Brock v. Kelsoe

Decision Date26 March 2021
Docket Number1200141
Citation335 So.3d 624
Parties Nel BROCK v. Philip KELSOE
CourtAlabama Supreme Court

Jonathan D. Watson, Decatur, for appellant.

Russ Prickett and Zachary Starnes of The Cole Law Firm, LLC, Decatur, for appellee.

SELLERS, Justice.

Shirley Temple Carr Ralph ("Mrs. Ralph") executed a will naming Philip Kelsoe ("the proponent") the executor and sole beneficiary of her estate. Mrs. Ralph's sister, Nel Brock, contested the will, arguing that Mrs. Ralph had lacked the mental capacity to execute the will and that the will was the product of undue influence on the part of the proponent. The Morgan Circuit Court entered a summary judgment in favor of the proponent, and Brock appealed. We reverse and remand.

I. Facts and Procedural History

Mrs. Ralph executed her will on March 21, 2017; she died on April 13, 2018, at the age of 76. Mrs. Ralph was predeceased by her husband who died in January 2017 and two children -- both of whom had no issue.1 Immediately after Mr. Ralph died, the proponent, one of Mrs. Ralph's neighbors, began assisting Mrs. Ralph with various tasks, including taking her shopping, undertaking general household chores, helping her refinance the mortgage on her house, driving her to doctors' appointments, having her prescriptions filled, and dispensing all of her medications. According to the proponent, Mrs. Ralph had asked him in March 2017 for the recommendation of an attorney who could draft a power of attorney for her. The proponent recommended Mark Johnson, made an appointment for Mrs. Ralph to meet with Johnson, drove her to that appointment, and waited in the lobby while she consulted with Johnson. On March 21, 2017, the proponent drove Mrs. Ralph back to Johnson's office, at which time she executed a power of attorney in favor of the proponent and a will naming him executor and sole beneficiary of her estate.2 According to the proponent, Mrs. Ralph never mentioned beforehand that she was executing a will. The proponent stated that, after Mrs. Ralph executed the will, she asked him to keep it, as well as the power of attorney, in the proponent's safe. The proponent did not tell Mrs. Ralph's family about the will. The proponent also indicated that Mrs. Ralph had added his name on her checking account. At some point after Mrs. Ralph executed the will, the proponent approved of or allowed one of his acquaintances, Kathy Mitchell, to move into Mrs. Ralph's home. Mrs. Ralph signed a contract agreeing to pay Mitchell $600 a month to live with her, run errands, and help around the house, etc. The agreement also provided that, after Mrs. Ralph died, Mitchell would take possession of a specific vehicle owned by Mrs. Ralph. After the death of Mrs. Ralph, the proponent petitioned the Morgan Probate Court to admit the will to probate. Brock filed a will contest, alleging that Mrs. Ralph had lacked the mental capacity to execute the will because of "mind altering" medications she had been prescribed and was taking at the time the will was executed. Brock also argued that the will was the product of undue influence on the part of the proponent. The will contest was transferred to the circuit court pursuant to § 43-8-198, Ala. Code 1975. The proponent moved the circuit court for a summary judgment, which Brock opposed. After a hearing, the circuit court entered a summary judgment in favor of the proponent. Brock appealed.

II. Standard of Review

This Court reviews a summary judgment de novo, and we use the same standard used by the trial court to determine whether the evidence presented to the trial court presents a genuine issue of material fact. Rule 56(c), Ala. R. Civ. P.; Nettles v. Pettway, 306 So. 3d 873 (Ala. 2020). The movant for a summary judgment has the initial burden of producing evidence indicating that there is no genuine issue of material fact. Once the movant produces evidence establishing a right to a summary judgment, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. We consider all the evidence in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts in the nonmovant's favor. Id.

III. Analysis
A. Testamentary Capacity

The law presumes that every person of legal age has the capacity to execute a will, and the person challenging the will has the burden of proving a lack of testamentary capacity. Allen v. Sconyers, 669 So. 2d 113 (Ala. 1995). A testator has testamentary capacity when, at the time the will is executed, the testator (1) knows his or her estate and the property to be devised and bequeathed, (2) knows the natural objects of his or her bounty, and (3) understands that he or she is making a will. Smith v. Vice, 641 So. 2d 785, 786 (Ala. 1994). The key inquiry is whether the testator had testamentary capacity on the day the will was executed, which may be inferred from a witness's observation of the testator's mental and physical condition either before or immediately after execution of the will. Fletcher v. DeLoach, 360 So. 2d 316 (Ala. 1978).

