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Docket Number

Opinion No. 1954

Attorney(S)

Michael Ray Ellisor, Batesburg, for appellant. Jeff M. Anderson, of Bouknight, Nicholson, Davis Young, Lexington, for respondent.

Judges

PER CURIAM:Page 194

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Smart Summary

Summary of Opinion: Katherine A. Hembree v. Estate of Willie A. Hembree (Opinion No. 1954)

Factual and Procedural Background

Appellant Katherine A. Hembree (contestant) contested the will of decedent Willie A. Hembree (testator) in probate court, alleging undue influence and incapacity. The case was removed to the Court of Common Pleas for Lexington County and proceeded to a jury trial. At the close of the contestant's evidence, the respondent (the estate) moved for and the trial judge directed a verdict in favor of the estate on both undue influence and incapacity. The lower court then remanded the matter back to the probate court. Contestant appealed. The Court of Appeals affirmed the directed verdict and the judgment below.

Key factual findings recited by the court: the testator died September 23, 1989. He had executed a will on September 30, 1988, devising his residuary estate to three daughters of his first marriage (Andrea Bowers, Carolyn Shumpert, and Janice Dunker) and leaving the contestant, his second wife, an income interest in a trust comprising one-third of his probate estate. A prior 1979 will had left the contestant nothing. The summer before the 1988 will, the testator had head surgery to relieve pressure from blood clots, and thereafter was physically weak and had conversational difficulties (repeating or forgetting statements). During the hospitalization and subsequent events, Andrea accessed the testator's lockbox contents and Carolyn spoke privately with him about his will, arranged an attorney appointment after his release, and obtained a medical opinion as to his capacity at the attorney's firm's advice. The testator met with an attorney at that firm on August 23, 1988; Carolyn greeted him but did not attend the attorney-client conference. In early September, Carolyn delivered a letter from the attorney; Andrea prepared two letters at the testator's direction and later acknowledged editing grammar and sentence structure. On September 12, Carolyn drove the testator to a filling station where he signed those letters. On September 30, 1988, the testator executed the will and a power of attorney in favor of Andrea at the law offices; Carolyn and Andrea were present but neither witnessed nor were in the attorney's office during the execution. Carolyn was given the will for safekeeping at the testator's request.

Legal Issues Presented

Whether, viewing the evidence in the light most favorable to the contestant, the contestant had produced sufficient evidence of testator incapacity to require submission of that issue to a jury.
Whether, viewing the evidence in the light most favorable to the contestant, the contestant had produced sufficient evidence of undue influence to require submission of that issue to a jury.

Arguments of the Parties

Appellant's Arguments

The testator lacked the capacity to understand the will because he had undergone recent head surgery and was under medication, experienced physical weakness, and had conversational and memory problems; therefore he could not have understood the complex will or the breadth of his estate.
Andrea and Carolyn unduly influenced the testator to leave the majority of his estate to them and their sister, relying on circumstances including Andrea accessing the lockbox during hospitalization, Carolyn's private discussions about the will, Carolyn arranging the attorney meeting, and their presence around the time of the will's execution.

