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Click here for the full text of this decision FACTS:The trial court set aside its order admitting to probate a 1990 will of Jacqueline Elizabeth Grimm, which Theda Carpenter had sought to probate, and admitted to probate a 1999 will, together with its 2001 codicil, as sought by Shari Spencer, a niece of the deceased. Carpenter and Jack Grimm were the surviving children of the deceased and beneficiaries of the 1990 will. Stephanie Savage was another niece of the deceased, while Phyllis Sue Thomas was a housekeeper for the deceased. Spencer, Savage, and Thomas were all beneficiaries of the 1999 will and 2001 codicil. Carpenter and Grimm appealed from a summary judgment, which granted motions filed by Spencer, Thomas and Savage, the appellees. Appellants argued that the trial court erred because genuine issues of material fact exist that prevent the granting of those motions. Appellants sought to show that there was a material issue of fact on the issue of the deceased’s testamentary capacity and to present evidence of undue influence exerted by the appellees. HOLDING:Reversed and remanded. Appellants’ summary judgment evidence consists of affidavits executed by Theda Carpenter and her husband, Doug Carpenter. In her affidavit, Theda discussed her mother’s long-term drinking problem. She indicated that her mother had been diagnosed with dementia related to alcoholism and insisted that her mother’s short-term memory loss continued to be exhibited even during periods of abstinence. Doug’s affidavit repeated evidence of his mother-in-law’s drinking problems and stated that she had very little short-term memory in the early 1990s. He stated that her short-term and long-term memory worsened by the mid-1990s. The court holds that the summary judgment evidence showing chronic impairment of cognitive mental abilities and delusional thinking on the part of the testatrix, both before and after the making of the will and codicil, shows that there is a material fact issue with respect to the testatrix’s testamentary capacity. The court rejects appellees’ assertion that the evidence provided in the Carpenter affidavits is conclusory. Even without the statements criticized by appellees, the court holds that there is sufficient nonconclusory evidence in the affidavits to raise a material issue regarding the decedent’s testamentary capacity. The court also rejects appellees’ assertion that the evidence is insufficient because it merely shows the decedent’s chronic alcoholism and dementia. The court finds that Theda’s affidavit shows that, in addition to alcoholism, the decedent had cognitive deficits or dementia both before and after the execution of the 1999 will and 2001 codicil, to the extent that a reasonable person could conclude that she would not have had testamentary capacity at the time she executed them. Finally, the court also rejects appellees’ claim that the affidavits are insufficient because they do not show the testatrix’s lack of testamentary capacity on the day of the execution of the will and codicil. The court finds that the evidence shows that the testatrix had diminished capacity both before and after the execution of the will and codicil and that the condition persisted for a long period of time, including periods of abstinence. The court then considers appellants’ claim that the trial court erred in granting the no-evidence motion for summary judgment with respect to the issue of undue influence. The court finds that the only evidence on the issue is a statement in Theda’s affidavit to the effect that, as the decedent’s caregiver, Sue Thomas had the opportunity to exert undue influence. Consequently, the court holds that the evidence is insufficient to present a material fact issue so as to defeat a no-evidence motion for summary judgment with respect to the issue of undue influence. The court therefore sustains appellants’ point on appeal with respect to the traditional motion for summary judgment on the issue of testamentary capacity and overrules appellants’ point on appeal with respect to the no-evidence motion for summary judgment on the issue of undue influence. OPINION:Hill, J.; Wright, Hill and McCall, JJ.

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