South Carolina Cases May 30, 2024: Jordan v. S.C. Pub. Emp. Benefit Auth.

Case Description

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Appearances:

For Petitioner: Margaret A. Collins, Esq.

For PEBA: Justin R. Werner, Esq.

For Respondent Jordan: Grady L. Patterson, III, Esq.

AMENDED FINAL ORDER

Ralph King Anderson, III, Chief Administrative Law Judge.

This matter is before the South Carolina Administrative Law Court (Court or ALC) on a request for a contested case hearing filed by Willis B. Jordan, Sr. (Petitioner or Willis Sr.) on April 15, 2023. Petitioner contests the final agency decision of Respondent South Carolina Public Employee Benefit Authority (PEBA or Respondent), South Carolina Retirement Systems (SCRS), after it determined he was not the beneficiary for the death benefits payable from SCRS upon the death of his separated spouse, Hilda M. Jordan (Decedent). SCRS paid the death benefits to Decedent's son, Wilton Barney Jordan (Barney or Respondent Jordan), as her sole designated beneficiary based upon a change of beneficiary form signed by Decedent seventy-two hours before her death. Petitioner contests the validity of the change of beneficiary form. A hearing on the

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merits was held over three separate days: October 19, November 9, and November 20, 2023. On March 12, 2024, the Court issued a Final Order. Then, on March 22, 2024, Respondent Jordan filed a Motion for Reconsideration (Motion). The Court rescinded its Final Order on March 27, 2024, to further consider the parties' pleadings and issues raised in Respondent Jordan's Motion. Thereafter, on April 8, 2024, Petitioner Willis Sr. filed a response to the Motion. On April 15, 2024, Respondent Jordan filed a reply. This Amended Order follows.

Based upon my review of the testimony and the parties' arguments, I conclude Petitioner showed by a preponderance of the evidence that the change of beneficiary form was not properly executed; thus, Willis Sr. is entitled to Decedent's death benefits.

FINDINGS OF FACT

Having observed the witnesses and exhibits presented at the hearing and taking into consideration the burden of proof and the credibility of the witnesses, I make the following findings of fact by a preponderance of the evidence.

Background

Petitioner Willis Sr. and Decedent were married on February 3, 1963, in Fairfield County, South Carolina, and had been married almost sixty years when Decedent died. Before Decedent's death, they had lived with their son, Barney. However, due to a conflict with his son, Willis Sr. moved to Florida while Decedent stayed with Barney to be close to her grandson. Willis Sr. was living in Florida when Decedent died.

In Decedent's SCRS Service Retirement Application, filed with PEBA on March 19, 2019, Decedent designated Willis Sr. as her beneficiary for any death benefits payable from SCRS. In 2021, Decedent was diagnosed with neuroendocrine carcinoma secondary to small cell lung cancer. Decedent was also diagnosed with chronic obstructive pulmonary disease (COPD) and hypothyroidism. According to her medical records, Decedent's mental status began to decline in November of 2021. Thereafter, on August 2, 2022, one of Decedent's sons reported a change in Decedent's mental status, stating she had "become very paranoid and thinks that they are going to

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put her in a nursing home and taking her money." About a week later, an MRI showed that her lung cancer had metastasized to her brain. Specifically, the MRI and exam records denoted drastic overall decline and numerous large legions throughout her brain. Her oncologist noted that her "midbrain/pons which is near [sic] obliterated and not compatible with life." As a result, Decedent was placed in hospice and received care at her son's home from Heart of Hospice (HOH) beginning on August 12, 2022, until her death on August 20, 2022.

On August 12, 2022, Jessica Shaw, a Registered Nurse (RN) with HOH, admitted Decedent into hospice. As part of her admission, hospice ordered a comfort kit with medications, which included ativan for shortness of breath, morphine for pain, and glycopyrrolate for secretions. In addition, Decedent was prescribed fentanyl patches for pain. According to Nurse Shaw's notes, at the time of her admission, Decedent had an "altered mental status," "increased confusion," and "weakness." Nurse Shaw also noted the "patient has drastically declined over the past few weeks." Nurse Shaw recorded Decedent had a Palliative Performance Scale (PPS) score of 30. Decedent was alert and oriented times two because she knew where and who she was, but she was "impaired" and "forgetful." Nurse Shaw also documented that Decedent had an oxygen level of 97% and noted oxygen should be provided continuously to Decedent. At the end of her visit, Nurse Shaw indicated Decedent was unable to give her signature for the visit; therefore, Barney provided his signature.

