Opinion
No. 7820SC780
Filed 3 July 1979
Wills 21.4 — caveat proceeding — undue influence — insufficiency of evidence Evidence in a caveat proceeding was insufficient to submit to the jury on the question of undue influence where provisions of testator's will and codicil which differed from past wills did not indicate that the later instruments were procured by undue influence; the differences apparently resulted from an intent to avoid a heavy estate tax; there was no evidence which showed that testator's wife was responsible for the procurement of the will; the beneficiaries under the will were the natural objects of testator's bounty and were the same beneficiaries who took under the prior wills; no evidence tended to show that testator was in such a physical and mental condition that he was susceptible to domination and influence by his wife; and the evidence tended to show that testator personally continued his business dealings up until his death, over a year after the codicil was executed.
APPEAL by propounders from Hairston, Judge. Judgment entered 18 April 1978 in Superior Court, MOORE County. Heard in the Court of Appeals 3 May 1979.
Bryant, Hicks Sentelle, by David B. Sentelle and Richard A. Elkins, for propounder appellants.
Van Camp, Gill Crumpler, by James R. Van Camp and Douglas R. Gill, for caveator appellee.
Judge CARLTON dissenting.
Propounders appeal from a judgment entered in accordance with a jury verdict finding that the execution of the last will and testament of Karl Arthur Andrews (testator) was procured by undue influence. Propounders are the wife of testator, Mrs. Andrews, and the guardian ad litem for testator's grandchildren.
Testator died on 27 November 1976 at the age of seventy-seven. He had been in declining health for several years. A will executed in 1974 and a codicil executed in 1975 were presented to the Clerk of Superior Court of Moore County for probate. Testator's son, Karl Andrews, Jr., filed a caveat to the will and codicil, alleging that they were not the last will and testament of the testator because they were procured by the undue influence of testator's wife.
The evidence shows that testator executed a series of wills and codicils prior to the execution of the will and codicil in question. Since the pattern of dispositions is relevant to the question of undue influence, a review of these instruments is necessary.
Testator executed a will in 1962 which devised one-half of his estate to Mrs. Andrews absolutely. The remainder he devised in trust, naming his son, Karl Andrews, Jr., as beneficiary. When his son reached the age of twenty-eight, the trust was to terminate and his son was to receive the principal. If his son died prior to the termination of the trust, the principal was to be given to his son's issue, if any, and if none to Mrs. Andrews. If she were not living then the principal was to go to testator's stepson, Michael Jad Mahaley, the son of Mrs. Andrews. Mrs. Andrews was named executrix.
In 1965, testator executed a codicil to the 1962 will which appointed Mrs. Andrews and R. F. Hoke Pollock as co-executors of the will.
In 1966, testator executed a second codicil to the 1962 will which removed Mrs. Andrews as co-executor and appointed R. F. Hoke Pollock as sole executor. The codicil further stated that if the testator's death should result from any cause other than natural causes, his wife, Mrs. Andrews, should receive nothing under the will. He also directed that an autopsy be performed to determine the cause of death.
In 1970, testator executed a will revoking all prior wills and codicils. In that will, he devised his estate to a trustee to pay one-half of the income to Mrs. Andrews for life and one-half to Karl Andrews, Jr., for life. Upon the deaths of the income beneficiaries, the principal was to be distributed to testator's grandchildren in equal shares. He appointed R. F. Hoke Pollock as executor.
In 1974, testator executed the will in question. In this will, he bequeathed all of his tangible personal property to his wife. If his wife predeceased him, the property was to go to his son, Karl Andrews, Jr., if he survived the testator, and if not, then to his son's surviving issue and his stepson, Michael Jad Mahaley, in equal shares. All the furniture, household goods, silverware, china and ornaments were acknowledged to be the property of his wife. Testator devised one-half of his "adjusted gross estate" to his wife in such a manner as to take advantage of the maximum marital deduction. The rest of his estate testator devised in trust for the benefit of his son. The son was to receive the income for life and at his death, the principal was to be divided equally between testator's stepson, Michael Jad Mahaley, and his grandchildren. A spendthrift provision was attached to this trust whereby the income was to be paid to Mrs. Andrews and the principal beneficiaries in the event an income beneficiary tried to sell or transfer his interest in the trust. The testator appointed his wife as executrix.
A codicil to this will was executed in July, 1975, which altered the provisions of the trust to provide that upon the death of Karl Andrews, Jr., Mrs. Andrews, if she were still living, was to receive the income from the trust for her lifetime.
