Mcdaniel v. Mcdaniel, s. S10A1497

• Decision Date: 07 March 2011
• Docket Number: S10X1498.,Nos. S10A1497,s. S10A1497
• Citation: 707 S.E.2d 60,288 Ga. 711
• Parties: McDANIELv.McDANIEL; and vice versa.
• Court: Georgia Supreme Court

288 Ga. 711

707 S.E.2d 60

11 FCDR 542

McDANIEL

v.McDANIEL; and vice versa.

Nos. S10A1497

S10X1498.

Supreme Court of Georgia.

March 7, 2011.

Genevieve H. Dame, Hayes M. Dever, Friedman, Dever & Merlin, Atlanta, for Jerry McDaniel.Paul M. Hoffman, Mary E. Robb, Deming, Parker, Hoffman, Campbell & Daly, Norcross, for Charles McDaniel.NAHMIAS, Justice.

In this probate case, the propounder filed a petition for probate in solemn form to have a 2007 will declared the testator's last will and testament. The caveator challenged the will on the grounds of lack of testamentary capacity, undue influence, and fraud. A jury found that the 2007 will was the product of undue influence and fraud, and the probate court entered judgment on the verdict. In Case No. S10A1497, the propounder appeals, contending that the probate court erred in denying his motion for directed verdict on undue influence and fraud and, in the alternative, that a new trial is required due to erroneous evidentiary rulings. In Case No. S10X1498, the caveator files a defensive cross-appeal, asserting error in the exclusion of testimony by a doctor who treated the decedent and two instances of alleged instructional error. For the reasons that follow, we affirm the probate court's judgment denying admission of the 2007 will to probate; the cross-appeal is therefore moot.

1. Viewed in the light most favorable to the verdict, the facts are as follows. See Lillard v. Owens, 281 Ga. 619, 620, 641 S.E.2d 511 (2007). Mary Agnes Royster McDaniel (Ms. McDaniel) was married to Luther Lee “Mutt” McDaniel (the testator) for over 60 years, until her death at age 87 on December 10, 2006. The testator died two-and-a-half years later on June 24, 2009, at the age of 92. The McDaniels had two sons, Charles Lee McDaniel (the caveator) and Jerry Clyde McDaniel, Sr. (the propounder), both of whom are married. Prior to the events that gave rise to this litigation, the family apparently got along well.

In 2002, the testator and his wife, who were then in their 80's, executed wills prepared by their attorney, James Clyde Morris, Jr., leaving everything to the surviving spouse, and if there was no surviving spouse, to their two sons equally. Ms. McDaniel suffered from Alzheimer's-related dementia and other ailments, and by 2006, the testator could no longer care for her on his own. The caveator moved in with his parents in January 2006, and for the first part of that year, the propounder and his wife stayed with the elder McDaniels some weekends to alleviate the burden on the caveator. They continued to visit regularly after that time. Over the course of 2006, the elder McDaniels added the caveator's name to all their bank accounts so that he could manage their financial affairs for them.

Ms. McDaniel exhibited some common signs of dementia. For example, she was often confused, occasionally paranoid, and had trouble remembering where she put things. She would ask the caveator to take her silver and jewelry and put them someplace safe. The caveator would store them in his safe-deposit box at the bank, and when his mother asked for them a month or so later, he would bring them back until his mother asked him to take them away again. The caveator also held the receipt for a mink stole that his mother had stored at a facility in Athens. When she could still ride in a car, the caveator would drive his mother to Athens to retrieve the stole whenever she wanted it. However, when she could no longer ride in a car, she asked him to take the mink stole to the storage facility, which he did, and he held onto the receipt, which was in his name.

Toward the end of 2006, the testator also exhibited signs of confusion and declining mental status. Shortly before his wife of 60 years died, the testator got into his truck and turned on the windshield wipers but could not recall how to turn them off. The testator also had difficulty sleeping and trouble differentiating between night and day and remembering what day of the week it was. After his wife died, the testator's confusion worsened.

