What to do in an Administration When a Will Pops Up
April 30, 2014 § 2 Comments
You have opened administration of an intestate estate, and things are moving smoothly along. Your administratrix pops in one day and plops a document on your desk. “What’s this?” you ask. “Pop’s will,” she says. “Crap,” you think.
It happens now and then that a will surfaces in the midst of an intestate estate. It’s a common enough occurrence that there is even a statute telling us what to do when that happens. MCA 91-7-87 says:
If a will shall be found and probated and letters testamentary granted thereon, the same shall be a revocation of the administration; but acts lawfully done by the administrator without actual notice of such revocation shall be valid and binding.
The statute requires that the will be admitted to probate and letters testamentary issued before the administration is revoked.
If there is serious doubt as to the validity of the will, it would be best to file a caveat against probate and proceed per MCA 91-7-21. Otherwise, a petition spelling out the circumstances should be filed, specifically asking the court to revoke the administration per MCA 91-7-87. The judgment admitting the will to probate cancels the administration, and the acts done lawfuly up to that point by the administrator will be valid and binding. I don’t find any case law addressing whether the affidavit and publication for creditors filed in the administration would be valid and binding in the testate estate.
Which Way to go on Proposed Findings?
April 29, 2014 § 16 Comments
Compare the language:
This from the COA on April 8, 2014, in Burnham v. Burnham:
¶15. Usually, the scope of review of a chancellor’s findings is limited in domestic-relations cases. “The chancellor’s determinations will only be reversed when they were manifestly wrong [or] clearly erroneous, or when the chancellor applie[d] an incorrect legal standard.” Greenwood v. Young, 80 So. 3d 140, 145 (¶12) (Miss. Ct. App. 2012). “Questions of law are reviewed de novo.” Marin v. Stewart, 122 So. 3d 153, 156 (¶8) (Miss. Ct. App. 2013).
¶16. In the case at hand, the trial court essentially adopted the proposed findings of fact and conclusions of law [PFFCL] submitted by Dana. We have previously held that “[w]here the chancellor adopts, verbatim, findings of fact and conclusions of law prepared by a party to the litigation, this Court analyzes such findings with greater care[.]” Brooks v. Brooks, 652 So. 2d 1113,1118 (Miss. 1995) (citing OmniBank of Mantee v. United S. Bank, 607 So. 2d 76, 83 (Miss.1992)). Further, “the deference normally afforded a chancellor’s findings of fact is lessened.” Id. This does not mean that the appellate court is the fact-finder, nor does it change ourstandard of review. This means that the Court will take a closer look to make sure that our law is followed as interpreted by our courts. Chancellors are charged with the duty of being independent fact-finders, and the adoption of an opinion written by one of the attorneys is not the finding of the chancellor based on his independent reasoning, even though the chancellor may have a similar opinion.
And this from the MSSC in Bluewater Logistics LLC v. Williford, 55 So.3d 148, 157 (Miss. 2011):
I. This Court is not required to apply a different level of deference to the chancellor’s factual findings.
¶24. We review a chancellor’s legal conclusions de novo; that is, we reach our own conclusions as to the applicable law.FN2 But we ordinarily accept a chancellor’s factual findings unless—given the evidence in the record—we conclude that the chancellor abused his or her discretion, and no reasonable chancellor could have come to the same factual conclusions. FN3
FN2. Corporate Mgmt., Inc. v. Greene County, 23 So.3d 454, 459 (Miss.2009).
FN3. Limbert v. Miss. Univ. for Women Alumnae Ass’n, Inc., 998 So.2d 993, 998 (Miss.2008) ( citing Hamilton v. Hopkins, 834 So.2d 695, 699 (Miss.2003)).
¶ 25. But as to our review of the factual findings in this case, Defendants argue we must apply a different and higher standard of review because the chancellor adopted, verbatim, the plaintiff’s proposed findings of fact and conclusions of law. That may be so, and probably is—Williford responds to the argument without denying it. But we cannot compare the two documents, because Williford’s proposed findings of fact and conclusions of law were not included in the record. Nevertheless, we shall address the issue.
