Bequest to Mistress Upheld Eight Years After Will Offered for Probate

Georgia resident, Harvey Strother, had an extramarital affair with a Florida woman, Anne Melican, over the course of the last decade of his life.

During that time, Harvey executed three codicils to his will to provide for Anne and her son in the event of his death. The first codicil provided that Anne would be paid the sum of $7,900 per month for the rest of her life.  The second codicil transferred to Anne a condominium that Harvey owned in Florida.  The third codicil provided that Harvey’s estate would pay the mortgage on a home in Cape Cod that Anne and Harvey had shared together, gave Anne a boat slip in Florida, and gave Anne’s son, Matthew, the Florida property where Matthew’s business was located.

When Anne attempted to probate the codicils, Harvey’s grandsons and the trustee of a testamentary trust for the benefit of Harvey’s wife objected on the grounds of faulty execution, undue influence, and lack of capacity.

The first codicil was denied probate because it was improperly executed.  Witnesses to the codicil testified that they did not actually see Harvey sign the document.

The second and third codicils were challenged by Harvey’s family on the grounds that Harvey was mentally incompetent to sign those documents due to his severe dependence on alcohol.   The family offered evidence that Harvey drank more than a gallon of wine per day and, if he did not ingest large amounts of alcohol every day, that Harvey would have risked a potentially fatal withdrawal reaction.

The third codicil was denied probate on the grounds of mental incapacity and undue influence.  On that issue, in addition to the general testimony regarding Harvey’s alcohol dependence, the jury heard testimony that the third codicil was executed just weeks before Harvey’s death, and that Anne had to wheel Harvey into his lawyer’s office in a wheelchair and diaper to sign the document.

The second codicil however, was admitted to probate.  Despite the arguments of Harvey’s family that he was as incapable of executing the second codicil as he was the first, the jury rejected the claim that Harvey was not competent to execute this document, likely both because the second codicil was executed several years prior to Harvey’s death, and because there was no direct evidence that Harvey was intoxicated at the time he signed that document.  Although the jury heard evidence Harvey was heavily intoxicated on the day after he executed the second codicil, and that he was dependent upon a constant supply of alcohol and incapable of any mental or physical exertion, this evidence was not sufficient to support a finding that Harvey was intoxicated on the very day the document was signed.

The legal standard for incapacity to execute a will is incapacity at the time the document is signed. Intoxication is generally a temporary state. Testimony that Harvey was drunk the day after the document was signed could not support a claim that Harvey was intoxicated on the previous day.

Although Harvey died in 2004, and the second codicil was upheld in 2009, it was not until May of 2011 that Anne was assured of receiving Harvey’s bequest.  Prior to Harvey’s death, the condominium that is the subject of the second codicil was put under contract for sale.  Following Harvey’s death, and while the litigation regarding the second codicil was pending, the executor sold the condominium and then took the position that the bequest to Anne had adeemed.  In May of this year, the Georgia Supreme Court, applying a Florida statute which provides that where a specific bequest is sold prior to the testator’s death, any part of the purchase price which has not been paid at the time of death, goes to the named recipient of that bequest, ruled that Anne was entitled to all of the proceeds of the sale of the condominium.  Thus, after 8 years of litigation, Anne received finally received a small portion of Harvey’s estate.