Affidavit From Decedent’s Attorney Allowed To Rebut Presumption of Undue Influence

When a declaratory-judgment action was brought to challenge the appellant using a power of attorney to execute a transfer-on-death deed in order to transfer the decedent’s residence to the appellant upon the decedent’s death, the appellant relied upon an affidavit from the decedent’s attorney in support of her brief in opposition to the appellee’s motion for summary judgment. In such cases, a presumption of undue influence arises, and the power of attorney must prove, by a preponderance of the evidence, that such conduct was free of undue influence or fraud. The trial court held it could not consider this evidence in the appellant’s attempt to meet the burden of proof as to the fairness of the transaction between the appellant and the decedent because the appellee, as the decedent’s executor, refused to waive the estate’s attorney-client privilege. The appellate court reversed, holding that the affidavit should have been considered and remanding the matter with instructions for the trial court to consider the affidavit.