Russell v. Wachovia Bank, NA, No. 25599.

CourtUnited States State Supreme Court of South Carolina
Citation578 S.E.2d 329,353 S.C. 208
Docket NumberNo. 25599.
Decision Date24 February 2003
PartiesWalker Scott RUSSELL, Respondent/Appellant, v. WACHOVIA BANK, N.A. as Putative Trustee of the Alleged Donald Stuart Russell Revocable Trust and as Putative Trustee of the Alleged Donald Stuart Russell Irrevocable Trust; Virginia U. Russell; Donald S. Russell, Jr.; Mildred Russell Williams Neiman; John R. Russell; Thaddeus Russell Williams; Virginia Carol Williams; and Cecilia Frances Williams, Respondents. and Mildred R. Neiman, Appellant/Respondent, v. Wachovia Bank, N.A. as Personal Representative of the Estate of Donald S. Russell, Sr., Virginia C. Williams, T. Russell Williams, Cecilia F. Williams, Virginia U. Russell, Donald S. Russell, Jr., W. Scott Russell, and John R. Russell, Respondents. and Mildred R. Neiman, Appellant/Respondent, v. Wachovia Bank, N.A., as Personal Representative of the Estate of Donald S. Russell Williams, Sr., Virginia C. Williams, T. Russell Williams, Cecilia F. Williams, Virginia U. Russell, Donald S. Russell, Jr., W. Scott Russell, and John R. Russell, Respondents. and In The Matter of the Estate of Donald S. Russell, Deceased Walker Scott Russell, Respondent/Appellant, v. Virginia U. Russell, Donald S. Russell, Jr., Mildred Russell Williams Neiman, John R. Russell, and Wachovia Bank, N.A. as Personal Representative, Respondents, and Wachovia Bank, N.A., as Personal Representative of the Estate of Donald S. Russell, deceased, Respondent, v. Virginia Williams, Russell Williams, Cecilia Williams, Walker Scott Russell, Jr., and Grace Johnson Russell, Respondents, Of whom Walker Scott Russell, a/k/a W. Scott Russell is Respondent/Appellant, and Mildred Russell Williams Neiman, a/k/a Mildred R. Neiman is Appellant/Respondent, and Wachovia Bank, N.A., as Personal Representative of the Estate of Donald S. Russell, deceased, Virginia U. Russell, Donald S. Russell, Jr., John R. Russell, Thaddeus Russell Williams, a/k/a T. Russell Williams, a/k/a Russell Williams, Virginia Carol Williams, a/k/a Virginia C. Williams, a/k/a Virginia Williams, and Cecilia Frances Williams, a/k/a Cecilia F. Williams are Respondents.

353 S.C. 208
578 S.E.2d 329

Walker Scott RUSSELL, Respondent/Appellant,
v.
WACHOVIA BANK, N.A. as Putative Trustee of the Alleged Donald Stuart Russell Revocable Trust and as Putative Trustee of the Alleged Donald Stuart Russell Irrevocable Trust; Virginia U. Russell; Donald S. Russell, Jr.; Mildred Russell Williams Neiman; John R. Russell; Thaddeus Russell Williams; Virginia Carol Williams; and Cecilia Frances Williams, Respondents. and
Mildred R. Neiman, Appellant/Respondent,
v.
Wachovia Bank, N.A. as Personal Representative of the Estate of Donald S. Russell, Sr., Virginia C. Williams, T. Russell Williams, Cecilia F. Williams, Virginia U. Russell, Donald S. Russell, Jr., W. Scott Russell, and John R. Russell, Respondents. and
Mildred R. Neiman, Appellant/Respondent,
v.
Wachovia Bank, N.A., as Personal Representative of the Estate of Donald S. Russell Williams, Sr., Virginia C. Williams, T. Russell Williams, Cecilia F. Williams, Virginia U. Russell, Donald S. Russell, Jr., W. Scott Russell, and John R. Russell, Respondents. and
In The Matter of the Estate of Donald S. Russell, Deceased Walker Scott Russell, Respondent/Appellant,
v.
Virginia U. Russell, Donald S. Russell, Jr., Mildred Russell Williams Neiman, John R. Russell, and Wachovia Bank, N.A. as Personal Representative, Respondents, and
Wachovia Bank, N.A., as Personal Representative of the Estate of Donald S. Russell, deceased, Respondent,
v.
Virginia Williams, Russell Williams, Cecilia Williams, Walker Scott Russell, Jr., and Grace Johnson Russell, Respondents,
Of whom Walker Scott Russell, a/k/a W. Scott Russell is Respondent/Appellant, and
Mildred Russell Williams Neiman, a/k/a Mildred R. Neiman is Appellant/Respondent, and
Wachovia Bank, N.A., as Personal Representative of the Estate of Donald S. Russell, deceased, Virginia U. Russell, Donald S. Russell, Jr., John R. Russell, Thaddeus Russell Williams, a/k/a T. Russell Williams, a/k/a Russell Williams, Virginia Carol Williams, a/k/a Virginia C. Williams, a/k/a Virginia Williams, and Cecilia Frances Williams, a/k/a Cecilia F. Williams are Respondents

