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IN THE MATTER OF THE ESTATE OF BERTHA O. HANEY, DECEASED; JANIE HANEY AUSTIN v. DEWEY JACK HANEY

DECEMBER 16, 1987

IN THE MATTER OF THE ESTATE OF BERTHA O. HANEY, DECEASED; JANIE HANEY AUSTIN
v.
DEWEY JACK HANEY



BEFORE ROY NOBLE LEE, C.J., ANDERSON AND ZUCCARO, JJ.

ZUCCARO, JUSTICE, FOR THE COURT:

Dewey Jack Haney petitioned the Chancery Court of Webster County to admit to probate in common form the will of Bertha O. Haney. Janie Haney Austin filed a caveat contesting the will. After a bench trial, the chancellor found the will to be valid and entered judgment in favor

of the proponent. From that judgment Janie Haney Austin appeals, claiming that the chancellor was manifestly wrong in finding that the presumption of undue influence arising from the confidential relationship between the proponent and the testator was rebutted.

 Bertha O. Haney (Bertha), an elderly woman, *fn1 executed her will on January 8, 1982, leaving everything to her grandson Dewey Jack Haney (Jack) and thereby excluding her only other heir presumptive, her granddaughter Janie Haney Austin (Janie). In challenging the will, Janie offered evidence of several factual incidents which, she claimed, established the existence of a confidential relationship between Bertha and Jack. Jack then offered evidence to overcome the presumption. We address these two (2) aspects of the evidence separately.

 JANIE'S EVIDENCE TENDING TO ESTABLISH CONFIDENTIAL RELATIONSHIP AND UNDUE INFLUENCE

 Some of Janie's evidence was very general. For example, she attempted to show that Bertha had always relied on men to tell her what to do - first her husband, then her son, and finally her grandson Jack. Janie also put on medical evidence indicating that Bertha was in ill health and had to be hospitalized several times beginning in 1977 and ending with her death in 1983. Bertha's health problems included strokes, diabetes, hypertension, and other conditions.

 Janie also offered into evidence several warranty deeds by which Bertha, over the last few years of her life, transferred most of her real property to Jack. Janie and her mother both testified that Jack had stated, before Bertha's death, that he would eventually own all of Bertha's property. In addition, Janie testified that Bertha had told her, "When I die, Jackie has said he will divide things properly," and Janie's mother testified that Jack stated his intent to see to it that Janie did not get anything.

 The most troubling evidence put on by Janie was testimony regarding two (2) statements allegedly made by Bertha. First, Bertha's sister-in-law testified that Bertha told her Jack had made her make an ass of herself by getting her to sign over to him everything she owned. There are at least two (2) documents to which this statement could have referred: 1) the January 2, 1982, deed by which Bertha conveyed her residence to Jack; or 2) Bertha's will, executed January 8, 1982, in which she left everything

 to Jack. Asked when Bertha made this statement, the sister-in-law replied that it was "around January 2 or sometime right after the deed had been fixed."

 Similarly troubling is testimony indicating that after executing her will, Bertha stated her desire to change it, but was told by Jack and by the lawyer who prepared the will that she would have to go to court in order to do so. Because she was very ill and was in the nursing home, Bertha thought going to court would be impossible. Both Bertha's sister-in-law and Janie's mother testified to this alleged occurrence. Although the lawyer who prepared the will testified at trial, he was not questioned about this incident.

 Bertha's sister-in-law also testified that "Jackie could soft-pedal [Bertha] and get her to do most anything he wanted to do," but admitted that "if she wanted not to do something, she wouldn't do it, regardless of what he said."

 JACK'S EVIDENCE TENDING TO REBUT THE PRESUMPTION

 The trial court, in its opinion, did not expressly find that a confidential relationship existed. Thus, we are unable to determine whether the trial court's judgment for Jack was based on 1) a finding that there was no confidential relationship, or 2) a finding that although there was a confidential relationship, the presumption of undue influence arising ...


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