In the days that followed, Decedent's health continued to decline. On August 13, Nurse Batchelor documented that Decedent complained of a "10 out of 10 headache" related to her condition, and although she was alert and oriented, she was nevertheless "forgetful." Nurse

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Batchelor noted that Decedent had an oxygen level of 91% while on two liters of oxygen and received two doses of morphine. Nurse Batchelor administered the first dose of morphine in the morning and Barney administered the second dose in the afternoon. Nurse Batchelor educated Decedent's family on the pain medications available to them, including the fentanyl patches. Nonetheless, Barney told Nurse Batchelor that he would "start (Fentanyl patches) Monday as he need[ed] his mom to sign legal documentation" and he did not "want her mind not clear for this appointment." At the end of the visit with Nurse Batchelor, Decedent was again unable to sign, and as a result, Barney signed on her behalf.

On August 14, due to Decedent's pain, HOH was called out again. Nurse Batchelor recorded Decedent's pain as "continuous" and an 8 out of 10. Ms. Batchelor noted the Decedent had an oxygen level of 97% while on four liters of oxygen. She noted Decedent was "confused," "disoriented," and thought it was the year 1987. Nurse Batchelor again educated the family about the importance of providing comfort to Decedent. However, according to Nurse Batchelor, "son Wilton did not want to start patient on Fentanyl patches yesterday or today due to wanting patient to be coherent to go over legal documents on Monday." Thus, despite Decedent's significant pain, Decedent only received one dose of morphine that day. Nurse Batchelor also noted that Decedent was unable to sign because she was "confused."

On August 15, Ladonya Hallman, RN, and Michael Gutshall, a social worker at HOH, visited Decedent in the afternoon. According to Nurse Hallman, Decedent had an oxygen level of 97% while on two liters of oxygen, and she was alert and oriented as to place and person. Decedent received three doses of morphine, but no fentanyl patches were administered. During Decedent's visit with Mr. Gutshall, Decedent requested that he prepare a durable financial power of attorney form for her. At the end of the visit, Decedent was unable to sign due to a "physical impairment."

On the next day, August 16, according to Barney, Decedent received multiple doses of morphine and was administered one Fentanyl patch at 5:21 p.m. Although there is no record of a visit from any HOH nurses, Mr. Gutshall testified he and two other HOH social workers, Amanda

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Brown and Grace Young, visited Decedent on August 16. The purpose of Mr. Gutshall's visit was for Decedent to sign the power of attorney he had prepared. Mr. Gutshall attested that during this visit, Decedent signed the prepared power of attorney, which the two HOH social workers witnessed, and Mr. Gutshall notarized the signatures. The newly signed durable financial power of attorney appointed Decedent's son, Barney, as her attorney-in-fact; previously, it was Willis Sr. Later that afternoon, Faith Collins, Decedent's former coworker, visited the Jordan house. Ms. Collins had previously received an undiscernible voicemail from Decedent and she was subsequently informed that Decedent was very sick. Apparently, Ms. Collins was requested by one of the sons to notarize a change of beneficiary form for Decedent and she visited Decedent on the 16 for that purpose. Ms. Collins testified that she witnessed Decedent sign the change of beneficiary form without any assistance and Decedent knew the significance of her signature on the form. Ms. Collins then notarized Decedent's beneficiary form, which removed Willis Sr. as her beneficiary and designated Barney as her beneficiary instead.

On August 17, Nurse Hallman noted Decedent's death was "imminent" because her oxygen levels were at 65% and she was unresponsive. Nurse Hallman documented that upon her arrival, she was "greeted by son who reports patient minimally responsive no PO intake since last PM reports was becoming agitated with oxygen and kept pulling at it therefore, he removed it, and patient has been more restful." Then, on August 18, two days before Decedent passed away, PEBA received the new durable financial power of attorney form and the change of beneficiary form from Barney making him the beneficiary. On August 19, 2022, at around 1 p.m., Decedent had a PPS score of 10 and an oxygen level of 68%. Shortly before midnight, Decedent passed away. Nurse Batchelor came to the house around 12:45 a.m. on August 20 and pronounced Decedent dead.