In this case, the evidence is conflicting regarding Mrs. Ralph's mental state immediately before and at the time of the execution of the will. In support of his motion for a summary judgment, the proponent presented the deposition testimony of Mark Johnson, the attorney who drafted the will. According to Johnson, when he met with Mrs. Ralph, he was satisfied that she was legally competent to execute a will. Johnson characterized Mrs. Ralph as "happy and pleasant" and stated that she appeared lucid at the time she signed the will. Johnson stated that Mrs. Ralph had told him that she wanted the proponent to have her entire estate because the proponent "was a good neighbor." When questioned by the proponent's attorney, Johnson stated that he had asked Mrs. Ralph numerous qualifying questions, including whether she had children:

"Q. Do you remember specifically what qualifying questions you might have asked?
"A. Did she have any children? Did she -- where are they living? I think [Mrs. Ralph said] they were living out of state, I believe. And they never came around. She was kind of getting ill about that, I believe. She was kind of upset at that point. But you could tell that visually bothered her. And so -- then she wanted to leave [everything to the proponent] because he was such a good neighbor, and he helped her so much.
"....
"Q. Did you advise her ... that by not putting her relatives in the will, they would not be entitled to disbursement under the will?
"A. Yes, uh-huh. I think I also put [that] in the will, which is pretty much my common standard practice, if I know the children's names, it says intentionally omit the following."

Notably, Johnson's testimony regarding Mrs. Ralph's children is troubling because Mrs. Ralph had no children living at the time she met with Johnson and there is no declaration in the will regarding omitted children. Therefore, it is not clear whether Mrs. Ralph actually told Johnson that she had children who were living or whether Johnson simply did not recall the entirety of his conversation with Mrs. Ralph when they met. More critically, the will failed to comply with Mrs. Ralph's direction because there was no residuary clause to bequeath her personal property to the proponent. The lack of clarity as to these material facts could lead a jury to infer that Mrs. Ralph was unable to appreciate the division of her property such that the will she signed was not a true expression of her intentions, thus making summary judgment inappropriate.

In response to the proponent's summary-judgment motion, Brock submitted the affidavit of Dr. David Clay Campbell, who had treated Mrs. Ralph from December 2014 until April 2018, when she died. According to Dr. Campbell, Mrs. Ralph experienced "extreme and debilitating grief" after her husband died. He stated that she had been diagnosed with "generalized anxiety disorder

, fibromyalgia, chronic kidney disease, hypertension, rheumatoid and osteoarthritis." He stated that, to treat those conditions, he had prescribed several medications that induce "mind-altering" effects, including Ambien, Percocet, Flexeril, Lyrica, trazodone, and Xanax. Dr. Campbell described in detail the effects of each of those drugs and stated that the use of all of them concurrently renders the user incapable of possessing mental capacity for any act beyond the most basic functions. Dr. Campbell explained that, while taking those type of medications, some people may appear alert and awake and be able to converse at a basic level. He stated that, despite such an outward appearance, "the cognitive functioning and memory of this person would be severely impaired." Dr. Campbell indicated that, on March 13, 2017, he examined Mrs. Ralph because she wanted to discuss her medications. During that visit, Dr. Campbell stated, Mrs. Ralph appeared "frail" and "disheveled," was exhibiting a "wobbly gait," and reported that she had been falling at least once a week. He further indicated that, at that time, she was suffering from "confusion, significant weight loss [approximately 40 lbs.], fatigue, and weakness," and that she was "depressed and anxious." Dr. Campbell stated that he had "explicitly" discussed with Mrs. Ralph the medications she was taking, specifically Ambien, Percocet, Lyrica, trazodone, and Xanax, and that she had confirmed that she was taking those medications as prescribed. Dr. Campbell finally stated that he understood that Mrs. Ralph had executed a will on March 21, 2017, and that he had examined Mrs. Ralph again on March 30, 2017, at which time she indicated that she was taking all of her medications as prescribed. Finally, Dr. Campbell stated that, in his professional opinion, Mrs. Ralph was "incapable of knowingly executing a legal document" such as will:

"During this time, Mrs. Ralph, in my professional opinion, was incapable of knowingly executing a legal document such as a Last Will and
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  • How to Read a Vote Line of the Alabama Supreme Court
    • United States
    • Alabama State Bar Alabama Lawyer No. 84-3, May 2023
    • Invalid date
    ...may write to explain how that justice voted as it relates to a previous case involving the same issue. See, e.g., Brock v. Kelsoe, 335 So. 3d 624, 632 (Ala. 2021) (Mitchell, J., concurring specially) (explaining how the evidence in Brock differed from the evidence in Taylor v. Hanks, 333 So......

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