Austin Schwall was so close with Diane McIver that he called her “Mommy Di.” But despite that close bond, the godson of Diane and Claud “Tex” McIver may not be entitled to settlement funds from a wrongful death case brought by Diane McIver’s estate, its administrator suggests in a new lawsuit.
Estate administrator Mary Margaret Oliver, a state representative, has asked a DeKalb County judge to determine the proper distribution of the funds. She says the money should go to Diane McIver’s remaining heirs, according to state law.
Diane McIver was fatally shot by her husband, Tex McIver, in September 2016 as they were being driven through Atlanta by Diane McIver’s friend, Dani Jo Carter. Tex McIver pleaded guilty in January to involuntary manslaughter, after the Georgia Supreme Court overturned his murder conviction and life sentence following a 2018 trial.
While the criminal case was playing out, a lawsuit was brought by Oliver against Tex McIver and Carter claiming their negligence caused Diane McIver’s death. That wrongful death case was settled for a confidential sum in early 2020, while Tex McIver was in prison.
Now Oliver, who has overseen Diane McIver’s estate since July 2017, wants to know whether any settlement money should be paid to the McIvers’ godson, Austin Schwall, and his brother, Craig Schwall Jr.
As part of his plea deal, Tex McIver assigned any rights he may have to the settlement funds to the Schwall brothers’ father, Fulton County Superior Court Judge Craig Schwall Sr., for the brothers’ benefit. Austin and Craig Schwall Jr. are minors, according to Oliver’s May 30 complaint.
Credit: Miguel Martinez
Credit: Miguel Martinez
“I have to make sure that Tex McIver had the legal authority to assign funds,” Oliver told The Atlanta Journal-Constitution.
In her lawsuit, Oliver said Tex McIver has no valid claim to the settlement proceeds under Georgia law and therefore “has nothing to be able to assign.” She said she found 21 first cousins of Diane McIver and that the money should be distributed among Diane McIver’s remaining heirs.
Diane McIver, 64, was a wealthy corporate executive with no children. She married Tex McIver, an attorney, in 2005.
There are 34 people identified in the lawsuit as Diane McIver’s “next of kin.” Those individuals live in Georgia, Alabama, Tennessee, Florida, Texas and Ohio, according to the complaint.
Oliver said the 34 people include the children of Diane McIver’s first cousins who are now deceased.
Austin Schwall was 10 when Diane McIver died. Although he was commonly referred to as the McIvers’ godson, Oliver said she doesn’t believe there was ever any formal designation.
“But they had a relationship with Austin that was extensive,” she said Monday. “He was very much a part of their lives.”
Credit: ALYSSA POINTER/ALYSSA.POINTER@AJ
Credit: ALYSSA POINTER/ALYSSA.POINTER@AJ
During Tex McIver’s criminal trial, several witnesses, including Austin Schwall’s mother, Anne Schwall, testified that Diane McIver had planned to leave much of her estate to Austin Schwall. That included Diane McIver’s share of the 85-acre ranch that she and Tex McIver had in Putnam County, which sold at auction for $1 million in August 2018, alongside its vast collection of contents.
Most of Diane McIver’s personal possessions, including more than 2,000 items of clothing, costume jewelry and accessories from top designer brands, were sold in December 2016 during a five-day estate sale. Her most expensive pieces, including diamond-studded gold earrings, an 18k gold Rolex watch set with 100 diamonds and a gold and diamond tennis bracelet, were auctioned in January 2017.
Credit: Steve Schaefer
Credit: Steve Schaefer
Amanda Clark Palmer, an attorney for Tex McIver in his criminal case, said her client took no position on whether he was entitled to any of the wrongful death settlement funds. That was outside the purview of the criminal case, she said.
Tex McIver, whose eight-year prison term ends in mid-2025, is tentatively due to be released on parole in March, Clark Palmer said.
Oliver said she’s kept the settlement money in an escrow account. She wants clarification about how to properly distribute it under Georgia law, which generally prevents someone from benefiting off the death of a person they kill.
Tex McIver, 81, said in January that he will always love Diane McIver, who was the best friend he ever had and the best partner he could imagine.
“She died as a result of my actions, plain and simple,” Tex McIver said at his sentencing hearing. “I’ve worn my wedding ring since the day we were married and I intend to wear it until the day I die. I hope we’re at a point where we’re not judging each other and we can all move on. She’s my angel and she’s waiting for me in heaven.”
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