SECOND DIVISION

MILLER, P. J.,

MERCIER and COOMER, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

February 28, 2020

In the Court of Appeals of Georgia

A20A0494. O’CALLAGHAN v. SAMPLES.

MERCIER, Judge.

Following the death of 67-year-old Michael Smallwood,SusanAngela Samples

petitioned to probate his will in solemn form.Smallwood’ssister, KathyO’Callaghan,

filed an objection to the petition, asserting, among other things, that Smallwood

lacked testamentary capacity to execute the will. The probate court held an

evidentiary hearing regarding the issues raised in the objection. Concluding that

Smallwood had the requisite testamentary capacity and knowingly executed the will

without any coercion or interference by other persons, the probate court granted the

petition to probate the will. O’Callaghan appeals, and we affirm.

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1 O’Callaghan originally filed her notice of appeal in the Superior Court of

Floyd County, which transferred the appeal to this Court. See OCGA § 15-9-120 (2)

(defining “probate court”); OCGA § 15-9-123 (a) (“Either party to a civil case in the
1. O’Callaghan argues that the probate court erred in finding that Smallwood

had sufficient testamentary capacity to make a will. We disagree. When a probate

court’s findings in a non-jury trial are supported by any evidence, they must be

affirmed on appeal. See Amerson v. Pahl, 292 Ga. 79 (1) (734 SE2d 399) (2012). And

given this highly deferentialstandard, “we have no difficulty in affirming the probate

court’s finding of testamentary capacity” in this case. Id.

The record shows that Smallwood, a Vietnam veteran who never married or

had children, had three siblings: two sisters, O’Callaghan and Jane McWhorter, and

a brother, Wayne Smallwood. After Smallwood returned from Vietnam, he was

diagnosed with post-traumatic stress disorder (“PTSD”) and needed extra care, which

McWhorter, his eldestsister, provided. According to McWhorter,she and Smallwood

had a “very close” relationship, and she “became a mother figure to him” when their

mother died. Nevertheless, Smallwood lived alone and generally was able to function

day-to-day, despite some episodes of paranoia and other health issues. 

probate court shall have the right of appeal to the Supreme Court or the Court of

Appeals, as provided by Chapter 6 of Title 5.”); Ga. Const. of 1983, Art. VI, Sec. I,

Par. VIII (“Any court shall transfer to the appropriate court in the state any civil case

in which it determines that jurisdiction or venue lies elsewhere.”).

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On March 27, 2014, Smallwood executed a will, bequeathing all of hisreal and

personal property to McWhorter. He appointed Samples, McWhorter’s daughter, as

executor of his estate. The will was prepared by Leon Sproles, an attorney

experienced in estate planning matters. Asked about his standard procedures for

drafting a will, Sproles testified that he not only obtains pertinent information from

the client, but also assesses the client’s competence to execute the will. Sproles

followed these standard procedures when preparing Smallwood’s will. He met with

Smallwood twice, had no doubt about Smallwood’s competency, and would not have

drafted the will had Smallwood seemed delusional or psychotic. Sprolesreviewed the

will with Smallwood and inquired asto his understanding of it. According to Sproles,

Smallwood appeared to execute the will freely, voluntarily, and with knowledge of

his actions. Sproles further noted that Smallwood “was happy with” the will, which

represented “exactly what he wanted as far as disposition of his estate[.]” 

Another attorney who practiced in the same building as Sproles witnessed the

will’s execution. The witnessing attorney testified that Smallwood seemed to

understand what he was doing, appeared to be of sound mind, and had no difficulty

taking part in the proceedings. As described by that attorney, Smallwood “certainly

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seemed appropriate at the time to be able to execute the will and know . . . that these

were his wishes.” 

Smallwood died in March 2018 from injuries sustained in a motor vehicle

collision. Several months later, Samples petitioned to probate his will. O’Callaghan

objected to the petition, claiming that Smallwood lacked testamentary capacity to

execute the will and was not of sound mind. The probate courtrejected O’Callaghan’s

objection and admitted the will to probate. 

“Testamentary capacity exists when the testator has a decided and rational

desire as to the disposition of property.” OCGA § 53-4-11 (a). Ultimately, “[a]

showing of testamentary capacity requires a showing that the testator was sane or of

sound mind.” Meadows v. Beam, 302 Ga. 494, 498 (2) (807 SE2d 339) (2017). Such

capacity exists when a testator understands the purpose of a will, knows what

property he has, remembers the persons related to him by blood and affection, and

“has sufficient intellect to enable him to have a decided and rational desire as to the

disposition of his property.” Amerson, supra (citations and punctuation omitted).