When the testator's wife died on December 10, 2006, the propounder and his wife strongly encouraged the caveator and his wife to take a much-needed vacation to Florida. The caveator was concerned about leaving his father alone, but the propounder and his wife assured him that they would stay with the testator to keep him company. The plan was that the caveator and his wife would leave for Florida on December 29 and stay there for a week or so before returning. Before leaving, the caveator drove his father to several banks to remove Ms. McDaniel's name from joint accounts worth several hundred thousand dollars, and on Tuesday, December 26, 2006, the caveator drove the testator to attorney Morris's office to inquire about the process for probating Ms. McDaniel's will. They scheduled a meeting for that Friday, December 29, 2006, with Morris, the testator, the propounder, the caveator, and their wives.

On Thursday, December 28, 2006, the caveator went to Regions Bank and closed an account worth approximately $32,000 that had been held jointly in his and his mother's names, transferring the funds into a new account in his name only. It was important to Ms. McDaniel to provide for her funeral and that of her husband before she died. To that end, she had told the caveator to use the $32,000 account to pay for the two funerals and to keep whatever was left.

At the meeting on December 29, Morris informed the testator and the caveator that they should not have removed Ms. McDaniel's name from the joint bank accounts. The propounder asked why the accounts were all in the testator and the caveator's names and suggested that the testator's name be removed from them and that his name be added along with the caveator's. The caveator took that to mean that the propounder did not think their father should have any further say-so in his financial affairs, and the caveator said that things should be left the way they were. The issue was not resolved at that meeting, which appeared to end amicably. The caveator and his wife dropped the testator off at his home on the way out of town for their Florida vacation, and the propounder and his wife came over later that evening to stay with the testator.

Unbeknownst to the caveator, the propounder and his wife now believed that the caveator had stolen from the testator the roughly $600,000 they estimated was held in the joint bank accounts by having his name added to the accounts. They went through the testator's drawers, found his bank statements, and convinced the testator that the caveator had stolen all his money, that he was now “broke,” and that the caveator and his wife had moved to Florida and were not coming back. The testator was confused and distraught, and he repeated these claims to other relatives, as did the propounder.

The propounder also told his father that he would help fix everything, and when the banks opened on January 2, 2007, the propounder and his wife drove the testator to the banks, where the testator removed the caveator's name from all the joint accounts. The propounder called attorney Morris's office and set a meeting to change the testator's will for January 4, and he also changed the locks on the testator's house. The caveator and his wife remained in Florida.

At the January 4 meeting, the propounder asked Morris to draft a new will for his father that left the propounder everything and disinherited his older brother completely. Morris refused to take instructions from the propounder because the propounder was not his client. The propounder got mad, argued with Morris, and threatened to take the testator to another attorney to make the changes. The dispute subsided, and Morris took the testator into another room, where the testator told him to draw up a new will leaving everything to the propounder. The testator told Morris that the caveator “has gotten all the money from me he's going to get.” Morris asked the testator if he wanted to leave anything to his grandchildren through the caveator, and the testator said to draft the will to leave his granddaughter 10% of his estate and his grandson 1%, with the rest to the propounder and nothing to the caveator.

The next day, the propounder and his wife brought the testator back to Morris's office, where the testator executed the new will. He also executed a durable power of attorney authorizing the propounder to take full control of his financial affairs. The propounder's wife told Morris that Ms. McDaniel's jewelry and other items were missing, and the testator instructed Morris to get a restraining order to keep the caveator from coming back to his father's house.

When the caveator got back from Florida a few days later, he called the propounder to ask what was going on, but the propounder refused to speak with him and told him that he needed to call Morris. The caveator called Morris and arranged a meeting for January 9, 2007. At the meeting, Morris handed the caveator a letter saying that the testator did not want the caveator to come on his property again until after the probate of his mother's estate was completed due to “some questionable actions and/or statements which have been made by yourself over the last several months prior to and immediately after your mother's death.” The letter threatened the caveator with “judicial restraint” if he failed to respect his father's wishes. Morris again told the caveator that he had no right to close out the $32,000 account and put it in his name and asked him to return his mother's jewelry and the mink stole.

After the meeting, the caveator's wife called Morris's office and left a message saying that she and her husband never meant to take any money or cause any problems, that they were just trying to do what they thought Ms. McDaniel wanted them to do with the $32,000 account, and that they would return everything that was being...