Denson v. Moses, 2070140.
| Decision Date | 02 May 2008 |
| Docket Number | 2070140. |
| Citation | 2 So.3d 847 |
| Parties | Terry Elizabeth DENSON v. Virginia MOSES. |
| Court | Alabama Court of Civil Appeals |
Robert H. Brogden, Ozark, for appellant.
Bryant F. Williams, Jr., Ozark, for appellee.
This is a will-contest action. Robert Moses ("Moses"), the testator, died on September 17, 1999. His wife, Virginia Moses ("Virginia"), proffered Moses's will for probate. Moses's only child, Terry Elizabeth Denson, filed an action contesting the will and challenging Moses's testamentary capacity to execute that will. The action was removed to the circuit court. Denson's challenge was heard before a jury but, before the action was submitted to the jury for consideration, the circuit court entered a judgment as a matter of law in favor of Virginia.
Denson appealed to the Alabama Supreme Court; that court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975. On appeal, Denson argues that Moses lacked testamentary capacity at the time he executed the proffered will. We reverse.
Moses and Virginia married in January 1999. Moses executed a will in March 1999; he died in September 1999. After Moses's death, Virginia offered Moses's will for probate. Under the terms of that proffered will, Virginia was named as the executrix of Moses's estate and as the sole beneficiary of his estate. Denson was not mentioned in the will.
At the trial in this matter, the following witnesses testified: Dr. Calvin Reid, Moses's treating physician; Denson; and David Hogg, the attorney who drafted the will for Moses. Copies of Moses's medical records were also introduced into evidence.
The medical records introduced at the trial established that Moses had experienced some health issues during the 10 years before his death. In December 1992, Moses had been admitted to the hospital; at that time he was comatose, in critical condition, and was not expected to live. Physicians initially believed that he had suffered a stroke.
It was later discovered that Moses had not suffered a stroke but was suffering from renal failure due to untreated prostate cancer. He underwent surgery for the cancer. Because of the seriousness of his condition during that 1992 hospitalization the hospital had contacted Denson as Moses's next of kin. It was undisputed that Moses and Denson had had a strained relationship for many years. According to Denson, upon arriving in Alabama to tend to Moses, she discovered that his home was in "awful" condition. She described dead mice around his bed, old food in the refrigerator, and bare dirt floors where bricks had once been. According to Denson, she had done some work at Moses's home to make it livable and safe.
Denson acknowledged that, because of the severity of Moses's medical condition, she had obtained a conservatorship over him. As a result of that conservatorship, Denson had withdrawn more than $60,000 of Moses's money from his bank account and had closed that account, moving the money into a conservatorship account. Denson also had taken control of approximately $60,000 in cash from Moses's home; according to Denson, she had taken Moses's money from his home because she had discovered Fred Plumb and his wife in Moses's home with the safe open; Moses kept the cash in that safe.
Moses fully recovered from his cancer, and he was discharged from the hospital on December 28, 1992. He returned to his normal lifestyle, caring for his horses. Denson testified that, after Moses had recovered, she had returned all the money to him. However, she admitted that Moses might have believed that she did not return all his money to him. Denson acknowledged that Moses had been unhappy about her taking control of his life in 1992 and that "he never got over it."
In November 1995, Moses was again hospitalized and underwent surgery for bleeding duodenal ulcers. According to Dr. Reid, Moses had suffered a brief bout of delirium after this surgery. Dr. Reid believed that Moses's delirium possibly resulted from developing dementia, from a cognitive decline, or from changes consistent with Alzheimer's disease. The medical records from this hospitalization, however, made no mention of this delirium. Upon his discharge from the hospital, Moses again resumed his daily routine.
In late 1997 and early 1998, Dr. Reid reported that Moses's prostate-specific antigen ("PSA") levels were dramatically increasing, indicating to Dr. Reid that Moses's prostate cancer was recurring.1 Dr. Reid scheduled an appointment with a urologist for Moses. Moses, however, failed to appear for that appointment. Dr. Reid made other appointments for Moses, but Moses failed to keep those appointments as well. This caused Dr. Reid concern regarding Moses's state of mind because, although it appeared that Moses's cancer had recurred, Moses was failing to see a specialist on that matter. However, Dr. Reid acknowledged that Moses had never been reliable regarding medical visits and had often failed to show up for scheduled appointments.
