Williams v. Williams, 2781

• Decision Date: 06 November 1998
• Docket Number: No. 2781,2781
• Parties: Esther C. WILLIAMS, Appellant/Respondent, v. David G. WILLIAMS, as Personal Representative of the Estate of Ralph Howard Williams, Respondent/Appellant.
• Court: South Carolina Court of Appeals

Page 23

496 S.E.2d 23

329 S.C. 569

Esther C. WILLIAMS, Appellant/Respondent, v. David G. WILLIAMS, as Personal Representative of the Estate of Ralph Howard Williams, Respondent/Appellant.

No. 2781.

Court of Appeals of South Carolina.

Submitted Jan. 6, 1998.

Decided Jan. 12, 1998.

Rehearing Denied Feb. 19, 1998.

Certiorari Granted Nov. 6, 1998.

E. Timothy Moore, Jr., of Moore Law Firm, Barnwell, for Appellant/Respondent.

Thomas B. Bryant, III, of Bryant, Fanning & Shuler, Orangeburg, for Respondent/Appellant.

ANDERSON, Judge:

This appeal concerns Esther C. Williams's attempt to claim an elective share of the estate of her late husband, Ralph Howard Williams, by mailing a copy of the election to the attorney for the estate. The circuit court affirmed the probate court's determination that Esther did not strictly comply with the terms of S.C.Code Ann. § 62-2-205(a) (Supp.1996), which requires that notice of the election be delivered or mailed to the personal representative. We affirm. ¹

FACTUAL/PROCEDURAL BACKGROUND

Ralph Howard Williams died on December 11, 1994. His son, David G. Williams, was appointed the personal representative of his estate. On June 23, 1995, Williams's widow, Esther C. Williams, filed a petition for her elective share with the probate court. Her attorney, Timothy Moore, Jr., mailed a clocked copy of the petition along with a letter to Thomas Bryant, the attorney for the estate, on June 26, 1995. The letter included several questions regarding property issues.

By letter dated July 12, 1995, the estate's attorney acknowledged receipt of Esther's assertion of her elective share and informed Moore that he had given the letter to the personal representative. In a subsequent letter dated July 27th, the estate's attorney informed Moore that he had met with the personal representative and, based on the information he received, was providing responses to the property questions.

A dispute arose between the parties regarding the validity of Esther's claim for an elective share. The probate court found Esther failed to strictly comply with section 62-2-205(a) because she mailed the petition for an elective share to the estate's attorney rather than mailing or delivering it to the personal representative as provided under the terms of the statute. Relying on Simpson v. Sanders, 314 S.C. 413, 445 S.E.2d 93 (1994), the court noted the elective share provision is a statute of creation that demands strict compliance. It found service on the estate's attorney was insufficient and that, contrary to Esther's assertion, the requirement of Rule 5, SCRCP that service of pleadings and certain other papers be made on a party's attorney was inapplicable to the procedure mandated by the elective share statute. The probate court disallowed Esther's petition for an elective share.

On appeal, the circuit court affirmed the probate court's determination that Esther failed to properly assert her request for an elective share when she failed to mail or deliver the notice directly to the personal representative. The circuit court affirmed the probate court's finding that Rule 5, SCRCP was not controlling. On motion for reconsideration, the circuit court rejected Esther's additional argument that Rule 4.2 of the Rules of Professional Conduct, Rule 407, SCACR would make it improper for her attorney to communicate directly with the personal representative in order to deliver the notice of election to him. The personal representative challenged the court's authority to hear Esther's motion for reconsideration on the basis it was a post-trial, not appellate, motion. Both Esther and the personal representative appeal.

STANDARD OF REVIEW

On appeal of a legal action from the probate court and affirmed by the circuit court, the standard of review is whether any evidence supports the factual findings of the court below. See In re Howard, 315 S.C. 356, 434 S.E.2d 254 (1993) (the circuit court sitting in an appellate capacity should apply the same standard of review as would the Court of Appeals or the Supreme Court); In re Weeks, 329 S.C. 251, 495 S.E.2d 454 (Ct.App.1997) (if the action is at law, the circuit In Geddings v. Geddings, 319 S.C. 213, 460 S.E.2d 376 (1995), the Supreme Court considered an action brought by the surviving wife (Pinkie Geddings) to obtain an elective share of her deceased husband's estate. The appellants opposed the action, alleging she had waived her right to an elective share by signing a waiver agreement. The probate court and the circuit court both determined the wife was entitled to an elective share because the purported waiver was void due to the husband's failure to make a fair disclosure of his financial status. In affirming, the Supreme Court cited cases in equity. ²

court should uphold the findings of the probate court if there is any evidence to support them; if the action is equitable, the circuit court may make findings in accordance with its own view of the preponderance of the evidence); Dean v. Kilgore, 313 S.C. 257, 437 S.E.2d 154 (Ct.App.1993) (standard of review is controlled by character of the action as being legal or equitable).

