In the Supreme Court of Georgia



                                         Decided:    February 22, 2016


                  S15A1611. AYERS et al. v. COOK et al.

      HINES, Presiding Justice.

      Caveators James A. Ayers, Nancy Davis, and Debra Hilty (“Caveators”),

siblings of testator Donald Ayers (“Donald”), appeal from the judgment of the

superior court, entered after a jury verdict, upholding Donald’s last will and

testament that left the entirety of his estate to Donald’s remaining sibling, Carol

Ayers (“Carol”). For the reasons that follow, we affirm.

      Construed to support the verdict, the evidence showed that Donald was

divorced with no children, and his four siblings were his closest relatives, but

discord between the siblings had developed during the last years of the life of

their mother. For three years preceding the execution of the will, Carol lived 50

miles from Donald and often accompanied him to medical appointments and on

errands; she visited him weekly, they spoke on the phone regularly, and she

sometimes wrote checks for him from a joint account. Donald had no will prior

to April 2009. After a discussion about Donald’s wishes for his property after
his death, Carol, using a form she found on the internet, prepared a will for

Donald which she gave him to review on April 15, 2009; it left the entirety of

his estate to Carol and named her as executor, and in the event she predeceased

him, named Carol’s daughter, Tammy Cook (“Tammy”), as beneficiary and

executor. Donald said that the will reflected exactly what he wished to do and

that same day, with Carol as a passenger, Donald drove to the Meriwether

County courthouse. There, two deputy clerks of the superior court witnessed the

will’s execution; after being informed that the will did not need to be filed with

the court, Donald and Carol left, taking the will with them.            In sworn

interrogatory answers, both witnesses stated that, at the time Donald executed

the will on April 15, 2009, he acknowledged that the document he was signing

was his will, and that he appeared to be acting voluntarily in signing it, and to

be of sound and disposing mind.

      Donald died on January 17, 2012. Carol filed the will for probate, and

Caveators asserted that at the time of the will’s execution, Donald was laboring

under the exercise of undue influence by Carol and Tammy (together

“Propounders”). The will was admitted to probate and Caveators appealed to

the superior court. A jury trial was held, the jury found the will to be valid, and

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the court entered judgment accordingly.

      1. Caveators enumerate as error that the trial court improperly excluded

evidence related to the issue of undue influence. However, they do not cite any

evidence proffered to the court that was rejected, and do not attempt to put

before this Court what evidence they might have introduced. Rather, they

address an incident that happened during the opening statement of counsel for

Caveators when he stated that, should the jury find the will invalid, “Carol

Ayers will still get one-fourth of all the assets. That’s the law.” Propounders

objected, and in a bench conference, moved for a mistrial, stating that it was

improper to discuss the disposition of the estate. When asked if he wished to

respond, counsel for Caveators stated: “No, it’s admissible.”         The court

acquiesced to the suggestion that the parties research the issue during the lunch

break, declared that it would address the matter later, and counsel for Caveators

proceeded with his opening statement.

      At the end of the lunch break, the court stated that faced with an improper

comment from counsel, it would have to give a jury instruction, and that how the

estate would be divided if the will was invalid was not a relevant issue to the

matters being tried. Counsel for Propounders again moved for a mistrial, and

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counsel for Caveators stated that any instruction regarding an improper

statement was unnecessary because the court had already informed the jury that

the statements of counsel were not evidence, and counsel cited case law for the

proposition that evidence of the value of the estate, and how property came into

it, could be relevant to the reasonableness of the testator’s disposition.

However, counsel did not then articulate any reason why such issues would be

relevant in the trial of this case, does not do so now, and none is apparent from

the evidence at trial. While issues relevant to the question of undue influence

certainly “may be supported by a wide range of testimony,” Dyer v. Souther,

272 Ga. 263, 265 (2) (528 SE2d 242) (2000) (Citation and punctuation omitted),

that does not render matters relevant in a particular undue influence case

relevant in any and all other undue influence cases. See Johnson v. Burrell, 294

Ga. 301, 304 (2) (751 SE2d 301) (2013). As Caveators did not show in the trial

court why the disposition of Donald’s property in the event the will was found

invalid would be relevant to this case, they cannot attempt to make such

showing now. Williams v. State, 293 Ga. 750, 753 (3) (749 SE2d 693) (2013).

Accordingly, the trial court did not err in informing the jury that it was “highly

improper” for counsel for Caveators to attempt to inform the jury as to what

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would happen to Donald’s property if the jury invalidated the will. See

Morrison v. Morrison, 282 Ga. 866, 867(1), (655 SE2d 571) (2008); Mitchell

v. State, 271 Ga. 242, 243-244 (4) (516 SE2d 782) (1999).

