Bolan v. Bolan

• Decision Date: 08 January 1993
• Citation: 611 So.2d 1051
• Parties: Melvin BOLAN, et al. v. John Taylor BOLAN, et al. 1910582.
• Court: Alabama Supreme Court

Page 1051

611 So.2d 1051

Melvin BOLAN, et al. v. John Taylor BOLAN, et al.

1910582.

Supreme Court of Alabama.

Jan. 8, 1993.

Robert E. Patterson, Huntsville, for appellants.

Billy C. Burney, Decatur, for appellees.

ALMON, Justice.

The proponents of a will appeal from a judgment on a jury verdict for the contestants.

On October 11, 1990, three children of Charley Bolan, deceased, as proponents of his purported will, petitioned to probate the will. On November 28, 1990, three other children and the heirs of a deceased child filed a contest, alleging that the will was invalid because of improper execution, ¹ undue influence by the proponents in procuring the will, and lack of testamentary capacity. The contest was subsequently transferred to the Circuit Court of Morgan County, where, upon a trial, a jury returned a verdict for the contestants after the court had denied the proponents' motion for a directed verdict. The trial court then denied the proponents' motion for a j.n.o.v. or for a new trial. The issues are whether the will contest was properly transferred from the probate to the circuit court; whether the trial court properly instructed the jury on the elements of the proof required in a contest alleging undue influence; and whether the contestants presented sufficient evidence to withstand the proponents' motions for a directed verdict and for a j.n.o.v.

The facts of this dispute are as follows:

Charley Bolan died on October 8, 1990. He was survived by six children: Janie Bryant, Charles Bolan, Melvin Bolan, Bessie Walker, Betty Brown, and John Bolan. One child, James, had predeceased Charley, leaving a widow and five children. The evidence shows that Charley was elderly, illiterate, and in poor health immediately before his death.

Charley's wife had died in 1984. Thereafter, Janie and Betty entered into an agreement whereby Betty would cook for and take care of Charley in the morning and Janie would perform these duties in the afternoon and evening. Janie was with Charley daily from then on, while the evidence is conflicting as to how often Betty performed her duties.

On September 6, 1990, Charley attempted to execute a will. He dictated the terms of the will to Suprena Moats, the daughter of Melvin Bolan, who in turn copied his instructions onto a piece of paper that was appended to a preprinted will form. In this document, Charley left $1.00 each to John, Bessie, Betty, and each child of his deceased son James; he left the remainder of his estate to Janie, Charles, and Melvin. Suprena Moats testified that Charley told her that he was excluding the former parties because of the way they had treated him during his recent illness.

Subsequently, Janie called a local lawyer to determine whether the will was legally valid. The lawyer replied that the will needed to be notarized to be valid. After receiving the lawyer's opinion, Janie contacted Mr. Jackson, a notary public, and also arranged for witnesses to be present at a reexecution of the document.

On September 9, 1990, Mr. Jackson and three witnesses gathered at Charley's home, along with several members of the family. The three witnesses testified at trial that Mr. Jackson requested that the family members leave the room where Charley would be signing, and that they did. The witnesses further testified that Mr. Jackson read the will aloud to Charley and went over its provisions to make sure that Charley was aware of the dispositions he was making. All three witnesses to the execution of the will testified that they believed Charley was in sound mental condition at the time he signed the will. Betty, however, testified that she did not believe Charley's mental state was sound when he signed the will and that Charley's condition had been deteriorating for several months before he signed it. Another witness at trial also testified that Charley's physical and mental condition had worsened considerably in the months preceding the making of the will.

The proponents first argue that the circuit court never acquired jurisdiction over the proceedings because, they say, the contestants failed to comply with the requirements of § 43-8-198, Ala.Code 1975. That section provides, in pertinent part:

"Upon demand of any party to the contest, made in writing at the time of filing the initial pleading, the probate court, or judge thereof, must enter an order transferring the contest to the circuit court of the county in which the contest is made."