The implication arising from Geddings is that an action for an elective share is in equity. However, we find the decision to be distinguishable. Geddings turned on the equitable principle of waiver and the wife's assertion that she was not given fair disclosure before signing the alleged agreement. Rakestraw v. Dozier Assocs., Inc., 285 S.C. 358, 329 S.E.2d 437 (1985) (waiver is in equity). However, the current appeal deals strictly with the interpretation and application of the elective share statute, which is a legal action. Therefore, we should affirm the findings of the court below if there is any evidence to support those findings. ³ In re Howard, 315 S.C. 356, 434 S.E.2d 254; In re Weeks, 329 S.C. 251, 495 S.E.2d 454 (Ct.App.1997); Dean, 313 S.C. 257, 437 S.E.2d 154.

ISSUES

(1) Did the circuit court err in determining Esther failed to properly assert her claim for an elective share under section 62-2-205(a)?

(2) Did the circuit court have the authority to hear Esther's motion for reconsideration?

LAW/ANALYSIS

1. SUFFICIENCY OF ELECTION

Esther argues the circuit court erred in determining she failed to properly assert her claim for an elective share by mailing the claim to the attorney for the estate instead of mailing or delivering the notice directly to the personal representative. She contends the personal representative had actual knowledge of her claim, the South Carolina Rules of Civil Procedure require service to be made on the attorney whenever a party is represented by counsel, and the Rules of Professional Conduct would prohibit her attorney from directly contacting the personal representative in order to give him the notice of election. We disagree.

Under the South Carolina Probate Code, ⁴ the surviving spouse of a person domiciled in this state has the right to an elective share of one-third of the decedent's probate estate. S.C.Code Ann. § 62-2-201 (Supp.1996). The The surviving spouse may elect to take his elective share in the probate estate by filing in the court and mailing or delivering to the personal representative, if any, a petition for the elective share within eight months after the date of death or within six months after the probate of the decedent's will, whichever limitation last expires.

Code specifies the procedure to be followed in making an election:

S.C.Code Ann. § 62-2-205(a) (Supp.1996) (emphasis added).

In Simpson v. Sanders, 314 S.C. 413, 445 S.E.2d 93 (1994), the South Carolina Supreme Court held the elective share provision is a statute of creation, and as such its terms must be strictly complied with in order to exercise the right to an elective share.

In Simpson, at issue was whether the husband had timely exercised his statutory right to an elective share of his deceased wife's estate. The wife had predeceased her husband and left him certain property in her will. Within weeks of her death, the husband informed the personal representative and the estate's attorney that he intended to claim his elective share pursuant to section 62-2-201. The husband filed two timely petitions with the probate court as required by section 62-2-205(a).

Although there was some evidence that copies of the petitions were timely mailed to the personal representative, the personal representative testified she never received either petition. The personal representative challenged the husband's claim to an elective share on the ground he had failed to comply with the requirement of section 62-2-205(a) that he either mail or deliver a copy of the petition to the personal representative within the statutory time period. The personal representative argued that since the elective share statute created a new liability, strict compliance with its terms was necessary in order to maintain an action under it.

The probate court disagreed and held the statute was a remedial provision which was therefore entitled to a liberal construction. The probate court found that because the personal representative admitted actual knowledge of the husband's intended claim, literal compliance with the statute was irrelevant. The court concluded it did not need to determine whether, in fact, either petition was timely mailed. The circuit court affirmed.

Upon further review, the South Carolina Supreme Court agreed with the personal representative that the elective share provision was a statute of creation; therefore, strict compliance with its terms is mandatory in order to exercise the right to an elective share. The court stated:

In 1987 when the elective share statute was enacted, South Carolina's common law did not require a spouse to devise any of her property to a surviving spouse. Therefore, we agree with appellant that § 62-2-205 is a statute of creation, and that strict compliance with its terms is mandatory in order...