¶ 26. When a chancellor adopts verbatim, or nearly verbatim, a party’s proposed findings of fact, our precedent provides that we should apply “heightened scrutiny” FN4 to the chancellor’s findings of fact. This rule is fairly well-settled and accepted. Yet our precedent provides little guidance as to how we are to comply with our duty to “heighten” our scrutiny—which could be read to require us to review a case more carefully or, perhaps, to apply a different, more stringent standard to our review of the facts.
FN4. See, e.g., In re Estate of Grubbs, 753 So.2d 1043, 1046–47 (Miss.2000); Brooks v. Brooks, 652 So.2d 1113, 1118 (Miss.1995).
¶ 27. But our duty already requires us carefully to scrutinize every case, so we reject the former. And as to the latter, if “heightened scrutiny” requires us to abandon the reasonable-chancellor standard and apply a different, higher standard, we find no caselaw or other authority explaining that different standard, or suggesting how it should be applied.FN5 The dissent suggests that heightened scrutiny requires us to review a chancellor’s findings with “a heightened ‘sensitivity to the possibility of error….’ ” FN6 Yet our duty requires us in every case to be as careful and as sensitive to error as we can be, and we cannot condone a standard that allows us to be less sensitive to error in one case than in another.
FN5. Some possibilities include elevating the standard from “reasonable chancellor” to “very reasonable chancellor,” or from “manifest error” to “catastrophic error.”
FN6. Dissent at ¶ 80 citing In re Estate of Grubbs, 753 So.2d 1043, 1048 (Miss.2000).
¶ 28. In Rice Researchers, Inc. v. Hiter, FN7 this Court provided the following interesting insight into the issue:
FN7. Rice Researchers, Inc. v. Hiter, 512 So.2d 1259 (Miss.1987).
Case complexities and crushing caseloads necessitate substantial reliance upon the submissions of trial counsel. Still, the judge is a judge and not a rubber stamp. He may not be able to afford the luxury of practicing his culinary art a la the Cordon Bleu. He should remember, however, that his oath precludes a McDonald’s approach to the judicial process. Where the trial judge wholly abdicates his judicial responsibilities—where, as it were, he abuses his discretion—we doubtless have authority to intervene. Here the Chancery Court quite properly requested that each party submit proposed findings of fact and conclusions of law. These submissions were considered at an adversary hearing. Thereafter, the Court considered RRI’s motion to amend findings. These steps, coupled with the fact that this case is quite complex (in spite of its simplicity), leave us convinced that the Chancery Court acted within its authority. As indicated above, however, our obligation of appellate deference to such findings is necessarily lessened.FN8
FN8. Id. at 1266.
¶ 29. The Hiter Court’s “less deference” standard, the Brooks Court’s “heightened scrutiny” standard, and the dissent’s “heightened sensitivity” standard all suggest that this Court—if not completely, then to some unspecified degree—must become the finder of fact, imposing (again, to some degree) our own view of the facts. But that would be a tricky — given that we never saw or heard the witnesses.
¶ 30. One thing is clear. Applying a “heightened-scrutiny” or “lessened-deference” standard would require us to abandon the traditional standard (accepting a chancellor’s factual findings that the evidence supports), and employ some different standard. And although the new standard of review has been named (“heightened-scrutiny” or “less-deference”), this Court has yet to explain how it is to be applied.
 ¶ 31. While it is true that the United States Supreme Court has adopted various levels of scrutiny for particular kinds of cases—for instance, “intermediate-scrutiny” review of gender-based classifications FN9—the Court explains the difference in each level, and provides a specific test for its application.FN10
FN9. Craig v. Boren, 429 U.S. 190, 218, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976).
FN10. Intermediate scrutiny in gender-based discrimination cases requires that the challenged law or policy further an important government interest in a way that is substantially related to that interest. Id.
