Ronnie Lamar Still and Sandra Gilliland v. BankTrust, f/k/a BancTrust Company, Inc.

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REL: 06/17/2011 Notice: T h i s o p i n i o n i s s u b j e c t t o formal r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , Alabama A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2010-2011 2100285 Ronnie Lamar S t i l l and Sandra Gilliland v. BankTrust, f / k / a BancTrust Company, Inc. Appeal from Escambia C i r c u i t Court (CV-09-45) MOORE, Judge. Ronnie contestants") Lamar appeal Escambia C i r c u i t Still and from a summary Court Sandra ("the c i r c u i t Gilliland ("the judgment entered by the c o u r t " ) on t h e i r action 2100285 contesting a w i l l transfers. We and s e e k i n g t o s e t a s i d e c e r t a i n i n t e r affirm i n part and Procedural On December 3, 2008, reverse i n part. History BankTrust, formerly known B a n c T r u s t Company, I n c . ( " B a n k T r u s t " ) , f i l e d a petition Escambia of Probate (hereinafter decedent's Court referred will to probate t o as directed conveyed to the trust"). BancTrust representative John of L. benefit of S t i l l Still or 2006 charitable of the t r u s t . court will set for order a organization, h e a r i n g on January admitting letters On 6, the upon will and, to that the ("the was f o r the t o be ("the f o u n d a t i o n " ) , death. day, an The to probate probate i t entered order the an granting BankTrust. March and The Inc., t r u s t was petition probate testamentary to Company, The Still's on Still the p e r s o n a l w i t h the remainder BankTrust's 2009, L. Trust named as BancTrust during his lifetime, i n the p r o p e r t y be Revocable conveyed to the G r e a t e r Brewton Foundation a John as "the decedent"). I n c . , was estate. a l s o named as t h e t r u s t e e will a l l the decedent's Company, the the "Still" that vivos nephew, f i l e d 6, 2009, i n the c i r c u i t contestants, niece and court a complaint contesting the 2 Still's 2100285 will and r e q u e s t i n g trust be lacked will set aside. testamentary vivos things, were undue and statement complaint, a deed vivos 18, and t h a t the transfers the filed had that the and With regard alleged, had been motion a m o t i o n was complaint for on granted, June contestants executed to the among other procured through 5, on June 1, BankTrust 2006, 12-19-272 and a more definite the contestants 2009. specified In the that as w e l l they were by "other the complaint f o r attorneys 43-8-196, as filed amended house to the t r u s t answered 2009; i t also counterclaimed t o §§ Still 1 transfers." pursuant that the w i l l influence. c h a l l e n g i n g the t r a n s f e r of S t i l l ' s of alleged t o make by undue t r a n s f e r s to the h a d b e e n o f u n s o u n d m i n d when t h e t r a n s f e r s BankTrust amended contestants capacity that influence. After inter vivos t r a n s f e r s , the contestants that S t i l l made Still's The had been p r o c u r e d inter an that fees A l a . Code on way inter June and c o s t s , 1975. On The c o n t e s t a n t s also f i l e d a request to t r a n s f e r the w i l l - c o n t e s t proceedings to the c i r c u i t court. As noted p r e v i o u s l y , the w i l l c o n t e s t had a l r e a d y been f i l e d i n the circuit court. The c i r c u i t court apparently treated that request as a p e t i t i o n t o remove t h e a d m i n i s t r a t i o n o f t h e e s t a t e t o t h e c i r c u i t c o u r t , and i t g r a n t e d t h a t r e q u e s t on M a r c h 19, 2009. 1 3 2100285 July 17, 2009, the contestants filed an answer to BankTrust's counterclaim. On M a r c h 22, judgment on a l l evidentiary 2010, the 28, June in support in opposition to the the contestants materials. brief in support i t s motion. a brief as May 19, On and evidentiary summary-judgment m o t i o n . a supplemental same day, motion. a On and denying B a n k T r u s t ' s s u m m a r y - j u d g m e n t m o t i o n as t o t h e c l a i m s t h a t were b a s e d on and that BankTrust a l l e g a t i o n s of he had filed been undue an filed t h a t were of entered and B a n k T r u s t ' s s u m m a r y - j u d g m e n t m o t i o n as t o t h e c l a i m s allegations court On brief BankTrust i t s summary-judgment circuit well granting on the of as of filed That claims, order based 2010, a m o t i o n f o r a summary contestants' filed 2010, 29, the contestants evidentiary letter BankTrust f i l e d materials submissions May 2010, Still's of a motion l a c k of t e s t a m e n t a r y unsound to influence mind. reconsider On the July submissions. brief 30, in 2010, On August opposition the circuit to 16, the court 2010, motion entered 4 the to 12, partial i t s summary-judgment m o t i o n , a l o n g w i t h s u p p o r t i n g capacity denial of evidentiary contestants reconsider. 