April 2, 2013 § 3 Comments

The COA decision in Estate of Necaise: Covington v. McDaniel, decided March 12, 2013, addresses the question whether a judgment creditor of the potential heirs of an estate has standing to assert a claim against the estate.

Lawrence Covington probated a claim against the estate of Darryl Necaise, Sr., based on a $1,000,000 judgment he had obtained against three of the decedent’s heirs in the Circuit Court of Yalobusha County. The proceedings are convoluted, involve three separate appeals, all consolidated, and even a separate circuit court proceeding. For our purposes, however, we are focusing on the sole issue of Covington’s standing to assert a claim against the estate when the judgment forming the basis of his probated claim was against some of its heirs, and not against the decedent or the estate itself.

Judge Carlton, for the court, spelled out the answer:

¶23. Covington’s appeals regarding the findings of the chancery court primarily arise out of his claim to be an interested party to the probate proceedings and the contest of Darryl Sr.’s will based upon his pecuniary interest in his judgments against potential heirs of the Estate. In support of his argument, Covington relies on Mississippi Code Annotated section 91-7-25 (Rev. 2004), which states that “[i]n any proceeding to contest the validity of a will, all persons interested in such contest shall be made parties.” Significantly, Covington does not assert on appeal that a judgment was entered against the Estate or Darryl Sr., the decedent.

¶24. Relying upon precedent, this Court recognizes that “[i]nterested parties are those whose direct[] pecuniary interests will be either detrimentally or advantageously affected by the probate of the will. Included in this group will ordinarily be [the] decedent’s heirs at law, beneficiaries under earlier wills, and beneficiaries under the will being contested.” Garrett v. Bohannon, 621 So. 2d 935, 937 (Miss. 1993) (emphasis added and citation omitted). With respect to the claim asserted by Covington, we find that Covington failed to prove he possessed a direct pecuniary interest against the Estate. Moreover, the only heir named in Darryl Sr.’s will, McDaniel, never contested the will. In fact, McDaniel, as the executor, had Darryl Sr.’s will admitted to probate; she possessed no duty to notice any parties except creditors of the Estate, which she alleges she accomplished by publication as required. As previously discussed, Darryl Sr.’s former spouse abandoned any intent to contest the will admitted to probate.

¶25. Covington asserts no direct pecuniary interest in the probate of the Estate. Covington is not a creditor of the Estate and identifies no debt or expense owed to him by the Estate or Darryl Sr., the deceased. Further, Covington is not an heir-at-law of the decedent nor a named beneficiary in any will alleged to have been executed by the decedent. In fact, Covington is not a judgment creditor of the sole heir of the estate, McDaniel. Therefore, Covington fails to establish standing to assert a will contest that would never result in him being a beneficiary of the assets of the Estate. His only connection to the Estate is that he tried, yet failed, to obtain a judgment against Darryl Sr. and the Estate. As such, we find this issue to be without merit.

An interesting twist in this case is how Covington attempted to assert himself into the proceedings as to the validity and enforceability of the will itself. I had never seen a party claiming to be a judgment creditor try to assert those kinds of issues in the probate of an estate.

Chancellor Vicki Cobb apparently considered the issue of standing so clear-cut that she assessed sanctions against Covington. You might want to add the possibility of sanctions into the equation before you leap into filing something similar yourself.

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  • Bob Wolford says:

    Judge, I have a question- section 91-7-145 requires that the executor of an estate (or administrator as the case may be) publish notice to creditors in the local paper upon the filing of his affidavit of known creditors. I am working on a case in which the affidavit was filed with the Court either during or after publication in the local paper, so the sequence of filing the affidavit and commencing publication is not exactly in keeping with the statute. Is this a problem, and if so, is there a way around it without re-publishing all over again, thus delaying the closing of the estate by at least 100 days (90 days for publication and at least another 10 days to get back in front of the court). Thanks.

    • Larry says:

      There is a case that specifically says that an affidavit not filed before publication is a nullity. I am on break from court right now and don’t have time to look it up, but I do believe I did a post on it.

      • Bob Wolford says:

        I just read Estate of Petrick, and that case appears clear that the affidavit must be filed prior to publication, or the publication is not valid. I’ll search for your prior post on the subject, thanks Judge.

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