Swiger by and through DeHaven v. Smith
| Decision Date | 10 April 2019 |
| Docket Number | Appellate Case No. 2016-000096,Opinion No. 5638 |
| Parties | Mary Jean Tucker SWIGER, BY AND THROUGH her Attorney-in-Fact, Carol DEHAVEN, Appellant, v. Ben R. SMITH and Margaret P. Kelly, as Personal Representatives of Vinton Willis Tucker, Respondents. |
| Court | South Carolina Court of Appeals |
Syretta R. Anderson, of Anderson Law Firm, of Rock Hill, for Appellant.
B. Michael Brackett, of Moses & Brackett, PC, of Columbia, for Respondents.
In this action challenging the validity of a will, Vinton Willis Tucker's (Decedent's) niece, Carol DeHaven, contends the circuit court erred in affirming the probate court's order granting summary judgment in favor of Ben R. Smith (Nephew) and Margaret P. Kelly (Niece) (collectively, Respondents). DeHaven argues summary judgment was improper because she presented sufficient evidence to the probate court of both undue influence and the existence of a confidential or fiduciary relationship, thus establishing a presumption of invalidity. We affirm.
Respondents are the children of Decedent's sister-in-law, who was the sister of Decedent's wife, Edith Pursley Tucker (Wife). After Wife died, her family remained close to Decedent.
In November 2011, Decedent was hospitalized at Carolinas Medical Center for ten days due to "injuries in a large part of his body." According to Niece, hospital doctors indicated Decedent's injuries were inconsistent with a fall, which his caregiver, Brenda Snow, reported as the cause of his injuries. On December 13, 2011, Decedent moved to Westminster Towers in Rock Hill. When he was admitted, a social worker noted Decedent's family shared information seeking to prohibit the former caregiver, Snow, from visiting Decedent.1
On January 14, 2012, a physical therapist became concerned when she was unable to wake Decedent. She was eventually able to rouse him, but he was groggy. EMS transported Decedent to Piedmont Medical Center, where doctors diagnosed him with a 7.7 cm distal abdominal aneurysm
.
Emergency room physician Jason Ratterree located the aneurysm
and explained the condition to Decedent on the evening of January 14th. As to Decedent's mental condition, Dr. Ratterree noted Decedent was When asked in his deposition what this notation meant, Dr. Ratterree replied,
Niece testified in her deposition that Decedent sought to make a new will that same evening, after he learned of the aneurysm
. Niece recalled Decedent took the news of the aneurysm quite seriously because he "had always been a very healthy person." After the doctor discussed the diagnosis and left the hospital room, Decedent asked Niece to write a will for him and inquired whether she would "be willing to put it down on paper the way he wanted it." Niece acted as scrivener for the will, which Decedent dictated to her in the presence of two witnesses. The two witnesses confirmed that Decedent raised the subject of a new will and Niece wrote down the terms as Decedent requested and according to his instructions.
Decedent remained at Piedmont Medical Center until January 20, 2012, when he returned to Westminster Towers. On February 8, 2012, he executed a durable power of attorney for health care naming Niece as his primary decision maker. A social worker from Westminster Towers testified there had been issues with a previous healthcare power of attorney Decedent signed while hospitalized; thus, he executed the February 2012 document.
Decedent passed away on May 12, 2012. On May 17, 2012, the probate court granted Respondents' application for informal probate and appointment of personal representatives. On the application, Respondents listed the date of the execution of the will as January 14, 2012 (the Will). They listed twelve nieces and nephews, including themselves, as the Will's named devisees. A niece from Decedent's side of the family, Margaret Dudley, and two nephews, Wayne Scott and Kevin Scott, were listed in the application for informal probate as intestate heirs who were not devisees named in the Will.
On May 10, 2013, Mary Jean Tucker Swiger, Decedent's sister, petitioned the probate court for formal testacy and appointment and sought to set aside the informal probate, claiming Respondents initiated the request for informal probate with an invalid will. Swiger further asserted Respondents had exerted undue influence upon Decedent and sought removal of Respondents as co-personal representatives of Decedent's estate. In the petition, Carol DeHaven, Swiger's daughter, is listed as a successor-in-interest.
