Rock, Paper, Scissors … Will, Pre-Nup, Quitclaim Deed

May 20, 2014 § 7 Comments

If I remember correctly, rock beats scissors, paper beats rock, and scissors beats paper.

But as among a will, a pre-nuptial agreement, and a quitclaim deed, which beats what? That was the question posed in Estate of Jones: Dixon v. Jones, decided  by the COA on April 29, 2014. 

Johnnie Lee Jones, the decedent, and his soon-to-be wife, Annie Ruth, entered into a prenuptial agreement on March 19, 1997. The agreement provided that, upon Johnnie Lee’s death, the home titled in his sole name was to go to Bonnie Jones Dixon, his daughter from a prior relationship. The home was located at 171 Vine Street in Jackson.  

After their marriage, Johnnie and Annie Ruth lived together in the Vine Street residence.

On September 16, 1998, Johnnie executed a will leaving the Vine Street home to Annie Ruth for her life, at which point the property was devised to his sister, Eliza Mae Webster. The will included the customary language that it revoked ” any and all previous testaments.”

Beginning in 2001, Johnnie and Annie Ruth claimed the property as their homestead.

On December 14, 2005, Johnnie executed a quitclaim deed conveying the Vine Street property to himself and his daughter Bonnie as joint tenants with right of survivorship. Annie did not sign the deed, although she and Johnnie were still married at the time.

Johnnie died on January 22, 2011, and Annie Ruth, who continued to live in the Vine Street home, filed pleadings on November 29, 2011, to admit Johnnie’s will to probate. Before an order was entered, however, Bonnie filed suit for declaratory judgment that she was the rightful owner of the property, and for damages. Bonnie relied on both the pre-nuptial agreement and the quitclaim deed. On January 17, 2012, the chancellor admitted the will to probate.

On November 29, 2012, the chancellor denied the declaratory relief. The judge ruled that the will revoked the pre-nuptial agreement, and that the deed was statutorily void because it conveyed homestead and did not bear Annie Ruth’s signature. Bonnie appealed.

The COA rejected Bonnie’s argument that the word “testaments” as used in the revocation language of the will referred solely to instruments disposing of personal property only, and not real property. The COA held that the use of the term “testaments” was interchangeable with “will,” and that MCA 91-5-3 expressly provides that a devise may be revoked by a testator’s subsequent will. The court concluded that the will revoked the pre-nuptial agreement. Interestingly, Bonnie’s attorney cited Wikipedia in support of her argument, and the COA cited www.yourdictionary in reaching its conclusion. Modern times.

As for the quitclaim deed, the court agreed with the chancellor that the quitclaim deed was void. The court cited MCA 89-1-29: “A conveyance, mortgage, deed of trust or other incumbrance upon a homestead exempted from execution shall not be valid or binding unless signed by the spouse of the owner if the owner is married and living with the spouse or by an attorney in fact for the spouse.”

The court also cited this language from Ward v. Ward, 517 So.2d 571, 573 (Miss. 1987):

Our legislature has chosen to place a restriction on the transfer or encumbrance of homesteads[,] and therefore, homesteads in Mississippi may not be alienated except in compliance with those restrictions. There can be no operative conveyance or effectual release of the exemption unless the method pointed out by the statute is pursued with strictness[,] and no requirement of the statute may be waived by the husband and wife or by either of them. Chancery will not interfere to give relief where by express law there is a limitation on the power of alienation of the homestead[,] and the final relief sought is merely to relieve that limitation. (emphasis added)

Our statutes and the case law applying them are quite protective of spouses’ homestead rights. This case is one in a long line of cases that lean in that protective direction.

The other lesson to be learned here is that a subsequently-executed will that includes appropriate revocation language will revoke any and all previous testamentary documents, including a pre-nuptial agreement.

