Brock v. Kelsoe, [Ms. 1200141, Mar. 26, 2021], ___ So. 3d ___ (Ala. 2021). The Court (Sellers, J.; Bolin, Shaw, Wise, Bryan, Mendheim, and Stewart, JJ., concur; Mitchell, J., concurs specially; Parker, C.J., concurs in the result) reverses the Morgan Circuit Court’s summary judgment in favor of the proponent in a will contest. The Court finds genuine issues of material fact were presented both as to testamentary capacity and on undue influence by the proponent, Philip Kelsoe, a neighbor of the testator, Mrs. Ralph. On the issue of capacity, the Court concludes “[g]iven the conflicting evidence from the drafting attorney and the treating physician, we conclude that the question whether Mrs. Ralph possessed testamentary capacity to execute the challenged will is a question of fact that is not appropriate for resolution by a summary judgment.” Ms. *10.
To support a claim of undue influence, a contestant must “‘offer evidence (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. **11-12, quoting Clifton v. Clifton, 529 So. 2d 980, 983 (Ala. 1988).
As to the first element, “the contestant presented substantial evidence from which a jury could infer that the favoritism Mrs. Ralph showed the proponent by making him the sole beneficiary of her estate was an unnatural discrimination because, prior to the time the proponent befriended Mrs. Ralph, she had had a close relationship with her siblings and had wanted them to have her property ….” Ms. *15. The Court also finds there was evidence from which a jury could infer a confidential relationship and that the proponent was the dominant party. Ms. *18.
Finally, the Court holds that based on “the circumstances surrounding the timing of the execution of the will, the proponent’s dominion over the will, and Dr. Campbell’s testimony regarding Mrs. Ralph’s deteriorating physical and mental state, ... a jury could infer that the proponent was unduly active in the procurement of the will.” Ms. *19.