January 7, 2019 § 2 Comments
Secretary of State Hoseman convened a group to study and propose revisions to our estate and other fiduciary laws. Here is the summary provided by his office generally outlining the proposed statutory changes:
Revisions to Title 91 of the Mississippi Code governing estates and trusts will update statutory language and processes to provide clarity and ease of use for Mississippians. New statutes will be incorporated recognizing nonprobate transfers, ancillary and foreign administration, abatement, disclaimer of property interests, and revocation of probate and nonprobate transfers following divorce.
• Mississippi Real Property Transfer on Death Act “Transfer on Death Deed”: Enact a new statute to provide for nonprobate transfers of real property at death.
Example: John prepares before his death a transfer on death deed leaving his home to his two children so that his heirs may avoid probating the estate for purposes of transferring ownership of the family home. John’s transfer on death deed must be recorded, is only effective after his death, and is revocable at any time before his death.
• The Uniform Estate Tax Apportionment Act of 2003: Repeal Sections 27-10-1 through 27-10-25, the Uniform Estate Apportionment Act, and replace with the updated 2003 Uniform Estate Tax Apportionment Act under Title 91. The version of Uniform Estate Tax Apportionment Act previously adopted in Mississippi was originally drafted in the 1960s. In the last 50 years or so, people are using a revocable trust as a substitute for will and are using other forms of ownership to transfer assets at death. The federal estate tax provisions have also been substantially revised. The current version of the Uniform Estate Tax Apportionment Act recognizes these changes and provides detailed provisions for the apportionment of estate taxes when a decedent’s will or revocable trust does not provide for apportionment of estate taxes.
Examples: John executed a revocable trust during his lifetime. The revocable trust includes all of the provisions for the disposition of John’s property and provisions for the apportionment of estate taxes, if any, to various property. John’s will provides that all of his probate property is to be distributed to his revocable trust after his death. Unlike the previous version of the Uniform Estate Tax Apportionment Act, the more recent version of the Act makes it clear that the apportionment of estate taxes under the terms of the revocable trust will be respected.
John died without a surviving spouse. John’s executor filed a federal estate tax return reflecting a $1,000,000 federal estate tax liability. John’s will did not have provisions stating which assets should be used to satisfy the federal estate tax liability. Fifty percent (50%) of the assets includible in the taxable estate were owned by John at his death (“Probate Assets”) and Fifty Percent (50%) passed outside of probate by beneficiary designation, rights of survivorship or were held in his revocable trust (“Nonprobate Assets”). Generally, under the Uniform Estate Tax Apportionment Act, $500,000 of the estate taxes will be apportioned ratably to the Probate Assets and $500,000 ratably to the Nonprobate Assets. The Uniform Estate Tax Apportionment Act has provisions for payment of the estate tax and the process for collecting the apportioned estate taxes from the persons receiving the Nonprobate Assets.
• Affidavit of Successor: Amend Section 91-7-322, commonly referred to as the Small Estate Affidavit, to clarify the definition of successor and to increase the value of the probate estate to $100,000. This statute allows the transfer of personal property without the necessity of probate when the decedent’s probate estate is $100,000 or less.
Example: John dies leaving an estate, not including real estate or exempt property, which totals $60,000. Thirty days after John’s death, his spouse, Jane, would be able to present an affidavit to anyone possessing John’s personal property or owing a debt to him and have the property or payment of a debt transferred to Jane without the necessity of a probate proceeding.
• Fiduciary Transfer of Negotiable Paper: Amend Section 91-7-255 to permit a fiduciary to negotiate paper belonging to the estate without court approval and to update the standard of care applicable to the fiduciary. Often a fiduciary may need to enter into a transaction quickly to prevent a decline in value of stocks, bonds and other investments or to diversify investments when investments are too concentrated in a single investment.
Example: John’s son, Jim, becomes the court-appointed executor. Through his appointment Jim is granted the ability to trade or sell stocks, transfer any notes, convert certificates deposit and make other financial decisions necessary for the preservation of the probate estate. Jim is held to the same standard of care applicable to a trustee.
