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09/01/95 ERSKIN D. WARD v. LYNDA JOHNSON LITTLE

September 1, 1995

ERSKIN D. WARD, JR.
v.
LYNDA JOHNSON LITTLE, ET AL.



Appeal from Monroe Circuit Court. (CV-92-95). Samuel Welch, TRIAL JUDGE.

Cook, Maddox, Shores, and Kennedy, JJ., concur. Houston, J., concurs specially.

The opinion of the court was delivered by: Cook

COOK, JUSTICE.

Erskin D. Ward, Jr., appeals from a summary judgment entered in favor of Lynda Johnson Little and Laura Frye in this will contest wherein Mr. Ward contends that the testatrix, Lillie W. Carter, executed her will while under undue influence of the principal beneficiary of the will, Lynda Little, and the parents of the other beneficiary Laura Frye, Mary and James Frye.

Lillie Carter, a widow with no children, died on October 17, 1991. She had executed her last will and testament on July 26, 1991, leaving her estate to Lynda Johnson Little as principal beneficiary and Laura Frye as the other beneficiary. Erskin Ward, Carter's nephew, contested the will, contending that it was executed while Carter was under the undue influence of Lynda Little and the Fryes and contending that Carter lacked the testamentary capacity at the time to execute a new will. The trial court entered a summary judgment, rejecting both claims. Ward appeals the judgment insofar as it relates to the claim of undue influence.

Johnson and Frye's summary judgment motion was properly supported. In order to rebut that properly supported motion, Ward had to offer substantial evidence that Little and Frye were not entitled to a judgment as a matter of law. See Carruth v. Pittway Corp., 643 So. 2d 1340, 1342 (Ala. 1994). With regard to undue influence, we have stated:

"Undue influence must involve a moral coercion to the extent of destroying or impairing the free agency of the testator. Sanford v. Coleman, 418 So. 2d 856 (Ala. 1982). In Rabon v. Rabon, 360 So. 2d 971 (Ala. 1976), this court discussed the three-pronged test in determining whether a presumption of undue influence has been raised. Quoting Pruitt v. Pruitt, 343 So. 2d 495 (Ala. 1976), it stated:

"'"... The evidence must establish: (1) a confidential relationship between a favored beneficiary and [the] testator; (2) that the influence of or for the beneficiary was dominant and controlling in that relationship; and (3) undue activity on the part of the dominant party in procuring the execution of the will. ..."'"

" 360 So. 2d at 972."

Whitfield v. Burttram, 471 So. 2d 401, 404 (Ala. 1985). Therefore, in order to defeat the motion for summary judgment, Ward had to offer substantial evidence of a confidential relationship between Little and Carter; substantial evidence that Little was a favored beneficiary; substantial evidence that Little's influence was dominant in the relationship; and substantial evidence that undue activity on the part of Little resulted in Carter's execution of the will in question. The new will executed by Carter named Little as the principal beneficiary and, although Little was not related to Carter, Carter had referred to her as the child "we raised." Thus, Ward did offer substantial evidence that Little was a favored beneficiary and that Little had a confidential relationship with Carter.

Ward offered his own affidavit, as well as deposition testimony of Carter's doctor; both of them testified that Carter had been in deteriorating health and that she was easily influenced. Ward stated in his affidavit, in pertinent part:

"In the spring and summer of 1991, Lillie Carter's mental and physical health was rapidly declining. During this two-week period, every time I contacted Lillie Carter, it seemed as though Mary Frye was there. It soon reached a point where Mary Frye tried to prevent me from talking to Lillie Carter. Mary Frye went to great trouble to make sure that I did not talk to Lillie Carter alone, outside of her presence. About this same time, Lillie Carter informed me that she had been 'tipped off' that I was stealing from her. I confronted Mary Frye about this, but she denied trying to turn Lillie Carter against me.

"In July of 1991, Lynda Little came and stayed with Lillie Carter for some four days. During this four-day period, Lynda Little and Mary Frye put pressure on Lillie Carter to change her Will and leave everything to them. I did not find out about this pressure until later, when I was so informed by Lillie Carter. After having Lillie Carter along [sic], in a weakened mental and physical condition, they were able to convince her to change her Will. Lynda Little then personally drove Lillie Carter to a lawyer's office so she could do a new Will. Lynda Little never left Lillie Carter ...


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