It is unlikely in the case involving the will of Mr.

Nicks that the court will find that the decedents will is the product of undue influence. The statute in question, O.C.G.A 53-2-6 (1995), provides that a will must be executed freely and voluntarily, and that anything which destroys the testators freedom of volition, such as undue influence invalidates the will. In order for undue influence to exist it is necessary that the will has deviated from the original intent to such a point that it has become the mental offspring of someone other than the testator. In evaluating whether or not undue influence exists, the court will look for two distinct things: First, whether the decedent was susceptible to undue influence, and secondly, whether undue influence was in fact exercised over the decedent. When considering if undue influence existed in the creation of Nicks Will, the court will likely first seek to evaluate whether Mr. Nicks was susceptible to the exercise of undue influence. In evaluating Nicks susceptibility the court will first seek to determine if Nicks was in a physical and mental state that made him susceptible, and second they will evaluate if Nora Blake held a position of power over Nicks to the point that it would make Nicks susceptible to undue influence. At the time that Mr. Nicks executed his will, in June of 2009, he was apparently of a sound mental state. In Dean v. Morsman, 327 S.E.2d 212

(Ga. 1985). There were no signs that the decedent had been drinking, nor did he have any problems answering questions or explaining his wishes to his attorney, in that case the court found that the Will executed by the decedent appeared to be the product of his own free will according to his desires. Similarly, although Nicks appeared physically weak, Higgins recognized him as being mentally alert, seeming to be acting of his own accord. Like in Dean, 327 S.E.2d at 214, the court is likely to find that the Will was the byproduct of Nicks desires, and a valid Will. In addition, like King v. Young. 150 S.E.2d 631 (Ga. 1966), where the decedent was physically suffering from illness but retained her mental faculties, Nicks was also suffering from dramatic physical illness, however Nicks had no indications of any mental impairment beyond being excessively emotional at times. Thus the court is likely to find similarly to King 150 S.E.2d at 632, that the decedent was able to make their own decisions about their will. Additionally, like the testator in Dean, 327 S.E.2d at 214, who was strong-willed, and opinionated man, Nicks was a very strong-willed and independent individual. In that case it was determined by the court that because of the strength and forcefulness of the decedents personality, it was not likely that another person would have overruled his free will in the creation of his will. As such the court is likely to find that Nicks, who

continued to be a strong willed man capable of making his own decisions, was responsible for the nature of the Will created. Unlike the cases of Skelton v. Skelton, 308 S.E.2d 838 (Ga. 1983). where the decedents physical afflictions of Arteriosclerosis were accompanied by delusions, and Hawkins v. Hodges, 102 S.E.2d 16 (Ga. 1958). where the decedent was so overcome by pain as to be rendered incapable of focusing on anything other than the pain, Nicks physical ailments were not deemed so severe as to interfere with his ability to make decisions. As such it is likely that the court will find differently from Skelton, 308 S.E.2d at 838. and Hawkins, 102 S.E.2d at 17 where the courts found the decedents Wills to have been subject to undue influence. Finally in regards to susceptibility to undue influence the court is likely to find in opposition to Hudson v. Abercrombie, 338 S.E.2d 667 (Ga. 1986). where the relationship was such that the beneficiary was in an obvious position of power as an expert to advise the decedent on the creation of a Will, and as the Will was held as invalid. In this case Blake was not in a position of power over Nicks, and as such the court is likely to hold that susceptibility was not present in that regard. While it is possible that the court may find that the medication that Nicks was taking as a result of his physical illness may have affected him to

a point as to make him susceptible, it is unlikely that the court would find this as sufficiently impairing as to invalidate the will. As in Hawkins, 102 S.E.2d at 17 the court has indicated that for the byproducts of a physical illness to be able to invalidate the will they must exist to the degree to show that the Will is no longer the product of the decedents wishes. It is unlikely that the court will view the increased emotional stresses occurring as a result of Nicks medication to be sufficient to invalidate his Will. In addition to checking for Nicks susceptibility to the exercise of undue influence the court will also require that there be sufficient evidence that undue influence was in fact exercised over the decedent. In order to determine if undue influence was in fact exercised the court will look primarily to three determining factors. What influence was exerted over the drafting of the Will, and finally the deliberate actions exerted on the decedent to obtain the benefits received. In regards to the drafting and execution of the Will this case is similar to Dean, 327 S.E.2d at 214.; and King, 150 S.E.2d at 632. where in both cases the beneficiaries accused of exerting undue influence were not present at the time the document was drafted. As such it is likely that Nicks Will which was not drafted in the presence of Blake will be held similarly, as a valid product of the decedents wishes.

Unlike in Hawkins, 102 S.E.2d at 17.; Skelton, 308 S.E.2d at 838.; or Hudson, 338 S.E.2d at 667. where in each case the beneficiary was either present or responsible for the actual drafting of the Will, Blake was not present at the drafting of Nicks Will. As such the court will likely find in contrary to each of those cases which invalidated the Will of the decedent, and instead find that the Nicks Will is valid. In regards to the demonstration of deliberate acts to exert undue influence it is likely that the court will find like in Dean, 327 S.E.2d at 214. where the court found that while the beneficiary was in a position such that they could exert influence on the decedent that nonetheless does not equal undue influence. In that case the court stated that; indulgence of mere suspicion of undue influence cannot be allowed. Even the evidence of undue influence over the mind and will of the testator at another time will not invalidate a will. Undue influence must amount to force or fear, in effect, [making] the will the mental offspring of another. Id. Blake was also in a position such that she may have been able to exert influence over Nicks, however a lack of evidence of direct actions is likely to yield a similar finding that the Will is valid. In contrast to Skelton, 308 S.E.2d at 838. and Hawkins, 102 S.E.2d at 17. there is no physical evidence that the Blake as a beneficiary, sought to

discourage the testator from interacting with the caveators. Whereas, in each of those cases the beneficiaries were adamant about remaining the sole contact for the decedent. Thus it is like that the court will find in contrast to those cases and rule that the Will was valid. It is possible that the court may rule that the presence of Blake at the time of execution of the Will served as a direct influence over its creation. However, Blakes absence from the drafting of the Will would indicate a separation from the contents of the will that are similar to the separation that existed in Dean, 327 S.E.2d at 214. and while in that case the beneficiary was completely unaware of the nature of the Will, Blake was nonetheless involved only in the signing of the document, which is unlikely to cause the court to find an exertion of undue influence. It is also possible that the court may find that the reasonableness of the bequest is a contributing factor as to whether or not undue influence was actually exercised. However, contrary to Skelton, 308 S.E.2d at 838. where the court found that the testators bequeathing of nominal awards to three of four children who were not disliked or disfavored during his lifetime was evidence showing more than a mere opportunity to exert undue influence, it is likely that the court will find that the reasonableness of the bequest is

dependent more primarily on the susceptibility of the testator, rather than as a separate factor. Under O.C.G.A 53-2-6 (1995), the court will evaluate both the susceptibility of Nicks to undue influence and the actual exertion of undue influence over him. In this case it is likely that the court will find that Nicks was not susceptible to undue influence. Even, if the court were to find Nicks susceptible to undue influence in the absence of evidence demonstrating direct influence over Nicks at the time the Will was drafted the court will be left with no choice but to find the Will valid.