2010, filed On a August a s u m m a r y j u d g m e n t on the 2100285 contestants' claims lack of mind. did testamentary capacity The c i r c u i t court not establish chronic dementia documents present 2010, new t h a t w e r e b a s e d on and that so that when S t i l l the trial; that contestants Still the to executed had been of found that the his execution witnesses documents. had On unsound testimony denied on notice of 2010; N o v e m b e r 15, appeal that court to of not been or 2010. the or the September a "motion to r e c o n s i d e r " S u p r e m e C o u r t on D e c e m b e r 2 0 , Still's s u f f e r e d from a permanent preclude the filed their had contestants' m o t i o n was filed t h a t he specifically as contestants and a l l e g a t i o n s of 28, for a The 2 Alabama transferred appeal to t h i s c o u r t , p u r s u a n t t o § 1 2 - 2 - 7 ( 6 ) , A l a . Code on the 2011. January 3, 1975, In the order denying the contestants' postjudgment m o t i o n , t h e t r i a l c o u r t p u r p o r t e d t o c e r t i f y i t s j u d g m e n t as f i n a l p u r s u a n t t o R u l e 5 4 ( b ) , A l a . R. C i v . P. We n o t e t h a t because the only claim still pending was BankTrust's c o u n t e r c l a i m s e e k i n g a t t o r n e y f e e s a n d c o s t s p u r s u a n t t o §§ 12-19-272 and 4 3 - 8 - 1 9 6 , A l a . Code 1975, t h a t c e r t i f i c a t i o n was unnecessary. See B l a n k e n s h i p v . B l a n k e n s h i p , 963 So. 2d 112, 114 n.2 ( A l a . C i v . App. 2007) ("[A]n u n a d j u d i c a t e d claim for an attorney's fee does not affect the finality of a j u d g m e n t . " ) ; and M c G o u g h v . G & A, I n c . , 999 So. 2d 898, 903 (Ala. C i v . App. 2007) ("[T]he f a i l u r e of a t r i a l c o u r t to specifically reserve jurisdiction over [Alabama Litigation Accountability Act] claim in a summary-judgment order i m p l i e d l y d i s p o s e s of the c l a i m . " ) . 2 5 2100285 Facts Before his retirement, Still was a loan officer B a n c T r u s t Company, I n c . R a y m o n d F. L y n n , J r . , a t r u s t for in his affidavit BankTrust, t e s t i f i e d Still contacted him including his C h r i s t y A. Black, Still's that his need for a to from sell and to Still's was church. Still the had asked the had stated that he wanted to considering Lynn had and stated so fund t h a t he to Lynn, they discussed he to for that Lynn for his remainder Black both that his he benefit a the 6 of could account after charity. his in their attorney, bank need what p r o v i s i o n and to during the he "done e n o u g h " charities stated and needed. trust i t to portion the as Still had he testified retirement trust of leave various leaving that individual make and trust that f o r B a n k T r u s t , went matters. attorney Still that family a stated 2006, affairs, to Lynn, they a l s o d i s c u s s e d of assets Lynn t e s t i f i e d wanted create financial Lynn those officer that, in April his trust. discuss power funds ("IRA") a n d a According limited transfer to decided lifetime. for discuss another t r u s t o f f i c e r residence Still to for for died his According Still indicated estate to affidavits Everette he Price, his that was 2100285 seriously contact local i l l and B r o o x G. retained documents. to that Still G a r r e t t , J r . , an counsel that latter affidavit part that his desire the trustee to of he and his Garrett to executed 2006. to the the Lynn Garrett will. also reserving the to been necessary Garrett, a Garrett who agreed of trust the trust that documents deed and Black Black and with were witnesses the of Garrett, at conveying the Still's for S t i l l . 7 in his his and as estate Still foundation had will the about Black, directed that on a l l present to in BankTrust Still notarized Still Still to the a will and as a l i f e estate with remainder stated documents to with testified conversation trust served met t o G a r r e t t , L y n n , and documents. According drafted draft Garrett revocable Lynn Garrett, executed and to remainder of h i s e s t a t e church. both a According the and 2006. dispose prepare Lynn, Lynn whose f i r m had contacted a lengthy establish d e c i d e d to leave not he Black, April had after his death. and attorney asked Still. L y n n s t a t e d t h a t he, the therefore for BankTrust, Lynn s t a t e d meet w i t h had Still May when 17, Still documents, and the execution direction of Still, he home t o the trust and Black