The proponents point out that the motion to transfer was filed on November 29, 1990, which they say was one day after the contest was filed, and they argue that the circuit court therefore failed to acquire jurisdiction over the case. The proponents concede that the document initiating the contest itself bears no filing date; they argue that it was filed on November 28, 1990, because that is the date of the certificate of service contained within the contest document. The proponents rely primarily upon Kaller v. Rigdon, 480 So.2d 536 (Ala.1985), as support for their conclusion. Kaller, however, is inapposite to the present situation, except to the extent that it simply restates the requirements of § 43-8-198.

Although the proponents correctly assert that § 43-8-198 ordinarily must be strictly followed in order to confer jurisdiction on the circuit court, Simpson v. Jones, 460 So.2d 1282 (Ala.1984), the proponents have failed to show that the contest and the motion for transfer were filed on different days. The probate court's "certificate of transcript" includes the contest document and the motion for transfer together as item number 7 being transmitted to the circuit court. The contest document and the motion for transfer were consecutively paginated by the probate court; the contest document is three pages long and the motion for transfer is one page long. The contest document does not bear a filing date, but the motion is signed by the probate judge as being filed on November 29. From this record, it appears that the probate court treated the two documents as a single four-page filing. This Court will not elevate "form over substance at the expense of justice," Cook v. Cook, 396 So.2d 1037, 1040 (Ala.1981), by reading the date of the certificate of service on the contest document as the date of filing.

The proponents next contend that the trial court erred in instructing the jury concerning the requirements necessary for a presumption of undue influence to arise. The relevant portion of the trial court's charge, which is patterned on Alabama Pattern Jury Instructions 38.10 and 38.11, is as follows:

"If you are reasonably satisfied from the evidence that a confidential relationship existed, and I'll have to tell what a confidential relationship is in a minute, we're going to waive the burden of presumption [sic].

"If you're reasonably satisfied from the evidence that a confidential relation existed between the testator, that is the father who is deceased, and Melvin Bolan, Janie Bryant or Charles Jackson Bolan or any one of these at the time of the execution of the will in question; and that Melvin Bolan, Janie Bryant or Charles Jackson Bolan, Jr., or any one of them participated directly or indirectly in the preparation or execution of the will in which one or more of those persons was named as beneficiary--there is no dispute that they were sole beneficiary--a presumption of undue influence arises and, in that event, the burden is on the Proponents to reasonably satisfy you from the evidence that the will in question was not directly or indirectly the product of undue influence on the part of Melvin Bolan, Janie Bryant or Charles Bolan, Jr., or any one or more of them.

"A confidential relation exist[s] when two parties stand in such a relation to each other, that trust and confidence is justly placed by one person in the other and the other person possesses the influence which naturally grows out of that trust and confidence.

"Undue influence is influence exerted at any time upon the testator which causes him to make a disposition of his property that is contrary to his own free will and desires.

"The legal presumption of undue influence arises only if you're reasonably satisfied from the evidence that both of the following elements exist: One, a confidential relationship exists, as heretofore defined to you, between the testator, that's the deceased man, and Melvin Bolan, Janie Bryant or Charles Jackson Bolan, Jr., or any one or more of them. And there was active participation by either Melvin Bolan, Janie Bryant or Charles Jackson Bolan, Jr., or in concert with one another, or two of them, either directly or indirectly and the preparation of the execution of the will offered for probate.

"There must be a confidential relationship, the person who is a dominant person and again the confidential relationship, the one to which trust is imposed must have been a beneficiary under the will and that person must have had some activity in and about getting the will signed or prepared. If all of those things come together, then the presumption is that there was undue influence and it becomes the burden of these folks over here [the proponents] to satisfy you that such was not the case.

"If you're reasonably satisfied from the evidence that a confidential relationship did, in fact, exist between testator and Melvin Bolan, Janie Bryant, and Charles Bolan Jr., or any one or more of them, and that they actively participated in or caused the preparation of and execution of the will offered for probate in the court, either directly or indirectly, in such manner as to unduly influence the testator to execute the will offered for probate and that said will is the product of such undue influence, then you will find against the will.

"If on the other hand, if you're reasonably satisfied from the evidence that the will offered was not the product of undue influence exerted from [sic] the testator by Melvin...