Respondents answered and counterclaimed for formal testacy and appointment based upon the terms of the Will. Respondents admitted Swiger was Decedent's sole-surviving sibling but denied that "status as a sole surviving sibling itself establishes standing."
Swiger sought a temporary order to restrain Respondents from acting as personal representatives of Decedent's estate. Swiger also requested Respondents be required to post a bond. The probate court denied Swiger's motion for a temporary restraining order but granted her motion for a restricted bank account in lieu of bond.
Respondents moved for partial summary judgment, arguing no genuine issue of material fact existed to support Swiger's claims of undue influence, fraud, or lack of jurisdiction. Respondents further asserted the Will was executed with the appropriate formalities.
At the summary judgment hearing, Respondents moved to substitute DeHaven as a petitioner in the case so the caption would read "Swiger by her attorney-in-fact Carol DeHaven" due to Swiger's mental incapacity. Petitioner consented, and the probate court granted the motion to substitute. After the probate court granted Respondents' motion for partial summary judgment, DeHaven appealed to the circuit court, which affirmed the probate court.
Respondents moved to dismiss DeHaven's appeal to this court, arguing DeHaven, acting as Swiger's attorney-in-fact, engaged in the unauthorized practice of law by filing the appeal. Respondents also claimed the notice of appeal was defective because DeHaven failed to include the probate court's order with the filing of the notice. DeHaven filed a return, asserting she had the authority to appeal on behalf of Swiger, who is now deceased,2 as her "legal representative" because the probate court allowed her to substitute for Swiger. This court denied the motion to dismiss but ordered DeHaven to retain counsel. Counsel for DeHaven filed a notice of appearance on May 3, 2016.
On May 4, 2016, Respondents again moved to dismiss the appeal, arguing DeHaven lacked standing to prosecute the appeal because DeHaven's status as Swiger's "attorney-in-fact" terminated upon Swiger's death, and DeHaven had not provided any information indicating a personal representative had been appointed, an executor had been appointed, or a probate estate had been opened. This court denied the motion to dismiss but ruled Respondents could raise the standing issue during briefing.
"An action to contest a will is an action at law, and in such cases reviewing courts will not disturb the probate court's findings of fact unless a review of the record discloses no evidence to support them." Hairston v. McMillan , 387 S.C. 439, 445, 692 S.E.2d 549, 552 (Ct. App. 2010).
"In reviewing the grant of [a] summary judgment motion, the [appellate court] applies the same standard as the trial court under Rule 56(c), SCRCP." In re Estate of Smith , 419 S.C. 111, 116, 796 S.E.2d 158, 160 (Ct. App. 2016) () (quoting Dawkins v. Fields , 354 S.C. 58, 69, 580 S.E.2d 433, 438–39 (2003) ).
Rule 56(c) states summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Id. (citation omitted). "[I]n cases requiring a heightened burden of proof ... the non-moving party must submit more than a mere scintilla of evidence to withstand a motion for summary judgment." Hancock v. Mid-South Mgmt. Co., Inc. , 381 S.C. 326, 330–31, 673 S.E.2d 801, 803 (2009). "Since the standard of proof in an undue influence case is unmistakable and convincing evidence, there must be more than a scintilla of evidence in order to defeat a motion for summary judgment." Russell v. Wachovia Bank, N.A. , 353 S.C. 208, 218, 578 S.E.2d 329, 334 (2003).
Respondents argue this court lacks jurisdiction because DeHaven, who filed the notice of appeal, lacked authority or standing to prosecute the matter. We disagree.
Appeals from the probate court are governed by the South Carolina Probate Code. See Dorn v. Cohen , 421 S.C. 517, 520, 809 S.E.2d 53, 54 (2017) (per curiam) (). The South Carolina Probate Code allows a person "interested" in a final order of a probate court, including intestate heirs, to appeal to the circuit court. See S.C. Code Ann. § 62-1-308(a) (Supp. 2018) (); S.C. Code Ann. § 62-1-201(23) (Supp. 2018) (); S.C. Code Ann. § 62-1-201(20) (Supp. 2018) (...
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