Wells v. Wells

• Decision Date: 16 April 2010
• Docket Number: 2081156.
• Parties: Howard WELLS v. Roger WELLS, as administrator of the estate of Sarah Frances Wells.
• Court: Alabama Court of Civil Appeals

49 So.3d 216

Howard WELLS

v.Roger WELLS, as administrator of the estate of Sarah Frances Wells.

2081156.

Court of Civil Appeals of Alabama.

April 16, 2010.

Misty S. Ledbetter, Legal Services Alabama, Inc., Anniston, for appellant.

Dani V. Bone, Gadsden; and Mari Morrison, Birmingham, for appellee.

THOMPSON, Presiding Judge.

Howard Wells ("Howard") appeals from the judgment of the Etowah Circuit Court in favor of his brother, Roger Wells ("Roger"), the administrator of the estate of Sarah Frances Wells; Sarah Frances Wells ("the mother") was the parties' mother. For the reasons set forth herein, we reverse the judgment.

The mother had lived in Gadsden in a house that she owned. The mother had five sons. Before the time pertinent to the present case, two of her sons had died. In 2007, the mother began living in an assisted-living facility. In the summer of 2007, she was admitted to the hospital where she remained until her death. In August 2007, the mother executed a deed conveying her house to Howard but reserving a life estate in the house for herself ("the August 2007 deed"). Because Howard feared that the August 2007 deed, even though it was recorded, was insufficient because it was witnessed by only one person, he had a second deed prepared for the mother, which she executed in September 2007 ("the September 2007 deed").

The mother died on October 6, 2007, and Roger was appointed the administrator of her estate. On December 4, 2007, Roger, as the administrator of the mother's estate, filed an action against Howard in which he sought a judgment voiding the August 2007 deed on the basis that the mother had not been mentally competent to execute that deed.

The trial court held a bench trial on May 13, 2009. The focus of the trial appears to have concerned the validity of the September 2007 deed rather than the August 2007 deed. At the trial, Sherry Wells ("Sherry"), Roger's wife, testified that she and Roger had spent a substantial amount of time with the mother, despite the fact that they resided in Birmingham. Sherry testified that the mother had had problems with her memory. In particular, she stated, the mother often had asked the same question multiple times, forgetting the answer that had just been given her. Sherry testified that she and Roger had paid the mother's bills for her, had purchased groceries for her, and had prepared food for her so that the mother would not have to cook. Sherry testified that the mother would not have known what she was signing when she executed the deed conveying her house to Howard. Sherry testified that, in her opinion, the mother had not been competent to make business decisions and to handle her business affairs.

Roger testified that the mother had often repeated herself and had asked the same questions multiple times. He stated that she had not been capable of handling her business affairs, that he had had to handle her business affairs for her, and that he had paid her bills for her because she did not remember to do so. Roger testified that the mother had been admitted to the hospital in the summer of 2007 and that, at that time, she had been confused and had not known where she was. He stated that he did not believe that, in signing the deeds conveying her house to Howard, she had known what she was doing. He testified that, during the periodwhen she signed the deeds, she would have signed anything that was placed in front of her.

Opal Hathcock, a former neighbor of the mother's, testified that she had been a close friend of the mother's for more than 40 years. Hathcock testified that the mother had told her on numerous occasions that it was the mother's intent to give her house to Howard because Howard was handicapped ¹ and, unlike his brothers, was unable to obtain employment. On cross-examination by Roger, Hathcock testified that she had not talked to the mother after the mother was hospitalized in the summer of 2007.

Vivian Rogers, another former neighbor of the mother's, testified that she had known the mother for 50 years and that the mother had told her on numerous occasions that it was her intent to leave her house to Howard. However, like Hathcock, she had not spoken to the mother after the mother was hospitalized in the summer of 2007.

Bill Rogers, another former neighbor of the mother's, testified that he had known the mother for 30 years and that she had told him that she wanted Howard to have her house. He stated, however, that he had not spoken with the mother after she became sick.

