ATLANTA — Day 10 of testimony in the Tex McIver murder trial has wrapped up.
McIver, an Atlanta attorney, is accused of intentionally killing his wife, Diane, as they rode in their SUV in Sept. 2016. McIver claims the shooting was an accident.
Today the trial is entering its third week of testimony. So far the prosecution has struggled to show proof of Tex McIver’s alleged financial motive to murder his wife. On Friday, the prosecution was able to show Tex seemed preoccupied with money in the days and weeks after his wife’s death. Much of Monday’s testimony focused on Tex McIver’s rewrite of his own will following his wife’s death, and reports that Diane may have rewritten hers in recent years.
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Diane McIver wanted the ranch to go to the McIver’s godson Austin Schwall, Hudson said.
Defense attorney Clint Rucker is asking estate attorney Harold Hudson: “The way the ranch was owned, she couldn't leave the ranch to Austin (Schwall, their godson)?”
Hudson: “Correct. It was held jointly and was going to go to Tex.
Rucker: “So if she wanted to leave the ranch to Austin, there needed to be a change in ownership?”
Hudson: “Unless Tex died first.”
Hudson said in 2009, Tex McIver signed papers to make a change in his will. The change was that if he died first and Diane survived him, she would get all his interest in the ranch and business interest they shared. It did not specify what would happen with the ranch and business, McIver Enterprises LLC, if she were to die before Tex. The new, 2016 will of Tex McIver that has been mentioned in earlier testimony today was not prepared by Hudson.
Following Diane McIver’s death, Hudson was asked for a copy of Diane McIver’s will, but could not locate it.
An empty file folder was located labeled “LWT Diane,” LWT being an abbreviation for last will and testament. Hudson said sometimes when new estate planning clients were taken in, the folders would be made in advance. Hudson did locate a copy of her original 2006 will in his email but that it appears the couple and the planner could not hammer out a new will.
Prosecution is showing emails between the McIvers and Hudson from January 2011, when the couple had arranged a time to review their will.
Diane wrote to Tex McIver in an email string that she was not going to waste the time of her personal attorney until she and Tex could agree what they were planning to do with the rewrite of their wills.
Tex McIver wrote on Jan. 26, 2011, 1:31 p.m.
“Upon what do we NOT agree?”
Diane McIver wrote back at 1:36 p.m.:
“That i am not going to leave my half of the ranch to your estate.”
Hudson testified earlier that Diane McIver had wanted to leave the ranch to her godson, Austin Schwall, when she died -- not after both of them had died. Hudson said he can’t recall what Tex McIver wanted to do differently, but one of the emails made mention of Tex’s youngest son inheriting the ranch.
There has been a protracted huddle between the judge and attorneys for both sides concerning Hudson’s testimony and some emailed correspondence he had with the McIvers back in 2011. Hudson is now back on the stand.
Now sworn in, Harold Hudson, an estate attorney and financial planner for the McIver wills. He met Tex McIver in 2009 and helped them do estate planning. His role was to look at their current wills and talk to them about changes they wanted to make. He said he never completed new wills for either of the McIvers.
“Tex and Diane appeared to be very, very, very busy people so getting them to come back and go over these issues seemed to be diffiult,” Hudson said. There were a number of appointments made to review their wills, and a number canceled, sometimes on the morning of the appointment.
They had a disagreement over the way the ranch property near Eatonton was held, he recalled. Each had a 50 percent share of the ranch. Hudson remembers they wanted a way to provide for their godson in the arrangement after both of them were deceased.
Prosecution attorneys have produced a hand-written note from Tex McIver to his wife, listing her contributions to some shared expenses that he had not matched: $25,000 to the wedding account; $20,000 toward construction and $10,000 toward the farm. His letter read: “I understand it’s my obligation to either repay or match these contributions as soon after the wedding as possible.” A barn and “saloon” were built at the ranch in advance of the couple’s extravagant wedding.
Styles is recalling that she spent one year planning the McIvers’ wedding in November 2005 and that it cost over six figures. When the Diane and Tex got together, “They loved each other dearly” for the entire time they knew each other.
“When Tex came into Diane’s life, it was like she had a partner for the first time.”
When Styles first saw Tex McIver following Diane’s death, Styles testified, he “was crying uncontrollable. Could not speak. He spent a lot of time in his bedroom and alone. Several times when I would go into the room to check on him, he would be sobbing.”
She also said that Tex McIver’s doctor put her in charge of dispensing some anti-anxiety medicine prescribed for him; the doctor worried about his state of mind, she said.
Her observations run contrary to testimony from Dani Jo Carter and others that Tex seemed to not react with emotion following his wife’s death.
Much has been made of what the prosecution alleges is a missing “new” will that Diane McIver drew up two or three years before her death. That will has not been located, but an older will, written in 2006, is in effect. At the time the older will was drawn up, the McIvers’ godson Austin Schwall had not been born.
Styles is testifying that she spoke to Diane McIver about her will in late 2014 to early 2015. “She said, ‘I need you to make some copies of these papers. I cannot trust anyone else.” When Styles returned the copies, McIver replied “Thank you so much. This is my new will.” Asked if she looked at the papers, Styles said she did not. “There was no way I was going to betray her trust.” Styles said she has never seen that will again.
On the stand is Rachel Styles, a retired former employee of Corey Enterprises, and friend of Diane McIver since the late 1970s. She worked at Corey Enterprises and was bookkeeper for the McIvers, helping with tax filing each year until 2016.
