THIS OPINION HAS NO PRECEDENTIAL VALUE.� IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Francis A. Salerno, Appellant,

v.

Nell Inman, Personally, as Personal Representative of the Estate of Harry W. Wilbur and as Trustee, and Fonza Alberta Wiggins, Respondents.

Appeal From Berkeley County
R. Markley Dennis, Jr., Circuit Court Judge

Unpublished Opinion No. 2011-UP-423
Submitted August 15, 2011 � Filed September 20, 2011

AFFIRMED

P. Brandt Shelbourne and Erin E. Hill, both of Summerville, for Appellant.

George B. Bishop, Jr., of Moncks Corner, for Respondents.

PER CURIAM:� Francis Salerno appeals the circuit court's order that affirmed the probate court's grant of summary judgment in favor of Harry Wilbur's estate (Estate). Salerno argues the Estate failed to rebut the presumption of undue influence that arose out of the fiduciary relationship between Harry Wilbur and Fonza Alberta Wiggins created by Wilbur's power of attorney.� We affirm.[1]

Generally, a presumption exists that a will was executed without undue influence.� Hembree v. Estate of Hembree, 311 S.C. 192, 194, 428 S.E.2d 3, 4 (Ct. App. 1993).� Thus, a person contesting a will has the burden of proving undue influence in order to invalidate a will.� Id.� "Undue influence must be shown by unmistakable and convincing evidence . . . ."� Russell v. Wachovia Bank, N.A.,  353 S.C. 208, 217, 578 S.E.2d 329, 333 ( 2003).� "The evidence must show that the free will of the testator was taken over by someone acting on testator's behalf."� Id.�� Undue influence is also demonstrated where the testator does not make decisions by his own judgment or volition, but rather under the direction of the influencer.� Id.� However, "[t]he mere existence of influence is not enough to void a will;" instead, the influence "must destroy free agency and amount to force and coercion."� Hembree, 311 S.C. at 196, 428 S.E.2d at 5.��

The existence of a fiduciary relationship creates a presumption of undue influence.� Hairston v. McMillan, 387 S.C. 439, 447, 692 S.E.2d 549, 553 (Ct. App. 2010).�� "A confidential or fiduciary relationship exists when one imposes a special confidence in another, so that the latter, in equity and good conscience, is bound to act in good faith and with due regard to the interest of the one imposing the confidence."� In re Estate of Anderson, 381 S.C. 568, 574, 674 S.E.2d 176, 180 (Ct. App. 2009) (quotation marks and citations omitted).� A power of attorney also creates a fiduciary relationship.� Id.� Thus, if a fiduciary relationship exists, "the proponents of the will must offer rebuttal evidence" of the presumption of undue influence.� Hairston, 387 S.C. at 447, 692 S.E.2d at 553.� However, the burden does not shift to the proponents of the will to "affirmatively disprove the existence of undue influence."� Id. �Instead, the burden of proof to invalidate the will remains with the contestants of the will.� Id.

We find the circuit court properly affirmed the probate court's decision granting summary judgment in favor of the Estate because no genuine issue of material fact existed concerning the undue influence claim.� See Rule 56(c), SCRCP (providing summary judgment is appropriate when "no genuine issue as to any material fact" exists and "the moving party is entitled to a judgment as a matter of law").� The Estate presented sufficient evidence to rebut the presumption of undue influence. Although a fiduciary relationship existed between Wilbur and Wiggins due to Wilbur's power of attorney, no evidence existed showing it was ever utilized.� See In re Estate of Anderson, 381 S.C. at 574, 674 S.E.2d at 180 (finding the Estate properly rebutted a presumption of undue influence despite the existence of a fiduciary relationship created by a power of attorney because no evidence existed showing that the power was ever utilized).�� Here, Wiggins testified she did not know when Wilbur executed the power of attorney.� Wiggins also explained that Wilbur did not use the power of attorney when he transferred the title of a 2006 Kia Optima into her name.�� Furthermore, no additional evidence was presented to indicate Wiggins ever utilized the power of attorney.

Moreover, no evidence existed indicating Wilbur did not have the opportunity to dispose of his property as he wanted.� Wiggins acknowledged she took Wilbur to his lawyer's office to revise his will in 2005, but she explained she did not participate in the revision of Wilbur's will.� Wiggins also explained she did not know where Wilbur got his money.� Additionally, Salerno stated he believed Wilbur was in good health and capable of getting around by himself before his death and Wilbur never contacted him concerning a need to get away from Wiggins. �Salerno also acknowledged the only information he had available concerning his undue influence claim is that his relationship with Wilbur declined after Wiggins began dating him.� He also admitted Wilbur had prepared a number of wills since the September 1998 will.�

AFFIRMED.

HUFF, PIEPER, and LOCKEMY, JJ., concur.

[1] We decide this case without oral argument pursuant to Rule 215, SCACR.