      2. During the discussion of the opening statement of Caveators, see

Division 1, supra, the trial court announced its intention to instruct the jury to

put aside counsel’s statement and to “explain to [the jury] what this trial is

about”; Caveators did not object. In addition to instructing the jury not to heed

counsel’s statement regarding the disposition of Donald’s property in the event

the will was found to be invalid, the court instructed the jury on the concepts of

the testator’s freedom of volition and undue influence, and that these were

matters for the jury’s determination; the court also stated that the influence

necessary to invalidate the will would be such that Carol

      just is really controlling [Donald’s] thoughts and what he does. The
      fact that she may help him – be helping him in different ways is not
      sufficient, okay. It is – it’s the – it is the – this kind of
      extraordinary control. So it’s dangerous for me to give you that
      interpretation.

A bench conference ensued in which counsel for Caveators questioned whether

that was a correct statement of law and asserted that matters such as whether

Carol wrote checks for the decedent, drove him to medical appointments, or

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helped in his home were relevant for the jury’s consideration, that there was no

support in case law for an instruction regarding “extraordinary control,” and that

the jury could consider a wide range of evidence under an appropriate

instruction. At the close of the bench conference, the court instructed the jury:

      I told you what I was doing was kind of dangerous, but at the end
      of this case I am going to charge you exactly what the law is, and
      that will override anything I’ve said in this case if I have misstated
      the law in any way, and the only thing I know of that could’ve been
      misstated was those last few off-the-cuff remarks that I made, and
      I’m not telling y’all which way to rule in this case. That’s y’all’s
      decision.

In the court’s final instructions, it charged the jury on the law of undue

influence, and Caveators do not assert that those instructions were erroneous.

      Caveators assert that the trial court’s instruction that included reference

to “extraordinary control” was reversible error. However, it is axiomatic that

jury instructions must be considered as a whole when determining if there is

reversible error. Lee v. Swain, 291 Ga. 799, (2) (a) (733 SE2d 726) (2012). The

court was clear that the jury was not to base its decision on the court’s earlier

remarks regarding “extraordinary control,” but rather on the court’s final

instructions, and essentially repudiated its reference to “extraordinary control.”

See Akin v. Patton, 235 Ga. 51, 52 (218 SE2d 802) (1975); Executive Committee

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of the Baptist Convention v. Ferguson, 213 Ga. 441, 443 (1) (99 SE2d 150)

(1957). Read as a whole, the court’s instructions to the jury were sufficiently

clear and did not mislead it. See Arrington v. Collins, 290 Ga. 603, 607 (2) (724

SE2d 372) (2012).

       3. Finally, Caveators contend that the trial court erred in making

“extraneous comments throughout the trial” that confused the jury. Many of the

comments complained of have been addressed above, see Divisions 1 and 2,

supra, or were not objected to at trial by Caveators.1 See Francis v. Francis, 279

Ga. 248, 248–249 (611 SE2d 45) (2005). The Caveators did object to the trial

court’s charging the jury that “[a] will is a very simple document. It doesn’t

have to be initialed on every page, it doesn’t have to be notarized, it doesn’t

have to go through a lot of formalities that lawyers do go through, so I want you

to understand that in listening to this.” Although Caveators mentioned in their

objection to the final jury charge the court’s reference to a will as a “simple


       1
          In fact, during closing argument, Propounders mentioned Donald’s level of mental
competency, and Caveators asked to approach the bench. There, Caveators objected that the issue
before the jury was only undue influence and not whether Donald was competent to make a will.
The trial court then instructed the jury that such was the case and that the only issue related to
competency raised in the case was Donald’s mental state “such that it would make him subject to
undue influence”; rather than object to what Caveators now contend was a misleading instruction,
they thanked the trial court for giving it.

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document,” they did so only in the context of complaining that the court had not

ordered its instructions in the manner Caveators understood it would, an

argument they do not repeat in this Court. See Williams, supra. Rather, in this

Court they assert that error exists because the trial court’s use of the phrase “a

very simple document” echoed the closing argument of the Propounders that this

was “really a simple case,” and that short wills were to be preferred.2 To the

extent that Caveators’ objection below encompassed this issue, id., it does not

show a violation of OCGA § 9-10-73 as Caveators assert. Assuming that an

objection under that Code section was preserved for appellate review, see

Mahsa, Inc. v. Al–Madinah Petroleum, Inc., 276 Ga. App. 890, 894 (2) (a) (625

SE2d 37) (2005), the charge did not express an opinion as to what had been

proved, or endorse the Propounders’ view of the case, but rather was directed

to instructing the jury regarding the formalities of a valid will. See Separk v.

      2
          The will at issue was two pages long.
      3
          OCGA § 9-10-7 reads:

       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. Should any
      judge violate this Code section, the violation shall be held by the Supreme Court or
      Court of Appeals to be error, the decision in the case shall be reversed, and a new
      trial shall be granted in the court below with such directions as the Supreme Court
      or the Court of Appeals may lawfully give.


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Caswell Builders, 209 Ga. App. 713, 714-715 (4) (434 SE2d 713) (1993).

Further, the court instructed the jury that nothing that it had said or done during

the trial should be interpreted as intimating, hinting, or suggesting how the case

should be decided, see Cline v. Lee, 260 Ga. App. 164, 171(3) (581 SE2d 558)

(2003), and there is no error.

      Judgment affirmed. All the Justices concur.




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