¶ 32. If we are to adopt and apply a “heightened-scrutiny” standard, simple fairness and justice requires us to publish that standard—in more than name—to the bench and bar. And because that has not been done—and because we decline to do it today—we shall continue to apply the familiar abuse-of-discretion standard to a trial judge’s factual findings, even where the judge adopts verbatim a party’s proposed findings of fact. And should a party suspect and suggest that the judge’s factual findings are somehow tainted or untrustworthy, we hold that the party—upon proper proof—may seek a new trial.
¶ 33. In the case before us today, we find not one sliver of evidence that the chancellor’s factual findings were untrustworthy or suspect. His bench opinion discussed his factual findings. And at the hearing on post-trial motions, he engaged in lengthy discussions with counsel concerning his view of the facts. Finally, his factual findings—whether or not identical to those submitted by the plaintiff—were supported by substantial evidence. So we are unable to say he abused his discretion, and this issue is without merit.
I could have sworn that Bluewater Logistics signalled an end to the “heightened scrutiny/less deference” concept, but that’s apparently not how the COA sees it.
With all due deference to the COA, I am of the opinion that this statement from Burnham is a non sequitur: “Chancellors are charged with the duty of being independent fact-finders, and the adoption of an opinion written by one of the attorneys is not the finding of the chancellor based on his independent reasoning, even though the chancellor may have a similar opinion.” But what if the PFFCL is not only similar to, but entirely, accurately refIects my own conclusions? If the PFFCL submitted by one of the attorneys matches my conclusions on the facts and my opinion of the law, then why does it not reflect my independent reasoning? Does a change in words used to express the reasoning change the reasoning from dependent to independent, even when the conclusions and rationale are the same?
What about a situation where the trial judge is persuaded by the argument of counsel and adopts her legal reasoning and applies it in the case? Is that an impropriety that justifies heightened scrutiny or less deference?
I am with Justice Dickinson on this. Lawyers may not like it because it looks like the judge favored one side over the other, but actually that’s what the appearance is whenever the judge rules for one side over the other. It’s the nature of the thing. And, besides, if the high court wants to outlaw verbatim adoption of one side’s PFFCL because it could give an appearance of impropriety, that would be logical. But to conclude that adoption of one side’s PFFCL does not reflect the judge’s independent reasoning, thus justifying and triggering heightened scrutiny and less deference, does not make sense to me.
April 28, 2014 § Leave a comment
April 25, 2014 § Leave a comment
Spring Judges’ Meeting.
April 24, 2014 § Leave a comment
Spring Judges’ Meeting.
April 23, 2014 § Leave a comment
Spring Judges’ Meeting.
More Factors for the Court to Address for Child Support
April 22, 2014 § 6 Comments
I think it’s fair to say that in most districts up to now, chancellors have customarily looked at the paying party’s income and set child support at the statutory percentage, unless there is proof to support a deviation.
In most of the case law between the 1989 adoption of the guidelines, it has been held sufficient for the chancellor to address the steps in MCA 43-19-101, followed by an analysis of any deviation criteria, and a conclusion of the amount of child support.
The MSSC decision in Huseth v. Huseth, an imputed income case handed down April 10, 2014, re-emphasizes some criteria that the trial court must address. The court ruled that, although the chancellor did apply the guidelines, she failed to take into account Mike Huseth’s lack of available funds and other pertinent factors bearing on his ability to pay. Here is how Justice Kitchens explained it in his opinion:
¶30. The chancellor granted child support in the amount of $988, as that is fourteen percent of the income of $7,058 the chancellor imputed to Mike … Additionally, the chancellor’s computation of child support based upon a percentage of Mike’s imputed income, using only the statutory guidelines, did not properly reflect Mike’s ability to pay the child support. In awarding child support, the chancellor should consider
1. The health of the husband and his earning capacity.
2. The health of the wife and her earning capacity;
3. The entire sources of income for both parties;
4. The reasonable needs of the wife;
5. The reasonable needs of the child;
6. The necessary living expenses of the husband;
7. The estimated amount of income taxes the respective parties must pay on their incomes;
8. The fact that the wife has the free use of the home, furnishings, and automobile, and
9. Such other facts and circumstances bearing on the subject that might be shown by the evidence.
Gillespie v. Gillespie, 594 So. 2d 620, 622 (Miss. 1992) (emphasis added) (citing Brabham v. Brabham, 226 Miss. 165, 176, 84 So. 2d 147, 153 (1955)).
