Wilson v. Wehunt

• Decision Date: 28 January 1994
• Citation: 631 So.2d 991
• Parties: Richard A. WILSON v. Paula WEHUNT, et al. 1921114.
• Court: Alabama Supreme Court

Page 991

631 So.2d 991

Richard A. WILSON v. Paula WEHUNT, et al.

1921114.

Supreme Court of Alabama.

Jan. 28, 1994.

T.J. Carnes of Carnes & Carnes, P.C., Albertville, for appellant.

Robert W. Hanson of Hanson & Hanson, P.C., Albertville, for appellees.

HOUSTON, Justice.

The defendant, Richard A. Wilson, appeals from a judgment for the plaintiffs, Paula Wehunt, Cynthia Anderson, and Cewilla Garmon, in this action to cancel a deed. We reverse and remand.

The defendant is the youngest of two sons born to Ethel Wilson. The plaintiffs are the children of the defendant's deceased brother. This action stemmed from Ethel Wilson's conveyance of her small farm to the defendant by a deed dated February 9, 1985. ¹ At the time of the conveyance, Ms. Wilson, now deceased, was 78 years old.

The plaintiffs alleged, as grounds for cancelling the deed, undue influence on the part of the defendant and a lack of mental competency on the part of his mother. After an ore tenus hearing, the trial court entered a judgment that reads in pertinent part as follows:

"The court has reviewed, read and re-read the trial notes of testimony, the exhibits and the depositions and finds that this matter turns upon the burden of proof. The evidence in this case is in sharp conflict concerning [Ms. Wilson's] mental capacity to execute the deed. There being no necessity to discuss the respective positions of the parties and ... the testimony and evidence submitted, suffice it to say that it has been proven to the reasonable satisfaction of the court that the defendant ... was, at the time surrounding the execution of the deed in issue, the dominant party in a confidential relationship with his mother.... Upon such proof, the burden of proof shifts to [the defendant] to prove that the transaction was fair, just and equitable in every respect. (Chandler v. Chandler, 514 So.2d 1307 [ (Ala.1987) ].)

"Further, it has been shown to the reasonable satisfaction of the court that [Ms. Wilson] suffered from intermittent periods of incompetency and that such periods [had] been in existence for some extended period of time prior to the execution of the deed; therefore, the burden of proof shifts to the defendant to show that the deed was executed during a lucid interval (Hardee v. Hardee, 261 Ala. 669, 93 So.2d 127 [ (1956) ].

"The court is not satisfied from the evidence that the defendant has carried his burdens of proof concerning such issues."

Citing a number of cases, the defendant contends that the trial court erred in placing on him the burden of proving that the conveyance from his mother was free of undue influence. He argues that the plaintiffs bore the burden of proving undue influence on his part and that they failed to meet their burden. The defendant also contends that the trial court erred in placing on him the burden of proving that his mother was mentally competent when she executed the deed. Again, he argues that the plaintiffs had the burden of establishing a lack of mental competence on the part of his mother and that they failed to meet their burden in this respect. The plaintiffs argue that the trial court properly placed on the defendant the burden of justifying the conveyance and that the trial court correctly concluded that the defendant had not met his burden. We agree with the defendant that the burden of proof in this case rested at all times on the plaintiffs.

Undue Influence

The trial court correctly ruled as a matter of law that the defendant had a confidential relationship with his mother and that proof sufficient to reasonably satisfy the court of the defendant's dominance in that relationship would create a presumption of invalidity and shift the burden to the defendant to prove that the conveyance was free of undue influence. See, e.g., Chandler v. Chandler, 514 So.2d 1307, 1308 (Ala.1987), wherein this Court stated:

"The relation of parent and child is per se a confidential one. The law presumes that the parent is the dominant spirit, but this presumption is not conclusive. 'Where it is made to appear by the proof that the child, and not the parent, is the dominant spirit, then the burden of proof is shifted to the former to establish the fairness of the transaction, and that it was not the result of undue influence.' Dowe v. Farley, 206 Ala. 421, 422, 90 So. 291, 292 (1921); Tipton v. Tipton, 249 Ala. 537, 539, 32 So.2d 32, 34 (1947). See, also, Jones v. Boothe, 270 Ala. 420, 119 So.2d 203 (1960); Orton v. Gay, 285 Ala. 270, 231 So.2d 305 (1970); Wolfe v. Thompson, 285 Ala. 745, 235 So.2d 878 (1970)....

"....

