McGee v. McGee, 1091798

• Decision Date: 13 January 2012
• Docket Number: 1100247,1091798
• Parties: John Coleman McGee v. Willis Banks McGee, individually and as executor of the estate of Elizabeth Banks McGee
• Court: Alabama Supreme Court

John Coleman McGee

v. Willis Banks McGee, individuallyand as executor of the estate of Elizabeth Banks McGee

1091798

1100247

SUPREME COURT OF ALABAMA

OCTOBER TERM, 2011-2012

Date: January 13, 2012

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

Willis Banks McGee, as executor of the estate of Elizabeth

John Coleman McGee

Appeals from Greene Circuit Court

(CV-05-037)

WOODALL, Justice.

In case no. 1091798, John Coleman McGee ("Jack") appeals from a summary judgment and a judgment as a matter of law in favor of his brother, Willis Banks McGee ("Willis"), individually and as executor of the estate of Elizabeth Banks McGee, their mother ("Mrs. McGee"), in an action commenced by Jack to contest Mrs. McGee's will. In case no. 1100247, Willis appeals the trial court's denial of his request, pursuant to Ala. Code 1975, § 43-8-196, for the payment of litigation costs and attorney fees in the will contest. We have consolidated the appeals for the purpose of writing one opinion. In case no. 1091798, we affirm in part, reverse in part, and remand. In case no. 1100247, we reverse and remand.

I. Factual and Procedural Background

On June 7, 1992, Mrs. McGee executed a will, which was drafted by Crawford Williams, her attorney of approximately 30 years. The document provided, in substantive and relevant part:

"I, ELIZABETH BANKS McGEE, ... being of sound mind and disposing memory, do hereby make and publish this, my Last Will and Testament, hereby revoking any and all former Wills made by me.

"....

"ITEM TWO

"I give, will, devise and bequeath unto my beloved son, [Willis], my home, together with the real estate upon which it is situated and all household furniture, furnishings and appliances ... to be his absolutely.

"ITEM THREE

"I give, will, devise and bequeath the sum of $25,0 00 . 0 0 cash to each grandchild of mine who survives me (and who might be born within nine (9) months of my death) to be received by and to be held by their parent(s) for such grandchild's needs as said parent(s), in their own discretion, might determine appropriate .... In the event that my son, [Jack], is divorced from my daughter-in-law, CAROL S. McGEE, then I designate my daughter-in-law, CAROL S. McGEE, as the 'parent' to receive and hold such sum as bequeathed to my grandchild, KRISTIN McGEE, for all purposes under this Item of my Will.

"ITEM FOUR

"I give, will, devise and bequeath unto my beloved son, [Jack], the sum of ONE HUNDRED THOUSAND DOLLARS ($100,000.00) cash to be his absolutely, if he survives me.

"ITEM FIVE

"I give, will, devise and bequeath all the rest, residue and remainder of my property, real, personal and/or mixed, wherever situated, which I may own or to which I may be entitled at the time of my death, or to which my estate may become entitled after my death, or over which I may have any power of disposition, unto my beloved son, [Willis], to be his absolutely.

"....

"ITEM SEVEN

"I hereby constitute and appoint as Executor of this, my Last Will and Testament, my son, [Willis]...."

(Capitalization in original.)

Mrs. McGee executed the will in her home. Present at the signing of the will were Williams and Jim Wagstaff, both of whom signed the document as witnesses. Willis had played no role in the discussions between Williams and Mrs. McGee during the drafting stage of the will, and he was not present when the will was signed. However, sometime before Mrs. McGee's death, Willis allegedly placed the will in Mrs. McGee's bank safe-deposit box.

Mrs. McGee died on January 18, 2005, and Willis subsequently offered the will for probate. Letters testamentary were issued to Willis in February 2005. On June 15, 2005, Jack filed a "complaint for contest of will." As last amended, the complaint alleged (1) that the will was "invalid because it was not executed as required by law"; (2) that Mrs. McGee "lacked sufficient testamentary capacity"; (3) that the will was the product of undue influence; and (4) that the submission of the will for probate perpetrated a fraud onthe court. In the complaint Jack also sought the imposition of a constructive trust over the property of the estate.

Additionally, the complaint contained a conversion claim, set forth, in pertinent part, as follows:

"17. Willis McGee has also wrongfully taken and/or withheld a number of items from Mrs. McGee's residence which belong to Jack McGee.

"18. The items belonging to Jack McGee, but currently retained, controlled, destroyed, sold or otherwise disposed of by Willis McGee include, but [are] not limited to, the following:

"a. a 16 gauge shotgun;

"b. an automatic 22 caliber pistol;

"c. An over/under shotgun;

"d. a 22 caliber rifle;

"e. a 20 gauge shotgun;

"f. a 410 gauge shotgun;

"g. two 3-barrel guns;

"h. his grandfathers' guns;

"i. a marble top;

"j. two antique bedroom suites;

"k. two wing back antique chairs;

"1. a rocking chair; and

"m. miscellaneous family items.