t e s t i f i e d that of the Still 2100285 e x e c u t e d t h e d e e d on J u n e 1, 2 0 0 6 , a n d t h a t she n o t a r i z e d t h e deed. Lynn testified colleague during the f o r over that Still 30 y e a r s a l l the discussions disposition trust Still executed and t h a t that of h i s estate documents had Still his friend and of sound mind the trust was were had about and a s w e l l a s when he e x e c u t e d t h e and t h e w i l l . the trust been Lynn documents further testified and t h e w i l l freely w i t h o u t i n t e r f e r e n c e from any p a r t y . Black testified had for over worked with Specifically, account Still regularly she t e s t i f i e d for Still, which that funded from testified financial checking that matters account. Still had handled himself and had Black testified also that an agency from t o h i s home. a l l of managed Still years. h i s IRA time to time to pay f o r c e r t a i n expenses r e l a t i n g She and t h a t she five she h a d managed had been that was his other his of own sound m i n d a t t h e t i m e he e x e c u t e d a l l t h e d o c u m e n t s a n d t h a t he h a d done so v o l u n t a r i l y each document. with Still discussions and w i t h Garrett full testified f o r approximately of the t r u s t knowledge of the c o n t e n t s of that 35 y e a r s he h a d b e e n and t h a t , and t h e d i s p o s i t i o n 8 acquainted during their of h i s estate, 2100285 and at the the will, freely. time had the execution of was Still of sound mind and Garrett went o v e r the he of no further testified documents w i t h doubt t h a t Still Garrett also t e s t i f i e d t h a t he had the in his Still documents executed the and documents deposition that i n l a y m a n ' s t e r m s and understood the in his deposition d o n e a l l t h a t he trust intended terms of that t o do he that the trust. had stated Still for his nieces and nephews. Sandra Gilliland, Still's affidavit that she testified that, because town, they were Still's life. t h a t he in underwent brain Still's Richard the was and her Still close Sandra and to the in last House." 3 Both She the same years of testified and cancer and testified at that so d i r e t h a t , a t home b y her to Sandra with Richard in life. lived deteriorate c o n d i t i o n was "Holley entire According diagnosed began testified Sandra's husband, to S t i l l . was had during unable to l i v e The r e c o r d does not a s s u m e t h a t i t i s an 3 we in mind Still's i n e a r l y 2 0 0 6 , he placed Still and Still Gilliland, surgery. They s t a t e d t h a t was she been c l o s e 2001, health known especially a l s o had Richard, had niece, and time. beginning himself, Sandra that so he Richard i n d i c a t e what the " H o l l e y House" i s ; a s s i s t e d - l i v i n g f a c i l i t y or nursing 9 2100285 stated that, believe aware from t h e i r that, on May o f and c o u l d his property his living personal 17, 2006, have and o t h e r relatives, observations, Still could sufficiently assets and and c o m p l i c a t e d trust R i l e y Edwards t e s t i f i e d Still 2001. at until He t e s t i f i e d a Texas that a year that sometimes testified Still that, became restaurant. to l i v e John i n his deposition o r two unable after restaurant David a couple that that executing t h a t he h a d met d i d n o t become retired in April once a week. would He join testified them. a f t e r t h e y became a y e a r o r so b e f o r e He friends, or t o pay f o r h i s meal a t t h e H o l l e y House, S t i l l earlier Still a n d a n o t h e r man a t e d i n n e r at the Still went they were had c a l l e d him and told would forget s u p p o s e d t o go e a t e v e n a f t e r E d w a r d s him they Edwards Finley of years to order He t e s t i f i e d of documents. t h a t he, S t i l l , Roadhouse of and l o c a t i o n s d i d not b e l i e v e a t B a n k T r u s t i n t h e 1970s b u t t h a t friends been r e c a l l e d the extent c o u l d have u n d e r s t o o d t h e n a t u r e and consequences o f a will d i d not have p o s s i b l y o r t h e names they they that same d a y . home. I t appears from the record that a l l discussions r e g a r d i n g , as w e l l as t h e e x e c u t i o n o f , t h e w i l l , t h e t r u s t documents, and t h e deed took p l a c e a t t h e H o l l e y H o u s e . 