McGimsey v. Gray, [Ms. 1161016, Mar. 30, 2018] __ So. 3d __ (Ala. 2018). The Court (Stuart, C.J., and Bolin, Parker, Shaw, Main, Wise, Bryan, and Mendheim, JJ., concur; Sellers, J., dissents) reverses a summary judgment entered by the Jefferson Circuit Court in favor of a personal representative of an estate upon finding that will contestants presented substantial evidence of each of the elements of a claim of undue influence, which are
“(1) that a confidential relationship existed between a favored beneficiary and the testator; (2) that the influence of or for the beneficiary was dominant and controlling in that relationship; and (3) that there was undue activity on the part of the dominant party in procuring the execution of the will.”
Ms. *11 (quoting Clifton v. Clifton, 529 So. 2d 980, 983 (Ala. 1988)).
The Court (Ms. *12) citing Allen v. Sconyers, 669 So. 2d 113 (Ala. 1995), Bolan v. Bolan, 611 So. 2d 1051 (Ala. 1993), and Cook v. Morton, 241 Ala. 188, 1 So. 2d 890 (1941), finds substantial evidence of a confidential relationship between the personal representative (the “favored beneficiary”) and the testator. Citing Pirtle v. Tucker, 960 So. 2d 620 (Ala. 2006), and Hayes v. Apperson, 826 So. 2d 798 (Ala. 2002), the Court finds the contestants presented substantial evidence that the personal representative was in a dominant and controlling position in the relationship with the testator. Ms. *13-14. The Court also finds substantial evidence of undue activity by the beneficiary in procuring the execution of the will, noting “It is next to impossible to produce direct evidence of the exercise of undue influence over another person. Frequently, the best evidence which can be offered ... is circumstantial, tending only to support inferences which can be drawn therefrom.” Ms. *16 (quoting Ex parte Henderson, 732 So. 2d 295, 299 (Ala. 1999) (quoting Smith v. Moore, 278 Ala. 173, 177, 176 So. 2d 868, 871 (1965))).
Because there was substantial evidence supporting each of the requisite elements of such a claim, the Jefferson Circuit Court erred in granting summary judgment and in taxing costs against the contestants. Accordingly, the order granting summary judgment and the order taxing costs and expenses are reversed. Ms. *21.