Last Will and Testament of Smoak, In re

• Decision Date: 14 May 1979
• Citation: 334 S.E.2d 806,286 S.C. 419
• Parties: In re The LAST WILL AND TESTAMENT OF Holly B. SMOAK, Ex parte Janette W. MARTIN and Rufus C. Martin, individually and as Executrix and Executor of the Last Will and Testament of Holly B. Smoak, Appellants, v. Philip P. SMOAK, Robert L. Smoak, Mrs. M.C. Smoak Jennings, Harry H. Smoak, Mrs. Lavonia S. Reaves, Townsend S. Way, Mrs. Blanche W. Esclavon, Mrs. Aubrea W. Westervelt, Mrs. Thelma W. Parler, Mrs. Mellie W. Keller, J. Wilson Hipp, and G.H. McCain, Jr., Ex parte Dorothy M. SMOAK, a major beneficiary under a prior Will of Holly B. Smoak dated
• Court: South Carolina Supreme Court

Page 806

334 S.E.2d 806

286 S.C. 419

In re The LAST WILL AND TESTAMENT OF Holly B. SMOAK Ex parte Janette W. MARTIN and Rufus C. Martin, individually and as Executrix and Executor of the Last Will and Testament of Holly B. Smoak, Appellants, v. Philip P. SMOAK, Robert L. Smoak, Mrs. M.C. Smoak Jennings Harry H. Smoak, Mrs. Lavonia S. Reaves, Townsend S. Way Mrs. Blanche W. Esclavon, Mrs. Aubrea W. Westervelt, Mrs Thelma W. Parler, Mrs. Mellie W. Keller, J. Wilson Hipp, and G.H. McCain, Jr., Ex parte Dorothy M. SMOAK, a major beneficiary under a prior Will of Holly B. Smoak dated May 14, 1979, Respondent.

No. 22359.

Supreme Court of South Carolina.

Heard Jan. 9, 1985.

Decided Aug. 9, 1985.

J. Kenneth Rentiers and O. Eugene Savedge, Charleston, for appellants.

Robert M. Hollings and Philip A. Middleton, Charleston, for respondent.

LITTLEJOHN, Chief Justice:

This case involves the validity of the Will of Holly B. Smoak who died at age ninety on December 30, 1980. His Will of October 1979 was probated in both common and solemn forms. Thereafter, Dorothy M. Smoak, widow of the testator's nephew and respondent herein, appealed to the Court of Common Pleas where the case was tried de novo by a jury. The jury invalidated the Will holding that it was the result of undue influence. The effect of this was to revive his previous Will of May 1979 wherein Dorothy M. Smoak faired more abundantly. The testator's niece, Janette W. Martin, and her husband, Rufus C. Martin, are executors of the Will and have appealed the jury verdict submitting that the trial judge should have directed a verdict in their favor on the undue influence issue. We agree and reverse.

Inasmuch as a motion for a directed verdict should be granted or denied based upon the whole of the evidence, a full review of the evidence before the court at the time of the motion is essential.

The testator Holly B. Smoak lived on his farm in Charleston County with his wife who died in May 1979. They had no children. His health had been deteriorating for some time prior to his wife's death and he required constant attention. He was unable to attend to his personal needs and was bedridden. At the same time, he remained mentally alert and maintained his basic characteristic of firm determination.

His niece Janette W. Martin and her husband lived close by. Another niece Aubrea W. Westervelt (who had two children) also lived close by. Dorothy M. Smoak, wife of his deceased nephew, lived about two miles away and had been advantageously employed at the ship yard at Charleston for many years. She had two daughters who were grown or nearly so.

Holly B. Smoak and his wife, Iva, had apparently made reciprocal Wills. Holly B. Smoak was named as Executor of his wife's Will with Janette W. Martin to serve alternately. He had her serve as administratrix c.t.a. Promptly after the death of his wife, the testator summoned Attorney Horlbeck of Charleston and executed a new Will. He also executed a full Power of Attorney in favor of his niece Janette W. Martin. Under the terms of this May 1979 Will, one-third of his substantial estate was given to his niece Janette W. Martin, one-third was given to his niece Aubrea W. Westervelt and one-third was given to his niece by marriage, Dorothy M. Smoak, the contestant of the Will and the respondent herein. Janette W. Martin was named sole executrix.

Since the testator had no children, someone outside the immediate family had to care for him. Dorothy M. Smoak was employed and was not in a position to render meaningful help. About a week after the death of Mrs. Smoak, Janette W. Martin and her husband moved their uncle into their own home and adapted their residence to his semi-hospitalization needs.

Five months after the first Will was executed, in October 1979, Mrs. Martin, at the instructions of the testator, had her own attorney, Kenneth Rentiers draw a new Will. Under the terms of this Will, one-third of the substantial estate went to Janette W. Martin and her husband, Rufus C. Martin, who were named co-executors, one-third went to his niece Aubrea W. Westervelt and one-third went to the children of Aubrea W. Westervelt, to wit, Randy W. Westervelt and Theodore Westervelt, Jr. A $2,000 bequest in money was made to Dorothy M. Smoak.