¶31. “When entering a child support decree, the chancellor should consider all circumstances relevant to the needs of the children and the capacities of the parents.” Tedford v. Dempsey, 437 So. 2d 410, 422 (Miss. 1983) (second emphasis added). Here, the chancellor imputed the living expenses of Mike as income, without offsetting those same expenses in her determination of the money Mike had available to pay child support. She did not consider the necessary living expenses of the husband in computing the amount of child support. Additionally, as noted previously, she failed to outline how much of Mike’s imputed income was based upon his earning potential, and upon what his earning potential was based. Therefore, we reverse the chancellor’s child support award and remand for a determination of child support in which all of the facts and circumstances, including what Mike actually can pay, are taken into account. [Bold added in text]
[Note: the phrase ” … imputed the living expenses as income” refers to the fact that Mike’s parents were giving him money to live on, which funds he applied to his expenses.]
Gillespie is the case that first set out the concept that the child support guidelines are merely guidelines, and it is still up to the judge to determine the need and support required. Many cases in the 25 years since the guideline statutes took effect, however, have treated the guidelines as mandates requiring accurate arithmentic and rigid adherence to the letter of the statutes.
Does Huseth signal a return to a more Gillespie-like approach? Huseth is, after all, a MSSC decision. The Gillespie court said that the award of child support is a matter within discretion of chancellor, and it will not be reversed unless the chancellor was manifestly wrong in his finding of fact or manifestly abused his discretion.
It will be interesting to see how this plays out in the appellate courts.
In the meantime, you’d better look at those Gillespie factors and make sure your record includes adequate proof to support your client’s side of the issue.
The Cost of Side Income
April 21, 2014 § 2 Comments
It often happens that one of the parties in a divorce has side income. By “side income” I am referring to extra income, usually in cash, received for services separate and apart from one’s primary employment.
Some examples could include cash that a party: receives for doing weekend painting; is paid as a part-time, fill-in clerk at a country store; earns for child care or sitting; takes in for yard work. The list is endless.
There is no question that when the proof shows that there is that additional income, it should be taken into consideration in calculating alimony or child support. The hard part is how exactly is the court supposed to quantify it? It’s the hard part because the proof usually ranges on from almost entirely lacking to at best vague and inconclusive. After all, it’s cash with no evidence trail.
That was the problem facing the chancellor in Burnham v. Burnham, decided April 8, 2014, by the COA.
The chancellor found that Matthew Burnham was earning some side income from farming, which was in addition to adjusted gross income from his primary employment at Jones County Community College in the count of $2,618.04. The judge ordered child support in the amount of $600 a month, which he explained was guideline support for the two children, plus an additional sum to account for the farming income.
Matthew appealed, complaining that the support, by guideline, should have been no more than $523.61, a difference of $76.39 a month.
Judge James, for the COA, found the chancellor in error:
¶18. The record indicates that Matthew’s adjusted gross income from Jones County Junior College is $2,618.04 per month. The trial court found that Matthew receives additional income from farming operations. However, there is no documentation that provides for the amount per month he receives from farming. It is also unclear whether Matthew still receives this supplemental income from farming.
¶19. Matthew argues that the appropriate amount for his child-support obligation for the two minor children is $523.61; which is twenty percent of his net income. The trial court ordered Matthew to pay $600 per month. The trial court based the child-support award on the net income Matthew receives from Jones County Junior College and cash received from the farming operation. However, there is nothing in the record to establish the amount of income received from the farming operation. The trial court imputed an undetermined amount of income to Matthew.
¶20. Matthew argues that a deviation from the child-support guidelines requires a written finding on the record explaining the need for such deviation. Miss. Code Ann. § 3-19-101 (Supp. 2013). The criteria for finding an appropriate deviation are as follows:
(a) Extraordinary medical, psychological, educational or dental expenses.