Gary Burns, the attorney who had drafted the deeds at issue in the case, testified that Howard had come to his office and had asked him to prepare a deed conveying the mother's house to him. He stated that he had done so and that he had given the deed to Howard to take to the mother. After the mother signed the deed on August 8, 2007, Burns told Howard to have it recorded. When Howard attempted to do so, Howard was told by someone in the probate office that the deed could not be recorded because it contained the signature of only one witness. Howard had it recorded anyway. Burns testified that Howard later returned to him and requested that he prepare another deed because Howard feared that the first deed, containing the signature of only one witness, was not effective. Burns testified that, at that point, he called the mother and she told him that she wanted Howard to have her house because her other sons had houses but Howard did not. Burns testified that, during that conversation, the mother seemed competent. Although he had included a life estate for her in the first deed. Burns testified that the mother told him that, in preparing the second deed, there would be no need for him to include a life estate for her. After he prepared the deed, he sent his secretary, Linda Gattis, to the hospital with the deed for the mother to sign it and for Gattis to notarize it. He testified that, after Gattis returned with the deed, he asked her if the mother appeared competent, to which Gattis responded affirmatively.

Gattis testified at the trial. About her meeting with the mother when the mother signed the September 2007 deed, Gattis testified as follows:

"Q. So, you went to her hospital room to see her?

"A. Yes, I did.

"Q. And at the time that you went to have her sign this, did you go over the form with her and explain it to her?

"A. Yes, I did.

"Q. Did she seem like she was competent at the time that she signed it?

"A. Yes, she was.

"Q. Did she fully understand and agree that this is what she wanted to do?

"A. Yes, she did.

"Q. And have you done this in the past in your position as a legal secretary?

"A. Yes, I have.

"Q. And when [the mother] signed this, did you feel fully confident that she knew what she was doing when she signed and you notarized because of that?

"A. Right. Yes."

In further testimony, Gattis stated that she had asked the mother whether she wanted to sign the deed, and the mother had responded that she did.

In addition to the testimony of the foregoing witnesses, Roger introduced into evidence the deposition of Dr. Hemant Sinha. In his deposition, Dr. Sinha, who specialized in internal medicine, testified that he had seen the mother when she had been admitted to the hospital in November 2006. He testified that, at that time, she had numerous medical problems, including uncontrolled diabetes, uncontrolled blood pressure, and dizziness. He testified that he had seen her again when she was admitted to the hospital in the summer of 2007.

Dr. Sinha testified that the mother had been diagnosed with chronic dementia. He stated that a person with chronic dementia cannot remember recent events and experiences forgetfulness. He testified that it could be a problem for a person with chronic dementia to handle his or her everyday affairs, such as paying bills, because that person may not remember which bills he or she had paid. Specifically with regard to the mother, Dr. Sinha testified that he had seen the mother only for the acute medical problems she had experienced at the hospital, and he "did not go into any detail about investigating" her dementia.

With regard to the mother's dementia, Dr. Sinha's deposition contained the following exchange:

"Q. Okay. And you may or may not be able to answer this question. But what we are here about is that allegedly [the mother] signed a deed of her property, her home, over to one of her sons. Okay. I guess my question would be: During that time, would [the mother] have the capacity to make a decision to sign her property over to somebody else? Would she know what she was doing at the time?

"A. When was that? What time was this?

"Q. That was in August of '07.

"A. Well, I mean, like you said, I can't say for sure whether she had the mental capacity to do or not. But by that time she already, you know, had the problems with the memory. And she was already on that medicine. You know, once again, we'll have to go back on the exact detail dictation of Dr. Jamil, you know, because they do, you know, detailed checkup like MMST and stuff like that. You know, they do a full mental exam to tell us exactly what on that particular day her mental status was, you know. But we did have some concerns, like I said, you know, starting from the November 2006 and, of course, we are talking now August 2007. So that certainly she already had that diagnosis, you know, of ongoing dementia by then.

"Q. Okay. So are you saying that if nothing else it would be a concern?

"A. Yes.

"Q. Okay. Would she-would you recommend-would you have recommended at that time that she be able to make a decision like that or handle her business that way?

"A. Well, you know, she was already on the medicine, you know. So the medicine sometimes helps. You know, if other factors that could cause dementia like a thyroid problem, B-12-and I'm pretty sure we had already checked those things and Dr. Mu also had checked all those things. And I'm pretty sure they were okay. Dr. Mu is an expert on thyroid

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