<p>BLTS-9e Case Problem with Sample Answer Chapter 37: Insurance, Wills, and Trusts</p><p>37.5 Case Problem with Sample Answer </p><p>James Lillard’s first wife had a child whom James adopted when he married the child’s mother. James fathered other children with her until they divorced in the early 1970s. In 1975, James married his second wife. During this marriage, neither spouse adopted the other’s children, so each spouse’s biological children remained the other’s stepchildren. James’s second wife died in 2002, and he was diagnosed with terminal cancer in January 2004. In February, he executed a will that divided his property equally among all of his children and stepchildren. By October, James was living with his children, who managed his finances and administered his prescribed drugs, which impaired him mentally and physically. A hospice worker noted that on October 5 James had difficulty completing sentences and was forgetful. A visitor two days later described him as “morphined up.” On this same day, he tore his first will in half and executed a new will that left most of his property to his children. James died on October 19. His children submitted the second will to a Georgia state court for probate. His stepchildren objected, alleging, in part, that at the time of the second will’s execution, James lacked testamentary capacity. His children responded that the first will had been validly revoked. Which will should be declared valid? Why? [Lillard v. Owens, 281 Ga. 619, 641 S.E.2d 511 (2007)]</p><p>Sample Answer:</p><p>The court ruled that James’s purported revocation of his first will was not a “free and voluntary act” and held that first will valid. His children appealed to the Georgia Supreme Court, which affirmed the lower court’s ruling. The state supreme court noted that “testamentary capacity exists when the testator has a decided and rational desire as to the disposition of property.” Based on the evidence of James’s mental and physical state in October, the court concluded “the trial court did not err” when it determined that he lacked testamentary capacity at the time he executed the second will. The state supreme court further reasoned that “[i]n light of the testator's physical condition and medicated status, a lesser degree of influence would be required to overcome his free will.” The court reiterated that, among other circumstances, in October, when he executed the second will, James was living with his children, who were managing his finances and administering his pain medication, which included drugs that impaired his mental condition. “While this evidence did not demand a finding of undue influence,” it undercut the children’s demand for a verdict on the basis of a lack of undue influence.</p>