Opinion
No. COA08-1564.
Filed September 1, 2009.
Haywood County No. 02E320.
Appeal by Propounder from judgment entered 24 July 2008 by Judge Ronald K. Payne in Haywood County Superior Court. Heard in the Court of Appeals 19 May 2009.
Smith Moore Leatherwood, LLP by James G. Exum, Jr., Allison O. Van Laningham, and L. Cooper Harrell, for Propounder-Appellant. J.E. Thornton, P.A. by Jack E. Thornton, Jr. for Caveator-Appellee.
Marsha Case-Young (Propounder) appeals the judgment of Haywood County Superior Court ordering that the 9 February 1999 paper-writing (1999 will) was the Last Will and Testament of Alice Weaver Turner (Ms. Turner) and that the 4 October 2000 paper-writing (2000 will) was not the Last Will and Testament of Ms. Turner because she lacked sufficient mental capacity at the time of execution and because the will was procured by undue influence. For the reasons stated below, we affirm.
Propounder testified that she and Ms. Turner first met in 1981. Propounder was not related to Ms. Turner, but they developed a friendship based on their mutual interest in raising dogs. As they grew closer over the years, Propounder undertook responsibilities for Ms. Turner's finances and healthcare. Among other things, Propounder assisted Ms. Turner in the maintenance of a campground she owned, accompanied her to physician visits, and eventually became Ms. Turner's attorney-in-fact in 2000 and healthcare attorney-in-fact in 1992. In August 2000, Ms. Turner broke her hip and requested that Propounder assist her in operating her campground and mobile home court. By January 2001, Ms. Turner's health was declining and she was admitted into a nursing home.
At trial, attorney James Kent Coward, Jr. (Coward) with the law firm of Coward, Hicks and Siler, testified that Ms. Turner became his client in 1958. Between 1986 and 1999, Coward testified that it was normal for Ms. Turner to change her will at least once or twice a year. He also testified that during this period of time, Baptist Children's Home of North Carolina (Caveator) was "always in the will" as the primary beneficiary. On 9 February 1999, Coward prepared Ms. Turner's Last Will and Testament naming the Baptist Children's Home as the beneficiary of the property.
At Ms. Turner's request, on 25 September 2000, Coward met with Ms. Turner at his office. Ms. Turner asked Coward to prepare a codicil to her 1999 will, naming Propounder as a beneficiary of her residence and Caveator as a beneficiary to the residue of the estate. Coward testified that Ms. Turner was "just not herself," "seemed a little reluctant to talk" and "didn't seem right." She was ordinarily "capable of thinking clearly and expressing herself, but not that day[.]" The codicil was not executed when Propounder, as Ms. Turner's attorney-in-fact, interjected that "[t]he will won't be signed today." On 26 September 2000, Ms. Turner changed her mind about having Coward amend her will and decided that John Jay (Jay), Propounder's lawyer, should make the codicil. On 4 October 2000, Jay assisted Ms. Turner in executing the 2000 will and preparing the deed that transferred all of Ms. Turner's campground property to Propounder.
In 2001, Coward visited Ms. Turner at her nursing home after discovering that Ms. Turner had conveyed all her property to Propounder. He testified that her physical and mental condition "had grown much worse." Coward also testified that Ms. Turner told him that she had not intended to give all her property to Propounder, but instead had only intended to give Propounder her residence. Ms. Turner was "adamant [that Caveator] got the rest of it, all the other land."
Harold Dean Coward (Harold), Ms. Turner's accountant, along with Coward started an incompetency hearing on Ms. Turner's behalf in 2001. Harold was the petitioner and Ms. Turner was declared incompetent.
Ms. Turner died on 25 July 2002. On 29 July 2002, Propounder presented to the probate court a paper-writing, dated 4 October 2000 (2000 will) which was purported to be the Last Will and Testament of Ms. Turner. Propounder also presented the probate court with testamentary letters naming her as the executor of the Estate of Ms. Turner.
