In re Estate of Pallister

• Decision Date: 28 March 2005
• Docket Number: No. 25960.,25960.
• Citation: 611 S.E.2d 250,363 S.C. 437
• Parties: In the Matter of the ESTATE OF Mary Frances PALLISTER. Ann Garman Diem Patton, as personal representative of the Estate of Ruth Eleanor Diem, Respondent, v. James E. Reames, Stephen L. Reames, Marsha R. Bozard, and David S. Reames, as personal representative of the Estate of F.S. Reames, Appellants.
• Court: South Carolina Supreme Court

611 S.E.2d 250

363 S.C. 437

In the Matter of the ESTATE OF Mary Frances PALLISTER.

Ann Garman Diem Patton, as personal representative of the Estate of Ruth Eleanor Diem, Respondent, v. James E. Reames, Stephen L. Reames, Marsha R. Bozard, and David S. Reames, as personal representative of the Estate of F.S. Reames, Appellants.

No. 25960.

Supreme Court of South Carolina.

Heard February 15, 2005.

Decided March 28, 2005.

Rehearing Denied April 20, 2005.

COPYRIGHT MATERIAL OMITTED

John R. Chase, of Haynsworth Sinker Boyd, P.A., of Florence, and B. Eric Shytle, and Sarah P. Spruill, both of Haynsworth Sinkler Boyd, P.A., of Columbia, for Appellants.

Kenneth B. Wingate and Paul D. Kent, of Sweeny, Wingate and Barrow, P.A., of Columbia, for Respondent.

Justice BURNETT.

This is a lost or missing will case. A probate court jury found that Ann Patton, personal representative of the Estate of Ruth Eleanor Diem, proved by clear and convincing evidence Mary Frances Pallister (Testatrix) did not destroy her original last will and testament with an intent to revoke it.¹ The circuit court affirmed the verdict and Appellants, the nephews and niece of Testatrix, appeal. We certified this case for review from the Court of Appeals pursuant to Rule 204(b), SCACR, and now affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Testatrix died April 7, 2001, at the age of 89, leaving an estate with an estimated, after-tax value of $1.4 million. Testatrix's husband predeceased her and she left no children.

The parties agreed Testatrix was competent to execute the last will and testament dated October 22, 1999, the will in issue, but litigated the question whether the will was revoked by Testatrix because the original document could not be found after Testatrix's death. Ruth Eleanor Diem (Diem), the primary beneficiary to the will, was the sister of Testatrix's husband. Patton, a contingent beneficiary in the will, is Diem's daughter. James Reames (James) and the other Appellants are the children of Testatrix's two brothers.

James is a contingent beneficiary in the will, but will not take under it because Diem survived Testatrix. James and the other Appellants would inherit Testatrix's estate if the will is deemed destroyed with an intent to revoke, such that intestacy laws apply.

Testatrix executed two wills while living in New Mexico. The primary and contingent beneficiaries named in Testatrix's 1983 will were her husband, Diem, and Patton. The 1983 will named these same persons as personal representatives in the same order of priority.

The primary and contingent beneficiaries named in Testatrix's 1997 will, prepared after her husband's death, were Diem, Patton, and Testatrix's sister-in-law, Lola Reames, wife of Testatrix's brother and mother of James. The 1997 will named these same persons as personal representatives in the same order of priority.

Diem and Patton lived in California, while Testatrix lived in New Mexico during the last two decades of her life. Testatrix and Diem were close friends for fifty-five years, staying in touch through visits, joint vacations, telephone calls, cards, and letters. Diem was Testatrix's matron of honor at her 1946 wedding. Patton and Testatrix maintained a similar, close relationship.

Testatrix, who grew up in Bishopville, S.C., moved from New Mexico to South Carolina in 1998. The will in issue was prepared by a South Carolina attorney and executed on October 22, 1999.² In this will, Testatrix named as her primary and contingent beneficiaries Diem, Patton, and James, a Florence resident. The 1999 will named these same persons as personal representatives in the same order of priority. Testatrix told her accountant in South Carolina she planned to leave her estate to Diem and Patton, i.e., her husband's side of the family, to honor the memory of her husband and his efforts. He was the primary breadwinner and his earnings and investment acumen resulted in an estate which afforded Testatrix a comfortable lifestyle.

After moving to South Carolina, Testatrix placed Diem and Patton as joint-signatories on her bank accounts and granted them right of access to her safe deposit box. About a month after executing the 1999 will, Testatrix signed a durable power of attorney naming Diem s her agent, with Patton as alternate agent, in financial and other matters. On the date she executed the 1999 will, Testatrix signed a health care power of attorney naming James as her agent for health care decisions if she were to become mentally incompetent.