• Property Not to be Removed from State: Repeal Section 91-7-257 as this Section is no longer applicable. Often a will of a Mississippi resident designates a child or children living in another state as executor. In order to preserve or protect assets belonging to an estate, such as jewelry, silver, car, personal effects and other items of value from the decedent’s personal residence, an executor may need to remove the property for safekeeping during the administration of the estate.
• Foreign Personal Representatives and Ancillary Administration: Repeal Section 91-7-259, Foreign Fiduciaries, Lawsuits and Debts, and enact Foreign Personal Representatives and Ancillary Administration to provide a clear process for foreign personal representatives and ancillary administration. This amendment will bring Mississippi current with every other State in the nation.
Example: John is a resident of Alabama and dies in Alabama; however, John owns property in Mississippi. Ancillary administration law provides a clear process for John’s executor of his Alabama estate to collect and distribute the Mississippi property since he has already been appointed in another jurisdiction’s court of law. John’s executor will file in Mississippi the admitted will and his letters testamentary or letters of administration to begin the ancillary administration in Mississippi.
• Abatement: Enact a new statute to provide a statutory order of abatement when devises and bequests of the decedent must be used in order to settle the decedent’s debts, and no order has been provided in the will. Sections 91-7-91, 91-7-191, 91-7-195, 91-7-199, 91-7-261, and 91-7-271 will be amended to conform to the new enactment.
Example 1: John dies with a will that leaves his hunting land worth $100,000 to Jim and $100,000 cash to Jane. The residue of his estate ($50,000) is left to Jim and Jane equally. A creditor has a claim for $150,000. Unless John’s will provides otherwise, under current law, Jim gets the $100,000 hunting land, and Jane receives nothing. There is no residue to divide between Jane and Jim. Under the proposed bill, the result is the same, because Jane’s general bequest abates prior to Jim’s specific devise.
Example 2: John dies with a will that leaves his home worth $100,000 to his daughter, Jane; his hunting land worth $50,000 to his son, Jim; $5,000 to each of his two nieces; and his remaining property worth $40,000 equally to Jane and Jim. A creditor has a claim for $50,000. Unless John’s will provides otherwise, under current law, Jane gets the $100,000 home, Jim gets the $50,000 hunting land, and the nieces receive nothing. There is no residue to divide between Jane and Jim. Under the proposed bill, the result is the same because residuary and general legacies abate before specific bequests and devises.
Example 3: John dies with a will that leaves his hunting land worth $100,000 to Jim and his stock in his business worth $100,000 to Jane. The residue of his estate ($100,000) is left to Jim and Jane equally. A creditor has a claim for $150,000. Unless John’s will provides otherwise, under current law, Jim gets the $100,000 hunting land, and Jane receives $50,000. There is no residue to divide between Jane and Jim. Under the proposed bill, both Jim’s and Jane’s specific legacy would abate equally without regard to the distinction between real estate and personal property, so they would both receive $75,000.00.
• Creditor Rights With Respect to Beneficial Interests in Trusts: Repeal the Family Trust Preservation Act (Sections 91-9-501 through 91-9-511) and enact Article 5 of the Uniform Trust Code so that the language and defined terms are the same as currently provided for in the Mississippi Trust Code. Some specific new issues are addressed as follows:
Example: John sets up a revocable trust. Under Article 5 of the Uniform Trust Code, John’s assets in the revocable trust would be subject to the claims of creditors.
Example: Jane sets up a life insurance trust on her life for her son with withdrawal rights. Jane’s payments to the trust are not subject to her son’s creditors unless the son decides to withdraw the money and compromise the life insurance policy. The fact that the son does not contribute to the trust does not mean it’s self-settled.
• Muniment of Title: Amend Section 91-5-35 to allow a will to be admitted to probate as a muniment of title by filing a signed and sworn petition signed by either the personal representative or the spouse and beneficiaries of real property and to increase the value of the probate estate to $100,000. This statute allows the transfer of real property without the necessity of probate when the decedent’s probate estate is $100,000 or less.
