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Swiger v. Smith

Court of Appeals of South Carolina

April 10, 2019

Mary Jean Tucker Swiger, by and through her Attorney-in-Fact, Carol DeHaven, Appellant,
v.
Ben R. Smith and Margaret P. Kelly, as Personal Representatives of Vinton Willis Tucker, Respondents.

          Heard March 15, 2018

          Appeal From York County R. Scott Sprouse, Circuit Court Judge Appellate Case No. 2016-000096

          Syretta R. Anderson, of Anderson Law Firm, of Rock Hill, for Appellant.

          B. Michael Brackett, of Moses & Brackett, PC, of Columbia, for Respondents.

          MCDONALD, J.

         In this action challenging the validity of a will, Vinton Willis Tucker's (Decedent's) niece, Carol DeHaven, contends the circuit court erred in affirming the probate court's order granting summary judgment in favor of Ben R. Smith (Nephew) and Margaret P. Kelly (Niece) (collectively, Respondents). DeHaven argues summary judgment was improper because she presented sufficient evidence to the probate court of both undue influence and the existence of a confidential or fiduciary relationship, thus establishing a presumption of invalidity. We affirm.

         Facts and Procedural History

         Respondents are the children of Decedent's sister-in-law, who was the sister of Decedent's wife, Edith Pursley Tucker (Wife). After Wife died, her family remained close to Decedent.

         In November 2011, Decedent was hospitalized at Carolinas Medical Center for ten days due to "injuries in a large part of his body." According to Niece, hospital doctors indicated Decedent's injuries were inconsistent with a fall, which his caregiver, Brenda Snow, reported as the cause of his injuries. On December 13, 2011, Decedent moved to Westminster Towers in Rock Hill. When he was admitted, a social worker noted Decedent's family shared information seeking to prohibit the former caregiver, Snow, from visiting Decedent.[1]

         On January 14, 2012, a physical therapist became concerned when she was unable to wake Decedent. She was eventually able to rouse him, but he was groggy. EMS transported Decedent to Piedmont Medical Center, where doctors diagnosed him with a 7.7 cm distal abdominal aneurysm.

         Emergency room physician Jason Ratterree located the aneurysm and explained the condition to Decedent on the evening of January 14th. As to Decedent's mental condition, Dr. Ratterree noted Decedent was "oriented in time, place, and person. Grossly appropriate mood and affect." When asked in his deposition what this notation meant, Dr. Ratterree replied, "He was totally normal. . . . He knew where he was at that time and did not appear to be having any abnormal behavior and was conversational with me."

         Niece testified in her deposition that Decedent sought to make a new will that same evening, after he learned of the aneurysm. Niece recalled Decedent took the news of the aneurysm quite seriously because he "had always been a very healthy person." After the doctor discussed the diagnosis and left the hospital room, Decedent asked Niece to write a will for him and inquired whether she would "be willing to put it down on paper the way he wanted it." Niece acted as scrivener for the will, which Decedent dictated to her in the presence of two witnesses. The two witnesses confirmed that Decedent raised the subject of a new will and Niece wrote down the terms as Decedent requested and according to his instructions.

         Decedent remained at Piedmont Medical Center until January 20, 2012, when he returned to Westminster Towers. On February 8, 2012, he executed a durable power of attorney for health care naming Niece as his primary decision maker. A social worker from Westminster Towers testified there had been issues with a previous healthcare power of attorney Decedent signed while hospitalized; thus, he executed the February 2012 document.

         Decedent passed away on May 12, 2012. On May 17, 2012, the probate court granted Respondents' application for informal probate and appointment of personal representatives. On the application, Respondents listed the date of the execution of the will as January 14, 2012 (the Will). They listed twelve nieces and nephews, including themselves, as the Will's named devisees. A niece from Decedent's side of the family, Margaret Dudley, and two nephews, Wayne Scott and Kevin Scott, were listed in the application for informal probate as intestate heirs who were not devisees named in the Will.

         On May 10, 2013, Mary Jean Tucker Swiger, Decedent's sister, petitioned the probate court for formal testacy and appointment and sought to set aside the informal probate, claiming Respondents initiated the request for informal probate with an invalid will. Swiger further asserted Respondents had exerted undue influence upon Decedent and sought removal of Respondents as co-personal representatives of Decedent's estate. In the petition, Carol DeHaven, Swiger's daughter, is listed as a successor-in-interest.

         Respondents answered and counterclaimed for formal testacy and appointment based upon the terms of the Will. Respondents admitted Swiger was Decedent's sole-surviving sibling but denied that "status as a sole surviving sibling itself establishes standing."

         Swiger sought a temporary order to restrain Respondents from acting as personal representatives of Decedent's estate. Swiger also requested Respondents be required to post a bond. The probate court denied Swiger's motion for a temporary restraining ...


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