By a letter dated August 26, 2022, PEBA notified Barney that he was the designated beneficiary for Decedent's SCRS death benefits and informed him of the additional documentation

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that would be necessary to complete the claim for those benefits. Barney submitted an Election of Death Benefits form to PEBA dated September 1, 2022, which was again notarized by Faith Collins. The SCRS death benefits payable upon Decedent's death were paid to Barney on or about September 9, 2022. Subsequently, PEBA received a letter on September 22, 2022, in which Willis Sr. asserted he was the proper beneficiary for Decedent's SCRS death benefits. On September 23, 2022, PEBA sent a letter to Willis Sr. informing him that his claim for Decedent's death benefits could not be accepted because Decedent had designated a different beneficiary on the change of beneficiary form that she had completed and filed with PEBA prior to her death. Willis Sr. then sought further review of PEBA's determination. On March 27, 2023, PEBA issued a final decision determining that Petitioner Willis Sr. was not the designated beneficiary for the death benefits payable from SCRS upon Decedent's death. Thereafter, Petitioner filed this contested case.

Execution of the Change of Beneficiary Form

On August 16, 2022, Decedent purportedly signed the change of beneficiary form removing Willis Sr. as her designated beneficiary and designating Barney as her sole beneficiary instead. Willis Jr. was the subscribing witness to the change of beneficiary form that Ms. Collins notarized, which Respondent did not dispute. However, Ms. Collins only recalled seeing Barney, his wife, and his son during her visit and did not mention Willis Jr.'s presence. Additionally, based on Ms. Collins' testimony, the form was signed by Decedent and notarized around 2:30 p.m. and Ms. Collins left the Jordan house around 6:00 p.m.

Concerningly, when Petitioner's counsel pointed out that Willis Jr.'s signature was on the form, Ms. Collins changed her testimony to state that Willis Jr. was present when she notarized the form. Moreover, Barney provided dubious testimony about when the form was signed and when his brother arrived. He testified the form was signed around 4:00 or 5:00 p.m. and he further testified, "I want to say my brother's [fiancé], Michelle, was there, but I'm - again, they came together…" When asked to confirm whether Michelle Moseley, Willis Jr.'s fiancé, was there, Barney replied "I believe she was there, yes."

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Contrary to Barney's testimony, Ms. Moseley indicated she did not arrive until after the change in beneficiary form was executed. Specifically, she testified "I may have gone during the week, it would have been in the evening…" Willis Jr. further corroborated Ms. Mosely's testimony when he testified Ms. Moseley arrived from work "probably 6:00 pm …6:30 pm." Willis Jr. testified that the form was probably signed in the afternoon.

Overall, a preponderance of the evidence shows that Willis Jr. and his fiancée arrived at the Jordan house together, and they would have arrived no earlier than 6:00 p.m. or 6:30 p.m. at which time Ms. Collins had already notarized the form. Therefore, the evidence reflect that Willis Jr. signed the change in beneficiary form after it had been notarized.

Mental Capacity

Decedent's medical records and the testimony of the HOH nurses show Decedent had exhibited an altered mental status since August 2, 2022. However, on August 16, the day Decedent signed the change in beneficiary form, there were no visits from HOH nurses; therefore, there are no medical notes to indicate what her mental and physical capacity was on that day. According to Ms. Collins, Decedent was able to sign the change in beneficiary form on August 16 without assistance. Contrastingly, Decedent was never able to sign acknowledgement of the HOH visits. Indeed, on August 17, Nurse Hallman noted Decedent was unable to sign because of "cognitive impairment." Additionally, within ten hours of signing the change of beneficiary form, Decedent fell into an unresponsive state, passing away approximately seventy-two hours after signing.