(b) Independent income of the child.
(c) The payment of both child support and spousal support to the obligee.
(d) Seasonal variations in one or both parents’ incomes or expenses.
(e) The age of the child, taking into account the greater needs of older children.
(f) Special needs that have traditionally been met within the family budget even though the fulfilling of those needs will cause the support to exceed the proposed guidelines.
(g) The particular shared parental arrangement, such as where the noncustodial parent spends a great deal of time with the children thereby reducing the financial expenditures incurred by the custodial parent, or the refusal of the noncustodial parent to become involved in the activities of the child, or giving due consideration to the custodial parent’s homemaking services.
(h) Total available assets of the obligee, obligor and the child.
(i) Payment by the obligee of child care expenses in order that the obligee may seek or retain employment, or because of the disability of the obligee.
(j) Any other adjustment which is needed to achieve an equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt.
Miss. Code Ann. § 43-19-103 (Supp. 2013).
¶21. “The child support award guidelines are ‘ rebuttable presumption in all judicial or administrative proceedings regarding the awarding or modifying of child support awards in this state.’” Grove v. Agnew, 14 So. 3d 790, 793 (¶7) (Miss. Ct. App. 2009) (quoting Miss. Code Ann. § 43-19-103 (Rev. 2004)). Thus, “[i]n the absence of specific findings of fact to support a deviation from the child support guidelines, the chancellor’s award is not entitled to the presumption of correctness under the statute.” Osborn v. Osborn, 724 So. 2d 1121, 1125 (¶20) (Miss. Ct. App. 1998).
¶22. After careful review of the record, we find no specific finding of fact to support deviation. Instead there is merely an order for Matthew to pay a seemingly arbitrary amount of $600. The ordered amount of support is almost twenty-three percent of his net income. There is no mention of any extraordinary circumstances that would warrant a departure from the child-support guidelines. Although the children attend private school, the maternal grandparents agreed to pay the tuition. Accordingly, we find that the trial court erred in deviating from the child-support guidelines without specific on-the-record findings.
I can’t quibble with the conclusion here that specific, on-the-record findings are necessary to support a deviation from the guidelines. Under this case, it appears that those findings would necessarily include not only why and how one or more deviation factors applies, but also what are the specific findings of the court as to how the additional sum is calculated.
I do have a minor quibble with the bold language above. If there is proof in the record that Matthew receives some farming income, even if it is unclear, doesn’t the chancellor’s finding that it exists resolve that issue? It is the judge’s job to make that call based on what he finds to be the credible evidence.
When you have a case such as this where the chancellor has not fleshed out his findings, file a R59 motion and ask the judge to support his findings in the record. Post-trial motions were filed in this case, but it is not clear whether that particular request was made.
Also, if you represent the party trying to benefit from the side income, always make sure you put some proof in the record to quantify it. Ask questions on cross examination to get a number or a range. Look at tax returns and get them into the record; sometimes people report at least part of side income to avoid IRS problems. Get youor client to testify to her experience (e.g., “When we lived together he would give me hundred dollar bills a couple of times a month for groceries, and he would peel them off of a thick wad of hundreds that he carried around.”)
April 18, 2014 § 5 Comments
The anniversary of the Boston Marathon bombing has brought with it reruns of those horrific hours. We have borne witness again to that cataclysmic moment when the explosion ripped Boylston Street, followed in only a minute or two by a second blast within feet of the first. Victims are fallen and bleeding, there is shattered glass and shards of metal. People are dying, bleeding out, gasping for life, in shock, limbs torn off. Chaos is everywhere.
Within seconds of the explosions we see people throwing twisted barricades aside off of the victims, applying tourniquets, comforting, calling for help, picking up broken bodies and running with them to find aid. They did all this with the uncertainty whether they might be in danger from even more blasts.
There was a news report this week from the west coast in which a young father, hanging out with some friends, intervened to stop a group of men from roughing up a homeless person. For his trouble, the young man, only 39, was stabbed in the chest and killed. His wife said that he was only ” … trying to help somebody who needed help.”
