IN THE MATTER OF THE ESTATE OF JOHN M. KAYE, DECEASED:
PATRICIA M. KAYE APPELLEE JOHN MORGAN KAYE JR., EXECUTOR APPELLANT
OF JUDGMENT: 04/20/2017
FROM WHICH APPEALED: LOWNDES COUNTY CHANCERY COURT HON. H. J.
DAVIDSON JR. TRIAL JUDGE
ATTORNEY FOR APPELLANT: DEWITT T. HICKS JR.
ATTORNEY FOR APPELLEE: HAL H. H. MCCLANAHAN III.
LEE, C.J., WILSON AND WESTBROOKS, JJ.
John Morgan Kaye Jr. (John), as executor of the Estate of
John M. Kaye (Jack), deceased, filed a petition to recover
assets and for other relief against Patricia M. Kaye (Pat),
Jack's wife, in the Lowndes County Chancery Court.
Although neither the will nor Pat's power of attorney was
contested, John claimed that Pat's inheritance should be
rendered void because a confidential relationship existed
between Jack and Pat. The chancellor found that no
confidential relationship or fiduciary duty existed between
Jack and Pat nor was there any undue influence exerted by Pat
over Jack. John appeals. Finding no error, we affirm.
Jack and Pat married in 1987 and remained married until
Jack's death on January 20, 2012. Both Jack and Pat had
children from previous marriages. Jack had two sons, John and
William Samuel Kaye, as well as a daughter, Louise Harlan
In early 2006, Jack fell backward down fourteen steps at his
home. After his fall, in August 2006, Jack created a will.
Instead of using Hunter Gholson, his long-term attorney, Jack
switched his services to Hal H. H. McClanahan, Pat's
attorney, because she believed Gholson's fees were too
high. In his uncontested will, Jack left John, John's
three sons, and Pat each one-fifth of his estate. Jack also
devised Pat their marital home with all furnishings. In his
will, Jack stated that he did not split the estate with
William or Louise because William is independently wealthy
and Louise, who is mentally handicapped, has a trust. On the
same day Jack created the will, he executed a Power of
Attorney appointing Pat as his attorney in fact.
In February 2007, Jack fell again and broke his hip. After
this fall, Jack was placed in Trinity Place for
rehabilitation. After an incident with the staff, Jack
returned home. During this time, Jack was regularly treated
by his physician, Dr. Frank Dailey. Dr. Dailey treated Jack
from 2006 until his retirement in 2008.
In 2008, Jack created a joint account with Pat that included
rights of survivorship. In 2009, Jack authorized UBS to
transfer all assets from his solo account to the joint
account. This authorization gave Pat the right to make
decisions and jointly access the funds. Because Jack did not
execute the document at the UBS office, he had the form
notarized by Marilyn Reaves at a Regions Bank and sent back
to UBS. Reaves testified that Jack alone came into the bank
and signed the forms. Furthermore, she stated that she did
not recall anyone accompanying Jack to the bank.
After Jack's death in 2012, his will was admitted to
probate, and it was discovered that minimal funds remained in
the UBS account. John brought an action against Pat claiming
wrongful conversion. While John decided not to contest the
will or the Power of Attorney, he requested the chancery
court deny her assignment from the will: her fifth of the
estate and the marital home. ...