Example: Jane dies leaving a will devising real property located in Mississippi to her son, Jim. If Jane’s estate, not including real estate or exempt property, totals $100,000 or less, the transfer of property is the only reason the will would need to be probated, and all Jane’s debts have been satisfied, Jim may file a sworn petition in chancery court asking the court to recognize the will as valid solely to transfer the real property without
the necessity of probate.
• Vouchers, 3 Appraisers, and Inventory: Remove requirements regarding vouchers and an appointment of three appraisers when conducting an inventory. Provide that an inventory may not be required if waived in the will. Amend Sections 91-7-93, 91-7-95, 91-7-109, 91-7-117, 91-7-135, 91-7-141, 91-7-277, 91-7-291, and 91-7-297. Repeals 91- 7-111, 91-7-113, 91-7-115, 91-7-137, 91-7-139, 91-7-279.
• Uniform Disclaimer of Property Interest Act: Repeal Sections 89-21-1 through 89-21-17) the prior version of the Uniform Disclaimer of Property Interests Act adopted in Mississippi in 1994 and replace with the current version as last revised or amended in 2010. The more recent version of the Uniform Disclaimer of Property Interests Act addresses not only disclaimers of property but also disclaimers of powers over property and disclaimers of powers held in a fiduciary capacity. It also addresses different types of interests in property, including interests in jointly-held property. The provisions of the more recent version of the Uniform Disclaimer of Property Interests Act provide much more detail on the form of the disclaimer, delivery of the disclaimer and the effect of the disclaimer.
• Example: In John’s will, John designates his brother, Bob, as executor of his estate and trustee of a trust for his surviving spouse. The terms of the testamentary trust provide that John’s wife is entitled to all of the income of the trust during her lifetime. Bob is also given the power, in his discretion, to invade principal for the benefit of the surviving spouse and John’s descendants. The power to make distributions to the descendants
would prevent the trust from qualifying for the federal estate tax marital deduction. In the interest of all of the beneficiaries of the trust and to qualify the trust for the federal estate tax marital deduction, Bob can disclaim the power to make discretionary distributions to John’s descendants during the lifetime of John’s surviving spouse.
• Revocation by Divorce: Enact new statute to provide for automatic revocation of probate and nonprobate transfers upon divorce.
Example: John provided for his wife, Jane, in his will. John also named Jane as the beneficiary of his IRA and life insurance policies. John and Jane divorce, but John forgets to remove Jane from his IRA and life insurance policies. Under this law, all provisions for a former spouse in probate and nonprobate transfers, like a will, trust, IRA, insurance, payable on death account, etc. will be automatically revoked.
November 21, 2018 § Leave a comment
Every will contestant has the right to a trial by jury if desired.
Milt Burris had filed a will contest raising issues of testamentary capacity and undue influence regarding the will of his father, Eddie Burris. The chancellor granted summary judgment in favor of Renee Sims Burris, and Milt appealed, arguing that it was error for the chancellor to adjudicate facts rather than letting a jury decide them.
In Burris v. Estate of Burris et al., the COA affirmed on September 25, 2018. Judge Irving wrote the court’s opinion:
¶7. The Mississippi Supreme Court in In re Launius, 507 So. 2d at 29-30, explained the burden of the contestant of a will facing a motion for summary judgment as follows:
Appellees, as proponents of the will, have the burden of proving the will throughout. They meet this burden by showing the will was duly executed and admitted to probate. When the will is admitted to probate, proponents put on prima facie evidence that the testator had testamentary capacity and further that no undue influence was placed upon him. The burden of going forward then shifts to contestant, who must overcome the presumption raised by proponents that testator had testamentary capacity, (and, therefore, that the testator’s execution of the will was a free and voluntary act). When the Mississippi Rules of Civil Procedure come into play within a situation involving a contest to [a] will, where movants for summary judgment (appellees) have shown there is no genuine issue of material fact vis-a-vis probate of the will, contestant, as the adverse party, may not rest upon the mere allegations of denials of his pleadings, but his response, by affidavits or as
otherwise provided in this Rule, must set forth specific facts showing that there is a genuine issue for trial. M.R.C.P. 56(e).
