Margaret McGimsey et al.
v.
Lynda Jeanette Gray, individually and as personal representative of the Estate of Thomas Leonard Pitts, deceased Lynda Jeanette Gray, individually and as personal representative of the Estate of Thomas Leonard Pitts, deceased
v.
Margaret McGimsey et al.
Appeals from Jefferson Circuit Court (CV-12-904143)
STUART, Chief Justice.
In
appeal no. 1161016, Margaret McGimsey, Cathy Cramer, Barbara
McCollum, and Marilyn Busch (hereinafter referred to
collectively as "the nieces") appeal from a summary
judgement entered by the Jefferson Circuit Court in favor of
Lynda Jeanette Gray, individually and as the personal
representative of the estate of Thomas Leonard Pitts,
deceased, in a will contest they initiated following
Pitts's death; the nieces also challenge the trial
court's order directing them to reimburse Gray $8, 393
for court costs and certain litigation expenses. In appeal
no. 1161055, Gray cross-appeals, arguing that the trial court
exceeded its discretion by not also entering an award of
attorney fees in her favor. We reverse the summary judgment
and award of costs made in favor of Gray in appeal no.
1161016 and dismiss appeal no. 1161055.
I.
The
nieces' maternal aunt, Margaret Harris Pitts, was married
to Pitts until her death in 2004. Margaret and Pitts never
had any children; however, they enjoyed close relationships
with the nieces, and Pitts and the nieces continued their
relationship after Margaret's death. Gray is the daughter
of Pitts's half sister and his only living heir. Although
she was raised in Texas and spent most of her life there,
like the nieces, she maintained a close relationship with
Pitts, visiting him at his home in Birmingham at least
annually.
In
2007, Gray moved to Alabama to live with Pitts. Gray asserts
that she made the move to help care for Pitts; the nieces
assert that the move was motivated by Gray's financial
problems. Gray initially maintained a part-time job after
moving to Alabama; however, when Pitts was hospitalized
following a fall in 2009, she stopped working to spend more
time helping with his care. The parties all agree that
Pitts's health deteriorated following the 2009 fall and
that, as a result, he became more dependent on others,
particularly Gray.
In
August 2010, Pitts was hospitalized as a result of heart and
kidney problems. After several weeks in the hospital,
Pitts's physician recommended that he be provided with
hospice services. Hospice records detailing an October 11,
2010, meeting with Pitts and Gray indicate that unspecified
estate issues came up during that meeting, and hospice
services subsequently gave Pitts's name and information
to Calvin Howard, an attorney who regularly provided pro bono
legal services to hospice patients. In November 2010, Howard
telephoned Pitts, and, during that initial telephone call and
again at a meeting at Pitts's home, Pitts expressed a
desire to modify his existing will.[1] Upon examining Pitts's
will and codicils, Howard informed Pitts that it would be
simpler to draft an entirely new will, and they discussed
Pitts's desires in that regard. Howard described this
initial meeting at Pitts's house as follows in an
affidavit submitted to the trial court:
"Mr. Pitts brought out a prior will and he instructed
that the will be changed. I advised him that it would be
easier to prepare another will. No one else was present in
the room when Mr. Pitts and I were discussing how he wanted
his will prepared.
He was the sole historian for all information that I obtained
in order to prepare his new will; and I drew up the new will
exactly as instructed by Mr. Pitts. ... During this first
meeting with Mr. Pitts, he was clear with his instructions
for the contents of his will, and he was clear with his
intent. He knew who his family members were and who he wanted
to leave his assets to upon his death. He was of sound mind
on this occasion, and was not under the influence of anyone
to the best of my judgment and knowledge and belief. He was
the only one that was involved in the preparation of his
will."
Howard
returned to Pitts's home on November 23, 2010, with the
will he had prepared at Pitts's direction, which left the
entirety of Pitts's estate to Gray. Howard asserts that
he privately reviewed and discussed the will with Pitts and
that, after Pitts expressed his satisfaction with the will,
neighbors were summoned to serve as witnesses, and Pitts
executed the document (hereinafter referred to as "the
November 2010 will"). Howard described this meeting as
follows in his affidavit:
"Mr. Pitts conversed intelligently, freely, and
rationally (normally) at all times, and I was confidently
satisfied that he was of sound mind and disposing memory on
this occasion. He knew what documents he was signing. He knew
what his property consisted of and how he wanted it disposed
of, and knew who he wanted his disposing beneficiaries to be
in his will. It was my judgment and my opinion and belief
based on my years of experience that Mr. Pitts was competent
to execute the November 23, 2010 last will and
testament."
Howard
further swore that, although Gray was in the house during
both of his meetings with Pitts, she was not part of their
conversations and "she was in no position to hear any
matter or conversation."
On
August 13, 2012, Pitts died. On October 25, 2012, Gray
submitted Pitts's November 2010 will to the Jefferson
Probate Court, which appointed her the personal
representative of Pitts's estate that same day. On
December 17, 2012, McGimsey, Cramer, and McCollum initiated
the instant will contest pursuant to § 43-8-199, Ala.
Code 1975, arguing both that Pitts was mentally incompetent
at the time he executed the November 2010 will and that the
November 2010 will was the product of undue influence
exercised by Gray over him.[2] An acrimonious period of
discovery followed, during which both sides sought to impose
sanctions upon the other at various times. Those discovery
disputes required multiple interventions by the trial court
and, along with other issues in the probate court and some
health problems that affected the parties and counsel,
combined to delay the case for several years.
On
March 17, 2017, Gray moved the trial court to enter a summary
judgment in her favor, arguing that there were no genuine
issues of material fact concerning the nieces' claims;
Gray also repeated a previous request that the trial court
enter an award in her favor pursuant to the Alabama
Litigation Accountability Act, § 12-19-270 et seq., Ala.
Code 1975 ("the ALAA"). On April 5, 2017, the
nieces filed their response accompanied by evidence that they
argued established the existence of factual issues precluding
a summary judgment. In light of that evidence, they also
argued that an award of attorney fees pursuant to the ALAA
was unwarranted.
On
April 17, 2017, the trial court entered an order granting
Gray's motion for a summary judgment. With regard to the
nieces' claim that Pitts was mentally incompetent at the
time he executed the November 2010 will, the trial court held
that the nieces had "failed to meet their burden of
demonstrating Mr. Pitts's lack of testamentary
capacity." The trial court similarly held that the
nieces had failed to put forth substantial evidence of their
undue-influence claim, explaining:
"[O]ne of the prerequisites for a presumption of undue
influence is 'undue activity by the beneficiary in
procuring the execution of the will.' Pirtle v.
Tucker, 960 So.2d 620, 628 (Ala. 2006), citing Hayes
v. Apperson, 826 So.2d 798, 802 (Ala. 2002). As the
Supreme Court ...