Consistent with Ms. Collins's testimony, Barney and Willis Jr. also testified that Decedent signed the change of beneficiary form without any assistance. However, I make my determination based solely upon Ms. Collins's testimony. Regarding Ms. Collins's testimony, while it did not appear she intended to evade the truth, her testimony was inconsistent as demonstrated by her vacillation over who was present at the time the change of beneficiary was signed. Nevertheless, regarding Decedent's physical and mental capacity to sign the form, her testimony was undisputed, and I did not find sufficient evidence to reject it. Thus, although I question whether Decedent capable of understanding the nature of her act, I conclude the evidence did not sufficiently establish that at the time Decedent signed the change of beneficiary form, she was incapable of understanding the nature of her act. In fact, Petitioner admits he "has simply not shown incapacity at the time of the signing the document, which is required," and "lack of any medical provider or

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medical evidence to determine incompetency on the date the document was signed may have hurt the Petitioner's ability to meet his burden of proof." (emphasis in original).

Undue Influence/Coercion/Duress

Decedent lived with Barney for years and relied on him for all daily living activities. PEBA records show Barney initiated multiple calls to inquire about beneficiary information on August 15th. Barney also submitted documentation to PEBA to effectuate the beneficiary change on August 18th, two days before Decedent died. Additionally, Barney provided Decedent with morphine on most days. However, although the nurses attested Fentanyl would have provided more comfort to Decedent, Barney refused to administer Fentanyl patches, purportedly so Decedent would have a "clear mind" to sign the change of beneficiary form. Moreover, the day after Decedent purportedly signed the change of the beneficiary form, Barney stopped giving the Decedent oxygen because he claimed it made Decedent more restful. Nevertheless, although these acts appear abhorrent to the Court, they did not sufficiently establish duress, undue influence, or coercion.

ISSUES

1. Was the change of beneficiary form properly executed, witnessed, and notarized?

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2. Did Decedent have the capacity and/or competency to change her beneficiary approximately seventy-two hours prior to her death?

3. Did Respondent Jordan's withholding of pain medications and other medical treatment improperly influence Decedent, coerce Decedent, or force her to sign the change of beneficiary under duress?

4. Was it Decedent's competent "plan" to change her beneficiary, and can such testimony be considered under Rule 803(3) of the South Carolina Rules of Evidence (SCRE)?

CONCLUSIONS OF LAW

Standard of Review

This Court has jurisdiction over this case pursuant to section 9-21-60 of the South Carolina Code (2019) and section 1-23-600 of the South Carolina Code (Supp. 2023).

This is a contested case, and it is heard de novo . Brown v. S.C. Dep't of Health & Envtl. Control , 348 S.C. 507, 512, 560 S.E.2d 410, 413 (2002) (explaining that a contested case before the ALC is "in the nature of a de novo hearing with the presentation of evidence and testimony"). The standard of review is a preponderance of the evidence. S.C. Code Ann. § 1-23-600(A)(5) (Supp. 2023); see also Anonymous (M-156-90) v. State Bd. of Med. Exam'rs , 329 S.C. 371, 375-78, 496 S.E.2d 17, 19-20 (1998) ("Absent an allegation of fraud or a statu[t]e or a court rule requiring a higher standard, the standard of proof in administrative hearings is generally a preponderance of the evidence."). Typically, the party contesting the decision has the burden of proof. See SCALC Rule 29(B); Ford v. Atl. Coast Line R. Co. , 169 S.C. 41; 168 S.E.2d, 143, 167 (1932); see also Leventis v. Dep't Health and Envt'l Control, 340 S.C. 118, 132-33; 530 S.E.2d 643, 651 (Ct. App. 2000). As such, in this case, the burden of proof rests on Petitioner Willis Sr.

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Execution of Form

Pursuant to the South Carolina Retirement Systems Claims Procedures Act and sections 9-1-1615, -1620, and -1770 of the South Carolian Code (2019), certain death benefits are payable from the South Carolina Retirement System (SCRS) through PEBA. A Retired Employee can choose the beneficiary or beneficiaries to receive the allowed benefits after the Retired Employee's death, including by submitting a signed and properly executed change of beneficiary form.