No. 25599.

Supreme Court of South Carolina.

Heard November 20, 2002.

Decided February 24, 2003.

Rehearing Denied March 26, 2003.


353 S.C. 213
Joseph M. McCulloch, Jr., of Columbia, for Appellant/Respondent

J. Neil Robinson, of Charlotte, and Leo A. Dryer, Jr., of Columbia, for Respondent/Appellant.

G. Dewey Oxner, Jr. and Moffatt G. McDonald, of Greenville; R. Ray Dennis, of Spartanburg; Stanley T. Case and Edward G. Smith, of Spartanburg; and Thomas E. McCutchen and Hoover C. Blanton, of Columbia, for Respondents.

Justice PLEICONES:

Walker Scott Russell ("Scott") and Mildred Neiman ("Mim"), collectively "Appellants", each filed Summons and Complaints in the Spartanburg County Probate Court seeking to set aside the Last Will and Testament of their father, Donald S. Russell, Sr. ("Testator"), and seeking to set aside the Revocable Trust and Irrevocable Trust of Testator. Appellants contend both the will and the trust instruments resulted from undue influence exerted on Testator. Wachovia Bank ("Wachovia"), Executor of Testator's estate and trustee of both trusts, as well as the other Defendants, moved for summary judgment, which was granted. These appeals followed.1 We affirm as modified.

FACTS

Testator was married to Virginia U. Russell ("Mrs.Russell") and they had four children, Donald Russell, Jr. ("Donnie"), Mim, John Russell ("Johnny") and Scott. Mim married Thad Williams ("Thad") and had three children, Russell Williams ("Russell"), Virginia Williams ("Virginia") and Cecilia Williams

353 S.C. 214
("Cecilia"), collectively "The Williams Children." Mim and Thad divorced, and Mim married Leonard Neiman in June of 1997

Testator served as an active United States Circuit Judge for the Fourth Circuit until his death on February 22, 1998, at the age of 92. Prior to his appointment to the federal bench, Testator served as a governor of and United States senator from South Carolina, as well as President of the University of South Carolina. Testator's physical condition deteriorated in his later years, and he was occasionally hospitalized.

The Williams Children lived with Testator and his wife for most of their lives. Cecilia lived in the home until Testator's death, while Russell and Virginia resided in the home intermittently.

Testator executed many wills, codicils, and trusts beginning in 1959. His final will and trusts were executed on February 27, 1996, with codicils executed on May 15, 1996, November 6, 1996, October 9, 1997, and November 6, 1997. The last codicil was executed on February 20, 1998, just two days before his death. Testator's estate totaled 33 million dollars.