On 28 July 2005, Caveator filed a caveat, challenging the 2000 Will. Caveator was the primary beneficiary under Ms. Turner's 1999 will and moved for the court to set aside and annul the 2000 will. Propounder filed a motion to dismiss under Rules 12 and 41 of the North Carolina Rules of Civil Procedure and the trial court granted her motion. However, our Court reversed the trial court in In re Turner, 184 N.C. App. 173, 645 S.E.2d 849 (2007). The North Carolina Supreme Court denied a petition for discretionary review in In re Turner, 361 N.C. 568, 651 S.E.2d 565 (2007).
The case was tried in May 2008, resulting in a hung jury. The case was retried in July 2008. At the close of all the evidence, Propounder moved for a directed verdict and the trial court denied her motion. On 23 July 2008, the jury found that although the 2000 will was correctly executed, Ms. Turner lacked sufficient mental capacity to execute the 2000 will. The jury also found that although Propounder did not have a fiduciary relationship with Ms. Turner, she had procured the 2000 will through undue influence. The 1999 will was found to be the Last Will and Testament of Ms. Turner. On 31 July 2008 Propounder filed a motion for judgment notwithstanding the verdict and, in the alternative, a new trial. The motion was denied and from this order, Propounder appeals.
Standard of Review
On appellate review:
"the standard of review for a judgment notwithstanding the verdict is the same as that for a directed verdict, whereby this Court determines whether the evidence was sufficient to go to the jury. The standard is high for the moving party, as the motion should be denied if there is more than a scintilla of evidence to support the plaintiff's prima facie case. The evidence supporting the plaintiff's claims must be taken as true, and all contradictions, conflicts, and inconsistencies must be resolved in the plaintiff's favor, giving the plaintiff the benefit of every reasonable inference."
Scarborough v. Dillard's Inc., 188 N.C. App. 430, 433-34, 655 S.E.2d 875, 878 (2008) (quoting Scarborough v. Dillard's Inc., 179 N.C. App 127, 132, 632 S.E.2d 800, 803-04 (2006)).
Testamentary Capacity
Propounder first argues that her motion for judgment notwithstanding the verdict or a new trial should have been granted on the issue of whether Ms. Turner lacked sufficient testamentary capacity to execute the 2000 will. Propounder contends that Caveator's evidence was too general and remote in time to prove that Ms. Turner lacked testamentary capacity. We disagree.
In North Carolina, "a presumption exists that every individual has the requisite capacity to make a will, and those challenging the will bear the burden of proving, by the greater weight of the evidence, that such capacity was wanting." In re Will of Sechrest, 140 N.C. App. 464, 473, 537 S.E.2d 511, 517 (2000) (citing In re Will of Buck, 130 N.C. App. 408, 412-13, 503 S.E.2d 126, 130 (1998)). An individual is deemed to posses sufficient testamentary capacity if he: (1) "comprehends the natural objects of his bounty[,]" (2) "understands the kind, nature and extent of his property[,]" (3) "knows the manner in which he desires his act to take effect[,]" and (4) "realizes the effect his act will have upon his estate." In Re Estate of Whitaker, 144 N.C. App. 295, 298, 547 S.E.2d 853, 856 (2001).
"[T]o establish testamentary incapacity, a caveator need only show that one of the essential elements of testamentary capacity is lacking." In re Will of Priddy, 171 N.C. App. 395, 397, 614 S.E.2d 454, 457 (2005) (citation omitted) (emphasis added). "[Caveator] `must present specific evidence relating to [Ms. Turner's] understanding of her property, to whom she wished to give it, and the effect of her act in making a will at the time the will was made.'" Sechrest, 140 N.C. App. at 473, 537 S.E.2d at 517-18 (quoting In Re Will of Jarvis, 334 N.C. 140, 145, 430 S.E.2d 922, 925 (1993)). Caveator may not present "`only general testimony concerning [Ms. Turner's] deteriorating physical health and mental confusion[.]'" Priddy, 171 N.C. App. at 397, 614 S.E.2d at 457 (quoting In re Will of Smith, 158 N.C. App. 722, 725, 582 S.E.2d 356, 359 (2003)). However, witnesses "may relate incidents of conversation, conduct and demeanor of [Ms. Turner] which tend to show testamentary capacity, or want thereof. . . . Capacity to make a will is not a question of fact. It is a conclusion which the law draws from certain facts and premises." In re Coley, 53 N.C. App. 318, 325, 280 S.E.2d 770, 774 (1981) (citations omitted).