“This is a modest requirement, as testamentary capacity may be possessed by

weak-minded or feeble individuals.” Meadows, supra. (citations and punctuation

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omitted). Only a “total absence of mind” destroystestamentary capacity. Id.(citations

and punctuation omitted). 

The evidence does not show a “total absence of mind” here. Both attorneys

who took part in the preparation and/or execution of the will testified that Smallwood

appeared to understand what he was doing and to be of sound mind when he signed

the document. Samples also presented testimony from Smallwood’s neighbor, who

began helping him with household chores in 2014. The neighbor asserted that

although Smallwood had some health problems, hewas “always a perfect gentleman,”

and he knew “exactly what was going on[.]” In addition, a friend who had known

Smallwood since 1988 testified that he never saw Smallwood act “out of his mind[.]”

And a housekeeper who cleaned Smallwood’s house weekly from2005 until his death

testified that he knew who his siblings were and what assets he had. Finally,

Smallwood’s understanding of his actions is demonstrated by a conversation he had

with Samples in the spring of 2014. Samples testified that Smallwood called her to

request that she serve as executor of his will. During that conversation, Smallwood

explained that he was leaving his estate to McWhorter and that Samples should be

prepared to deal with objections to the will from O’Callaghan. 

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On appeal, O’Callaghan notes that medical records from the Veterans

Administration indicated that Smallwood had been diagnosed with several mental

conditions, including PTSD, in 1987. Smallwood’s testamentary capacity, however,

must be assessed as of the date he executed his will. See Amerson, supra at 80 (1).

That he suffered from mental infirmities before or after he signed the will may be

relevant to the inquiry, but is not dispositive. See Meadows, supra at 494 (1). The

controlling question is whether Smallwood had the testamentary capacity to execute

the will on March 27, 2014. See Amerson, supra; Tuttle v. Ryan, 282 Ga. 652 (653

SE2d 50) (2007). 

Given the evidence presented, the probate court was authorized to conclude

that Smallwood understood what he was doing when he signed the will, knew what

assets he owned and who the potential beneficiaries of his estate were, and had

sufficient intellect to rationally decide how he wanted to dispose of his property.

Accordingly, the probate court did not err in determining that he had the necessary

mental capacity to execute his will. See Amerson, supra; Tuttle, supra at 652-653;see

also Woods v. Stonecipher, 349 Ga. App. 698, 699-700 (1) (824 SE2d 633) (2019)

(“[I]n reviewing this question of the sufficiency of the evidence in the context of a

challenge to a will, a stringentstandard must be met in order to set aside a will, asthis

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deprives a person of the valuable right to make a will.”) (citation and punctuation

omitted).

2. O’Callaghan claimsthat the probate court erred in probating the will because

Samples failed to timely respond to her requests for admissions. Pursuant to OCGA

§ 9-11-36 (a) (2), a request for admission 

is admitted unless, within 30 days after service of the request or within

such shorter or longer time as the court may allow, the party to whom

the request is directed serves upon the party requesting the admission a

written answer or objection addressed to the matter, signed by the party

or by his attorney[.]

It appears that O’Callaghan served her requests for admission on July 12,

2018.

2 Because the thirtieth day after service fell on a Saturday (August 11, 2018),

Samples was required to respond on the following Monday, August 13, 2018. See

OCGA § 1-3-1 (d) (3) (“[W]hen a period of time measured in days . . . is prescribed

for the exercise of any privilege or the discharge of any duty, . . . if the last day falls

on Saturday or Sunday, the party having such privilege or duty shall have through the

following Monday to exercise the privilege or to discharge the duty.”). The record

2 Although the record does not contain a certificate of service for these

discovery requests, the requests were signed and filed on July 12, 2018. O’Callaghan

also asserts that she served her requests on this date. 

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shows that Samples timely served her responses to the requests for admission by

placing them in the mail on August 13, 2018. See OCGA § 1-3-1 (d) (3); OCGA § 9-

11-5 (b) (“Service by mail is complete upon mailing.”); Cruickshank v. Fremont Inv.

& Loan, 307 Ga. App. 489, 491-492 (705 SE2d 298) (2010). We recognize that

Samples did not file her responses and/or her Certificate of Service of Discovery

Materials until several weeks later. But “the admission for failure to respond

contemplated by OCGA § 9-11-36 (a) (2) is tied to whether requestee ‘serves’ the

response.” Cruickshank, supra at 492 (citation omitted). Regardless of when Samples

filed her responses with the probate court, theywere timely served within the required

30-day period. See id.; OCGA § 9-11-36 (a) (2). 