Dr. Reid again saw Moses in November 1998. Dr. Reid next saw Moses in April 1999, the month following the execution of his will. Virginia accompanied Moses on that visit, and during that visit Dr. Reid learned that they had married. Virginia assured Dr. Reid that Moses would take care of himself and see to his medical needs. The medical records indicate that, by July 1999, Moses had undergone radiation for recurrent prostate cancer. Despite that treatment, Moses died on September 17, 1999.
At the trial, Dr. Reid admitted that he had detected no neurological deficiencies in Moses as of October or November 1998 and that he had not seen Moses again until the April 1999 visit. Because he had had no interaction with Moses during the month of March 1999, Dr. Reid admitted that he could not form an opinion as to Moses's mental state on the day he had executed his will. Dr. Reid also acknowledged that it was typical of Moses not to keep scheduled doctor appointments.
Dr. Reid also admitted that, as of March 9, 1999, Moses would have known who Virginia and Denson were and how he felt about each of them. Dr. Reid also agreed that, in March 1999, Moses would have been able to understand that he was making a will and to understand that, as a result of that will, he was leaving his assets to Virginia rather than to Denson.
However, the following exchanges occurred without objection during Dr. Reid's testimony at the trial:
According to Denson, Moses had told her on several occasions during 1999 that he was going to take care of Denson and her children. Denson testified that Moses had waited for some time to tell her that he had married Virginia and that he had never told her that he had executed a will. Denson claimed that after his hospitalizations, Moses had appeared to be "a totally different person." She claimed that he had repeated stories during the same visit, had been weaker than before, and had been frustrated that he could no longer care for his horses.
Denson also testified that Moses was a stickler for details but that he had signed a will containing multiple errors. She pointed out that the will had erroneously indicated that Moses lived in Houston County when he lived in Dale County. The will had referenced "my pickup truck" when, at the time of his death, Moses owned three pickup trucks. Denson also pointed out that the will had not specifically referenced a substantial number of savings bonds Moses held at the time of his death. She also asserted that the will had made no mention of Moses's horses, his most prized possessions. Denson also alleged that Moses did not typically sign his name as it was shown on the will.
David Hogg, an attorney, testified that he had met with Moses and Virginia regarding Moses's request to draft a will. Hogg remembered that Moses had wanted to leave all of his estate to his wife, Virginia, and that he specifically had not wanted his child, Denson, to receive any of his estate. Hogg noticed nothing out of the ordinary about Moses and Virginia, and, in Hogg's opinion, Moses appeared to be acting normally. Hogg testified that Moses had been absolutely capable of executing a will at that time. Regarding the errors in the will as to Moses's county of residence and the form of his name, Hogg testified that he had simply not done a very thorough job of proofreading the will.2 Hogg also testified that, in preparing wills, he typically did not list all the testator's property and assets in the will, particularly when a testator wished to leave his entire estate to one person.
'
Glenlakes Realty Co. v. Norwood, 721 So.2d 174, 177 (Ala.1998) (quoting Bussey v. John Deere Co., 531 So.2d 860, 863 (Ala.1988)).
Section § 38.04 of the Alabama Pattern Jury Instructions provides:
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Ex Parte Moses, 1071134.
...2 So.3d 854 ... Ex parte Virginia MOSES ... (In re Terry Elizabeth Denson ... Virginia Moses) ... Supreme Court of Alabama ... August 8, 2008 ... Petition for Writ of Certiorari to the Court of Civil als (Dale Circuit Court, CV-00-97, P. Ben McLauchlin, Jr., Judge; Court of Civil Appeals, 2070140) ... Bryant F. Williams, Jr., Ozark, for petitioner ... Submitted on petitioner's brief only ... ...