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§ 7 Responses to Rock, Paper, Scissors … Will, Pre-Nup, Quitclaim Deed

  • J says:

    I read the opinion differently and disagree with the interpretation that the decision holds that the will invalidated the entire antenuptial agreement, as opposed to merely invalidating the provision concerning the Vine Street property. I think that the language of the opinion is telling, and indicates that only that part of the agreement concerning the Vine Street home is invalidated.

    For instance, in the facts section, and elsewhere, the opinion refers to the agreement generically and as a whole as the “antenuptial agreement.” However, in the analysis the opinion references the antenuptial agreement “provision;” for instance: “We find that the antenuptial agreement provision leaving Bonnie the home was a devise, or testament, that Johnnie intended to revoke by the subsequent will.” (¶12); “Because the two documents conflicted, the antenuptial-agreement provision was no longer enforceable.” (¶16); and “the antenuptial-agreement provision was voided by the will, and the will’s gift of the home to Annie controlled.” (¶16).

    Therefore, based on my reading of the opinion and its careful use of the word “provision,” I think that decision holds that the will only voided that part (or provision) of the agreement concerning the Vine Street home. But that is just my humble opinion.

  • I want to apologize for the typos in my post– I was posting on an iphone during a long break in circuit court.

    I’m not sure what circle it is, but one of Dante’s circles of hell is being a criminal defense lawyer in the circuit court in Panola County. During one of the periods where I was being made (punitively) to wait for my case, I posted with the typos.

  • A contract to make a will is perfectly enforceable. I’ve been involved in litigating and enforcing them. In case involving the Tyson estate in Marshall County, Mr. Tyson and his wife made mutual promises to make a will. There was a significant age different (he was old her) and he had a relatively young daughter by a prior wife. He promised to devise his estate to her upon her return promise to devise the estate to her step-daughter, his daughter. They made the wills. He died, and she raised the step-daughter (in a relationship involving a fairy-tale level wicked step-mother) but during her life made a new will that revoked the old one and gave the step-daughter a life estate in half the estate, with the other half to her family members and the remainder also to them.

    She sued and won:

    “At Harriett’s behest, Moore filed suit (hereinafter “first suit”) in the Marshall County Chancery Court-seeking to impress a constructive trust on portions of Robert’s estate which were titled in Ruth’s name at her death.2 On February 18, 1985, the chancellor impressed a constructive trust in favor of Harriett on the remainder of Ruth’s property received from Robert Tyson.”

    Tyson v. Moore, 613 So. 2d 817, 820 (Miss. 1992).

    The decision did not result in a reported decision directly (there are two collateral appeals, one because the wife’s heirs tried to avoid the 15% appeal penalty by, bizarrely, asserting on behalf of the wife they were renouncing the will, which had been probated over 20 years earlier. That didn’t work. The other is the one quote, between Tyson and her original lawyer.

    The point of all this is that a contract to make a will is enforceable. The one in Tyson was an oral agreement made at the time of the making of the wills (fortunately for the daughter, made by Glen Fant, later a chancellor, who taught wills at Ole Miss for decades, and who was an excellent witness for the daughter at trial). Although the will was revoked, it was fully enforceable, with a constructive trust the obvious remedy.

    If the Court of Appeals opinion is right– that a subsequent will revokes a contract to make a will– then this case and several other well-reasoned cases are wrongly decided.

    I’ve lost track of what is rock, paper, or scissors. But I have no doubt that under prior law, the new will revokes the old will, and a contract to make a will trumps a later attempt to renege.

    Anyone else?

    • Bob Wolford says:

      Based on your opinion about the consequences of the CoA’s opinion being right, this one should go up on cert, I would think, and let the Supremes work it out.

    • Larry says:

      I think you are exactly right. I, too, litigated this point years ago, and the will trumped the later try to do something different. Good call.

  • Bob Wolford says:

    Just an academic question- sounds like the CoA held that the subsequent will revoked the pre-nump, but did it revoke the entire pre-nump or just the devise of the life estate/remainder interest? In other words, is a pre-nump severable under this scenario?

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