
    25648.
    WARD et al. v. WARD, Executor.
    Argued February 9, 1970
    Decided March 5, 1970.
    
      Hudson •& Stula, Jim Hudson, for appellants.
    
      Cook, Pleger, Boulogne •& Noell, J. Vincent Cook, for appellee.
   Undercofler, Justice.

Dr. R. T. Ward, Jr., filed a petition to probate in solemn form the will and codicil of his aunt, Mrs. Verna Ward McRee who died on March 19, 1968. A caveat was filed to the petition alleging that the testatrix was not of sound and disposing mind and memory at the time she executed the codicil to her will and that she did not execute the codicil freely and voluntarily but was moved thereto by undue influence and persuasion over her by the propounder. The ordinary denied the caveat and found that the codicil should be admitted to record as part of the will of the testatrix. An appeal was made to the superior court. The propounder was granted a summary judgment in the superior court. This appeal is from that judgment. Held:

A summary judgment should not be granted if there are substantial issues of fact to be determined. Ga. L. 1966, pp. 609, 660; 1967, pp. 226, 238 ('Code Ann. § 81A-156 (c)).

The evidence showed that the propounder, Dr. R. T. Ward, Jr., was the guardian of the testatrix at the time of the execution of the codicil and that he had been appointed her guardian by the court of ordinary upon an adjudication that she was mentally incompetent.

A mental state once proved to exist is presumed to continue; however, this may be rebutted by proof. Code § 38-118; Belk v. Colleas, 207 Ga. 328 (61 SE2d 464); Ware v. Hill, 209 Ga. 214 (71 SE2d 630). Therefore, at the time the testatrix executed the codicil she was presumed mentally incompetent. The evidence submitted in rebuttal by the propounder showing that the testatrix was mentally competent to execute the codicil created a substantial issue of fact to be determined by a jury. Templeton v. Kennesaw Life &c. Ins. Co., 216 Ga. 770, 773 (119 SE2d 549).

The trial court erred in granting the motion for summary judgment.

Judgment reversed.

All the Justices concur.  