The first two wills and codicils were drafted by R. J. Hoke Pollock and executed by the testator in Southern Pines. Mr. Pollock had been testator's attorney for some time prior to the drafting of the 1962 will. Mrs. Andrews was never present at the execution of these instruments. The 1974 will and 1975 codicil were drafted by Paul Wyche, a Charlotte attorney. At the time these instruments were executed, Wyche was employed by Belk Stores Services, Inc., as an attorney. Wyche first learned of Mr. Andrews when he was asked by a superior to draw up a will. Wyche contacted the testator by phone and drafted the will. He sent a copy to the testator and a couple of weeks later, testator went to Charlotte and signed the will. Mrs. Andrews was with him. In response to subsequent conversations, Mr. Wyche revised the will in November, 1974. No action was taken, however, until 1 July 1975 when Wyche went to Pinehurst at testator's request, to discuss the will. Wyche spent most of the day talking with the Andrews and their accountant. As a result of this discussion, the 1975 codicil was executed in Pinehurst.
Wyche subsequently prepared deeds for the testator transferring certain land from the testator to him and his wife as tenants by the entireties. This action was taken in response to conversations about estate planning and avoiding probate. Wyche also handled other real estate transactions for testator including the sale of some land to the Sheraton Motel. Wyche testified that almost all of his dealings and conversations were with testator although Mrs. Andrews was usually present. Wyche stated that the impetus for the new will, codicil, and transfer of some of the real estate was that testator had read a book entitled "How to Avoid Probate."
Caveator presented evidence at trial concerning the testator's declining health and relationship with his wife. Charles Martin, a barber, knew testator as a customer. He testified that between 1962 and 1973, testator had been particular about his appearance but after 1973, testator showed less concern. Testator was not as alert or as conversational as he had once been. Polly McFadyen, a nurse, also testified that when she saw testator in 1974 and 1975, he was not his normal self; he was not as alert as he used to be.
Polly Carson, a former employee of testator, stated that in 1975 she went to visit testator at his home. Testator was relaxed and outgoing at first but when Mrs. Andrews appeared, testator became very nervous, had tears in his eyes and could not speak. Carson testified that Mrs. Andrews, in an angry voice, asked of someone in the room, "Did you ever know a son-of-a-bitch who had a bastard for a son." A motion to strike was granted because the statement was not responsive to the question but a motion for a mistrial was denied.
Marty McKenzie, a realtor, negotiated the sale of some property with testator and Mrs. Andrews in late 1975 or early 1976. Most of his discussions were with Mrs. Andrews although testator was present. At one point, testator referred to a certain tract of land but was told by his wife that he had sold that property. Testator was apparently confused as to whether he owned it.
Donald Robert Calfee, the manager of the Sheraton Motor Inn in Southern Pines, testified that he negotiated the purchase of a piece of property with testator in 1975. He met with testator on one occasion and thereafter called testator six or seven times but never talked with him. On each occasion, he spoke with Mrs. Andrews who said testator was either resting or had had a bad night and could not be bothered. She told him to contact her attorneys in Charlotte who would handle the closing. Calfee later saw testator in 1976 at the Sheraton and testator asked him why he had never called.
John Scott testified that in April, 1974, he called testator to ask a favor and testator told him to come by the house the next day. When Scott arrived Mrs. Andrews would not let him see testator. Scott later attempted to get in touch with testator but was told he was resting or could not come to the phone.
Edward Earl Hubbard testified that on several occasions in 1975, he called testator and left a message to have him return the call. The calls were never returned. Hubbard saw testator in 1975 or 1976 and was not sure whether testator recognized him.
In rebuttal, propounders presented testimony in addition to that of Paul Wyche. Joseph Hiatt, Jr., testator's physician, testified that testator had high blood pressure and diabetes. He suffered a major heart attack in 1969. In 1972, he developed double vision, dizziness and difficulty in walking. Testator incurred a loss of hearing in his left ear. Dr. Hiatt saw testator about a week before his death and stated that testator was in better health than he had been in months. Dr. Hiatt stated that although testator was normally a happy person, he had become depressed in his later years because he couldn't work like he wanted to. On cross-examination, Dr. Hiatt testified that Mrs. Andrews gave testator his insulin shots. Dr. Hiatt was not familiar with the relationship between testator and Mrs. Andrews.
Propounders presented the testimony of several other persons tending to show that they had conducted business transactions with testator during the period between 1972 and 1976. The testator had handled the affairs himself and Mrs. Andrews was generally not involved. Testator was described as being a considerate man but prone to doing exactly what he intended to do. Testator's accountant testified that testator had discussed his estate with him within the last few years of testator's life. Based on his observations, the accountant felt that testator made his own business decisions.
Propounders' motions for a directed verdict made at the close of caveator's evidence and at the close of all of the evidence were denied. The case was submitted to the jury which found that the executions of the 1974 will and 1975 codicil were procured by undue influence and that they were not the last will and testament of Karl Arthur Andrews. From a judgment entered in accordance with this verdict, propounders appeal.