Testatrix, by all accounts, was a "delightful," "organized" woman who knew her own mind and did not hesitate to express her wishes and opinions. The attorney who prepared the 1999 will testified she discussed various types of trusts with Testatrix, but Testatrix desired only a simple will. The attorney delivered the original will to Testatrix and encouraged her to place it in a safe deposit box.

Testatrix's tax accountant testified Testatrix was an organized, "by the books" person. Administrators at the Methodist Manor, where Testatrix lived, described her, although she had some physical frailties, as "organized," "on the ball," "very sharp mentally," and an "independent, private person." Diem, Patton, and James offered similar testimony. Such testimony referred to witnesses' general knowledge of Testatrix during the years they knew her and was not necessarily focused on the last weeks of her life.

Testatrix was generous to close relatives. From 1996 to 1999, Testatrix gave, in cash or assets such as stocks and bonds, $183,000 to Patton, $30,000 to Diem, and $104,000 to James. In addition, Testatrix made a business loan of $100,000 to James in 2000, although James apparently considered it a gift, not a loan.

While living at the Methodist Manor in Florence, Testatrix gradually developed a close relationship with James and his family. James visited and helped Testatrix at her home at least once or twice a week. Testatrix sometimes had dinner at James' home. James testified he visited Testatrix at her home or in the hospital every day during the last several weeks of her life as her health worsened, at times spending most or all of the day with her. A nurse assistant, who sat with Testatrix at the hospital on the evening of her death and who did not know the family, testified Testatrix repeatedly asked for James during the final hours of her life.

James testified he knew where Testatrix kept financial records at her home, including her bank and brokerage accounts, and he sometimes filed financial documents for her. Testatrix kept extensive financial records from years past. James helped Testatrix sort her mail, but did not discard anything without her permission. At trial James initially denied helping Testatrix with her financial or business matters in the final months of her life. When confronted with his conflicting deposition testimony, James testified he wrote checks for Testatrix and sometimes even signed her name. He carried a bag, containing Testatrix's checkbooks and investment records, for Testatrix while taking her to and from the hospital in the last weeks of her life.

James testified he had a key to Testatrix's Methodist Manor apartment "from day one." He also had the keys to her car, which he testified she gave him several months before her death. The record shows, however, the title never had been transferred by Testatrix's signature. James, a car salesman for thirty-two years, testified that although he was "in the used car business ... I do not do title work."

He further testified Testatrix gave him a copy of the 1999 will some time following its execution. He saw the will a second time two to three months before Testatrix's death in January or February 2001, lying on a table in her apartment. On that occasion, he picked it up when it fell on the floor with some books and replaced it on the table. He testified he did not know what happened to the original 1999 will and denied discarding or destroying it.

Testatrix was hospitalized with congestive heart failure and related health problems for eight days in March 2001 and from April 5 until her death on April 7, 2001. In the last month of her life, Testatrix and part of her belongings were moved from her independent living unit to an assisted living unit at the Methodist Manor.

On April 4, 2001, James asked a bank officer to contact Testatrix at her apartment. The bank officer testified she spoke with Testatrix by telephone and, at Testatrix's direction, prepared forms to add James to Testatrix's checking and money market accounts on which Diem and Patton already were listed as joint signatories. The bank officer also prepared a form allowing James to enter Testatrix's safe deposit box.

James obtained an account transfer form from Testatrix's brokerage firm on April 4. James asked a brokerage representative to accompany him to the Methodist Manor to assist his aunt in completing the form, but the representative was unable to leave the office.

James took the bank and brokerage forms to Testatrix's apartment. He testified Testatrix, who was using an oxygen tank, signed the forms in the presence of a notary public, who was a Methodist Manor employee; an unidentified "sitter" who was staying with Testatrix that afternoon; and an unidentified, older woman who was a Manor resident and friend of Testatrix's. Signing the forms consumed about half an hour. The notary public later testified that only he, Testatrix, and James were in the apartment when the forms were signed during a five-minute period.

James returned to the bank and brokerage firm the same afternoon. James transferred $80,000 from Testatrix's joint bank accounts to his individual account. He transferred Testatrix's brokerage account, worth about $633,000, to his individual brokerage account.³

On the morning of April 5, 2001, James entered Testatrix's safe deposit box for the first time. He testified he did so out of "curiosity" and...