Carpenter's Estate, In re

• Decision Date: 25 September 1970
• Docket Number: No. 2156,2156
• Parties: In re ESTATE of Coketine Bray CARPENTER, Deceased.
• Court: Florida District Court of Appeals

Page 506

239 So.2d 506

In re ESTATE of Coketine Bray CARPENTER, Deceased.

No. 2156.

District Court of Appeal of Florida, Fourth District.

Sept. 25, 1970.

Thomas A. Thomas and Robert M. Sturrup, of Thomas, Sturrup, Della-Donna & Leopold, Hollywood, for appellant Mary Redman Carpenter.

George E. Hovis, Clermont, and Toxey H. Smith, Jr., Wiggins, Miss., for appellees Ben Carpenter, II, and William Bray Carpenter.

OWEN, Judge.

This is a will contest case in which we are called upon to review an order of the county judge's court of Orange County, Florida, adjudicating that the will of Coketine Bray Carpenter, deceased, was procured by undue influence and therefore void and not entitled to probate. The appellant is Mary Redman Carpenter, daughter of the deceased and the sole beneficiary under the will which was denied probate. The appellees, Ben Carpenter, II, and William Bray Carpenter, are two of the decedent's three sons.

While the evidence was voluminous the essential facts can be stated fairly succinctly.

At the time of her death in 1966, Mrs. Carpenter was 52 years of age. He husband had died in 1953 so that when her four children thereafter became grown and moved away, the decedent was left to live alone in the family home in Winter Garden, Florida. During the several years that she did live alone she handled all of her own business and household affairs. In the summer of 1966, Mrs. Carpenter developed cirrhosis of the liver to such an extent that she became quite ill and required hospitalization by her physician on August 28.

Mary, oldest of the four children, was employed as a school teacher in Daytona Beach. In the summer of 1966 she attended a ten-week school session at the University of Georgia, at the completion of which she visited her mother on August 20, 1966. Mary immediately recognized that her mother was quite ill, and when she again visited her mother one week later and saw that there was no improvement, Mary arranged for her mother to be admitted to a hospital in Daytona Beach on August 28. Mrs. Carpenter had no telephone in her room, nor was one readily accessible to her. On August 30, Mary telephoned her own attorney in Orlando, Russell Troutman, Esquire, advising him that her mother wished to have a will prepared in which Mary was to be named as sole beneficiary and executrix. The following day Mary again telephoned the attorney to impress upon him the urgency of the matter.

Following the second telephone call Mr. Troutman promptly prepared a will in accordance with these instructions and drove from Orlando to Daytona Beach with the document. When he arrived at the hospital, the testatrix recognized him and out of the presence of Mary, Mr. Troutman questioned the testatrix in detail concerning her wishes for disposition of her property, particularly to satisfy himself that she was aware that under the testamentary scheme as relayed to him, Mrs. Carpenter's three sons were being excluded from her will. After this preliminary questioning of the testatrix, Mr. Troutman then arranged for two other persons to be present (one of whom was a medical doctor) during the time that Mr. Troutman read the will to the testatrix and again questioned her to satisfy himself and the witnesses that Mrs. Carpenter was aware of the contents of the document and that it was in accord with her desires. The will was then properly executed and retained by Mr. Troutman, none of the children other than Mary being aware of the will's existence until at or just shortly prior to Mrs. Carpenter's death four days later.

In the order declaring the will void, the probate court found that a confidential relationship existed between Mary and the decedent, that Mary was active in procuring the execution of the will, and that since Mary was the sole beneficiary, there was created a presumption that the execution of the will was procured through undue influence. Finding that Mary had not overcome this presumption nor disproved the existence of undue influence, the order held the will void.

We have some doubt as to whether the facts can be said to establish a confidential relationship between appellant and her mother within the definition of that term as contained in Quinn v. Phipps, 1927, 93 Fla. 805, 113 So. 419, as such relationship does not arise as a matter of law simply because of the mother-daughter relationship between the parties. We also entertain some doubt that Mary's conduct amounted to actively procuring the will or its execution, as her activity was primarily as a messenger on behalf of her mother who was physically unable to perform such activity. See In re Smith, Fla.App.1968, 212 So.2d 74. It seems quite natural that one who is suffering from a serious and physically incapacitating illness, and who wishes to call a lawyer to have a will prepared, would turn to a member of the family for assistance. Mary was the only member of the family attending her mother and available to relay such message to the lawyer. It would be an ironical law indeed which repaid familial duty or kindness by categorically labeling it as an active procurement of the will.

Nonetheless, having expressed these thoughts we accept For the purpose of this decision the trial court's determination that a confidential relationship did exist between appellant and her mother, and that appellant was active in procuring the will in which she was the sole beneficiary. Acknowledging the established law that these facts give rise to a presumption of undue influence, In re Palmer's Estate, Fla.1950, 48 So.2d 732; Zinnser v. Gregory, Fla.1955, 77 So.2d 611, it appears to us that the trial court gave such presumption an erroneous effect, and that the order must be reversed.

Initially, we note that the formal execution and attestation of the will having been established, the burden of proof shifted to the contestants to prove the undue influence alleged by them. F.S. Section 732.31, F.S.A. That burden of proof remained with the contestants at all times.

The undue influence required for invalidation of a will has been many times described by the courts. Mere affection, kindness or attachment of one person for another may not of itself constitute undue influence. Rather, it is conduct which must amount to...