Johnson v. Burrell

• Decision Date: 11 December 2013
• Docket Number: No. S13A0728.,S13A0728.
• Citation: 294 Ga. 301,751 S.E.2d 301
• Parties: JOHNSON et al. v. BURRELL.
• Court: Georgia Supreme Court

294 Ga. 301

751 S.E.2d 301

JOHNSON et al.

v.BURRELL.

No. S13A0728.

Supreme Court of Georgia.

Nov. 18, 2013.

Reconsideration Denied Dec. 11, 2013.

Kermit S. Dorough Jr., Albany, Jesse G. Bowles, III, Cuthbert, for appellants.

Richard W. Fields, George P. Donaldson, III, Perry & Walters, LLP, Albany, for appellee.

BLACKWELL, Justice.

In May 2009, Hubert H. Johnson made a new will, in which he devised his most substantial asset—a pecan farm of 350 acres in Dougherty County—to Donna Ellis Burrell. He died a few weeks later, and Donna promptly filed a petition to probate the will that Hubert made in May 2009. Two of his kin filed caveats, however, alleging that Donna had exerted undue influence upon Hubert with respect to the making of that will, and alleging that Donna had made false statements to Hubert, upon which he relied in making the will. As to the caveats, the probate court awarded summary judgment to Donna, and the caveators appeal. We see no reversible error and affirm.

1. The record shows that Hubert was married to Ruby Johnson, and he adopted her son, Henry Johnson. As early as 1992, however, Henry was estranged from Hubert and Ruby, and they did not name him as a beneficiary in any of the several wills that they made in the years that followed. Hubert and Ruby were close, however, to her great niece, Kendall Hash. After Ruby died, Hubert made a will in 2001 that left his pecan farm to Hash. He also made wills in August 2007 and June 2008 that left the farm to Hash. Henry and Hash are the caveators in this case.

Lynn Burrell lived in a house on the pecan farm,¹ and in 2005, Donna moved in with Lynn. Donna worked closely with Hubert on the farm, and near the end of his life, she also helped him with his personal needs, including by cooking his meals, paying his bills, driving him to medical appointments, and helping him with his medications. In 2008, Hubert executed a power of attorney in favor of Donna. In wills that Hubert made in 2006 and December 2007, Hubert left the pecan farm to Donna. Hubert made his final will on May 28, 2009, again leaving the pecan farm to Donna. He died on June 21, 2009, at the age of 96.

2. The caveators contend that the probate court erred when it awarded summary judgment to Donna on their claim of undue influence.² “A will is not valid if anything destroys the testator's freedom of volition, such as ... undue influence whereby the will of another is substituted for the wishes of the testator.” OCGA § 53–4–12. “To invalidate a will, undue influence must amount to deception or coercion that destroys the testator's free agency.” Amerson v. Pahl, 292 Ga. 79, 80(2), 734 S.E.2d 399 (2012) (citation and punctuation omitted). “The question of undue influence is generally for the factfinder....” Davison v. Hines, 291 Ga. 434, 436(1), 729 S.E.2d 330 (2012) (citation and punctuation omitted). And “ [s]ummary judgment is proper only if, construing the evidence most favorably for [the caveators], no genuine issue of material fact remains as to whether [Hubert's] will was the product of undue influence.” Lawson v. Lawson, 288 Ga. 37, 37(1), 701 S.E.2d 180 (2010) (citation and punctuation omitted).

With respect to undue influence, the caveators rely principally upon a presumption of undue influence that “arises when a beneficiary under a will occupies a confidential relationship with the testator, is not the natural object of his bounty, and takes an active part in the planning, preparation, or execution of the will.” Davison, 291 Ga. at 437(1), 729 S.E.2d 330 (citations and punctuation omitted). Although the presumption can be rebutted, it “does not vanish in the face of evidence contrary to the presumed fact,” and it is, therefore, sufficient to raise a jury question as to undue influence. Bean v. Wilson, 283 Ga. 511, 513(1), 661 S.E.2d 518 (2008) (punctuation and footnote omitted). This rule, of course, applies only if the evidence raises the presumption in the first place. Donna concedes that she had a confidential relationship with Hubert and was not the natural object of his bounty. But Donna says that the caveators presented no evidence to show that she actively participated in the planning, preparation, and execution of the 2009 will, and for that reason, she argues, the presumption never arose.

As to her involvement with the planning, preparation, and execution of the will, the caveators point to deposition testimony in which Donna said that she called Hubert's lawyer, James E. Reynolds, Jr., after Hubert told her to do so because he needed to make some changes in his will.³ And according to both Reynolds and Donna, she was present when Reynolds arrived to meet with Hubert at his house, and later that day when Reynolds returned with two employees. But on each occasion, she left and was not present at any discussions about the will or its execution. A few days later, Donna filled out, and Hubert signed, a check to pay Reynolds for preparing the will. This is not enough, we conclude, to prove “active part[icipation] in the planning, preparation, or execution of the will.”