Testator's final estate plan provided that his estate be held in trust for Mrs. Russell for her lifetime, and at her death the trust property be distributed as follows:

(1) $750,000 to Scott in trust for life, if he is not living then to Scott's spouse and descendants then living, also in trust.
(2) One-third of the balance to Donnie.
(3) One-third of the balance to Johnny.
(4) The remaining one-third of the balance to Mim and her three children, the Williams Children, as follows:
a. One-fourth to Mim in trust for life, and then to the Williams Children in trust for life.
b. One-fourth to Virginia in trust for life.
c. One-fourth to Cecilia in trust for life.
d. One fourth to Russell in trust for life.

Mim is to receive only the income from her trust, but the trustee has the discretion to distribute principal. At Mim's death, the property remaining in the trust shall be divided per

353 S.C. 215
stirpes into trusts for Mim's descendants living at the time of her death. The Williams Children receive distributions of principal and income at the sole discretion of the trustee. The Williams Children are to have a power of appointment over their trusts through their wills, and cannot appoint the trust property to their estates or to creditors. If the Williams Children do not exercise their powers of appointment, their shares are divided per stirpes into trusts for their descendants living at the time of their death

Appellants contend that the trial court erred in granting summary judgment against them. Since our standard of review requires we review the evidence in the light most favorable to Appellants, Fleming v. Rose, 350 S.C. 488, 567 S.E.2d 857 (2002), we recount from the record the evidence supporting their claims of undue influence by the Williams Children and their father Thad.

Appellants presented evidence, that at times, Testator was confused. One incident in 1997, detailed by several nurses employed by Testator, involved Testator thinking that he was in Richmond, Virginia, when in fact he was in Spartanburg, South Carolina. The nurses also stated that Testator "doubled up" on his medication, which caused them to regulate the medication Testator took, and put a lock on the medicine cabinet.

There was evidence that the Williams Children were disrespectful to Testator, and frequently yelled at Testator about money. The Williams Children engaged in physical fights in front of Testator. There was evidence that Cecilia monitored Testator's telephone calls while he was in his home, and sometimes told Testator which clothes to wear. Cecilia would not allow Testator to regulate the thermostat in his house.

The Williams Children spent large amounts of Testator's money, sometimes charging as much as $12,000 in a month. The Williams Children had unfettered access to Testator's office, and lived in his house. There was evidence that Thad2 had frequent contact with Testator's attorney regarding the estate plans. Two medical doctors testified that Testator could have been susceptible to undue influence. Finally, there

353 S.C. 216
was evidence that Russell and Cecilia removed records from Testator's office on the weekend of his death.3

There is, however, undisputed evidence that the Testator was mentally competent and worked until the day he died. Testator drove himself to work every day. At the direction of Testator, his secretary, not the Williams Children or Thad, handled Testator's financial transactions. Testator frequently attended social engagements with Donnie and Johnny, as well as other friends and colleagues. There is also undisputed evidence that Mim has not provided for her own children, the Williams Children, in her estate plan. Finally, Testator met with his attorney alone on most occasions, and neither the Williams Children, nor Thad were present at the signing of the will, trust documents or codicils.

ISSUES
Did the trial judge err in granting summary judgment because a genuine issue of material fact existed concerning the exercise of undue influence over the Testator in the execution of his will?
Did the trial judge err in failing to make a specific ruling that North Carolina law governed the validity vel non of the trust documents?
Did the trial judge err in granting summary judgment because a genuine issue of material fact existed concerning the validity of Testator's trusts due to undue influence or lack of trust res?

DISCUSSION

I. Will Contest

Appellants argue that Testator's entire estate plan is void ab initio due to undue influence exerted by the Williams Children as well as by Thad Williams, their father, and that summary judgment was inappropriate as there was a genuine issue of material fact. We disagree.

353 S.C. 217
All parties stipulate that South Carolina law governs the will contest. For a will to be invalidated for undue influence, the influence must be the kind of mental coercion which destroys the free agency of the creator and constrains him to do things which are against his free will, and that he would not have done if he had been left to his own judgment and volition. Last Will and Testament of Smoak v. Smoak, 286 S.C. 419, 334 S.E.2d 806 (1985). Undue influence must be shown by unmistakable and convincing...