The opinion does not contain a detailed account of specific arguments advanced by the respondent in opposition beyond the trial judge's granting of a directed verdict for the estate on both issues.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Calhoun v. Calhoun, 277 S.C. 527, 290 S.E.2d 415 (1982)	When a will's formal execution is proven, a prima facie case is made in favor of the will; burden then shifts to contestant to prove incapacity or undue influence. Also holds that unhampered opportunity to change the will after alleged undue influence defeats inference of undue influence and supports directing a verdict.	The court applied Calhoun to state the prima facie effect of due execution and to support the conclusion that the testator's unhampered opportunity (almost one year between execution and death) to change the will destroyed any inference of undue influence, justifying the directed verdict.
Hellams v. Ross, 268 S.C. 284, 233 S.E.2d 98 (1977)	Defines the test for testamentary capacity: whether the testator knew his estate, the objects of his affections, and to whom he wished to give his property.	The court used Hellams to articulate the proper legal test for capacity and to evaluate the evidence (noting similarity between the 1979 and 1988 wills as evidence the testator recognized his beneficiaries).
In re Estate of O'Neill, 259 S.C. 55, 190 S.E.2d 754 (1972)	Establishes the presumption that, upon proof of due execution, the testator knew the contents of the will.	The court relied on O'Neill to note that due execution creates a presumption of the testator's knowledge of the will's contents, which contributes to rejecting the contestant's incapacity claim where supporting testimony was lacking.
Boan v. Watson, 281 S.C. 516, 316 S.E.2d 401 (1984)	Discussed in context of change in South Carolina law regarding dower and the Probate Code's allowance for a surviving spouse's elective share.	The court referenced Boan to explain why the testator sought a new will (due to a change in law) and to contrast the dispositions of the 1979 and 1988 wills in the capacity analysis.
Smith v. Whetstone, 209 S.C. 78, 39 S.E.2d 127 (1946)	Holds that mere existence of influence is not enough to void a will; influence must destroy free agency and amount to force or coercion.	The court cited Smith to state the standard for undue influence and to explain that the evidence here (at most opportunity) did not rise to the level required to vitiate the will.
Todd v. Woodard, 297 S.C. 264, 376 S.E.2d 276 (1989)	Undue influence must amount to force and coercion; mere opportunity to influence is insufficient.	The court applied Todd to hold that the evidence showed only opportunity, and opportunity alone does not create a jury issue on undue influence.
Moorer v. Bull, 212 S.C. 146, 46 S.E.2d 681 (1948)	Successful undue influence claims have involved evidence such as threats, force, restricted visitation, or a fiduciary relationship at or before execution.	The court cited Moorer as an example of the type of evidence typically required and found such evidence absent here.
Byrd v. Byrd, 279 S.C. 425, 308 S.E.2d 788 (1983)	Also cited for the type of circumstances that have supported findings of undue influence (threats, restricted visitation, fiduciary relationships).	The court referenced Byrd to underscore that the required unmistakable and convincing circumstances supporting undue influence were not present in this record.

Court's Reasoning and Analysis

The court began by reiterating the legal starting point: proof of formal execution of the will creates a prima facie case in favor of the will, placing the burden on the contestant to prove incapacity or undue influence, and that evidence must be viewed in the light most favorable to the contestant.

On the incapacity claim, the court applied the standard from Hellams (that testamentary capacity requires knowledge of one's estate, the objects of one's affections, and to whom one wished to give property) and the presumption from O'Neill that due execution establishes knowledge of the will's contents. The contestant relied on the testator's recent head surgery and medication to argue he could not understand a complex will. The court observed that the contestant did not claim the testator was mentally incapacitated per se and noted the absence of testimony from the drafting attorney or the subscribing witnesses concerning the testator's condition at execution—evidence the court said would have been "quite illuminating" but which the contestant chose not to present. The court further pointed to the similarity between the 1979 and 1988 wills as evidence the testator recognized his beneficiaries and understood whom he wished to benefit. Considering these points, the court concluded there was insufficient evidence of incapacity to submit that issue to a jury and that directing a verdict on incapacity was proper.

On undue influence, the court recited the governing principles: influence alone is insufficient to void a will; to vitiate a will the influence must destroy free agency and amount to force or coercion, and circumstances must "unmistakably and convincingly" show substitution of another's will for that of the testator. The court noted that successful undue influence claims often involve evidence of threats, force, restricted visitation, or a fiduciary relationship at or before the will's execution.

Applying those principles to the facts, the court found no evidence that Andrea or Carolyn coerced the testator by force or threat in connection with the letters, the appointment, the trip to the law offices, or the will's execution. Neither attended the attorney-client conference or witnessed the will, and neither could know the testator's exact actions or signatures until after the fact. The court concluded that the record demonstrated at most opportunity to influence, and opportunity alone does not create a jury issue. Even assuming an inference of undue influence might arise from some testimony, the court relied on Calhoun to hold that the testator's unhampered opportunity to change the will after the operation of any alleged influence destroys the inference. The testator lived nearly a year after execution, during which he remained active (played golf, drove, conducted business), lived with the contestant (not with the alleged influencers), and had only rare visits from the alleged influencers. The testator's failure to revoke or alter the will during that unhampered period undermined any inference of undue influence. Based on these factual findings and the legal standards, the court concluded the directed verdict was proper.

