McGimsey v. Gray

          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 ...