BEFORE ROY NOBLE LEE, PRATHER AND SULLIVAN
PRATHER, JUSTICE, FOR THE COURT:
The burden of proof in a will contest suit is the subject matter of this appeal. The contestants are Mrs. Willie C. Harris and Mrs. Alma Staten, who challenge the validity of the will of Mrs. Doris Pavlica, their sister. The basis for the contest is the undue influence exerted by their nephew and sole beneficiary, Buford C. Sellers. The chancery court held that a confidential relationship existed between the nephew and the testatrix at the time the will was executed, but that there was no proof of undue influence. The chancellor sustained the proponents' motion to exclude the contestants' evidence and to dismiss the suit made at the conclusion of contestants' proof.
The assignments of error are that the chancery court erred in:
(1) Sustaining the appellee/proponents' motion to dismiss in absence of proof by clear and convincing evidence that there was no undue influence;
(2) Refusing to allow hospital records into evidence; and
(3) Excluding testimony of contestants under the" Dead Man's Statute. "
We reverse and remand this case for retrial.
Buford C. Sellers, of Oakland, and nephew to the testatrix and the contestants, is pastor of a church and principal of an elementary school. At the request of his aunt, Mrs. Doris Pavlica, he held a power of attorney over her business affairs from December 4, 1980 to the date of her death on May 26, 1981. During this interval, he assisted her in selling her home, although she signed the deed herself. Sellers placed the house sale proceeds in joint accounts with his aunt. Admission of the existence of a confidential relationship with his aunt was made by Sellers in his testimony.
Regarding the execution of the will, Sellers testified he brought his aunt to his home from the hospital in December when her insurance benefits ran out. Previously she asked Sellers to prepare a will for her, and again in December, 1980, she repeated that request.
On December 26, 1980, Sellers prepared a will using a form will mailed to him from his church organization for promotion of" Make Your Will Month. "He typed the will making himself sole beneficiary, in the event of Seller's demise prior to the testatrix's death, the sole beneficiary was Helen J. Sellers, Sellers' wife. Mrs. Pavlica requested that Buford Sellers be named sole beneficiary; no testimony was offered concerning the designation of the alternative beneficiary. Sellers secured two employees from the Bank of Oakland to witness the execution of the will in the kitchen of his home.
A prior will of Mrs. Pavlica named her sisters, the contestants, as beneficiaries. The contestants lived a long distance from Mrs. Pavlica.
In the spring of 1981 Mrs. Pavlica returned to the
hospital when insurance benefits were restored.
The contest of this will was based on allegations of undue influence of Sellers, mental incapacity of the testatrix, and ...