10 2100285 Edwards House stated because supposed to he that could take and administered he the time memory h a d called that, Still mental would condition have that there had taken was live pay Still his counsel by for that He the with Still had that He felt t h a t he matters at his Still told lacked 11 to Still to people business that Black d i d not think checks, house. of checks After written would have w r i t t e n a write the and ability and testified like t o l d him or Still's a b i l i t y t o w r i t e h i s own handle was that regard testified mental believe had Still's testified Still's when he that, visited He affairs. was Holley House, House. not he testified testified did Holley Ms. t h a t he showed Edwards c o p i e s a m o u n t he Still He 2006, He he that Edwards s t a t e d t h a t whatever opinion and for BankTrust Still, June the House, Holley Holley Still testified bills, the financial of w o u l d have had own the at medications him. situations h a n d l e d most of h i s b i l l s . that live Holley to at that his b e e n a few He go Edwards t e s t i f i e d such advantage transactions. the worsened. understood had at 2006 u n t i l conditions to remember what a week a t from February physical to worse. twice had medications went gotten not that, Still's at Still check that i t was his to handle his 2100285 financial affairs. what S t i l l ' s will state o f m i n d was on t h e d a t e and t h e t r u s t Edwards Holley with testified S t i l l . that that, Still He t e s t i f i e d Still executed the had s t a t e d on o n e o c c a s i o n , and t h a t there he w e n t b y t h e w e r e t w o men he was n o t s u r e Dailey that t h e men were from t h e bank and testified i n her deposition f o r most o f h i s l i f e . worked with Still Still he r e t i r e d . surgery, Still deteriorated with find at BankTrust was time. testified to that She t e s t i f i e d and that, that She t e s t i f i e d she had that and had remained She t e s t i f i e d disoriented the c a f e t e r i a She his trust, what. known S t i l l after there t h a t , when he w e n t b a c k t o t h e h o u s e t h e y h a d b e e n d i s c u s s i n g s o m e t h i n g t o do w i t h ^Alma to Still documents. House t o v i s i t later, but He a d m i t t e d , h o w e v e r , t h a t he d i d n o t know she had friends after with t h e 2001 h i s condition t h a t he h a d b e e n i n the h o s p i t a l to pick had unable up h i s m e a l s . h i s money. Dailey that people took advantage of S t i l l testified went to live only twice that at the Holley after that. with regard s h e saw Still regularly until House and t h a t she had seen She t e s t i f i e d 12 that the f i r s t he him time she 2100285 saw him after at he the Holley went to H o u s e was there live in that, and m e n t a l c o n d i t i o n was no handling competently he his wanted affairs to leave opinion, Still he easily was better his the and he on of She several that d i d not or estate. first occasion, and u n d e r s t a n d i n g to testified easily his seem c a p a b l e that, would p r o b a b l y have agreed to a n y t h i n g swayed months coached in whom in her and a of that certain direction. Dailey testified that Still had a s k e d him about l e a v i n g h i s e s t a t e Still told had because She his testified her attorney, that have h i s h o u s e . he wanted to admitted i n t e n t i o n s were w i t h there times. was had later have to not had t o l d her she regard did She testified, doing. She testified had i n May that 13 that there his will. t o l d her to that had. to h i s e s t a t e May that t h a t he w a n t e d S a n d r a know F e b r u a r y 2006 and that doing in not however, had and drafted t h a t he he Finley foundation already a l l that that interested testified that her the w e r e t i m e s when h i s m e n t a l s t a t e was whether, during was he Price, Still She Sandra Dailey that told Still's 2006 and worse than at she would 2006, S t i l l was what no way that other question knew w h a t Still he would 2100285 have had t h e m e n t a l c a p a c i t y April t o p r o c e s s t h e t r u s t documents i n 2006. Still's medical records indicate that Still was s e e n January 1 8 , 2006, by D r . Gary E . G e r h a r d , a n e u r o l o g i s t Medical Center mentation. Clinic, D r . Gerhard for difficulties noted name, t h e d a t e , and t h e l a s t States. 100, t h a t medications, noted that three he c o u l d minutes could and not r e c a l l Gerhard noted multiple small was o r i e n t e d presidents Still not r e c a l l that he had Still the strokes United not subtract any o f t h r e e difficulty was seen He further items in again he was u n a b l e t o s u b t r a c t t h e names that toh i s of the could and n o t r e m e m b e r t h e names o f some o f the request. 2006, and, a g a i n , could three at the h i s gait a n d t h a t he was a p o o r h i s t o r i a n . Still understanding 25, Still He a l s o n o t e d , h o w e v e r , t h a t 7 from his that with on after initially on January 7 f r o m 100 a n d o f any o f h i s m e d i c a t i o n s . "differential" and diagnosis multi-farct gait Dr. included apraxia and dementia. Dr. group Roman at deposition the Kesler, Medical regarding a neurologist Center h i s review 14 who Clinic, practices testified of D r . Gerhard's i n the in his notes. Dr. 2100285 Kesler with testified mentation memory items after Kesler three and c o g n i t i o n degenerative testified Gerhard that that typically of dementia as with of the notes, Dr. some issues that with problem t h a t , by J a n u a r y 25, 2006, was that related were a three of a problem having Still problems t o mood t o i tappeared the major disorder the condition he to dementia. to the point diagnosis. Still had was that Dr. a He Dr. Kesler i n at that time be difficult for of a with progresses. Kesler testified to understand Still's diagnosis patient and t h a t notice was issues d i d n o t remember on h i s r e v i e w testified brain Still's included testified someone organic behavior suggestive and t h a t diagnosis from Still was Still Dr. Kesler Gerhard's that Based that 18, 2006, n o t e a b o u t anything minutes memory. was d e m e n t i a . Dr. mean the fact testified thinking the January could but that short-term Dr. that that testified that Still i t could the mental acuity i f that person had l i m i t e d i t would the patient also that that had been n o t be u n u s u a l was h a v i n g the diagnosis rendered 15 contact with the f o r someone n o t t o mental-acuity of dementia incompetent. person issues. He d i d n o t mean He a l s o testified 2100285 that Still could occasions. He incompetent, Dr. have been testified Gerhard perfectly that, would i f Still have made g u a r d i a n o r a c o m p e t e n c y p r o c e e d i n g and that Dr. a he had Gerhard's reasonable capacity date done of so. He medical degree testified records of to medical to execute a deed or the medical that that had a certainty, i t d i d not totally to for nothing say that, Still a appear was in with lacked the after the months Review "'A summary j u d g m e n t i s p r o p e r when t h e r e i s no g e n u i n e i s s u e o f m a t e r i a l f a c t and the moving p a r t y is entitled to a j u d g m e n t as a m a t t e r o f l a w . R u l e 5 6 ( c ) ( 3 ) , Ala. R. C i v . P. T h e b u r d e n i s on t h e m o v i n g p a r t y t o make a p r i m a f a c i e s h o w i n g t h a t t h e r e i s no g e n u i n e i s s u e o f m a t e r i a l f a c t and t h a t i t i s e n t i t l e d t o a j u d g m e n t as a m a t t e r of law. I n d e t e r m i n i n g whether the movant has c a r r i e d t h a t b u r d e n , t h e court i s t o v i e w the e v i d e n c e i n a l i g h t most favorable t o the nonmoving p a r t y and to draw a l l r e a s o n a b l e i n f e r e n c e s i n f a v o r of t h a t p a r t y . To d e f e a t a p r o p e r l y s u p p o r t e d summary judgment motion, the nonmoving p a r t y must p r e s e n t " s u b s t a n t i a l e v i d e n c e " c r e a t i n g a genuine i s s u e of m a t e r i a l f a c t -" e v i d e n c e of s u c h w e i g h t and quality t h a t f a i r - m i n d e d persons i n the e x e r c i s e of i m p a r t i a l judgment can r e a s o n a b l y i n f e r the e x i s t e n c e o f t h e f a c t s o u g h t t o be p r o v e d . " Ala. Code 1975, § 12-21-12; West v. 16 certain been records. Standard of three on referral there cause him a will lucid 2100285 F o u n d e r s L i f e A s s u r a n c e Co. o f F l o r i d a , So. 2 d 8 7 0 , 8 7 1 ( A l a . 1 9 8 9 ) . ' 54 7 " C a p i t a l A l l i a n c e I n s . Co. v . T h o r o u g h - C l e a n , I n c . , 639 S o . 2 d 1 3 4 9 , 1 3 5 0 ( A l a . 1 9 9 4 ) . Q u e s t i o n s o f l a w a r e r e v i e w e d de n o v o . A l a b a m a R e p u b l i c a n P a r t y v. M c G i n l e y , 893 So. 2 d 3 3 7 , 342 ( A l a . 2 0 0 4 ) . " Pritchett (Ala. v. I C N Med. A l l i a n c e , I n c . , 938 S o . 2 d 9 3 3 , 935 2006). Discussion On a p p e a l , the contestants first argue that the c i r c u i t c o u r t e r r e d i n e n t e r i n g a summary j u d g m e n t on t h e w i l l because, they say, there regarding whether S t i l l t i m e he e x e c u t e d contest was a g e n u i n e i s s u e o f m a t e r i a l fact possessed testamentary capacity at the the w i l l . 4 " S e c t i o n § 38.04 o f t h e A l a b a m a Instructions provides: Jury noted p r e v i o u s l y , the contestants also asserted i n the trial court that S t i l l was o f u n s o u n d m i n d a n d t h e r e f o r e l a c k e d t h e c a p a c i t y t o make t h e i n t e r v i v o s t r a n s f e r s . The c o n t e s t a n t s h a v e n o t , h o w e v e r , made a n y a r g u m e n t a s t o t h i s i s s u e o n a p p e a l ; t h e r e f o r e , we c o n s i d e r t h a t i s s u e w a i v e d . S e x t o n v . B a s s C o m f o r t C o n t r o l , I n c . , [Ms. 2 0 9 0 6 8 7 , N o v . 1 9 , 2010] So. 3d , ( A l a . C i v . A p p . 2 0 1 0 ) ("'"An argument n o t made on a p p e a l i s abandoned or waived."'" ( q u o t i n g Muhammad v . F o r d , 986 S o . 2 d 1 1 5 8 , 1 1 6 5 ( A l a . 2 0 0 7 ) , q u o t i n g i n t u r n A v i s R e n t A C a r S y s . , I n c . v . H e i l m a n , 876 S o . 2d 1 1 1 1 , 1124 n.8 ( A l a . 2 0 0 3 ) ) ) . 4 As Pattern 17 2100285 "'MENTAL CAPACITY-DEFINITION "'The l a w p r e s u m e s t h a t e v e r y p e r s o n o f l e g a l age h a s s u f f i c i e n t m e n t a l c a p a c i t y t o make a v a l i d w i l l . "'A p e r s o n may b e f e e b l e , w e a k m i n d e d or capricious and s t i l l have (mental) (testamentary) c a p a c i t y t o make a w i l l i f he i s a b l e t o h a v e a d e c i d e d a n d r a t i o n a l desire as to the d i s p o s i t i o n of h i s property. "'The c o u r t w i l l now d e f i n e w h a t i s r e q u i r e d t o have t h e mental c a p a c i t y t o make a w i l l , w h i c h i s k n o w n a s t e s t a m e n t a r y capacity. "'The t e s t a t o r m u s t h a v e a t t h e t i m e o f t h e e x e c u t i o n o f t h e w i l l memory o f m i n d s u f f i c i e n t t o r e c a l l and understand: "'1. The p r o p e r t y bequeath or devise. "'2. The o b j e c t s he i s about to of h i s bounty. "'3. The d i s p o s i t i o n he make o f h i s p r o p e r t y . desires to "'4. The n a t u r e and consequences o f the b u s i n e s s t o be p e r f o r m e d . "'5. The r e l a t i o n o f t h e s e e l e m e n t s t o each other.' "2 A l a b a m a P a t t e r n J u r y I n s t r u c t i o n s C i v i l § 3 8 . 0 4 (2d e d . 1993) ( e m p h a s i s a d d e d ) . See a l s o E x p a r t e H e l m s , 873 So. 2 d 1 1 3 9 , 1147 ( A l a . 2003) ('"Simply s t a t e d , i f t h e t e s t a t o r k n o w s h i s e s t a t e a n d t o whom he w i s h e s t o g i v e h i s p r o p e r t y a n d u n d e r s t a n d s t h a t he i s executing a will, he has testamentary 18 2100285 c a p a c i t y . A p e r s o n may e x e c u t e a v a l i d w i l l , e v e n i f he o r s h e i s n o t c o m p e t e n t t o t r a n s a c t ordinary, e v e r y d a y a f f a i r s . " ' ( q u o t i n g S m i t h v . V i c e , 641 S o . 2 d 7 8 5 , 7 8 6 ( A l a . 1 9 9 4 ) ) ) ; F l e t c h e r v . D e L o a c h , 360 S o . 2 d 3 1 6 ( A l a . 1 9 7 8 ) ; a n d H o r t o n v . R a s p b e r r y , 852 So. 2 d 155 ( A l a . C i v . A p p . 2 0 0 2 ) . The e v i d e n t i a r y standard to establish testamentary capacity i s very l o w . S m i t h v . V i c e , 641 S o . 2 d a t 7 8 6 ( r e c o g n i z i n g that the showing r e q u i r e d t o e s t a b l i s h testamentary capacity i s not a high one)." Denson v. Moses, 2 So. 3 d 8 4 7 , 851 ( A l a . C i v . App. 2008). " I n F l e t c h e r v . D e L o a c h , 360 S o . 2 d 3 1 6 ( A l a . 1 9 7 8 ) , the Court d e s c r i b e d i n d e t a i l the broad e v i d e n t i a r y i n q u i r y t h a t m u s t b e made w h e n t e s t a m e n t a r y c a p a c i t y is at issue: "'"Evidence i s competent t o prove conduct and language a t v a r i o u s t i m e s a n d p l a c e s i n d i c a t i n g an unhealthy mental c o n d i t i o n , and t h e more e x t e n s i v e t h e v i e w t h e safer i s the determination reached." " ' [ T u c k e r v . T u c k e r , 248 A l a . 6 0 2 , 6 1 0 , 28 S o . 2 d 6 3 7 , 644 ( 1 9 4 6 ) . ] T h u s , evidence offered as t o t h e m e n t a l and p h y s i c a l condition of the t e s t a t r i x , either before or i m m e d i a t e l y a f t e r e x e c u t i o n o f t h e w i l l , i s a d m i s s i b l e since i t tends t o i n d i c a t e h e r c o n d i t i o n when t h e w i l l was s i g n e d . Likewise, testimony regarding the testatrix's "conversations, deportment, a c t s , and a p p e a r a n c e " has been f o u n d t o be c o m p e t e n t on t h e i s s u e of testamentary capacity.' "360 S o . 2 d a t 3 1 8 ( c i t a t i o n s o m i t t e d ) . T h e F l e t c h e r Court also noted that the reasonableness of a w i l l ' s p r o v i s i o n s , when c o n s i d e r e d i n l i g h t o f t h e s t a t e o f 19 2100285 f a m i l y r e l a t i o n s h i p s , may r e f l e c t o n t h e t e s t a t r i x ' s capacity t o r e c a l l the objects of her bounty." Allen v. Sconyers, 669 So. 2 d 1 1 3 , 117-18 (Ala. 1995). "'"[T]he burden i s on the c o n t e s t a n t t o show i n c a p a c i t y a t t h e t i m e t h e w i l l was made a n d insanity prior to that time, unless o f a permanent c h a r a c t e r , r a i s e s no p r e s u m p t i o n o f i n s a n i t y a t t h e t i m e t h e w i l l was made."' " F l e t c h e r [ v . D e L o a c h ] , 360 S o . 2 d [ 3 1 6 , ] 318 [ ( A l a . 1 9 7 8 ) ] , q u o t i n g K i n g v . A i r d , 2 5 1 A l a . 6 1 3 , 6 1 7 , 38 So. 2 d 8 8 3 , 887 ( 1 9 4 9 ) . A c c o r d i n g l y , t h e b u r d e n ' c a n o n l y be d i s c h a r g e d or s h i f t e d by showing prior habitual or fixed insanity, or actual insanity, or other i n c a p a c i t y at the date of the instrument.' E a s t i s [ v . M o n t g o m e r y ] , 95 A l a . [ 4 8 6 , ] 4 9 4 , 11 S o . [204,] 211 [ ( 1 8 9 2 ) ] . " Smith v. V i c e , The and contestants cite argument t h a t t h e r e v. Moses, 1994). 2 So. 3d a t 851, i s a genuine issue of m a t e r i a l the issue of testamentary held that there testamentary doctor was issue I n Denson, t h i s of material c a p a c i t y b a s e d on t h e e q u i v o c a l questioning capable capacity. a genuine the testator's a t t o r n e y who h a d p r e p a r e d was Denson ((Ala. E x p a r t e H e l m s , 873 So. 2 d 1139 ( A l a . 2 0 0 3 ) , i n s u p p o r t their on 641 So. 2 d 7 8 5 , 786-87 of executing the w i l l as t o of the although the t e s t i f i e d that the t e s t a t o r the w i l l . 20 competency fact court fact testimony of I n Ex p a r t e Helms, t h e 2100285 evidence indicated prescription executed Alabama to pain her testator's will, So. 2d appeared not to of the mandate Sandra to The the sound the a and 873 that and after So. that in 2d mind, that contestants reversal Richard the testator's issue that So. the 2d case. testified that assets May or 17, the 2006, r e c a l l e d the names a n d and have understood will and the that the locations mental that could have and other of and his property of his living did not nature and consequences 21 believe aware believe t r u s t documents. i n Denson present of extent 1148. Still's they complicated at did the have sufficiently testator evidence In Still been fact. although the d e t e r i o r a t e d such t h a t they d i d not possibly of holdings this The sufficient c o n d i t i o n had could the noted that, 873 that in affected conflicting fact. she was of testified a date 1145-46. a genuine will of at evidence favor create the Lortab supreme c o u r t question agree w i t h Helms case, of be eliminate We and at 1147-48. consumed L o r t a b , consuming presumption and had before that held capacity proponents testator ability. legal testamentary the and mental the the medication, Supreme C o u r t rebut 873 that that of relatives Still could executing Edwards on a testified 2100285 that Still's mental not r e m e m b e r how pay his b i l l did not state to order without Dr. certainty Kesler that three months a f t e r records memory problems and Kesler testified that in fact, B a s e d on evidence Garrett the the was Still was diagnosed over with capacity. Still does not Although was r e s o l u t i o n of which intention the significant Dr. improve the presumption of t h a t t e s t i m o n y does not but sound foregoing that Lynn, and when e l i m i n a t e the provided Still Black, mind is for a jury. will Still or time. rebut Still's of medical dementia. the his Still Further, of having to what not to execute a deed conclude that than that a degree H e l m s , we that could date of the m e d i c a l r e c o r d s , been that could c o m p e t e n t l y or Denson and fact distribution Dailey to dementia t y p i c a l l y testamentary he his estate. capacity that i t worsens e x e c u t e d the w i l l , that had testify and testified his affairs the the indicated testified fact, much t h a t sufficient was possessed not lacked medical of Dailey wanted to leave could Still so a meal at a r e s t a u r a n t seem c a p a b l e o f h a n d l i n g although that, declined assistance. u n d e r s t a n d i n g t o whom he a will had he issue We for also note a different had previously represented to be considered by in could 22 the jury 2100285 determining Allen, w h e t h e r he p o s s e s s e d testamentary capacity. 