"19. Despite his ownership of these items and Jack's request for their return, Willis McGee has refused and/or failed to return said items to Jack McGee."

The trial court entered a summary judgment in favor of Willis on all counts of the complaint except the undue-influence count, which was tried to a jury. However, at the close of Jack's case, the trial court entered a judgment as a matter of law ("JML") in favor of Willis on that count, "with leave for [Willis] to prove reasonable costs and fees pursuant to § 43-8-196, Code of Alabama (1975)." Jack's motion to alter, amend, or vacate that judgment was denied by operation of law, and he appealed (case no. 1091798). Meanwhile, Willis filed a "submission to prove costs and fees." The trial court, however, denied Willis's request for payment of costs and fees, and Willis also appealed (case no. 1100247).

On appeal, Jack contends that the trial court erred in entering both the summary judgment and the JML, while Willis contends that the trial court erred in denying his request for the payment of costs and fees. Because the merits of Willis's appeal turn, in large part, on the merits of Jack's appeal, we first address the issues presented in case no. 1091798.

II. Discussion -- Case No. 1091798

On appeal, Jack challenges the summary disposition by JML of his undue-influence claim. He also challenges the summary judgment on his fraud and conversion claims. He does not challenge the summary disposition of the following two claims eliminated by summary judgment: (1) the alleged invalid execution of the will and (2) Mrs. McGee's alleged lack of testamentary capacity. In any event, "[t]he de novo 'standard by which we review a ruling on a motion for a JML is "'materially indistinguishable from the standard by which we review a summary judgment.'"'" Glass v. Birmingham Southern R.R., 982 So. 2d 504, 506 (Ala. 2007) (quoting Bailey v. Faulkner, 940 So. 2d 247, 249 (Ala. 2006), quoting in turn Flint Constr. Co. v. Hall, 904 So. 2d 236, 246 (Ala. 2004)). "We must decide whether there was substantial evidence, when viewed in the light most favorable to the plaintiff, to warrant a jury determination." Alabama Power Co. v. Aldridge, 854 So. 2d 554, 560 (Ala. 2002). We first address Jack's contention that the trial court erred in entering the JML on his undue-influence claim.

A. JML -- Undue Influence

Jack concedes, as he must, that in order "[t]o submit his claim to a jury" he had the burden of producing substantial evidence of each element of undue influence. Jack's brief, at 24-25. Those elements are:

"'(1) that a confidential relationship existed between a favored beneficiary and the testator; (2) that the influence of or for the beneficiary was dominant and controlling in that relationship; and (3) that there was undue activity on the part of the dominant party in procuring the execution of the will.'"

Furrow v. Helton, 13 So. 3d 350, 353-54 (Ala. 2008) (emphasis added) (quoting Clifton v. Clifton, 529 So. 2d 980, 983 (Ala. 1988)). This Court has often defined a "favored beneficiary" as

"'[o]ne who, in the circumstances of the particular case, has been favored over others having equal claim to the testator's bounty. An unnatural discrimination, leading to a natural inference that advantage has been taken by one in position so to do; and shown to have been busy in getting such will executed.'"

Pirtle v. Tucker, 960 So. 2d 620, 629 (Ala. 2006) (quoting Cook v. Morton, 241 Ala. 188, 192, 1 So. 2d 890, 892 (1941)).

Assuming, arguendo, that the proponent of a will is a favored beneficiary, it still must be shown that there was "active interference in procuring the execution of the will."Clifton v. Clifton, 529 So. 2d at 984. "This activity must be in procuring the execution of the will and more than activity and interest referable to a compliance with or obedience to the voluntary and untrammeled directions of the testat[rix]." Johnson v. Howard, 279 Ala. 16, 21, 181 So. 2d 85, 90 (1965) (emphasis added).

'"Undue activity in the procurement or execution of a will may ... be proved by circumstantial evidence.'" Pirtle, 960 So. 2d at 631 (quoting Allen v. Sconyers, 669 So. 2d 113, 117 (Ala. 1 995)). However, "[a] court does 'not look at individual facts or evidence in isolation in determining whether the evidence supports [this] element of undue influence.'" 960 So. 2d at 632. "Evidence proving that there was undue activity [on the part of the named beneficiary] in procuring the execution of the will is crucial to the determination of the existence of undue influence." Wall v. Hodges, 465 So. 2d 359, 363 (Ala. 1984) (emphasis added).

Circumstances evidencing undue activity in the procurement or execution of a will are those where a beneficiary

"'"was active in and about the

...