Caveator presented sufficient evidence that Ms. Turner lacked testamentary capacity to send the issue to the jury. "Where the issue is the mental capacity of the testatrix at the time of making the will, evidence of incapacity within a reasonable time before and after is relevant and admissible insofar as it tends to show mental condition at the time of execution of the will". Id. at 324, 280 S.E.2d at 774 (citation omitted). Coward testified that when he visited Ms. Turner at her home in September 2000, bringing with him a codicil for her to review, she "did not seem [like] herself," "was confused," "was off," "reluctant to talk," and "didn't seem right." This meeting occurred less than a month prior to the execution of the October 2000 will. Coward described Ms. Turner as usually being a "very feisty opinionated energetic woman" who was "independent . . . [and] perfectly capable of thinking clearly and expressing herself, but not that day[.]" In 2001, Coward visited Ms. Turner while she was in a nursing home upon learning that she had transferred all of her property to Propounder. Ms. Turner had a long, consistent history of making Caveator her primary beneficiary and Coward testified that he was concerned "because that's not what she wanted to do, and she told me that day that's not what she wanted." Coward testified, in relevant part, that:
[Ms. Turner] told me that day that that's not what she intended to do. I asked her about — did she intend to give all her property to [Propounder], and she said, "No, just the house," and that in fact is what the codicil was all about. It was to give [Propounder] the house, but she was adamant the [Caveator] got the rest of it, all the other land.
Other witnesses also testified that Ms. Turner lacked sufficient mental capacity shortly after the execution of the 2000 will. A member of the Department of Social Services noted in March 2001, five months after the execution of the 2000 will, that Ms. Turner was suffering from "[increased] cognitive loss effecting memory and retention of info[rmation]," "[increased] episodes of confusion," and that she was requesting to see and speak with her mother who was deceased. Coward also testified that when he went to visit Ms. Turner in the nursing home in 2001, she was confused and worried that her parents had not come to visit her, although both Ms. Turner's parents were deceased. Harold, Ms. Turner's accountant, petitioned the court to start an incompetency hearing after being concerned about Ms. Turner's mental state. Ms. Turner was adjudicated incompetent on 10 October 2001.
Because only one of the four elements need be disproved to show a lack of testamentary capacity, Caveator's evidence was sufficient to send the issue to the jury. Although there was evidence that Ms. Turner understood the objects of her natural bounty and understood the kind, nature, and extent of her property, there was more than a scintilla of evidence that she did not fully understand the extent to which the Proponder and Caveator would benefit under the will. Caveator provided specific evidence that Ms. Turner had informed Coward, merely five months after the execution of the 2000 will, that she had not intended to convey all her property to Propounder, but intended to only convey her residence to Propounder and the campground property to Caveator. Coward testified that Ms. Turner was adamant about Caveator receiving the campground property, which was consistent with her wishes in the past. Caveator also presented evidence that prior to and shortly after the execution of the 2000 will, Ms. Turner's mental and physical state were declining.
Ms. Turner's declining mental capacity, her statements to Coward, the fact that she was adjudicated incompetent, and her long history of making Caveator a beneficiary of her campground strongly demonstrates that Ms. Turner did not realize the effect of making the 2000 will. Accordingly, we conclude that Caveator's evidence of Ms. Turner's mental incapacity at the time she executed the 2000 will was sufficient to support Propounder's prima facie case and to have the issue sent to the jury. This assignment of error is overruled.
Undue Influence
Secondly, Propounder argues that her motion for judgment notwithstanding the verdict or a new trial should have been granted on the issue of whether Ms. Turner had executed her 2000 will as a result of undue influence. Propounder argues that the evidence was insufficient. We disagree.
