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THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Sue B. Brigman,        Appellant,

v.

Johnny M. Brigman, Laverne Brigman, Ray Brigman, Percy W. Brigman, Flora Ann Johnson, Katherine Cassidy, Roberta Holmerod, Janice Sakala and Jodie Bethea,        Respondents.

Sue B. Brigman, Special Administrator of the Estate of W.A. Brigman, Jr.,        Appellant,

v.

Johnny M. Brigman,        Respondent.

Appeal From Marlboro County
C. Anthony Harris, Circuit Court Judge

Unpublished Opinion No. 2004-UP-323
Submitted March 19, 2004 � Filed May 14, 2004

AFFIRMED

Charles J. Hupfer, Jr., John R. Chase and Benjamin T. Zeigler, all of Florence, for Appellant.

Florence Ann Johnson, of Lexington;� Janice Sakala, of Beaverton, Oregon;� Jodie Bethea and Roberta Holmerud, both of Bonita, California;� Katherine Casside, Laverne Brigman, Ray Brigman and Percy W. Brigman, all of Latta, and Ralph L. Kelly, of Bennetsville, for Respondents.

PER CURIAM: Sue Brigman appeals the ruling of a special referee denying probate of the will of W.A. Brigman, her husband. We affirm.

FACTS

W. A. Brigman, Jr. (Testator) and Sue B. Brigman (Appellant) were married in 1973. They lived on a farm in Marlboro County, where Testator was a life-long farmer. The land and the farm had been in the Brigman family for as many as 150 years. Testator executed a will in 1994, leaving Appellant a life estate (or until she remarried) in the farm and the remainder to his nephew Johnny Brigman (Respondent) in fee simple. Testator died on April 26, 1999. (R.30).

Following Testator�s death, a will dated April 23, 1999 was offered for probate. That will left the farm and all of the farming equipment to Appellant in fee simple. Respondent challenged the validity of the 1999 will. The case was referred to a special referee in June 2001 and a hearing was held on July 13 of that year.�

At the hearing, Kelly Childers, [1] the Brigmans� minister, and Nannie Williams, a health care worker, testified for Appellant. They were the subscribing witnesses for the 1999 will. According to them, Testator was alert and could speak on April 23, the date of the will�s execution. The two wills were allegedly read to Testator numerous times and he was asked repeatedly if he understood and wanted the changes being made. Each time, Testator said yes or nodded his head in agreement. Reverend Childers testified Appellant�s �hand was up against the back of [Testator�s] hand to aid and give assistance� when the will was executed. Childers and Williams testified that along with Appellant, Appellant�s daughter and grand-daughter were also in the home on that evening. [2] Appellant, her daughter, and her grand-daughter did not testify at the hearing.

Laverne Brigman, Respondent�s brother, also testified. He claimed that he heard Testator say that Testator was �going to make some changes� on April 6, while Testator was in the hospital. Laverne Brigman also testified that Testator was upset with Respondent because Respondent had brought some �farm papers� to the hospital for Testator to sign. [3]

Respondent testified on his own behalf. He claimed that he visited Testator daily, except for April 10, when Appellant refused him entry into the house. Respondent also said that he saw Testator on April 23, �late in the after-noon.� Testator was by then �just breathing . . . [h]is eyes were set, he did not speak, he did not move, he did not talk, he did not know [Respondent].� Respondent maintained that Testator had been in that condition since April 11 until his death on April 26. Respondent�s son Johnny Brigman also took the witness stand. He corroborated his father�s testimony that Appellant had barred the two of them from visiting Testator on April 10.

Another family member testified that Testator �was in mighty bad shape� in the days preceding his death. Testator �really didn�t seem to be aware of what was going on� and asked about a relative who had been dead �a pretty good while.� There was also testimony from Annie Anderson. She was a neighbor, a long-term friend of Testator�s family, and a retired registered nurse. When she visited Testator in the after-noon of April 23, �[his] eyes were . . . glazed over� and �[h]e had no expression.�

By an order of October 15, 2003, the special referee found that �W. A. Brigman, Jr. was subjected to undue influence or duress to execute the document offered for Probate as the Will of W. A. Brigman, Jr. dated April 23, 1999.� He also found that Testator lacked any testamentary intent and testamentary capacity. He denied probate.

ISSUES

1. Did the special referee err in finding that Testator was under undue influence or duress?
   

2. Did the special referee err in finding that Testator lacked testamentary intent?
   

3. Did the special referee err in finding that Testator lacked testamentary capacity?�

STANDARD OF REVIEW

�The standard of review applicable to cases originating in the probate court is controlled by whether the underlying cause of action is at law or in equity.� In re Thames, 344 S.C. 564, 568, 544 S.E.2d 854, 856 (Ct. App. 2001).� An action to determine the validity of a will is one at law. In re Estate of Weeks, 329 S.C. 251, 262, 495 S.E.2d 454, 460 (Ct. App. 1997). ��If the proceeding in the probate court is in the nature of an action at law, the [appellate] court may not disturb the probate court�s findings of fact unless a review of the record discloses there is no evidence to support them.�� Macaulay v. Wachovia Bank of South Carolina, N.A., 569 S.E.2d 371 (Ct. App. 2002) (citing Howard v. Mutz, 315 S.C. 356, 361, 434 S.E.2d 254, 257 (1993)). �Contestants of a will have the burden of establishing undue influence, fraud, duress, mistake, revocation, or lack of testamentary intent or capacity.� S.C. Code Ann. � 62-3-407 (Supp. 1996). The contestant must do so by clear and convincing evidence. Russell v. Wachovia Bank, N.A., 353 S.C. 208, 217, 578 S.E.2d 329, 333 (2003).