Styles says Tex called her to the Buckhead condo on the day after Diane McIver died. She spent the night there that night, Monday Sept. 26, 2016, and began working to help plan the funeral the following day.
The court has taken a break for lunch. They will resume at 1:35 p.m.
Before that recess, Rucker implied that Schwall is loyal to Tex McIver and the defense team. He noted that the prosecution learned from Schwall that Tex McIver had drawn up another will soon after his wife’s death. That will handed most of his assets to Schwall son.
The prosecution made much of Austin Schwall’s close relationship with Diane McIver. But Harvey is hammering home the point that Austin was just as attached to Tex McIver. Both godparents were deeply embedded in the boy’s life, Harvey said.
“There’s no distinction in young Austin’s mind or life between Diane McIver and Tex McIver.
“Yes,” she replied.
Harvey is also undercutting sensational testimony last week in which an employee of Diane McIver’s said he saw Tex McIver’s masseuse wearing his dead wife’s rain boots at the ranch. Harvey showed a picture of a closet at the ranch with a row of rain boots. Schwall explained that they were available for visitors of the ranch to use, particularly if they were riding horses.
Defense lawyer Bruce Harvey is now cross examining Schwall. His questioning makes clear that Tex McIver left nearly his entire estate to Austin Schwall. Anne Schwall says that Tex McIver told her he was following Diane McIver’s wishes when he drew up the new will after her death. And he believed it was the only way he would get into heaven.
“Through the pearly gates, yes,” Anne Schwall said.
Prosecutor Clint Rucker reminds Anne Schwall that when she first met with the district attorney’s office she said she was “uncomfortable.”
Schwall acknowledges on the stand that she still had warm feelings for Tex McIver, who has been like a father figure.
His new will is now being discussed. In the document, he leaves his son Robbie $500,000 and omits his other two children entirely.
The fate of the McIvers’ Putnam County ranch is again the focus of prosecution questioning.
“She (Diane) did tell me that she wanted Austin to have the ranch,” Anne Schwall said.
In the will Diane McIver drew up in 2006, Austin wasn’t named to get the ranch, or anything at all, Prosecutor Clint Rucker said.
In a conversation following Diane’s death, Tex McIver broached the subject, Anne Schwall said.
“He said his biggest regret is that they did not have a chance to change their wills, to update their wills,” she testified.
Soon after that, she said, Tex McIver changed his own will to include Austin.
When Austin Schwall visited the McIvers’ ranch he would sometimes encounter the couple’s guns, Anne Schwall testified.
She said Tex McIver taught him about gun safety and they would sometimes shoot at armadillos.
Anne Schwall said she wanted her son to wait until he was 13 to fire a real gun.
When prosecutor Clint Rucker asked whether Austin had fired a gun at the ranch in violation of her wishes defense lawyer Bruce Harvey objected. The line of questioning ended.
Anne Schwall, mother of the McIvers’ godson Austin, is on the stand. She is describing the close relationship that developed between Diane and Austin, who is now 11.
“He adored her. She poured so much love into him and he did the same,” Schwall said.
After the lawyers finished questioning Corey, a juror asked whether Corey had ever asked Tex McIver directly what happened in the SUV.
“No,” Corey replied.
Prosecutor Adam Abbate then followed up.
“Why not? he asked
“I figured if he wanted to tell me what happened to her,” Corey paused.
“Hell, I knew what happened to her, he shot her in the back,” he finished.
Defense lawyer Amanda Clark Palmer was up next. She reminded Corey that he had learned about what happened in the SUV after talking to Dani Jo Carter, who was driving that night. Palmer said that Carter had said it was an accident.
Corey replied firmly. Yes, he had heard what happened from Carter but no, Carter had never said it was an accident.
Corey wiped away tears after describing for the jury the “celebration of life” service for Diane McIver that his company had hosted three or four weeks after her death.
Diane would have “done the same for me,” he said.
On the morning of the shooting, Corey said Tex McIver called him and said Diane had been killed in a firearms accident.
“I was shocked,” Corey said.
A few nights later Corey was among the friends who gathered at the McIvers’ Buckhead condo.
At one point Corey was alone with Tex McIver in the wine room.
“We sat down on the sofa in that room,” Corey said “I said ‘Tex, you know, I think you ought to take all this jewelry Diane has ...and put it in a safe deposit box.”
Corey says McIver didn’t reply. Tex McIver would eventually go on to sell most of his dead wife’s belongings at an estate sale.
Under questioning from the prosecution, Corey said he didn’t care much for guns and hadn’t participated in the sport shooting that often took place at the ranch. Corey said he said “no idea” if Tex McIver was a skilled shooter.
Corey also described Diane McIver’s relationship with her godson, Austin Schwall. The boy called her “Mamma Di” and Diane paid for his nursery and tutoring. Corey also suggested that the McIvers’ Putnam County ranch was Austin’s.
Diane McIver’s longtime boss and mentor, Atlanta businessman Billy Corey, is on the stand. Corey founded U.S. Enterprises, the billboard business which Diane eventually ran. The company’s most visible landmark is the Corey tower, which rises above the Downtown Connector.
Corey testified that he had known Diane more than four decades and the two were close.
“She was more like a relative ....like a sister,” he said.
Corey said when Diane McIver started with the business she was “timid and had pig tails.”
Eventually, he said, she promoted herself to president.
“She just grew with the business,” Corey said.
Corey described Diane as beautiful, intelligent and shrewd.
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