Holding and Implications

Affirmed.

Holding: The Court of Appeals affirmed the trial court's directed verdict in favor of the estate on both contest grounds (testator incapacity and undue influence).

Implications: The direct consequence of the decision is that the will executed September 30, 1988, was upheld and the contestant's challenge failed; the directed verdict for the estate was affirmed and the case was remanded back to probate court as previously ordered. The court applied existing precedent to the record and did not announce any new legal rule or broader change in the law; the opinion resolves the dispute on the particular facts presented.

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Katherine A. Hembree, Appellant, v. Estate of Willie A. Hembree,Respondent.

PER CURIAM:Page 194

Appellant Katherine A. Hembree (contestant) initiated this action in the probate court contesting the will of Willie A. Hembree (testator) on the grounds of undue influence and testator incapacity. The matter was removed to the Court of Common Pleas for Lexington County and proceeded to a jury trial. At the close of contestant's evidence, Respondent moved for and the trial judge directed a verdict in favor of the estate on both issues. The lower court then remanded the matter back to the probate court. Contestant appeals. We affirm.

The testator died on September 23, 1989. He left a will, executed September 30, 1988, devising his residuary estate to Andrea Bowers (Andrea), Carolyn Shumpert (Carolyn), and Janice Dunker, his three daughters by his first marriage, and leaving contestant, who was his second wife, an income interest in a trust comprised of one-third of his probate estate. Before the execution of this will, testator had executed a will in 1979 which left contestant nothing.

Generally, when the formal execution of a will is admitted or proven, a prima facie case in favor of the will is made out. Calhoun v. Calhoun, 277 S.C. 527, 290 S.E.2d 415 (1982). The burden is then on the contestant to prove testator incapacity or undue influence. Id. at 530, 290 S.E.2d at 417. However, in determining whether this burden has been met, we are required to view the evidence in the light most favorable to the contestant. Id.

During the summer before the will's execution, testator had been hospitalized for head surgery. Following the surgery, he was physically weak. Moreover, he had problems conversing with others, often repeating or forgetting what he had said or not being able to maintain a conversation.

The surgery was performed to lessen pressure on the brain because of blood clots.

During this hospital stay, Andrea went into his lockbox and removed its contents. Also at this time, Carolyn talked privately with him about his will. Initially, the testator wanted an attorney to come to the hospital and make a new will. However, Carolyn persuaded him instead to plan an appointment for after his release. He agreed and requested that she arrange a meeting at the law firm at which she worked. Before he met with an attorney and under the advice of an attorney with the firm, Carolyn obtained a medical opinion as to testator's capacity.

On August 23, 1988, testator met with an attorney at the firm at which Carolyn worked. Carolyn's husband had driven him to the appointment. When the testator arrived, Carolyn greeted her father. However, she did not sit in on the attorney-client conference nor did she discuss the testator's will with the attorney.

In early September, Carolyn delivered a letter dated September 6, 1988, from the attorney to the testator concerning the testator's wishes as to disposition of certain assets. In response to this letter, the testator directed Andrea to prepare two letters detailing his wishes concerning his estate. She did so but admits brushing up the grammar and sentence structure. On September 12, 1988, Carolyn picked up the testator from his house and drove him to a nearby filling station where he signed these letters.

On September 30, 1988, the decedent executed his will and a power of attorney in favor of Andrea at the law offices. Both Carolyn and Andrea were present but neither witnessed nor were in the attorney's office during the execution. At the testator's request, Carolyn was given the will for safekeeping. Contestant asserts this evidence is sufficient to present the issues of undue influence and testator capacity to a jury. We disagree.