ANALYSIS

Appellant argues that the special referee erred when he found that Testator executed the 1999 will under undue influence or duress. We disagree.

�For a will to be invalidated for undue influence, the influence must be the kind of mental coercion which destroys the free agency of the creator and constrains him to do things which are against his free will, and that he would not have done if he had been left to his own judgment and volition.� Id. �The evidence must show that the free will of the testator was taken over by someone acting on testator's behalf.� Id. In general, there should be �evidence either of threats, force, and/or restricted visitation, or of an existing fiduciary relationship.� Id.

Here, Testator had been in very poor health since April 7, when he suffered a second or third stroke. He was also recuperating from a heart attack and was suffering from kidney failure. Testator �was going down hill fast.� The record does not indicate that Testator ever requested a change in the 1994 will at all. It was Appellant who spearheaded the execution of the 1999 will, �aiding� Testator to sign the will, choosing the subscribing witnesses, telling them when to come.�� Reverend Childers, who testified for Appellant, admitted that, on the night in question, Testator �could not sign and [Appellant] took his hand and guided it to place his signature on the will.� When asked whether Testator had indicated he wanted or needed assistance, Reverend Childers answered �he didn�t ask her to [help him sign], if that�s what you�re asking me.� Compare S.C. Code Ann. � 62-2-502 (1976) (�[E]very will, shall be in writing signed by the testator or in the testator's name by some other person in the testator's presence and by his direction, and shall be signed by at least two persons each of whom witnessed either the signing or the testator's acknowledgment of the signature or of the will.�) (emphasis added).

The special referee also noted that the persons surrounding Testator that night, namely Appellant, Reverend Childers, Appellant�s daughter and grand-daughter, and the health care worker, testified to reading the 1999 will three or four times to him. They did this at a time when Testator was �full of poison,� not having yet received his nightly dialysis treatment. While there is no evidence of threats, witnesses testified that Appellant precluded them from visiting Testator on at least one occasion. Moreover, Appellant was heard saying �I changed his will.�

Clearly, there was some evidence to indicate that Testator had been coerced. Therefore, we cannot say that the special referee erred as a matter of law in finding that Testator was under duress or undue influence.

Appellant also argues that the special referee erred in finding that Testator had no testamentary intent or capacity. Again, we disagree.

In general, a testator has the capacity to make a will if he knows (1) his estate, (2) the objects of his affection, and (3) to whom he wishes to bequeath his property. In re Weeks, 329 S.C. at 263, 495 S.E.2d at 461. And a testator who signs a will is presumed to understand its nature and content. Henkel v. Winn, 346 S.C. 14, 18, 550 S.E.2d 577, 579 (Ct. App. 2001).� As said earlier, it up to the party challenging the will to show the contrary. � 62-3-407.

At the hearing, there was testimony that Testator, starting around April 11, did not respond to or recognize family members, that he was unaware of his surroundings, that his eyes were �set� and �glazed.� On the specific day that the 1999 will was executed, Testator had at least two visitors, Respondent and Annie Anderson. They both testified that when they saw Testator in the after-noon, he was non-responsive, �gone.� The subscribing witnesses offered a different account. They testified that Testator was alert when the will was signed late at night on April 23, that Appellant was told about the changes and approved them. The special referee again found, however, that the will was signed when Testator was in need of his dialysis treatment. We cannot say that the conclusion was legal error.

The special referee saw and considered all of the testimony. He noted, as do we, that neither Appellant nor her daughter testified. Both had played key roles in the signing of the 1999 will. The special referee also noted that the farm had been in Testator�s family for numerous generations and that Testator had been preoccupied with its long-term care. Respondent had spent much time on the farm, both as a boy and as an adult; he had been like a �son� to Testator. Testator had already told Respondent that the farm �was coming to [him].� Additionally, the special referee took into account Testator�s reputation. Testator had always been �steady and stable,� not one to �act on a whim . . . when he wasn�t in full control of his faculties.�

The special referee could have discounted the testimony offered by Respondent and Annie Anderson that Testator was already �gone� in the after-noon of April 23, 1999. In the alternative, he could have found that Testator regained alertness that evening � just long enough to change his will and leave the family farm to Appellant. He did neither. Instead, having seen and evaluated all of the witnesses, the special referee discounted the testimony of Appellant�s witnesses and set aside the 1999 will. [4] As the record provides some evidence for his findings, we cannot say that he erred. Therefore, we affirm his ruling.

CONCLUSION

Based on the foregoing, the decision of the special referee is

AFFIRMED.

GOOLSBY, HOWARD, and BEATTY, JJ, concur.