The undisputed evidence in this case shows not only that Donna did not prepare the will, and that she called Reynolds at Hubert's request, but also that she did not participate in Reynolds's discussions with Hubert and was not present when the will was executed. See Lawson, 288 Ga. at 38(1), 701 S.E.2d 180;Smith v. Liney, 280 Ga. 600, 601, 631 S.E.2d 648 (2006). “Other than contacting the attorney at [Hubert's] direction, there is no evidence that [Donna] had any involvement in the decision to create the will or any input into its contents.” Lawson, 288 Ga. at 38(1), 701 S.E.2d 180. See also Lipscomb v. Young, 284 Ga. 835, 836–837, 672 S.E.2d 649 (2009) (same holding even though the beneficiary “paid for the will with cash that testator had given her”); Pope v. McWilliams, 280 Ga. 741, 742(1), 632 S.E.2d 640 (2006) (beneficiary paid lawyer “with a check drawn on an account held jointly with” the testator). The only evidence about Hubert's decision to execute the will shows that Donna played no part in it. See Simmons v. Norton, 290 Ga. 223, 224–225, 719 S.E.2d 421 (2011). Because there is simply no evidence that Donna took an active part in the planning, preparation, or execution of the 2009 will, no presumption of undue influence could arise despite the existence of a confidential relationship between her and Hubert. See McConnell v. Moore, 267 Ga. 839, 840, 483 S.E.2d 578 (1997).

In the absence of a presumption of undue influence, a confidential relationship, without more, would not support a finding of undue influence on Donna's part. See Harper v. Harper, 274 Ga. 542, 544(2), 554 S.E.2d 454 (2001). “Even when a confidential relationship exists, to support a claim of undue influence, any influence shown must be influence that would give dominion over the will to such an extent as to destroy free agency, or constrain one to do against his will what he is unable to refuse.” Curry v. Sutherland, 279 Ga. 489, 490–491(2), 614 S.E.2d 756 (2005) (citations and punctuation omitted). “It is insufficient to show merely that the persons receiving substantial benefits under the instrument sought to be propounded occupied a confidential relationship to the testator and had an opportunity to exert undue influence. The indulgence of mere suspicion of undue influence cannot be allowed.” Harper, 274 Ga. at 544(2), 554 S.E.2d 454.

In this case, Reynolds had prepared, and Hubert had executed, prior wills that were substantially the same as the 2009 will. See Lawson, 288 Ga. at 38(1), 701 S.E.2d 180. Reynolds testified at his deposition that whenever Hubert changed his will so as to leave his farm to Donna, he consistently explained that Hash was well-off financially and that Donna enjoyed the farm and would be less likely to sell it and more likely to keep it intact, although Hubert was aware that Donna was not restricted in the sale of the farm. This deposition testimony is relevant to the issue of undue influence and to explain Hubert's disposition of his property. See McCormick v. Jeffers, 281 Ga. 264, 267(3), 637 S.E.2d 666 (2006). But the fact that Hubert previously executed wills that provided for Hash is of no consequence given that the 2009 will specifically revoked all prior wills, and testimony about Hubert's declarations regarding his intent to leave the farm to Hash are similarly irrelevant because such declarations by a testator are inadmissible to prove the actual fact of an improper influence by another. See Lawson, 288 Ga. at 38(1), 701 S.E.2d 180;Lipscomb, 284 Ga. at 837, 672 S.E.2d 649.

The affidavits of Reynolds and the two attesting witnesses affirm that when the 2009 will was executed, Hubert's actions were voluntary and he continued to show a strong will and great mental sharpness despite his advanced years and declining physical health. See Lawson, 288 Ga. at 38(1), 701 S.E.2d 180. Hubert's treating cardiologist, who evaluated him on the day after execution of the 2009 will, affirmed that Hubert's mental and cognitive abilities were unchanged from his previous visit, that he had strong cognitive function, an alert mind, and a strong will, understood his medical condition, made his own medical decisions, and was mentally competent to understand his affairs and properties and to make a conscious and sound decision as to their disposition. See id. Hash reviewed the progression of Hubert's medical condition and found significant cognitive impairment based on her last visits with him on May 30 and 31, 2009. But the alleged “improper influence must operate on the testator's mind at the time the will is executed.” Prine v. Blanton, 290 Ga. 307, 310(2), 720 S.E.2d 600 (2012) (citation omitted). And evidence about Hubert's declining physical and mental health is of little relevance in any event, given the absence of any evidence that Donna actually attempted to exert influence with respect to...