This Will contest is a bit unusual in that the one who is alleged to have exerted undue influence normally gains if the Will is sustained. Here Mrs. Martin takes less under the new Will, but she and her husband together take the same estate she would inherit under the Will of May 1979. Mrs. Westervelt inherits the same. This means that the contest is really between Dorothy M. Smoak on the one hand and the children of Mrs. Westervelt on the other.

It is uncontested that Mrs. Martin and Mrs. Westervelt who lived close by were in a position to and did administer to the testator's needs at the home of Mrs. Martin from May 1979 until July 1980. During that time Mrs. Dorothy M. Smoak continued to work at the ship yard and visited the testator periodically. It is her contention that she was not always permitted to see him, but this is denied by Mrs. Martin.

In July 1980, the condition of the testator had deteriorated to the point that it became impossible to administer fully to his needs at home. Mrs. Martin arranged for him to enter a nursing home at Beaufort approximately seventy miles away. Mrs. Martin continued to attend to his needs under her power of attorney and did whatever was reasonably calculated to comfort him in his declining days of ill health. He died after being in the nursing home almost six months.

Over the years, Dr. William McGill Woodward an internist, psychiatrist and geriatric medical doctor had administered to the testator's needs. For several years Holly B. Smoak visited Dr. Woodward's office. In later years, Dr. Woodward would make house calls to attend Mr. Smoak. These visits were characterized as sometimes professional and sometimes personal. After Mrs. Iva Smoak's death and while Janette W. Martin had power of attorney, it was revealed that Dr. Woodward had entered into a contract to buy the testator's farm upon his death. The farm consisted of approximately thirty acres. The sale price was approximately $16,000 and the doctor was paying at the rate of $20 per month. It was the doctor's testimony that the testator had asked him not to reveal that he had entered into such contract. Disagreement developed between Mrs. Martin and the doctor relative to whether interest would be paid and whether a deed should be given to the doctor without a mortgage on the premises as security. The relationship became unpleasant, and Dr. Woodward sent her a bill for $5,600 which was reluctantly paid. The real estate transaction was finalized. Dr. Woodward moved into the farmhouse almost immediately after the testator moved into the home of his niece. His physician services were discontinued about a month later in February 1980.

We now turn to the basic issue which confronted the judge at the time the motion for a directed verdict was made: Was the evidence, considered as a whole, susceptible of the inference that the October Will was the result of undue influence?

The Will was sustained at two hearings in the Probate Court. It was drawn by an attorney, properly witnessed and signed and was valid on its face. At the jury trial, Mrs. Smoak, the contestant, had the burden of proving invalidity. In this particular case she had to prove that the instrument was not the product of the testator's desire, but was a result of influences which overcame his own thinking and his right to dispose of his property as he chose. In order to prevail, the contestant must present evidence which unmistakenly and convincingly points to the fact that the mind of the testator was subservient to that of other persons so that the Will was in truth that of the other person or persons and not that of the testator.

It is the settled law of this state that when the formal execution of a will is admitted or proved, a prima facie case in favor of the will is made out, and that, as a general rule, the burden is then on the contestants to prove undue influence, incapacity or other basis of invalidation, and such burden remains upon the contestants throughout. In determining whether the contestants sustained such burden, the evidence has to be viewed in the light most favorable to the contestants.

Havird v. Schissell, 252 S.C. 404, 166 S.E.2d 801 (1969). We hold that the burden of proof has not been carried.

A Will contest based on alleged undue influence is most often adjudicated on the basis of circumstantial evidence. Circumstantial evidence is sufficient proof in a civil case including a Will contest, but only if there is circumstantial evidence warranting the conclusion sought.

The mere existence of influence is not enough to vitiate a Will. The influence must be of such a degree that it dominated the testator's will, took away his free agency, and prevented the exercise of judgment and choice by him. If the testator had the testamentary capacity to dispose of his property and was free and unrestrained in his volition at the time of making the Will, the influence that may have inspired it or some provision of it will not be "undue influence." Smith v. Whetstone, 209 S.C. 78, 39 S.E.2d 127 (1946); Mock v. Dowling, 266 S.C. 274, 222 S.E.2d 773 (1976). A mere showing of opportunity and even a showing of motive to exercise undue influence does not justify a submission of that issue to a jury, unless there is additional evidence that such influence was actually utilized. Calhoun v. Calhoun, 277 S.C. 527, 290 S.E.2d 415 (1982).

As indicated hereinabove, the Will was probated in both common and solemn forms and was regular on its face. Mrs. Smoak, the contestant, testified as follows:

Q: Do you have any personal knowledge of the circumstances under which the that Will was executed or made?

A: No.

Although...