First, the contestant argues that the testator did not understand his will and for this reason he lacked capacity. The test of capacity necessary to make a will is whether the testator knew his estate, the objects of his affections and to whom he wished to give his property. Hellams v. Ross, 268 S.C. 284, 233 S.E.2d 98 (1977). Moreover, the presumption arises upon proof of due execution of the will that the testator knew its contents and this is sufficient to establish testator knowledge thereof. In re Estate of O'Neill, 259 S.C. 55, 190 S.E.2d 754 (1972).

The contestant relies on the fact that the testator had undergone head surgery and was under medication to challenge his ability to understand the will. She never asserts he was mentally incapacitated. Instead, she states he could not have understood the complex will and she is unsure if he understood the breadth of his estate. However, there was no evidence either from the drafting attorney or the subscribing witnesses concerning his condition at the time of the execution. Their testimony would have been quite illuminating as to his condition, but the contestant chose not to call them.

Moreover, the mere fact that the will was a complex document which required explanation from the drafting attorney does not convince us that the testator lacked the capacity to execute this document. On the contrary, the similarity of disposition in the 1979 will and the 1988 will establishes that the testator recognized who his loved ones were and to whom he wished the majority of the estate to go. In fact, the apparent reason the testator wanted the new will was because a change in South Carolina law could undermine his wishes as expressed in the 1979 will. We find no sufficient evidence to establish testator incapacity at the execution of the will and therefore no error in directing a verdict on this issue.

Under the common law prior to 1984, the contestant would only have had a dower interest in the testator's estate. But see Boan v. Watson, 281 S.C. 516, 316 S.E.2d 401 (1984) (holding that dower was unconstitutional). Under the South Carolina Probate Code, the contestant, if proceeding under the 1979 will, could claim one-third of the testator's probate estate outright. See S.C. CODE ANN. § 62-2-201 (Supp. 1992).

Furthermore, we find no error in the lower court's refusal to submit the issue of undue influence to the jury. The mere existence of influence is not enough to void a will as all influences are not unlawful. Smith v. Whetstone, 209 S.C. 78, 39 S.E.2d 127 (1946). For influence to vitiate a will, it must destroy free agency and amount to force and coercion. Todd v. Woodard, 297 S.C. 264, 376 S.E.2d 276 (1989); Calhoun, 277 S.C. at 532, 290 S.E.2d at 418; Smith, 209 S.C. at 83, 39 S.E.2d at 129. Circumstances must unmistakably and convincingly point to the substitution of another's will for that of the testator. Calhoun, 277 S.C. at 530, 290 S.E.2d at 417. In cases where allegations of undue influence have been successful, there has been evidence of threats, force, restricted visitation, or an existing fiduciary relationship at the time of or before the will's execution. See Moorer v. Bull, 212 S.C. 146, 46 S.E.2d 681 (1948); Byrd v. Byrd, 279 S.C. 425, 308 S.E.2d 788 (1983).

However, even if a contestant does establish an inference of undue influence, the unhampered opportunity of the testator to change the will after the operation of undue influence destroys this conclusion. Calhoun, 277 S.C. at 532, 290 S.E.2d at 419. The court's directing of a verdict in that instance is proper. Id.

The contestant asserts that Andrea and Carolyn unduly influenced the testator to leave the majority of the estate to them and their other sister. She bases this allegation on the facts we have set out above. However, there was no evidence that Carolyn or Andrea coerced the testator by force or threat to sign the letters, set up the appointment, go to the law offices, or make the will. They were not in the room when the will was executed nor when the testator first met with the attorney. They had no way of knowing what he was signing until after the fact. At most, the evidence showed opportunity, which alone did not create an issue of fact. See Todd, 297 S.C. at 266, 376 S.E.2d at 278.

Moreover, the testator had plenty of time, unhampered by the presence and operation of the alleged influence, to change or revoke his will. His death was not until almost one year after the will's execution. During this time he remained active. He played golf, drove a car, and handled his business affairs. In addition, he lived with the contestant, not the persons allegedly practicing the undue influence. In fact, there was testimony that visits from the alleged influencers were rare. Testator's failure to void or alter the will during this period destroys any inference of undue influence that may have arisen from the other testimony. As a result, we find the granting of the directed verdict was proper.

Affirmed.

HEMBREE v. ESTATE OF HEMBREE