The issue to be determined on this appeal is whether caveator presented sufficient evidence of undue influence exerted by Mrs. Andrews to withstand propounders' motions for a directed verdict.
"[U]ndue influence which justifies setting aside the testator's will is an influence which controls or coerces the mind of the testator so as to induce him to make a will which he would not have made otherwise. Influence is also spoken of as being undue when it destroys the testator's free agency." 1 N. Wiggins, Wills and Administration of Estates in North Carolina 55 at 133 (1964).
The burden of proof lies upon the propounder to prove that the instruments in question were executed with the proper formalities required by law. In re Will of West, 227 N.C. 204, 41 S.E.2d 838 (1947). Once this has been established, the burden shifts to the caveator to show by the greater weight of the evidence that the execution of the will was procured by undue influence. In re Will of Simmons, 268 N.C. 278, 150 S.E.2d 439 (1966); In re Will of West, supra.
Proof of undue influence is, necessarily, circumstantial.
"`Experience has shown that direct proof of undue or fraudulent influence is rarely attainable, but inferences from circumstances must determine it.' It is `generally proved by a number of facts, each one of which standing alone may have little weight, but taken collectively may satisfy a rational mind of its existence.'" (Citation omitted.) In re Mueller's Will, 170 N.C. 28, 29, 86 S.E. 719 (1915).
Factors to be considered on the issue of undue influence include:
"1. Old age and physical and mental weakness.
2. That the person signing the paper is in the home of the beneficiary and subject to his constant association and supervision.
3. That others have little or no opportunity to see him.
4. That the will is different from and revokes a prior will.
5. That it is made in favor of one with whom there are no ties of blood.
6. That it disinherits the natural objects of his bounty.
7. That the beneficiary has procured its execution." In re Mueller's Will, supra, at 30.
If there is sufficient evidence of undue influence, the issue should be presented to the jury. In re Will of Beale, 202 N.C. 618, 163 S.E. 684 (1932). The question is, therefore, did caveator present sufficient evidence to go to the jury.
We first note the pattern of distributions in the prior wills and codicils. The 1974 will and 1975 codicil do not materially differ from the 1962 will. The main distinction is that under the later devise, testator's stepson takes a vested interest in part of the estate whereas in the former his interest was contingent. Mrs. Andrews receives a greater interest because she receives the personal property and the life estate in the trust for Karl Andrews, Jr., after his death. The codicils to the 1962 will do, however, remove Mrs. Andrews as executrix. Although the 1966 codicil to the 1962 will implies that testator and his wife were at odds, the provisions in that codicil do not appear in the 1970 will.
The 1974 will and its codicil differ from the 1970 will in that Mrs. Andrews takes her interest outright rather than a life estate. She also receives the personal property and is appointed executrix. Nevertheless, we must note that Mr. Pollock, testator's local attorney, testified that the 1974 will takes advantage of the marital deduction provisions whereas the 1970 will does not. Use of this provision can result in substantial tax savings. Mr. Pollock also testified that he never knew the extent of testator's holdings. There was evidence which showed, however, that the estate was worth over one million dollars. There was further testimony which showed that testator had read a book on avoiding probate and that this was the impetus to write the 1974 will.
We also cannot ignore the testimony of Mr. Wyche who drafted the 1974 will. He indicated that all of his important conversations were with testator alone. He discussed at length the drafting of the 1975 codicil when he went to Pinehurst in July, 1975. He stated that although Mrs. Andrews was present, she did not take part in any material discussions. The import of his testimony was that testator acted freely and knowingly in executing this will and codicil.
Based on the testimony concerning the execution of the 1974 will and the 1975 codicil, we cannot say that the provisions differing from past wills indicate that these instruments were procured by undue influence. The differences apparently resulted from an intent to avoid a heavy estate tax. There was no evidence which showed that the procurement of this will was made by Mrs. Andrews. The beneficiaries under the will were the natural objects of testator's bounty and were the same beneficiaries who took under the prior wills.
Furthermore, no evidence was presented which showed that testator was in such a physical and mental condition that he was susceptible to domination and influence by his wife. Testator had some physical problems and was prone to depression. Two people testified that testator suffered from a lapse of memory on two occasions. Some people had problems contacting testator. One witness testified that, on one occasion, testator became fearful and nervous in his wife's presence. Nevertheless, the evidence shows that he personally continued his business dealings up until his death, over a year after the codicil was executed.
We conclude that the evidence presented at trial was insufficient to submit to the jury on the question of undue influence. There is no evidence that such influence was exerted on testator as to control his mind and force him to execute a will which he otherwise would not have executed. We, therefore, reverse.
Reversed.
Judge CLARK concurs.
Judge CARLTON dissents.