Howard v. Nasser

• Decision Date: 02 May 2005
• Docket Number: No. 3986.,3986.
• Parties: Leroy J. HOWARD and John Nasser, Appellants, v. JoAnn NASSER, Joey Nasser, Christina Nasser, Ashley Nasser, Leander Nasser, Mary Kaye Barki and Debbie Coggins, Defendants, of whom JoAnn Nasser is, Respondent.
• Court: South Carolina Supreme Court

Page 64

613 S.E.2d 64

Leroy J. HOWARD and John Nasser, Appellants, v. JoAnn NASSER, Joey Nasser, Christina Nasser, Ashley Nasser, Leander Nasser, Mary Kaye Barki and Debbie Coggins, Defendants of whom JoAnn Nasser is, Respondent.

No. 3986.

Court of Appeals of South Carolina.

Heard December 8, 2004.

Decided May 2, 2005.

Ben G. Leaphart, of Greenville, for Appellants.

William Wallace Culp, III, of Greenville, for Respondent.

BEATTY, J.:

In this will contest case, Leroy J. Howard and John Nasser (collectively Appellants) appeal the circuit court's order granting summary judgment for JoAnn Nasser (Respondent), surviving spouse of the decedent Leroy Nasser (Nasser) and personal representative of his estate. Appellants argue the will was invalid because it was the product of undue influence by Respondent. We reverse and remand.

FACTS

Leroy Howard and John Nasser, the decedent's nephews, brought an action to contest an April 10, 2000 will of Nasser. The will was properly executed and was admitted to probate. Nasser's surviving spouse and second wife, Respondent, was appointed as personal representative of his estate. The will left nothing to either Leroy Howard or John Nasser. Instead, Nasser gave $10,000 to each of his great nieces and the remainder of his estate to Respondent. Additionally, Nasser gave Respondent a power of attorney in October of 1999, specifically revoking a previous power of attorney in favor of Leroy Howard.

Nasser had executed two prior wills. The first will, executed on July 30, 1985, left everything to his first wife and appointed Leroy Howard as his personal representative. After Nasser's first wife died, he executed another will, dated May 19, 1995, that left $50,000 to John Nasser and the residue to Leroy Howard. Leroy Howard was also appointed personal representative of Nasser's estate.

In August of 1998, Nasser was injured in a fall while in Roanoke, Virginia. Leroy Howard drove Nasser back to Greenville, where he was admitted to the St. Francis Hospital System and released in September of 1998. While recovering from his fall, Nasser met Respondent, who was employed as a housekeeper at the hospital. Respondent obtained a divorce from her first husband, from whom she had been separated for approximately ten years, in April of 1999. On May 24, 1999, Respondent and Nasser were married. The will giving rise to this litigation was executed on April 10, 2000. Nasser died as a result of pancreatic cancer and cirrhosis on May 19, 2000.

Appellants filed a petition in probate court, alleging causes of action for undue influence, lack of capacity, fraud, and tortious interference with an expectancy to inherit. Respondent moved for summary judgment on all causes of action.¹ At the hearing on the motion, Appellants argued that Respondent's fiduciary relationship with Nasser, along with other evidence, created a presumption of undue influence. In support of their contention, Appellants offered the following evidence:

(1) Karen R. Hunter, M.D., testified that she diagnosed Nasser with pancreatic cancer in mid-April, 2000. At that time, he appeared ill and was jaundiced, but he did not appear overly distraught about the diagnosis.

(2) Leroy Howard's affidavit stated that during the last year of Nasser's life, his health had deteriorated, and that he believed that Respondent had poisoned his relationship with Nasser, as communication inexplicably broke down and he was not allowed to visit Nasser alone. Additionally, Nasser allegedly withdrew funds in excess of $200,000 from a joint account held by Leroy Howard and Nasser in April of 2000.

(3) John Nasser's affidavit also stated that his communication with Nasser decreased dramatically in late 1999, and that Nasser appeared sickly and confused in April of 2000.

(4) The affidavit of Nicholas M. Franchina, a realtor and friend of the family, stated that in addition to a "dramatic change in [Nasser's] affect, and personality," he noticed on two occasions that someone was listening in on the telephone, and that Mr. Nasser abruptly cut short the conversation and hung up.

(5) A local attorney who had prepared Nasser's two previous wills felt that Nasser was upset about the April 2000 will, and since the disposition was dramatically different from that of the previous wills, he felt uncomfortable and encouraged the Nassers to seek other counsel.

(6) The durable power of attorney Nasser executed in October of 1999 specifically revoked the previous power of attorney in favor of Leroy Howard. However, the paragraph containing the revocation was in a different font from the rest of the document.