Undue influence is defined as:
"something operating upon the mind of the person whose act is called in[to] judgment, of sufficient controlling effect to destroy free agency and to render the instrument, brought in[to] question, not properly an expression of the wishes of the maker, but rather the expression of the will of another. `It is the substitution of the mind of the person exercising the influence for the mind of the testator, causing him to make a will which he otherwise would not have made.'"
In re Will of Jones, 362 N.C. 569, 574, 669 S.E.2d 572, 577 (2008) (quoting In re Will of Turnage, 208 N.C. 130, 131-32, 179 S.E. 332, 333 (1935)).
"The four general elements of undue influence are: (1) decedent is subject to influence, (2) beneficiary has an opportunity to exert influence, (3) beneficiary has a disposition to exert influence, and (4) the resulting will indicates undue influence." Smith, 158 N.C. App. at 726, 582 S.E.2d at 359. The North Carolina Supreme Court has identified other relevant factors that may support a finding of undue influence, otherwise known as the " Andrews factors":
"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."
Jones, 362 N.C. at 575, 669 S.E.2d at 577 (quoting In re Andrews, 299 N.C. 52, 55, 261 S.E.2d 198, 200 (1980)). "A caveator need not demonstrate every factor named in Andrews to prove undue influence, as `[u]ndue influence is generally proved by a number of facts, each one of which standing alone may be of little weight, but taken collectively may satisfy a rational mind of its existence[.]'" Jones, 362 N.C. at 576, 669 S.E.2d at 578 (quoting Hardee v. Hardee, 309 N.C. 753, 757, 309 S.E.2d 243, 246 (1983)).
Taking the evidence in the light most favorable to Caveator, the evidence established that: (1) Ms. Turner was 77 years old at the time that the 2000 will was executed, had suffered a hip injury resulting in her admission to a nursing home, was described as having cognitive loss and episodes of confusion by a social worker, and was adjudicated incompetent in September 2001; (2) Propounder was Ms. Turner's attorney-in-fact, handling many of Ms. Turner's financial, personal, and health care affairs; Propounder frequently stayed at Ms. Turner's home in the evenings, and spent considerable time with her; (3) although there is not strong evidence that others had little or no opportunity to see Ms. Turner, the majority of Ms. Turner's time was spent with Propounder; (4) every version of her will prior to the 2000 will bequeathed her campground property to Caveator but her 2000 will revoked the campground provision from her 1999 will, bequeathing her campground property to Propounder instead; (5) Propounder was a friend of Ms. Turner, not a blood relative; (6) Ms. Turner had no "natural objects of her bounty" as she was a widow with no children; and (7) Propounder was the one who initiated contact with Jay's office about preparing Ms. Turner's 2000 will, severing the long relationship Ms. Turner had with Coward.
Propounder's motion for judgment notwithstanding the verdict or a new trial was properly denied as there was more than a scintilla of evidence supporting Caveator's prima facie case. There was sufficient evidence of undue influence for the issue to reach the jury. This assignment of error is overruled.
Verdict
Finally, Propounder argues that a new trial should have been granted because the jury's verdict finding that Ms. Turner simultaneously lacked testamentary capacity and also was unduly influenced to execute the 2000 will was inconsistent and irreconcilable. We disagree.
Propounder relies on cases from other jurisdictions to show that mental incapacity and undue influence cannot coexist. However, in North Carolina, our Supreme Court has held that in a case where "the issue of mental incapacity was answered in the affirmative, which sustains the caveat, the exceptions addressed to the issue of undue influence may be put to one side. They need not be considered." In re Will of Kestler, 228 N.C. 215, 218, 44 S.E.2d 867, 868-69 (1947). Therefore, a finding of testamentary incapacity does not preclude the finding of undue influence, but merely makes the finding of undue influence unnecessary. Therefore, the jury's verdict does not require a new trial. This assignment of error is overruled.
For the foregoing reasons, we affirm.
Chief Judge Martin and Judge STROUD concur.
Report per Rule 30(e).