Spencer v. Spencer

258 So. 3d 326
CourtSupreme Court of Alabama
DecidedFebruary 16, 2018
Docket1161095
StatusPublished
Cited by2 cases

This text of 258 So. 3d 326 (Spencer v. Spencer) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Spencer v. Spencer, 258 So. 3d 326 (Ala. 2018).

Opinion

SELLERS, Justice.

Shellie G. Spencer III ("Shellie III") appeals from an order of the Mobile Probate Court admitting a copy of his father's will to probate. We affirm.

Facts and Procedural History

Shellie G. Spencer, Jr. ("Spencer"), died on March 9, 2016, at the age of 96. Spencer had three adult children who survived him: Clyde Spencer, Shellie III, and Darrell C. Spencer. On April 18, 2016, Darrell ("the proponent") filed a petition to probate a copy of Spencer's will, which favored the proponent. The proponent represented that the original of the will, dated March 23, 2010, could not be found but that it remained effective and had not been destroyed or otherwise revoked by Spencer. On June 20, 2016, Shellie III and Clyde contested the will, arguing that it was the product of undue influence and coercion exerted upon Spencer by the proponent; another issue was whether the original of the will was merely lost and therefore still effective or whether the will had been revoked. The case proceeded to a bench trial.

On July 25, 2017, the probate court entered an order that contained detailed findings of fact and conclusions of law. Specifically, the probate court found no undue influence or coercion on the part of the proponent. The probate court also noted that, in Alabama, when a will remains in the possession of the testator and is not found at the testator's death, the legal presumption is that the testator revoked the will. In this case, however, the probate court determined that, although the original of Spencer's will had not been found, the totality of the evidence presented by the proponent was substantive enough to rebut the presumption that Spencer had revoked it. Accordingly, the probate court admitted the copy of Spencer's will to probate. Shellie III appealed.

Standard of Review

Because the probate court conducted a bench trial in this case at which oral testimony was given, the ore tenus standard of review applies: " 'When a judge in a nonjury case hears oral testimony, a judgment based on findings of fact based on that testimony will be presumed correct and will not be disturbed on appeal except for a plain and palpable error.' " Smith v. Muchia, 854 So.2d 85, 92 (Ala. 2003) (quoting Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala. 1996) ).

" 'The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses.' Hall v. Mazzone, 486 So.2d 408, 410 (Ala. 1986). The rule applies to 'disputed issues of fact,' whether the dispute is based entirely upon oral testimony or upon a combination of oral *328testimony and documentary evidence. Born v. Clark, 662 So.2d 669, 672 (Ala. 1995). The ore tenus standard of review, succinctly stated, is as follows:
" '[W]here the evidence has been [presented] ore tenus, a presumption of correctness attends the trial court's conclusion on issues of fact, and this Court will not disturb the trial court's conclusion unless it is clearly erroneous and against the great weight of the evidence, but will affirm the judgment if, under any reasonable aspect, it is supported by credible evidence.' "

Reed v. Board of Trs. for Alabama State Univ., 778 So.2d 791, 795 (Ala. 2000) (quoting Raidt v. Crane, 342 So.2d 358, 360 (Ala. 1977) ).

Discussion

At the outset, we note that the evidence was undisputed that in 2006 W. Gregory Hughes, an attorney, prepared a will for Spencer; that in December 2010, following the death of one of Spencer's children, Hughes prepared a new will (hereinafter "the 2010 will") for Spencer; and that in 2014, approximately two years before Spencer's death, Spencer again met with Hughes, but Hughes undertook no work for Spencer because he could not discern what Spencer wanted Hughes to do and Spencer was "profoundly hard of hearing."

On appeal, Shellie III challenges only that portion of the probate court's order finding that Spencer had not revoked the 2010 will. In Barksdale v. Pendergrass, 294 Ala. 526, 529, 319 So.2d 267, 269-70 (1975), this Court stated the elements necessary to support the probate of a lost will:

"In a proceeding to probate an alleged lost or destroyed will, the burden is on the proponent to establish, to the reasonable satisfaction of the judge or jury trying the facts:
"(1) The existence of a will-an instrument in writing, signed by the testator or some person in his presence, and by his direction, and attested by at least two witnesses, who must subscribe their names thereto in the presence of the testator.
"(2) The loss or destruction of the instrument.
"(3) The nonrevocation of the instrument by the testator.
"(4) The contents of the will in substance and effect."

(Citations omitted; emphasis added.) Concerning the "nonrevocation of the instrument by the testator," this Court explained:

"When the will is shown to have been in the possession of the testator, and is not found at his death, the presumption arises that he destroyed it for the purpose of revocation; but the presumption may be rebutted, and the burden of rebutting it is on the proponent."

294 Ala. at 530, 319 So.2d at 271.

Shellie III asserts that a reasonable presumption in this case would be that Spencer visited Hughes's office in 2014 for the purpose of executing a new will, having already destroyed or revoked the 2010 will. Accordingly, Shellie III argues that the proponent failed to produce "substantial evidence" to rebut the presumption that Spencer had revoked the 2010 will. However, as this Court stated in Barksdale, to rebut the presumption, the proponent need only establish to the satisfaction of the trier of fact that the will was not revoked.

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Related

Bedard v. Bedard
266 So. 3d 1113 (Court of Civil Appeals of Alabama, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
258 So. 3d 326, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spencer-v-spencer-ala-2018.