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Trusts & Estates – Wills – Undue Influence – Contact & Communication Limitations

By: S.C. Lawyers Weekly staff//April 2, 2020

Trusts & Estates – Wills – Undue Influence – Contact & Communication Limitations

By: S.C. Lawyers Weekly staff//April 2, 2020

The testimony of Testatrix’s physical therapists, the lawyer who drew up her new will, and the lawyer’s assistant was sufficient to rebut the presumption of undue influence that arose from the appellant-son’s possession of Testatrix’s power of attorney and his addition of his name to her bank accounts. Nevertheless, the respondent-daughter presented evidence from herself, her sister, Testatrix’s brother, Testatrix’s doctor, and Testatrix’s long-time friend regarding appellant’s refusal to allow Testatrix to communicate freely, or at all, with others. Respondent’s evidence was sufficient to show that Testatrix’s new will, which revoked a will dividing her estate equally among her children and instead left her entire estate to her son, was the product of undue influence.

We affirm the circuit court’s order upholding the probate court’s order granting respondent’s petition to set aside Testatrix’s 2013 will and reinstating her 2006 will.

First, the disposition of Testatrix’s estate in the 2013 will, which awarded the entire estate to appellant, was significantly different from the disposition in her 2006 will, which awarded Testatrix’s estate to her husband, if he survived her, then to each of her children in equal shares.

Second, Testatrix’s brother, and Carroll, Testatrix’s close friend, both presented evidence that appellant restricted Testatrix’s communication and visitation. Carroll also testified that Testatrix said appellant told her to make a new will and she “had no choice.”

Respondent and her sister also testified to appellant’s actions restricting Testatrix’s communication and visitation with others. For instance, respondent testified she used her key to get into Testatrix’s house until appellant changed the locks and told respondent she was no longer welcome unless he was present. Respondent explained she tried to call Testatrix multiple times but appellant would answer, tell her she was not allowed to speak to Testatrix, “laugh[,] and hang up.” Respondent averred appellant threatened to have her arrested for harassment if she went to see Testatrix. Respondent further alleged that on the day Testatrix passed away, appellant told her “you’re going to be surprised [with] what’s in the new will. I have everything.”

Based on the foregoing, we find evidence supported the probate court’s finding that Testatrix’s execution of the 2013 will was a product of appellant’s undue influence. Therefore, the circuit court properly affirmed the orders of the probate court.


Gunnells v. Harkness (Lawyers Weekly No. 011-012-20, 10 pp.) (H. Bruce Williams, J.) Appealed from the Circuit Court in Charleston County (Roger Young, J.) Robert Bratton Varnado and Alexis Wimberly McCumber for appellant; Donald Higgins Howe, Michelle Jennifer Weil and Julie Jackson-Bailey for respondent. S.C. App.

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