Fulton County prosecutors have at least five reasons to argue that Diane McIver drew up a new will before her husband killed her.
Before Atlanta attorney Claud “Tex” McIver shot his wife to death in 2016, Diane McIver told as many as five people—including three friends and two employees at Corey Airport Services where she was the company president—that she drew up a new will and named new beneficiaries, according to prosecutors.
In a notice of their intent to introduce hearsay evidence at Tex McIver’s ongoing murder trial, prosecutors cited emails showing that, for at least three years before he shot his wife, the couple wrangled with Atlanta lawyer Harold Hudson over the terms of her new will.
Diane McIver also told two people at Corey Airport Services that her husband’s salary as a Fisher & Phillips partner was cut, and that she was “tired of carrying Tex,” prosecutors said.
Prosecutors never found a new will.
The hearsay testimony about Diane McIver’s alleged new will and her husband’s finances would bolster prosecutors’ contention that Tex McIver had a financial motive to shoot his wife and that her death was not the accident he and his lawyers claim. Jury selection began Monday.
McIver’s defense team has filed a motion asking Fulton County Superior Chief Judge Robert McBurney, who is presiding over the trial, to exclude the hearsay prosecutors want to introduce.
The will on file in Fulton County Probate Court was signed in 2006, shortly after the couple married. In it, Diane McIver made Tex McIver her executor. She also bequeathed him her share of the couple’s Putnam County ranch and all furniture, art and furnishings at the double condominiums she owned.
That will also left her husband, or his estate if he did not survive her, her wedding ring. It gave Tex McIver her interest in an investment group, DRS Investments Inc., that she set up with a Corey colleague prior to her marriage.
Although she designated Corey general counsel Kenneth Rickert as trustee of all her other properties and assets, she directed that net income from those properties go to her husband to provide for his support “in his accustomed manner of living.”
After five years of marriage, Diane McIver apparently changed her mind.
In 2011, she and her husband began working with Hudson to substantially revise her will, according to email exchanges between Hudson and the McIvers on file in the murder case. Prosecutors said Diane McIver told longtime friend Dani Jo Carter, “I updated my will and left you money.”
Carter was driving the McIvers’ SUV as the trio returned from a weekend at the couple’s ranch when Tex McIver shot his wife with a gun he stored in the SUV’s console.
Diane McIver told friend and neighbor Janie Calhoun and also Anne Schwall, the mother of the McIvers’ godson, Austin, “I am leaving the ranch and everything else I have to Austin.”
Austin is the son of Fulton County Superior Court Judge Craig Schwall. Anne Schwall is the judge’s ex-wife.
Diane McIver also told Calhoun, “I am leaving you $100,000,” prosecutors said in the notice.
Diane McIver also identified her “new will” for her executive assistant, Terry Brown, according to the notice. And, after asking her friend and longtime bookkeeper, Rachel Styles, to copy a sheaf of documents, she told Styles, “You just made copies of my new will.”
In a 2011 email obtained by prosecutors, Hudson spelled out the terms of Diane McIver’s new will. Her share of the ranch and the contents of her condominiums would still go to her husband. But if he did not survive her, they would pass into a trust for Austin Schwall.
Her share of DRS Investments Inc. and the condos would be held in trust for her husband, but if he did not survive her, they, too, would be held in trust for Austin.
The remainder of the assets held in trust would provide for her husband’s health, education, maintenance and support, as well as for Austin’s education. If Diane McIver outlived her husband, all would be held in trust for Austin and would be paid over to him when the child turned 30. Austin is not a beneficiary of the will now in probate.
Diane McIver also bequeathed $1 million to Calhoun, $100,000 to the couple’s housekeeper and $100,000 to a Corey handyman and his wife who also worked for the McIvers. According to Hudson, her new will would allow the ranch caretaker to continue to live on the premises as long as he still worked there. It bequeathed him $100,000 if he was no longer employed.
In a return email, Diane McIver had questions. She “had a problem” with the caretaker’s “deal.” She questioned the age at which Austin would inherit. She wanted to know why her husband’s son, via her husband’s estate, would get her wedding ring after she died. She wanted to know who got the ranch if she and her husband died together. And, she asked, “Why is my trust paying for Tex’s education at this time of his life?”
Three years later, the McIvers were still wrangling over the new will’s terms. In one email Tex McIver sent his wife about “Our Wills” on Feb. 26, 2014, he asked, “When can we finish them?”
By October that year, the couple communicated a renewed urgency to complete new wills. On Oct. 14, 2014, Tex McIver wrote to his wife and copied her assistant, “This would be such a good week to complete our wills,” although he added that he was unavailable two days that week. Diane McIver replied, “I agree. … But let’s get it done!”
More emails obtained by prosecutors suggest that by June 2016, just three months before he shot his wife, Tex McIver also was facing financial difficulties and was trying to refinance or acquire a second mortgage on a property he owned. “I am seriously trying to reduce my monthly expenses,” he wrote in a June 15, 2016, email to his wife. “Debt is my biggest obstacle right now. Plan on hitting the Lotto sometime next week.”
In her reply, Diane McIver suggested that her husband read the job description for their ranch caretaker. “That is your next life chapter,” she said, adding that it would “save you … moola.” And, she noted, “You will be standing there with your hand out when I get in the door.”
“Oh well,” Tex McIver replied, “back to Gigoloing.”