Massey v. Rushing and Statham, [Ms. 1210092, June 24, 2022] __ So. 3d __ (Ala. 2022). The Court (Sellers, J.; Bolin, Wise, and Stewart, JJ., concur; Parker, C.J., concurs in part and concurs in the result) affirms a judgment of the Jefferson Probate Court (“the trial court”) setting aside and voiding two deeds to his wife Gail executed by Jack B. Massey (“Mr. Massey”), on the grounds that Mr. Massey lacked the mental capacity to execute the deeds and that the deeds were the product of undue influence exerted by Gail.
As to the mental capacity issue, the Court holds that “the medical records establish only that any incapacity suffered by Mr. Massey occurred during intervals or was temporary in nature” so that the children had to “show Mr. Massey’s incapacity at the very time of the conveyances. Ex parte Chris Langley Timber, 923 So. 2d at 1105.” Ms. **9-10. The children failed to meet their evidentiary burden because they presented no “direct evidence that Mr. Massey was incapacitated on the specific dates that he executed the deeds.” Ms. *10.
Citing the “liberal policy of allowing an amendment under Rule 15 if the amendment does not result in actual prejudice to the opposing party or cause undue delay,” Ms. *11, the Court first rejects Gail’s challenge to the probate court’s order allowing the children to amend their petition to assert undue influence. The Court affirms as to the probate court’s ore tenus finding of undue influence by Gail. “A person claiming undue influence with respect to a deed must demonstrate only ‘that the donor and the donee were in a confidential relationship and that the donee was the dominant party in the relationship.’ Beinlich v. Campbell, 567 So. 2d 852, 853 (Ala. 1990).” Ms. *13. The Court holds that “[a]fter reviewing the record, … the circumstances surrounding the execution of the deeds warrant a finding that the deeds were the product of undue influence exerted by Gail. The evidence specifically demonstrates that Gail was active in procuring the deeds during a time when Mr. Massey was experiencing a decline in health, mentally, physically, and emotionally. As indicated, Gail had her son’s attorney prepare the deeds, and Mr. Massey neither spoke to that attorney nor read the deeds before signing them.” Ms. **18-19.