"... The party seeking to have the deed set aside need only show to the reasonable satisfaction of the court that the grantee was the dominant party in a confidential relationship with the grantor, whereupon the burden shifts to the grantee to show that the transaction was 'fair, just, and equitable in every respect.' Brothers v. Moore, [349 So.2d 1107, 1109 (Ala.1977) ]."

See, also, the cases collected at 7A Ala.Digest, Deeds, key no. 196(3) (1955). However, after carefully reviewing the briefs of the parties and the testimony presented at the hearing, we can find no evidence from which it can be reasonably inferred that the defendant "dominated" his mother, within the meaning of that word as it has been used in our cases. It is well settled that one alleging dominance of a child over a parent must prove that "time and circumstances have reversed the order of nature, so that the dominion of the parent has not merely ceased, but has been displaced, by subservience to the child." Hawthorne v. Jenkins, 182 Ala. 255, 260, 62 So. 505, 506 (1913) (emphasis in original). "Subservient" is defined in The American Heritage Dictionary of the English Language (1969) as "[u]seful as a means or instrument; serving to promote some end ...[; s]ubordinate in capacity or function." Black's Law Dictionary 486 (6th ed. 1990) defines "dominate" as "[t]o master, to rule, or to control." Thus, for the burden of proof to shift, it is clear that our cases require proof of more than a reversal of the traditional roles of parent as care giver and child as care recipient; they require proof that the parent's will has become subordinate to the will of the child. It is also clear from our cases that the mere relationship of parent and child alone, even when coupled with some activity on the part of the child in securing the preparation of legal papers for the parent, is not sufficient to prove subservience on the part of the parent, so as to shift to the child the burden of proving an absence of undue influence. See, e.g., Keeble v. Underwood, 193 Ala. 582, 586-87, 69 So. 473, 475 (1915), a will contest case wherein this Court noted:

"It is now well settled that where a donee occupies to the donor a position of trust and confidence, such as that between a beneficiary occupying a confidential relation and the testatrix, and such donee or beneficiary takes part or exercises some activity in the preparation or in the procurement of the execution of the will, the burden of proof is shifted to the beneficiary to show that the contested instrument was not superinduced by undue influence. Scarbrough v. Scarbrough, 185 Ala. 468, 64 So. 105 [1913]; Bancroft v. Otis, 91 Ala. 279, 8 So. 286, 24 Am.St.Rep. 904 [1890]. This is the general rule. However, while the relationship of parent and child is per se confidential, yet it is well settled that it is always presumed prima facie that in all transactions between them the parent is the dominant party and that such are free from undue influence. The mere relationship alone, coupled with activity on the part of the child in securing the preparation of the will, is not sufficient, under the authorities, to shift the burden of proof upon the child in cases of gift by the parent, as we hold that, prima facie, the parent is the dominant spirit in the transaction, and gifts flow naturally from parent to child. One of the foundations of the rule as to presumption of undue influence is the theory that the donor is the weaker party. While the relation of parent and child is per se confidential, yet in view of the presumption, recognized in this state and abundantly supported by authorities elsewhere, that the parent is the dominant spirit, the burden of proof is not shifted upon the mere proof of relationship and activity, on the part of the beneficiary child, in the preparation of the will...."

(Emphasis added.) See, also, Bain v. Bain, 150 Ala. 453, 43 So. 562 (1907) (an action to set aside conveyances from a father to the wife of one of his sons and his son's children).

Without detailing the extensive testimony presented at the hearing, suffice it to say that it shows that over the years the defendant lived near his mother and cared for her in a number of ways. He provided her with financial assistance in her effort to obtain and keep in repair her small family farm. He opened his home to her, even though he had recently remarried; he provided her with assistance in handling her affairs; and he provided transportation for her to various places and functions. None of this evidence suggests to us that Ms. Wilson was subordinate to the will of the defendant, so as to create a presumption that the defendant manipulated her in an attempt to obtain title to the farm. Ms. Wilson could read and write. She insisted on paying some of her bills in cash herself, although the defendant assisted her in writing her checks. The defendant's brother had lived in Georgia and had not participated directly in his mother's day-to-day care in Alabama. The evidence shows that his periodic visits with Ms. Wilson were short. Ms. Wilson executed the deed in question after returning from an extended visit to Georgia where the defendant's brother, Ms. Wilson's only other child, was dying from cancer and after a Georgia doctor had suggested that she be placed in a nursing home. Ms. Wilson had brought up the subject of a...