To continue reading

Request your trial
51 practice notes
  • Dunes W. Golf Club, LLC v. Town of Mount Pleasant, No. 27208.
    • United States
    • United States State Supreme Court of South Carolina
    • January 9, 2013
    ...facts but must come forward with specific facts showing that there is a genuine issue for trial.’ ” Russell v. Wachovia Bank, N.A., 353 S.C. 208, 220, 578 S.E.2d 329, 335 (2003) (quoting Baughman v. Am. Tel. & Tel. Co., 306 S.C. 101, 107, 410 S.E.2d 537, 545 (1991)). “[T]he opposing party m......
  • Schmidt v. Courtney, No. 3719.
    • United States
    • Court of Appeals of South Carolina
    • December 22, 2003
    ...issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Russell v. Wachovia Bank, N.A., 353 S.C. 208, 578 S.E.2d 329 (2003); Regions Bank, 354 S.C. at 659, 582 S.E.2d at 438; Rule 56(c), SCRCP. All ambiguities, conclusions, and inferences arising ......
  • Wilson v. Dallas, No. 27227.
    • United States
    • United States State Supreme Court of South Carolina
    • May 8, 2013
    ...on whether Brown's will was somehow overcome at the time he signed the documents finalizing his estate plan. See Russell v. Wachovia Bank, 353 S.C. 208, 219, 578 S.E.2d 329, 335 (2003) (“In order for the will to be void due to undue influence, ‘[a] contestant must show that the influence wa......
  • Wilson v. Dallas, Appellate Case No. 2009-142286
    • United States
    • United States State Supreme Court of South Carolina
    • February 27, 2013
    ...on whether Brown's will was somehow overcome at the time he signed the documents finalizing his estate plan. See Russell v. Wachovia Bank, 353 S.C. 208, 219, 578 S.E.2d 329, 335 (2003) ("In order for the will to be void due to undue influence, '[a] contestant must show that the influence wa......
  • Request a trial to view additional results
51 cases
  • Dunes W. Golf Club, LLC v. Town of Mount Pleasant, No. 27208.
    • United States
    • United States State Supreme Court of South Carolina
    • January 9, 2013
    ...facts but must come forward with specific facts showing that there is a genuine issue for trial.’ ” Russell v. Wachovia Bank, N.A., 353 S.C. 208, 220, 578 S.E.2d 329, 335 (2003) (quoting Baughman v. Am. Tel. & Tel. Co., 306 S.C. 101, 107, 410 S.E.2d 537, 545 (1991)). “[T]he opposing party m......
  • Schmidt v. Courtney, No. 3719.
    • United States
    • Court of Appeals of South Carolina
    • December 22, 2003
    ...issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Russell v. Wachovia Bank, N.A., 353 S.C. 208, 578 S.E.2d 329 (2003); Regions Bank, 354 S.C. at 659, 582 S.E.2d at 438; Rule 56(c), SCRCP. All ambiguities, conclusions, and inferences arising ......
  • Wilson v. Dallas, No. 27227.
    • United States
    • United States State Supreme Court of South Carolina
    • May 8, 2013
    ...on whether Brown's will was somehow overcome at the time he signed the documents finalizing his estate plan. See Russell v. Wachovia Bank, 353 S.C. 208, 219, 578 S.E.2d 329, 335 (2003) (“In order for the will to be void due to undue influence, ‘[a] contestant must show that the influence wa......
  • Wilson v. Dallas, Appellate Case No. 2009-142286
    • United States
    • United States State Supreme Court of South Carolina
    • February 27, 2013
    ...on whether Brown's will was somehow overcome at the time he signed the documents finalizing his estate plan. See Russell v. Wachovia Bank, 353 S.C. 208, 219, 578 S.E.2d 329, 335 (2003) ("In order for the will to be void due to undue influence, '[a] contestant must show that the influence wa......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT