Issues: Will Contest, Undue Influence, Conversion, Litigation Costs

In 1992, Elizabeth McGee, the mother of the litigants in this action, executed a will which divided her estate unequally. Jack McGee ("Jack"), who received less than his brother Willis McGee ("Willis"), filed an action contesting the will. There was no dispute that Wills was not present when his mother's will was executed, nor was there evidence that Willis played any role in the discussions leading up to the execution of the 1992 will. Willis did place the will in Mrs. McGee's safe deposit box at some point prior to her death. Jack's complaint alleged undue influence, that the offered will perpetrated a fraud on the Court, and conversion of numerous items of Jack's personal property. The property alleged to have been converted fell into three categories: items given to Jack by Mrs. McGee, items given to Jack by others, and items purchased by Jack and stored at his mother's house. The trial court entered summary judgment on all counts except the undue influence count. Following presentation of Jack's evidence on that count, the trial court entered judgment as a matter of law in favor of Willis. The trial court then denied Willis' motion for payment of costs and fees. On appeal, the Supreme Court first affirmed the JML on the undue influence claim. The Court stated that the elements of such as claim are: 1) a confidential relationship; 2) a dominant or controlling influence in that relationship; and 3) undue activity by the dominant party in procuring the execution of the will. Without discussing the first two elements, the Court found that there was no evidence to support the third element - undue activity by Willis. According to the Court, the fact that Willis placed a copy of the executed will in Mrs. McGee's safe deposit box evidenced only post-execution activity by Willis, which did not support an allegation of undue influence in the execution of the will. With regard to the fraud claim, the Court understood Jack's theory to be that Mrs. McGee stated to her best friend that in 1996 she executed another will which treated "Jack and Willis fairly" and that at that time Willis admitted the same thing to his then mother-in-law. Jack relied on Ala. Code § 43-8-5 which provides that the statute of limitations for filing a will contest may be tolled when the facts upon which a contest could be filed were concealed by fraud. The Court held that this tolling provision did not create a substantive claim. The Court then found that, there was insufficient evidence to allow a claim based on an allegation that Willis destroyed a subsequent will - where there was no concrete evidence that a subsequent will actually existed - to go to a jury. On the conversion claim, the trial court had concluded that because the property remained in Mrs. McGee's possession until her death, no delivery occurred, and thus the claim failed. The Supreme Court reversed the trial court's decision on this count as to the property allegedly given to Jack by individuals other than Mrs. McGee and property he allegedly purchased himself and was storing at his mother's house. According to the Court, Willis only presented evidence of failure to take possession with regard to property allegedly given to Jack by Mrs. McGee. Finally, the Court reversed the trial court's denial of costs and fees to Willis, finding that Jack presented "no credible evidence in support of any ground on which Jack challenged Mrs. McGee's will."