Non-marital Children, Estates, and the Statute of Limitations
November 18, 2014 § 4 Comments
Boyce Elmore died in 2000. His widow, Kathleen, opened an administration and was appointed administrator in 2002.
In 2010, more than ten years after Boyce Elmore died, Cedric Williams filed a paternity action in an effort to establish a claim to recover from Boyce’s estate.
The version of MCA 91-1-15(3)(c) in effect at the time provided that a non-marital child might file an action to establish paternity ” … within one (1) year of the death of the intestate or within ninety (90) days after the first publication of notice to creditors to present their claims, whichever is less …” Since Boyce’s estate had not been opened in the first year following his death, the publication provision was inapplicable.
Faced with the issue of Cedric’s timeliness, the chancellor ruled that, because Kathleen had failed to give Cedric notice of the estate, the statute of limitations had been tolled, and his action was timely.
The COA reversed the chancellor’s decision that failure to give Cedric notice tolled the statute of limitations, but would not apply the one-year statute because the appellant had failed to raise the issue on appeal.
MSSC granted cert.
In In the Matter of the Estate of Elmore: Jamison v. Williams, handed down November 6, 2014, the court affirmed the COA’s decision, but held that the appellant had “squarely presented” the issue before the chancellor on appeal and at trial by raising the issue of application of SOL under 91-1-15, so that the one-year statute did apply, and barred Cedric’s suit.
Based on all of this, I believe it is fair to say that failure to give notice to a purported non-marital heir will not toll the statute under the language in effect before 2005. The Mississippi legislature resolved the question in 2005 by adding language to MCA 91-1-15 that ” … this one-year limitation shall be self-executing, and may not be tolled for any reason, including lack of notice.”