WHO RETAINS THE ORIGINAL OF A PROBATED WILL?
August 26, 2010 § 13 Comments
Twice this summer, the deputy Chancery Clerks in Lauderdale County have been confronted by lawyers wanting to probate original wills and demanding to retain the original. One was from another district with large cities to our west, and the other was, I am sad to report, from closer to home. The clerks, I am glad to report, stood their ground and demanded the original for filing. Both lawyers condescendingly made it clear that our clerks are backward ignoramuses, and one went so far as to say that ours is the only district that makes the ridiculous demand for the original will. Which is where I was called in — apparently it is the Chancellor’s role to determine as between eminent lawyers and lowly clerks just who is the backward ignoramus.
Now, in all my years in the law, I had never heard of a lawyer in Mississippi retaining an original will after its admission to probate. But then again, we are more or less country peasants in this part of the state, and some things do pass us by. As is my anachronistic, unsophisticated practice, I sought for the answer in that arcane repository of gnostic mysteries of the law that remain so seemingly inaccessible to most practicing attorneys: The Mississippi Code.
It only took me a few minutes to leaf directly to Section 91-7-31, MCA, which states:
All original wills, after probate thereof, shall be recorded and remain in the office of the clerk of the court where they were proved, except during the time thay may be removed to any other court under process, from which they shall be duly returned to the proper office. Authenticated copies of such wills may be recorded in any county in this state.
So there you have it. The statute unambiguously requires that the original must be surrendered to the clerk of the court where the will is probated, and the clerk is responsible to record it and keep it.
Even though the truth revealed in the statute would seem to be clear, I realize that I do learn something new each day, and I posited to myself that there might be some angle to this issue that was known only to these superior attorneys that neither I, nor the state legislature, nor nearly 200 years of Mississippi jurisprudence had taken into account. Accordingly, I raised the question at the Chancery Judges’ study meeting last weekend whether any judges were aware of any districts where the statute was not being followed, or of any exception to the rule, and the unanimous response was no.
In our own, primitive way here in the hinterland, we try to follow the law, and when we do so, we will look first to the Mississippi Code and the Chancery Court Rules and not to the lawyer’s interpretation. We know that is a backwards and so 20th-century approach, but that is the old-fashioned way we still do it. We apologize if that offends your more cosmopolitan sensibilities that may not allow you time between workouts at the gym to look up the law. If our humble practice is too “slow lane” for you, perhaps you should pass that estate off to a local lawyer who is more accustomed to our rustic ways.
Practice Tip: (1) Read and know the law. (2) Apply Practice Tip (1) before acting like a jerk toward the Chancery Clerks. Oh, and while you’re at it, refresh yourself on the Mississippi Lawyer’s Creed, especially that part that reads: “To the courts, and other tribunals, and to those who assist them, I offer respect, candor, and courtesy. I will strive to do honor to the search for justice.”
The Better Chancery Practice Blog 
[…] This unfortunate episode illustrates what that sage chancellor, Frank McKenzie of Laurel, aptly characterizes as “Contempt of clerk.” It’s conduct that I’ve described here before. […]
[…] The original will must be probated and retained by the clerk. […]
Ha! You caught me doing some research and reading your blog during the holidays!
I have yet to have a clerk in one of those counties with near the big city to the West not demand the original will in probate. Just sayin’.
Happy New Year!
Wow. Just wow.
[…] This unfortunate episode illustrates what that sage chancellor, Frank McKenzie of Laurel, aptly characterizes as “Contempt of clerk.” It’s conduct that I’ve described here before. […]
[…] The original will must be probated and retained by the clerk. […]
[…] In addition, because they are intimately involved in the day-to-day operations of the court system, they often know more about their particular area of expertise than the attorneys. This point was recently made with more than just a hint of sarcasm by Mississippi’s 12th District Chancellor on his blog. His story involves lawyers, but I am aware of many instances where paralegals have gone in with the same – very unprofessional – attitude and came out with the same egg on their faces. On the assumption that the judge won’t mind, I’m including the whole post here, but you can definitely take the time to review other posts, especially his “Trial by Checklists” posts, on his blog. […]
Update:
My Court Administrator was informed today by a lawyer in a large city on the Gulf Coast that: “There’s no law in Mississippi that requires the administrator of an estate to have an attorney”.
Obviously this poor lad has never heard of Rule 6.01, Uniform Chancery Court Rules.
… and the beat goes on.
These lawyers do not really understand the long-term consequences of contempt of clerk.
The consequences are dire and can not be published in polite company. Lord have mercy on their souls.
okay Judge… you know we’re all going to want to know who the lawyers were… so get ready for us to ask!
Looking forward to your talk at the Lauderdale Bar lunch… perhaps you can enlighten us more there as to who the lawyers were?
They held themselves out as members of the bar. That’s all I need to say about that!