Petitioner asserts the change of beneficiary form was not properly executed, witnessed, and notarized because the witness was not present when the notary indicated the document was signed. Under South Carolina law, when a notary notarizes a document, the notary certifies that "the person whose signature was notarized did not appear in the judgment of the notary to be incompetent, lacking in understanding of the nature and consequences of the transaction requiring the notarial act, or to be acting involuntarily, under duress, or undue influence." See S.C. Code Ann. 26-1-120(B)(2) (Supp. 2023). Additionally, and importantly, "[a] notary may not perform a notarial act if the principal or subscribing witness is not in the notary's presence at the time the notarial act is performed." S.C. Code § 26-1-90(c)(1) (Supp. 2023).

On August 16, 2022, Decedent purportedly signed the change of beneficiary form removing Willis Sr. and designating Barney as Decedent's sole beneficiary of death benefits. Willis Jr. was the subscribing witness to the change of beneficiary form that Ms. Collins notarized. However, Ms. Collins arrived at the Jordan house in the early afternoon and only recalled seeing Barney, his wife, and his son at the house. Importantly, Ms. Collins did not mention that Willis Jr. was present at the time the notarial act was performed until it was brought to her attention that he was the subscribing witness to the form. She also did not indicate Ms. Moseley was present that day. Finally, based on Ms. Collins's testimony, the form was signed by Decedent around 2:30 p.m.

Accordingly, based on the cumulative testimony of Barney, Willis, Jr., Ms. Mosely, and Ms. Collins, the evidence established that the subscribing witness to the change of beneficiary form, Willis Jr., was not present until after the Decedent signed the form and the form had been notarized. Notably, Respondent Jordan does not dispute the fact that Willis Jr. is the subscribing

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witness. Still, he argues that Willis Jr. was not needed as a subscribing witness to the change the beneficiary. Indeed, the change of beneficiary form provides that a witness is only required if the form is "signed by mark." Because the Decedent did not sign by mark, Respondent Jordan argues a witness was not necessary. Thus, Respondent Jordan argues that even if Willis Jr. was not present when the form was notarized, the change of beneficiary form would still be effective.

Significantly, however, the form also states that "FORMS ALTERED IN THE BENEFICIARY DESIGNATION OR CERTIFICATION SECTIONS WILL NOT BE ACCEPTED." Thus, it is completely reasonable to reject a form if it was altered after it was properly executed. Here, because the evidence establishes that Willis Jr. was not present when the form was signed and notarized, the addition of Willis Jr.'s signature altered the certification section of the form. Furthermore, the law provides "[a] notary may not perform a notarial act if the principal or subscribing witness is not in the notary's presence at the time the notarial act is performed." S.C. Code § 26-1-90(c)(1) (Supp. 2023). Since Willis Jr.'s signature was added after Ms. Collins notarized the change in beneficiary form, the legal effect of her notarization is undermined because the subscribing witness was not present when Ms. Collins executed her duties. See id. Indeed, if the form was accepted with the addition of Willis Jr.'s signature, it could be argued that Respondent Jordan committed fraud against PEBA and the notary.

Consequently, the Court finds that the change of beneficiary form designating Barney as Decedent's beneficiary was not properly executed. As such, Decedent's SCRS service retirement application filed with PEBA on March 19, 2019, in which she designated Willis Sr. as her beneficiary for any death benefits payable from SCRS upon her death, is valid. Although my decision on this issue is dispositive of the case, I will address the remaining issues as well.

Mental Capacity

A change in beneficiary form is considered a legal document, or a contract, between the retired employee and the entity offering the benefit. Therefore, the relevant standard for capacity when a retired employee signs a change of beneficiary form is a contractual standard.

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Parties executing a contract in South Carolina must possess the requisite mental capacity. Rouvet v. Rouvet , 388 S.C. 301, 696 S.E.2d 204, 209 (S.C. Ct. App. 2010). To have the mental capacity required to execute the change in beneficiary form, the Decedent must understand or comprehend the subject of the contract, its nature, and its probable consequences. See Cathcart v. Stewart, 144 S.C. 252, 261, 142 S.E. 498, 500-02 (1928); Du Bose v. Kell, 90 S.C. 196, 207-08, 71 S.E. 371, 376 (1911). "[A] 'transaction may be so improvident and unreasonable as in itself to justify the inference of mental incapacity or undue influence or both.'" Avant v. Johnson , 231 S.C. 119, 123-24, 97 S.E.2d 396, 398 (1957) (quoting Page v. Lewis, 209 S.C. 212, 240, 39 S.E.2d 787, 799(1946)). The party alleging incompetence bears the burden of proving incapacity " at the time of the transaction" by a preponderance of the evidence. Grapner v. Atl. Land Title Co., 307 S.C. 549, 551, 416 S.E.2d 617, 618 (1992) (emphasis added).