(Citations and internal quotation marks omitted).
¶8. With this in mind, Milt argues that there existed genuine issues of material fact as to his father’s testamentary capacity and the presence of undue influence by Renee to defeat the summary judgment motion and continue the case to trial.
The court went on to analyze the trial court’s findings of fact on the issues of testamentary capacity and undue influence, finding no error, and returned to consideration of the chancellor’s role as finder of fact vs. that of a jury in a summary judgment proceeding:
¶16. The record supports Renee’s assessment of the proceedings in the chancery court. While Milt is correct in his assertion that it is improper for a chancellor in a will contest to adjudicate facts unless the parties have agreed to dispense with a jury, he fails to fully appreciate that there must be genuine issues of material facts to be determined by a jury and that after Renee moved for summary judgment, with supporting affidavits, showing no genuine issue of material fact on the issues of testamentary capacity and undue influence, he could not rest on his general allegations and suppositions regarding his father’s relationship with Renee and his father’s mental health. He, as the contestant of Eddie’s will, was required to bring forth an affidavit or affidavits demonstrating “sufficient evidence to establish the essential elements of [his] case on which [he] would bear the burden of proof at trial.” Karpinsky v. American Nat. Ins. Co., 109 So. 3d 84, 90 (¶17) (Miss. 2013). Our perusal of the record indicates that he did not come close to meeting his burden. [Emphasis added]
¶17. Milt offered no evidence to substantiate his claims at the trial level and does not do so here. The will was created three years prior to Eddie’s death, and there is no indication in the record that he lacked the testamentary capacity to create it or that he suffered undue influence from Renee. We hold that the chancellor’s findings on this issue are supported by substantial evidence. Therefore, the judgment of the Chancery Court of Amite County is AFFIRMED.
A couple of observations:
- Yet another case to hammer home the point that, when the other side files affidavits in a summary judgment proceeding, you must file counter-affidavits or risk an adverse ruling.
- I wonder about that statement that the chancellor may not adjudicate facts, ” … unless the parties have agreed to dispense with a jury … .” That statement seems to contradict MCA 91-7-19, which states that, “At the request of either party [to a proceeding to admit a will to probate] an issue shall be made up and tried by a jury as to whether or not the writing propounded be the will of the alleged testator.” [My emphasis] The court’s language is that the chancellor may not adjudicate the case unless the parties waive trial by jury. The statute requires a request, meaning that the default setting is a bench trial.
August 29, 2018 § Leave a comment
We visited the Ferrell v. Cole case yesterday, dealing with who is entitled to notice to close an estate. Ferrell held that only persons with a direct pecuniary interest in the estate were entitled to notice. If one is not in the class of persons entitled to notice, does one have standing to demand an accounting or to object to an accounting?
That was the question in Flowers v. Estate of Flowers, decided February 6, 2018, by the COA. At the trial level the Special Chancellor had denied the request of Claire and Jane, daughters of the decedent, for an accounting, finding that they had no current interest in their mother’s estate. Their interest was described by the COA this way:
¶4 … The will also established a trust that named D.A. [a minor] and his descendants as the income beneficiaries. The will provided for the trust’s termination either at the time of D.A.’s thirtieth birthday or his death, whichever event occurred first. The will further stated that, at the time of termination, the trust’s assets were to be divided evenly between D.A. and Knox [the decedent’s son]. The will then granted Claire and Jane a shifting executory interest by providing that, if both D.A. and Knox passed away without any descendants before the trust’s termination, the trust’s assets were to be distributed to Claire and Jane as beneficiaries, either directly or through conservatorships. While the will relieved the trustees from having to render a periodic accounting to any court, it stated that the trustees “shall . . . account fully and completely annually, throughout the term of this [t]rust, to such income and/or corpus beneficiaries as there may be or[,] in the event such beneficiary is a minor or a ward, then to such beneficiary’s guardian.”
