Estate of Weeks, In re
| Decision Date | 02 December 1997 |
| Docket Number | No. 2770,2770 |
| Citation | 495 S.E.2d 454,329 S.C. 251 |
| Parties | In re ESTATE OF Alice W. WEEKS. Henry R. WEEKS, Jr., Appellant, v. Delores Weeks DRAWDY and Alicia Weeks Foster, Co-Personal Representatives of the Estate of Alice W. Weeks, Respondents. . Heard |
| Court | South Carolina Court of Appeals |
Harvey M. Spar, of Shimel, Ackerman, Theos, Spar & Kronsberg, Charleston, for Respondents.
Henry R. Weeks, Jr. filed a petition to set aside the 1989 will of his mother, Alice W. Weeks, on the basis she lacked capacity to execute the will. In addition to a general attack on the testamentary capacity of Alice W. Weeks, he contended Alice W. Weeks lacked legal capacity because a guardian and two conservators had been appointed for her. The probate court found Alice W. Weeks did have capacity to execute the 1989 will, and the circuit court affirmed. Henry R. Weeks, Jr. appeals. We affirm.
In 1989 Henry R. Weeks Jr. brought a proceeding for guardianship and conservatorship of his 81-year-old mother, Alice W. Weeks. By order dated August 10, 1989, the probate court found Mrs. Weeks "to be a partially incapacitated person to the extent that she is impaired by reason of mental deficiency, physical illness and disability, and advanced age to the extent that she lacks sufficient understanding or capacity to make or communicate responsible decisions concerning her person or property." The court appointed Respondent Delores Weeks Drawdy as Mrs. Weeks's personal guardian. Henry Weeks, Jr. and Respondent Alicia Weeks Foster were appointed as co-conservators of Mrs. Weeks's property. Drawdy and Foster are Mrs. Weeks's daughters. Henry Weeks and Foster were instructed to advise and consult with Mrs. Weeks and Drawdy in the making of any major decisions affecting the estate.
The probate court noted in its order that Mrs. Weeks had claimed she owned the-home at Folly Beach where she resided, but in fact she and her husband had sold the house in 1971 and Mrs. Weeks was now merely a tenant there. Similarly, she claimed she owned a house in Houston, Texas, which she had sold. Mrs. Weeks asserted she owned a house in Coronado, California, which was accurate. At the hearing, Mrs. Weeks expressed a deep resentment of her son for having brought the guardianship/conservatorship proceeding. She rambled at times and incorrectly stated that Henry was a judge.
Joseph H. Marshall, one of the court-appointed examiners in the proceeding, stated Mrs. Weeks was "an incapacitated person to an extent that she lacks sufficient understanding or capacity to make responsible decisions concerning her person; and/ [sic] she is unable to manage her property and affairs effectively...." He believed Mrs. Weeks Another court-appointed examiner in the guardianship/conservatorship proceeding, Dr. John Fletcher, reported Mrs. Weeks's intelligence function was fair, but she seemed to have arteriosclerosis with some mild degree of senility. He stated, "[I]t seems to me that [Mrs. Weeks] is still capacitated to the point where she is capable [o]f making her wishes known and making her feelings known as to how she wants her money spent and how she wants her property disposed of." However, he recommended a guardian be appointed as well as a conservator who would have some authority over her fiscal affairs without divesting Mrs. Weeks of total control over her property.
had a fairly accurate general understanding of what property she owned, but noted she became confused when describing the property and did not know its value. Mrs. Weeks was able to tell him her birth date and she was 81 years old, but she persisted in saying the present year was 1981 although it was in fact then 1989. According to the 1989 probate court order, Dr. Marshall expressed a reserved opinion to the effect Mrs. Weeks did have capacity to write a will and take care of small expenditures. Dr. Marshall concluded Mrs. Weeks probably suffered from Alzheimer's disease.
On August 15, 1989, five days after the order appointing a guardian and co-conservators was signed, Mrs. Weeks executed the will admitted to probate after her death. In this will she gave $300 to a church and $500 to the Society for the Prevention of Cruelty to Animals. She left Henry the sum of one dollar ($1.00). She gave the remainder of her estate to her daughters, Drawdy and Foster. In addition, she appointed Drawdy and Foster as the personal representatives of her estate.
Mrs. Weeks's attorney made an audio recording of the execution of the will, from which a transcript was made. In this transcript, Mrs. Weeks knew the date, but she again asserted the year was 1981. She did not know who the current president was, but claimed she lost interest because she did not get to vote. Mrs. Weeks was able to name her three children. She stated she wanted to leave her property to her daughters, and she left Henry one dollar in order to prevent him from contesting the will. She spoke about the property she thought she owned in Folly Beach, California, and Florida. Mrs. Weeks did not remember her attorney, although he had visited her twice before. She was a little confused about the recent probate court proceeding. Throughout the transcript of the will execution, she demonstrated how adamant she was in her disapproval of her son and her intent to leave him as little as possible. Mrs. Weeks stated she did not devise any of her property to the woman who took care of her because she did not want Henry to be able to contest the will for undue influence.
Mrs. Weeks died on July 8, 1995. Her 1989 will was admitted to informal probate in July 1995 and Respondents Drawdy and Foster were appointed co-personal representatives of the estate. By summons and complaint filed March 8, 1996, Henry contested the will, alleging his mother lacked capacity.
(1) Did the circuit court err in not finding Respondents were in default?
(2) Did the circuit court err in its application of the standard of review?
(3) Did the circuit court err in affirming the probate court's finding that Mrs. Weeks possessed testamentary capacity?
Henry contends Respondents should have been deemed in default for failing to file an answer to his complaint to set aside the will within thirty days and he should be granted the relief requested in his complaint. We disagree.
A formal testacy proceeding is litigation to determine whether the decedent left a valid will. S.C.Code Ann. § 62-3-401 (1987). The proceeding may be commenced by filing a petition requesting that the probate court, after notice and a hearing, enter an order probating a will, or by a petition to set aside an informal probate of a will or to prevent informal probate of a will which is the subject of a pending application. Id.
Apodictically, the statutory scheme articulated in the South Carolina Probate Code does not mandate responsive pleadings. The probate procedure is: (1) the will is probated informally; (2) a petition challenging the will joins the issue; there is no provision for responsive pleading by the proponents of a will prior to trial; and (3) a trial is conducted. South Carolina Code Ann. § 62-3-404 (1987) provides, "Any party to a formal proceeding who opposes the probate of a will for any reason shall state in his pleadings his objection to probate of the will." This statutory provision only applies to a party in a formal proceeding who opposes the probate of a will.
The South Carolina Supreme Court has enacted the South Carolina Rules of Probate Court governing procedure in the probate court. These rules address only a limited number of issues, and there is no procedural rule which requires a responsive pleading to a petition to set aside a will. However, the Probate Code provides in the absence of a specific probate court rule, the rules of civil procedure applicable in the court of common pleas shall be applied in the probate court unless to do so would be inconsistent with the provisions of the Code. S.C.Code Ann. § 62-1-304 (1987). In addition, S.C.Code Ann. § 14-23-280 (1976) provides:
Proceedings in the court of probate may be commenced by petition or complaint to the judge of probate for the county to which the jurisdiction of the subject matter belongs, briefly setting forth the facts or grounds of the application. A summons shall be issued to the...
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