"It is a well-settled principle of law that mental incapacity need not be so complete as to dethrone reason in order to render it impossible for one to make a contract, or a valid gift. Such unsoundness or weakness of mind as makes grantor unable to understand the subject of the contract and its nature and consequences is enough." Du Bose at 207-08, 376 ; see also Hagin v. Barrow, 103 S.C. 453, 88 S.E. 299 (1916). On the other hand, "[m]ere infirmity of mind or body, not amounting to incapacity to understand the nature of the act, is insufficient to render a deed void." Vereen v. Bell , 256 S.C. 249, 182 S.E.2d 296 (1971).

There is certainly a question as to Decedent's mental capacity on the day she signed the change in beneficiary form. Indeed, Decedent's medical records and the testimony of the HOH nurses reflects that Decedent's mental capacity was compromised at various times. Interestingly, August 16 , the day Decedent signed the change in beneficiary form, is the only day the hospice care did not visit Decedent Consequently, there are no hospice records evaluating her mental and/or physical capabilities on the day the form was signed. Accordingly, Ms. Collins's uncontested testimony that Decedent signed the change of beneficiary form without any assistance, and that she knew the significance of signing the form, is the only evidence before the Court concerning Decedent's capacity at the time the form was signed. Thus, there is no evidence Decedent lacked mental capacity to change a beneficiary at the time of the transaction. See Grapner v. Atl. Land Title Co., 307 S.C. 549 . Significantly, Petitioner admits it "has simply not shown incapacity at the time of the signing the document, which is required." (emphasis in

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original). Therefore, I conclude Petitioner failed to show by a preponderance of the evidence that Decedent lacked mental capacity to sign the change in beneficiary form.

Undue Influence/Coercion/Duress

"Undue influence may be proved by circumstantial evidence, but the circumstances relied on to show it must be such as taken together point unmistakenly and convincingly to the fact that the mind of the testator was subjected to that of some other person, so that the will is that of the latter and not of the former." Havird v. Schissell, 252 S.C. 404, 410-11, 166 S.E.2d 801, 804 (1969) (citations omitted). "Generally, in cases where a [document] has been set aside for undue influence, there has been evidence either of threats, force, and/or restricted visitation, or of an existing fiduciary relationship." Russell v. Wachovia Bank, N.A ., 353 S.C. 208, 217, 578 S.E.2d 329, 333 (2003).

"The coercion necessary to invalidate a [contract] on the ground of undue influence must be the kind of mental coercion which destroys the free agency of the creator . . . and constrains him or her to do that which is against his or her will and what he or she would not have done if he or she had been left to his or her own judgment and volition ." Macaulay v. Wachovia Bank of South Carolina, N.A., 351 S.C. 287, 569 S.E.2d 371 (Ct. App. 2002).

In order to establish that a contract was procured through duress, three things must be proved: (1) coercion; (2) putting a person in such fear that he is bereft of the quality of mind essential to the making of a contract; and (3) that the contract was thereby obtained as a result of this state of mind. Holler v. Holler , 364 S.C. 256, 612 S.E.2d 469 (Ct. App. 2005) (citing In re Nightingale's Estate , 182 S.C. 527, 189 S.E. 890 (1937)). "The central question with respect to whether a contract was executed under duress is whether, considering all the surrounding circumstances, one party to the transaction was prevented from exercising his or her free will by threats or the wrongful conduct of another." Holler , 364 S.C. at 266-67, 612 S.E.2d at 475. Section 174 of the Restatement (Second) of Contracts provides that physically compelled duress "results in there being no contract at all, or a 'void contract' as distinguished from a voidable one." Restatement (Second) of Contracts §174, Comment (a) (1979).