I heard a minor’s settlement a few days ago that arose from the Deepwater Horizon disaster. It was the last claim from among those of the eleven workers who were killed. The evidence was that this particular worker, a crane operator, was not killed by the first blast, but he turned back from the rescue boats and climbed up into his crane, repositioning and “cradling” it so that the rescue boats could get away. As he scrambled down from the crane, there was a second explosion, and he was blown off the ladder and killed.
In each of these events, people ran toward danger when any sane person would have run away. What impels them to do this?
Some might say it is simple heroism. Others may attribute it to extreme courage that most people don’t possess. Still others may see in their actions the hand of God, or destiny, or fate, or karma, or predestination, or any number of motivating factors. There are as many possibilities as there are possible human actions.
To me, though, the evidence lies in the testimony of the witnesses who knew these people best. In the aftermath of a catastrophe, relatives, neighbors and friends often reminisce that the person who ran toward was an ordinary person who led an ordinary life, doing all of the ordinary things that folks like you or I do every day.
I believe that’s because those people who run toward danger are really no different than you or I. I believe that each of us carries inside the gene for courage and selflessness that impels us to lay aside our first instinct for self-preservation in favor of an overriding desire to help, or to rescue, or to avert a greater disaster with full knowledge that we may not come through it alive or intact.
Still, the question remains: what makes these people act on what that gene drives us to do, while others do not. Why do some run toward, while some run away? It’s hard to know what any of us would have done in those fearsome and fatal events. If you’re like me, you’d like to believe that you would be one who ran toward, not away. But we can’t be certain until we are ourselves faced with a similar situation, God forbid.
Most times, I am sure, running toward is a spur-of-the-moment, reflexive decision made when there simply is no time for rational thought or reflection on the pros and cons. The individual’s character structure and personality, then, influence whether one allows the courage and selflessness impulse to trump the survival instinct.
That is not to say that there is anything wrong in wanting to escape harm. Animals are hard-wired to do that very thing, to survive at almost any cost.
But the idea that some will somehow cancel their fear and run toward the chaos to try to bring help, rescue, redemption, and humanity to a situation where all those things have been torn violently away from others is an uplifting and consoling thought. It’s comforting to know that there are people like that. It’s comforting to know that we have the same ingredients within each of us.
Reprise: A Compendium of Estate Posts
April 17, 2014 § 2 Comments
Reprise replays posts from the past that you may find useful today.
NOTE: Some of these links have been affected by later case law and amendments to statutes. Always search for later posts and later case and statutory law before relying on these link.
A COMPENDIUM OF ESTATE POSTS
July 5, 2011 § 4 Comments
- Before you file the pleadings, ask yourself whether it is necessary to open an estate in this case.
- And here’s some more info on how to pass assets without an estate.
- Exempt property is not a part of the estate. Here’s a guide to what is exempt and what is not.
- The original will must be probated and retained by the clerk.
- Bonds in testate and intestate estates.
- Probating a will in common form.
- How to probate a copy or a lost will.
- Administering an intestate estate.
- Determining the heirs in an intestate estate.
- When can inventory and appraisement be waived?
- Oops, you filed that estate in the wrong county. Here’s why it can not be transferred.
- What happens when a testator leaves a bequest that can not be satisfied? It’s called ademption.
- And here’s how to handle lapsed legacies.
- Can you set aside an inter vivos gift between spouses? Here’s the rule.
- Contesting probated claims.
- Will contests: Undue Influence.
- Will contests: Lack of testamentary capacity.
- Five tips to improve your probate practice.
- A few random estate matters.
- What you need to know before trying to sell real property in an estate.
- Navigating your way through an insolvent estate.
- You need to know how to deal with this wrinkle in publishing process to close an estate.
- Waiving accounting.
- A checklist for an accounting.
- Reading the duties of an attorney in a probate matter might give you second thoughts about taking that case.
- Sure, you want to get paid. Here’s what you need to prove to get an award of an attorney’s fee in a probate matter.
- A checklist for closing an estate.
- Handling estate matters in District 12, Place 2.