In contrast, the attorney who drafted the April 2000 will testified that Nasser appeared to be of sound mind, and that he freely and voluntarily indicated that he wanted the majority of his estate to go to his wife. Additionally, there was testimony that Leroy Howard's relationship with Nasser had become strained. Nasser allegedly told the witness that he "would rather throw that money in the garbage can or throw it away than for him to have one cent of my money." Moreover, the same witness testified that Leroy Howard called immediately after learning of Nasser's death to inquire about Nasser's estate, whereas Respondent seemed much more concerned about Nasser's death.

After hearing arguments, the circuit court granted Respondent's motion for summary judgment.² Specifically, the court ruled that Appellants' burden of proving undue influence could not be shifted to Respondent. The court reasoned that Appellants continued to bear the burden of proof even if a confidential/fiduciary relationship existed between Respondent and Nasser. As to the merits of the cause of action for undue influence, the court found there was no evidence to support Appellants' claim. This appeal followed.

STANDARD OF REVIEW

"Summary judgment is appropriate when it is clear there is no genuine issue of material fact and the conclusions and inferences to be drawn from the facts are undisputed." McClanahan v. Richland County Council, 350 S.C. 433, 437, 567 S.E.2d 240, 242 (2002). In ruling on a motion for summary judgment, a reviewing court must view the evidence in the light most favorable to the non-moving party. Id. at 438, 567 S.E.2d at 242. Summary judgment is a drastic remedy. Thus, it "should be cautiously invoked so that a litigant will not be improperly deprived of trial on disputed factual issues." Cunningham ex rel. Grice v. Helping Hands, Inc., 352 S.C. 485, 491, 575 S.E.2d 549, 552 (2003).

DISCUSSION

I.

Appellants argue the circuit court erred in finding the existence of a confidential/fiduciary relationship between Nasser and Respondent did not shift the burden to Respondent to show the absence of undue influence. Appellants claim Respondent's status as spouse of the decedent and holder of a power of attorney created a fiduciary relationship that gave rise to the presumption of undue influence.

The procedure outlining the burden of proof in contested will cases is governed by section 62-3-407 of the South Carolina Code of Laws. S.C.Code Ann. § 62-3-407 (Supp.2004). This section provides in pertinent part:

In contested cases, petitioners who seek to establish intestacy have the burden of establishing prima facie proof of death, venue, and heirship. Proponents of a will have the burden of establishing prima facie proof of due execution in all cases and, if they are also petitioners, prima facie proof of death and venue. Contestants of a will have the burden of establishing undue influence, fraud, duress, mistake, revocation, or lack of testamentary intent or capacity. Parties have the ultimate burden of persuasion as to matters with respect to which they have the initial burden of proof.

S.C.Code Ann. 62-3-407 (Supp.2004); see In re Estate of Cumbee, 333 S.C. 664, 671, 511 S.E.2d 390, 393 (Ct.App.1999) ("Proponents of a will have the burden of establishing prima facie proof of due execution in all cases ... Contestants of a will have the burden of establishing undue influence, fraud, duress, mistake, revocation, or lack of testamentary intent or capacity."). In analyzing this code section, our supreme court has explained:

When the formal execution of a will is admitted or proved, a prima facie case in favor of the will is made out, and the burden is then on the contestants to prove undue influence, incapacity or other basis of invalidation. The contestants continue to bear the burden of proof throughout the will contest. In determining whether the contestants sustained such burden, the evidence has to be viewed in the light most favorable to the contestants.

Calhoun v. Calhoun, 277 S.C. 527, 530, 290 S.E.2d 415, 417 (1982).

"Undue influence may be proved by circumstantial evidence, but the circumstances relied on to show it must be such as taken together point unmistakenly and convincingly to the fact that the mind of the testator was subjected to that of some other person, so that the will is that of the latter and not of the former." Havird v. Schissell, 252 S.C. 404, 410-11, 166 S.E.2d 801, 804 (1969) (citations omitted); In re Last Will and Testament of Smoak, 286 S.C. 419, 424, 334 S.E.2d 806, 809 (1985) ("A will contest based on alleged undue influence is most often adjudicated on the basis of circumstantial evidence.").

"Generally, in cases where a will has been set aside for undue influence, there has been evidence either of threats, force, and/or restricted visitation, or of an existing fiduciary relationship." Russell v. Wachovia Bank, N.A., 353 S.C. 208, 217, 578 S.E.2d 329, 333 (2003). "A confidential or fiduciary relationship exists when one imposes a special confidence in another, so that the latter, in equity and good conscience, is bound to act in good faith and with due regard to the interest of the one imposing the confidence." In re Estate of Cumbee, 333 S.C. at 672, 511 S.E.2d at 394 (quoting Brown v. Pearson, 326 S.C. 409, 422, 483...