Petitioner alleges Barney withheld medication from Decedent and this withholding unduly influenced, coerced, or forced Decedent under duress to sign the change of beneficiary form. Decedent lived with Barney for years and relied on him for all daily living activities, thus indicating the kind of relationship that could be subject to abuse. PEBA records also show that

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Barney initiated multiple calls to inquire about beneficiary information and that he submitted documentation to PEBA to effectuate the beneficiary change on August 18, two days before Decedent died. Additionally, Barney provided Decedent with morphine on most days, but refused to administer fentanyl patches to make her more comfortable, allegedly to ensure she would have a "clear mind" to sign legal forms, including the change in beneficiary form. Finally, Barney stopped giving Decedent oxygen the day after she signed the change of beneficiary form, and she died shortly thereafter.

Thus, the evidence before this Court does not paint a rosy picture of the Decedent's final days and the care she received from some members of her family. However, the Court does not find Barney's wanton actions rise to the level of undue influence, coercion, or duress. Barney did not completely withhold pain medications from Decedent. Although withholding fentanyl, which would medically recommended by the HOH nurses, and which would have made Decedent more comfortable, was wrong in the eyes of this Court, it does not amount to coercion without evidence that the withholding of the medicine was used to manipulate Decedent's will and agency. See Havird, 252 S.C. at 410-11, 166 S.E.2d at 804. Similarly, while Barney stopped giving Decedent oxygen the day after she signed the change of beneficiary form, and this conduct is certainly subject to a negative inference about the reason for stopping the administration of oxygen, this act does not prove coercion since the form was already signed. Therefore, Petitioner failed to show through a preponderance of the evidence that Decedent was under duress, undue influence, or coercion from Barney when she signed the change of beneficiary form. Indeed, Ms. Collins attested to the fact that it was Decedent's desire to change her beneficiary.

CONCLUSION

I conclude the change in beneficiary form signed by Decedent on August 16, 2022, was not properly executed, making the form invalid. Thus, Decedent's SCRS Service Retirement Application filed with PEBA on March 19, 2019, in which she designated Petitioner Willis B. Jordan Sr. as her sole beneficiary, is still valid. As a result, Petitioner Willis B. Jordan Sr. is the proper beneficiary for death benefits payable from SCRS. Because SCRS funds have already been distributed to Respondent Wilton Barney Jordan, Respondent Wilton Barney Jordan must remit a payment of $16,887.06 to PEBA within twenty (20) days of the date of this Order. Thereafter, PEBA will distribute the death benefits payable from SCRS to the proper beneficiary, Petitioner Willis B. Jordan Sr.

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Regarding Petitioner's arguments on competency, capacity, undue influence, duress, and coercion, the Court finds Petitioner failed to meet his burden of proof. See § 1-23-600(A)(5); see also Anonymous (M-156-90), 329 S.C. at 375-78, 496 S.E.2d at 19-20.

ORDER

IT IS HEREBY ORDERED that the change of beneficiary form signed by Decedent on August 16, 2022, designating Respondent Wilton Barney Jordan as her sole beneficiary for her death benefits payable from SCRC is invalid.

IT IS FURTHER ORDERED that Petitioner Willis B. Jordan, Sr., is Decedent's sole beneficiary of her death benefits payable from SCRS pursuant to Decedent's SCRS Service Retirement Application filed with PEBA on March 19, 2019.

IT IS FURTHER ORDERED that Respondent Wilton Barney Jordan must remit payment of the improperly distributed death benefits, in the amount of $16,887.06, to PEBA within twenty (20) of this Order. Failure to comply will result in Respondent Jordan being held in contempt of this Court.

IT IS FURTHER ORDERED that when PEBA receives the above-ordered payment from Respondent Wilton Barney Jordan, PEBA shall distribute the death benefits payable from SCRS in the amount of $16,887.06 to the proper beneficiary, Petitioner Willis B. Jordan Sr. within twenty (20) days of receipt of the funds.

AND IT IS SO ORDERED .

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CERTIFICATE OF SERVICE

I, Stephanie Perez, hereby certify that I have this date served this Order upon all parties to this cause by depositing a copy hereof in the United States mail, postage paid, or by electronic mail, to the address provided by the party(ies) and/or their attorney(s).

Ms

Stephanie Pe ez Judicial Law Clerk May 30, 2024 Columbia, South Carolina

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