Alternatively, O’Callaghan argues that Samples failed to respond sufficiently

to two of the requests for admission, to which Samples stated that she lacked

sufficient knowledge to admit or deny the requests. See OCGA § 9-11-36 (a) (2) (“An

answering partymay not give lack of information or knowledge as a reason for failure

to admit or deny unless he states that he has made reasonable inquiry and that the

information known or readily obtainable by himisinsufficient to enable him to admit

or deny.”). These two requests for admission, however, involved union benefits and

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life insurance proceedsto be paid to Smallwood’s heirs.

3 O’Callaghan has notshown

that either request related to Smallwood’s mental capacity to execute a will. Even if

deemed admitted, therefore, the requests do not undermine the probate court’s

determination that Smallwood possessed the necessary testamentary capacity. 

3. O’Callaghan further argues that Samples failed to notify her before the

evidentiary hearing that a court reporter would be transcribing the proceedings. But

she has pointed to no evidence that she objected to the presence of the court reporter

or raised this issue below, undermining any claim of error based on the court

reporter’s presence. See Champion Windows of Chattanooga v. Edwards, 326 Ga.

App. 232, 242 (2), n.9 (756 SE2d 314) (2014) (“Issues and objections not raised in

the trial court and ruled on by the trial court are deemed waived and cannot be raised

for the first time on appeal.”) (citation and punctuation omitted). And even if

O’Callaghan was entitled to pre-hearing notice that a court reporter would be at the

hearing,

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she has not shown that the lack of notice harmed her. See Austell

3 Samples explicitly denied a requestfor admission that asked Samplesto admit

that life insurance and union payments made to all three of Smallwood’s siblings

“reflect[ed] the true understanding, desire and wishes of Michael D. Smallwood for

the disposition of all of his property, both real and personal, upon his death[.]” 

4 See Uniform Probate Court Rule 10.4 (If a party desires that a hearing or trial

be reported by a court reporter, “[s]uch party shall immediately notify the court and

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HealthCare v. Scott, 308 Ga. App. 393, 395 (1) (707 SE2d 599) (2011) (“In order to

constitute reversible error, both error and harm must be shown.”) (citation and

punctuation omitted). Lastly, we find no merit in O’Callaghan’s claim that she has

been “disadvantage[d]” in this appeal because she was unable to secure a copy of the

transcript from the court reporter. The original transcript is contained in the appellate

record, which has been available for O’Callaghan’s review. 

4. In her final enumeration of error, O’Callaghan argues that the probate court

erred in determining that Samples had submitted Smallwood’s original will to the

court. At the conclusion of the evidentiary hearing, the probate courtstated that it did

not have Smallwood’s original will, noting that what appeared to be a photocopy had

been filed with Samples’s petition. The court explained that it would withhold its

final ruling to give Samples an opportunity to submit the original will or amend her

petition with the averments necessary to probate a photocopy of the will. Both parties

agreed to the procedure, and in itsfinal ruling issued approximately two monthslater,

the probate court found that

although the initial petition was filed with a copy of the Last Will and

Testament of Michael D. Smallwood, the original document was

opposing counsel in writing when such arrangements have been made.”). 

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thereafter submitted, and that there is no question that the Last Will and

Testament, under date of March 27, 2014, is, in fact, an original and not

a copy and any objections or other mattersrelating to the fact that a copy

of said Last Will and Testament was submitted are no longer relevant

and/or material in this matter. 

O’Callaghan waived any objection to the probate court’s procedure for

obtaining the original will by explicitly agreeing to that procedure. See Lamb v.

Fulton-DeKalb Hosp. Auth., 297 Ga. App. 529, 532 (1) (677 SE2d 328) (2009)

(“Having acquiesced in the trial court’s procedure, [appellant] cannot now complain

of it.”). And we can discern no basis for rejecting the probate court’s factual finding

that the original will was submitted after the hearing. See Cuyler v. Allstate Ins. Co.,

284 Ga. App. 409, 411 (2) (643 SE2d 783) (2007) (“[I]t is well established that the

burden is on the party alleging error to show it by the record, and there is a

presumption in favor of the regularity of all proceedings in a court of competent

jurisdiction.”) (citation and punctuation omitted). Although O’Callaghan now

complains that Samples failed to serve her with “the filing of an original Will,” she

has not demonstrated that she was harmed by any lack of service. Accordingly, this

claim of error provides no basis for reversal. See Austell HealthCare, supra.

Judgment affirmed. Miller, P. J., and Coomer, J., concur.

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