669 So. 2 d a t 1 1 7 . BankTrust cites Sanders v. B r o o k s , 611 So. 2 d 336 1992), i n support of i t s p o s i t i o n that the t r i a l err i n entering the supreme c o u r t granting court See court a summary j u d g m e n t i n i t s f a v o r . held the proponents that the t r i a l of a w i l l court (Ala. d i d not In Sanders, had not e r r e d i n a new t r i a l . The supreme reasoned: "The t e s t i m o n y o f [ t h e t e s t a t o r ' s n e i g h b o r ] a n d [ t h e d o c t o r who e x a m i n e d t h e t e s t a t o r ] m e r e l y e s t a b l i s h e s t h a t [ t h e t e s t a t o r ] was i n m e n t a l d e c l i n e ; i t d o e s n o t p r o v e t h a t s h e was i n d e m e n t i a a t t h e t i m e s h e p l a n n e d and e x e c u t e d h e r w i l l . [The a t t o r n e y who d r a f t e d t h e w i l l ] and h i s s e c r e t a r y were t h e o n l y witnesses who a c t u a l l y observed [the testator] during t h i s period; thus, t h e i r testimony must be afforded greater weight." 611 So. 2d a t 338. Sanders however, will, supreme that distinguishable because specifically a i s made the testimony valuable witnesses t e s t i f i e d that not j u s t court several that Still Still i tclear of from was in lacked the i n Allen, present case t o make decline. The 669 So. 2 d a t 1 1 7 - 1 8 , who drafts a i t must be w e i g h e d a g a i n s t 23 case, present the capacity i n a mental the attorney evidence but that the will i s a l lthe 2100285 other evidence, which is the responsibility Thus, even c o n s i d e r i n g S a n d e r s , we exists testamentary on the Based issue the court circuit on on testamentary of foregoing, the will we of conclude that jury. a fact issue capacity. reverse contest the with the judgment regard to of the issue of capacity. II. The in contestants next argue that e n t e r i n g a s u m m a r y j u d g m e n t on request say, to set they aside the submitted inter of undue vivos sufficient is and a to erred their t r a n s f e r s because, evidence to Still they establish because there whether and was is a a genuine subjected a r i s e s when: c o n f i d e n t i a l r e l a t i o n s h i p between a favored the undue execution 802 as contest p r e s u m p t i o n of undue i n f l u e n c e testator, dominant and is fact court influence. "A material circuit their will p r e s u m p t i o n o f undue i n f l u e n c e and issue the (2) influence c o n t r o l l i n g in that activity of the the (Ala. 2002). by will." the the in Apperson, beneficiary (3) 826 So. is there procuring undue i n f l u e n c e w i t h 24 there beneficiary r e l a t i o n s h i p , and beneficiary H a y e s v. "In proving of (1) to 2d respect the 798, to 2100285 a deed, of one undue existed the needs t o influence: between over In the first two elements a confidential relationship donor and the beneficiary, and exercised donor." present case, i s the the that has the only (1) the beneficiary influence deed demonstrate Id. the foundation. a We dominant at and (2) that controlling 805. b e n e f i c i a r y of note, the however, will that and there the is no evidence indicating that a confidential relationship existed between Still foundation exercised a and the dominant Additionally, with i n d i c a t i n g t h a t the and regard the that contestants the elements circuit regard of The BankTrust BankTrust to the have d i d not contestants' as the the will, and, to and thus, of we undue 25 evidence undue a c t i v i t y the necessary that the with influence. and can As in i t is clear conclude because deed. Still. a summary j u d g m e n t BankTrust the over i s no prove representative trustee, b e n e f i c i a r y of the w i l l that foundation Accordingly, failed claim argue personal the there c o n d u c t e d any err in entering contestants as the of the w i l l . undue i n f l u e n c e , court to execution that controlling influence foundation procuring or the the be will named trust named considered BankTrust points a out 2100285 in i t sbrief cite any fails to cite issue, issue, Hall, of this Birmingham 2d Court 78, v. Business argument. any a u t h o r i t y may f o r i t i s neither So. the contestants their this 80 "'When t h e judgment Court's legal duty (quoting an on a as t o nor research.'" ( A l a . 2004) Realty f a i l to f o r an a r g u m e n t affirm t o p e r f o r m an a p p e l l a n t ' s 903 (Ala. however, i n support particular function court, law appellant that to this i t s H a l l v. City of I n v . C o . , 722 S o . 2 d 7 4 7 , 752 1998)). Conclusion Based circuit in favor on t h e f o r e g o i n g , court to the extent we reverse that i tentered o f B a n k T r u s t on t h e w i l l testamentary capacity, proceedings. AFFIRMED Thompson, We affirm t h e judgment a n d we t h e judgment I N PART; REVERSED 26 this on t h e i s s u e cause i n a l l other I N PART; AND P . J . , and Pittman, concur. a summary j u d g m e n t contest remand Bryan, of the of f o r further respects. REMANDED. a n d Thomas, J J . ,

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