Smith's Estate, In re, 1498

• Decision Date: 26 June 1968
• Docket Number: No. 1498,1498
• Citation: 212 So.2d 74
• Parties: In re ESTATE of Winnie SMITH, Deceased.
• Court: Florida District Court of Appeals

Page 74

212 So.2d 74

In re ESTATE of Winnie SMITH, Deceased.

No. 1498.

District Court of Appeal of Florida, Fourth District.

June 26, 1968.

Albert N. Fitts, Sanford, for appellant Versa Woodcock.

C. Vernon Mize, Jr., of Cleveland & Mize, Sanford, for appellee Mack N. Cleveland, Jr., as administrator.

OWEN, Judge.

This is a will contest case. Appellant as beneficiary under a prior will, sought revocation of the order of probate of a later will on the grounds that such will was void because the execution thereof was procured through undue influence on the part of the principal beneficiaries, George David Smith and his wife, Elizabeth. From an order of the county judge's court denying the petition for revocation, this appeal was taken.

At the hearing before the county judge the proponent of the will made a prima facie showing of the formal execution and attestation thereof, thereby causing the burden of proof to shift to the will contestant to establish the facts constituting the grounds upon which the revocation was sought. ¹ Appellant, acknowledging that she then had such burden of proof, sought to establish undue influence through the presumption which arises by law when a beneficiary under a will occupies a confidential relationship with the testator and is active in procuring the will. ² At the close of the appellant's case the court ruled that although the principal beneficiaries, George David Smith and his wife, Elizabeth, might be said to occupy a confidential relationship with the testatrix, the evidence failed to establish that they had actively procured the execution of the will and hence the presumption of undue influence did not arise. The question resolves itself into whether under the facts of this case the county judge was correct in ruling that the principal beneficiaries had not actively procured the execution of the will.

At the time of her death in January, 1965, the decedent was a 74-year-old widow. She had executed a will in August, 1961, in which the appellant, Versa Woodcock, was a beneficiary to the extent of $2,000.00 and also named as executrix. In May, 1964, Mrs. Winnie Smith was living as a paying care patient in the home of Mrs. Anne Starnes in Sanford, Florida. At that time Mrs. Smith became upset by something she thought Versa Woodcock had done, whereupon she requested Mrs. Starnes to place a telephone call to her stepson, George David Smith, who resided in or near Atlanta, Georgia. The stepson was finally located and in the telephone conversation Mrs. Winnie Smith asked her stepson to come to Florida stating to him that she had some important business that had to be taken care of right away. Mrs. Winnie Smith told Mrs. Starnes that she had asked her stepson to come down to Sanford, Florida and that he had agreed to come down in a few days. At that time she also stated to Mrs. Starnes, 'David is all I got and I don't know why I left him. He was so good to me.', referring to some earlier date when she had lived with her stepson in Atlanta.

As a result of the telephone call, David and his wife, Elizabeth, and their child came to Sanford, Florida, a few days later. After spending several hours reminiscing, Mrs. Winnie Smith, indicated that the nature of her urgent business was to revise her will. She apparently intended initially to have the will written in longhand, as she asked Mrs. Starnes to help write, but Mrs. Starnes suggested that Elizabeth Smith was used to office work and could do it much faster. Thereupon, Elizabeth Smith wrote the will in longhand while Mrs. Winnie Smith sat in front of Elizabeth telling her what to write. George David Smith was in and out of the room occasionally and at one time suggested that one of the bequests be changed to $100.00 rather than $1.00. Other than this he apparently had very little to do with the handwritten will. That instrument was apparently signed and witnessed shortly after it was prepared. George David Smith and his wife and child then left Sanford and went to Daytona Beach for the weekend returning on Monday or Tuesday. At that time Mrs. Winnie Smith indicated that there were one or two more changes she still wanted to make in the will as a consequence of which Elizabeth Smith again was called upon for the task of writing in longhand the revision as instructed by Mrs. Winnie Smith. The handwritten will executed a few days before was then discarded. George David Smith went to the office of a local lawyer, Douglas Stenstrom, Esquire, requesting that he come to Mrs. Smith's residence for the purpose of preparing her will. Mr. Stenstrom was unable to go but advised that he could prepare the will in his office if he had instructions from the testatrix, after which George David Smith returned a short time later with the revision of the handwritten will. Mr. Stenstrom then prepared the will in accordance with the handwritten version furnished him upon assurances that the notes were in Mrs. Winnie Smith's own handwriting. There is a conflict in the testimony as to whether Mr. Smith then took the typewritten draft of the will from the lawyer's office, or whether he drove Mrs. Winnie Smith to the lawyer's office where she obtained the document. In any event, the typewritten will was executed at the Starnes' residence with Mr. and Mrs. Starnes and their married daughter as witnesses. There was no showing that George David Smith and his wife secured these witnesses or were present when the will was executed. While there were also conflicts in the...