spoke with Mr. Nicks about her financial difficulties and complained about not having any money when she visited, which is more like the propounder in Hawkins. Ms. Blake also answered Mr. Nicks’ phone on several occasions when his daughter called to speak with her father. On these occasions Ms. Blake explained that Mr. Nicks was asleep or busy and said she would deliver his daughter’s messages. Mr. Nicks never returned those calls. Like Hawkins, this could be evidence of Ms. Blake attempting to isolate the testator from his family. Because Ms. Blake spoke frequently with Mr. Nicks about her difficult financial situation during her frequent visits to his house, and she may have attempted to isolate the testator from his daughter by not ensuring he returned her calls, the court would probably view Ms. Blake’s actions more like the Propounder in Hawkins rather than the propounder in Dean.
In determining the reasonableness or unreasonableness of the disposition of the testator’s estate the courts have ruled that even though the propounder may not be the natural objects of the testator’s bounty, the testator has the right to exclude any or all of their natural heirs and make any disposition they see fit.

King, 150 S.E.2d at 633. However, the courts have also noted that a testator leaving their children ”nominal bequests even though they were not disliked or disfavored” is some evidence that undue influence has been exercised. Skelton, 308 S.E.2d at 839. In Skelton, the court found evidence of undue influence when three of the testator’s four children were left only nominal bequests. However, in King, the court ruled that although the testator left her neighbor her estate instead of her family, there was evidence that the testator felt her family had abandoned her, and that the propounder had been taking care of her needs. King 150 S.E.2d at 632.
Although Nora Blake was assisting the testator with some of the same tasks as the propounder in King, there was no evidence that Mr. Nicks’ daughter was disliked or disfavored. In fact, their relationship was described as good. On multiple occasions Mr. Nicks’ daughter offered to visit her father and help with his needs, but Mr. Nicks always told her that he would let her know if he needed anything. Courts would most likely view this case as more analogous to Skelton, as Fred Nicks’ only daughter, although not disliked,

was left a comparatively small sum.
CONCLUSION
Fred Nicks’ will, which left the bulk of his estate to Nora Blake, was probably the result of undue influence. Because it is assumed that Fred Nicks was susceptible to undue influence, the only element that must be proven is that Ms. Blake actually exercised undue influence. The circumstances surrounding the creation of the will in question, the exploitation of the relationship, and the unreasonableness of the estate’s disposition prove, in this case, that more than just an opportunity or suspicion of exercise existed.
The circumstances surrounding the creation of the will in this case indicate the exercise of undue influence. Ms. Blake knew she was the main beneficiary of the will, chose an executing attorney who was a family friend, drove the testator to the attorney’s office on two occasions, and was an active participate during the execution of the will. The courts will probably find that these actions surrounding the creation and execution of the will in question are more like those of propounders that were found to have exercised undue influence.
The extent of the exploitation of the relationship between Ms. Blake and Mr. Nicks also indicates that undue influence was likely exercised. Ms. Blake’s assistance to Mr. Nicks with certain household tasks, running errands, and bill paying, if taken alone, might not amount to an exploitation of the relationship between the two. But her frequent discussion of her financial difficulties while possibly isolating the testator from his only child by not allowing her speak with the testator when Ms. Blake answered her calls indicates that undue influence was likely exercised.
Finally, the unreasonableness of the estate’s disposition indicates that undue influence was exercised. Although courts recognize the testator’s right to allocate their estate as they see fit, a disposition that unreasonably favors a non-family member over a family member who was not disliked or in disfavor has been ruled to be evidence that undue influence was exercised. In this case, because Ms. Blake received the vast majority of the testator’s estate instead of the testator’s only child, who was not disliked or in disfavor, the courts would probably find that undue influence was exercised. All of the evidence, when taken together and applied to the applicable law of Georgia, indicates that the will in question is invalid because Fred Nicks was susceptible to the undue influence that Nora Blake exercised prior to and during the will’s execution.