So, in that situation, did Claire and Jane have standing to demand an accounting? Here’s how the COA dealt with the question:
¶16. On appeal, the parties disagree as to whether Claire and Jane have standing to request an accounting of their mother’s estate and testamentary trust. Since standing is a jurisdictional issue, we review it de novo. SASS Muni-V LLC v. DeSoto Cty., 170 So. 3d 441, 445 (¶12) (Miss. 2015). Standing is to be determined at the commencement of a lawsuit. In re Estate of Baumgardner, 82 So. 3d 592, 599 (¶21) (Miss. 2012). Regarding the applicable caselaw on standing, the Mississippi Supreme Court has stated the following:
To have standing to sue, a party must assert a colorable interest in the subject matter of the litigation or experience an adverse effect from the conduct of the defendant, or as otherwise authorized by law. An interest is deemed colorable if it appears to be true, valid, or right. An individual’s legal interest or entitlement to assert a claim against a defendant must be grounded in some legal right recognized by law, whether by statute or by common law. For a plaintiff to establish standing on grounds of experiencing an adverse effect from the conduct of the defendant/appellee, the adverse effect experienced must be different from the adverse effect experienced by the general public.
SASS Muni-V, 170 So. 3d at 446 (¶13) (internal citations and quotation marks omitted).
¶17. Mississippi precedent clearly establishes that vested remainder beneficiaries of a testamentary trust have standing to file suit and that holders of a shifting executory interest have some limited rights that can provide standing to file suit. See Baumgardner, 82 So. 3d at 600-01 (¶¶27-28); Hemphill, 245 Miss. at 46, 145 So. 2d at 461. [Fn 3] Claire and Jane claim they are vested remainder beneficiaries of their mother’s testamentary trust while Knox asserts his sisters have an unvested executory interest. As previously discussed, the chancellor found Claire and Jane were unvested contingent remainder beneficiaries.
[Fn 3] Cf. Cannon, 59 Miss. at 302-05 (holding that contingent remainder beneficiaries could prevent a life tenant from future waste to the detriment of the inheritance).
¶18. In applying precedent to the instant case, we find that Claire and Jane possess a shifting executory interest in their mother’s testamentary trust. A review of the will’s terms reflects that Brenda’s estate vests in D.A. and Knox, but that D.A. and Knox inherit subject to a condition of survivorship. See Hemphill, 245 Miss. at 46, 145 So. 2d at 461. D.A. and Knox may be divested if the condition of survivorship is not fulfilled. If the survivorship condition is not fulfilled, D.A. and Knox are then divested of their interests, which shift to Claire and Jane as beneficiaries. Precedent establishes that, as the owners of a shifting executory interest, Jane and Claire possess limited rights to prevent future waste. See id. See also Columbus & Greenville Ry. Co. v. City of Greenwood, 390 So. 2d 588, 592 (Miss. 1980) (applying the Hemphill holding to find that the heirs of original land grantors possessed a reversionary interest capable of evaluation). “An executory interest is a future interest, which is held by a third person, that either terminates another’s interest before its natural termination, or begins after the natural termination of a preceding estate.” K.F. Boackle, Real Property—Deeds and Conveyances, 7 Encyclopedia of Mississippi Law § 62:29 (2d. ed. Jeffrey Jackson et al. eds.). “A shifting executory interest occurs when ownership shifts from one transferee to another upon the occurrence of the subsequent event.” Scott v. Brunson,
569 S.E.2d 385, 387 (S.C. Ct. App. 2002). We now turn to a more specific review of the terms of Brenda’s will and the legal consequences of those terms.
¶19. In applying caselaw to the terms of Brenda’s will, we find the will’s terms reflect that, in creating the testamentary trust, Brenda named D.A. the income beneficiary with the principal to be placed in trust until the earliest of either D.A.’s thirtieth birthday or his death. At either D.A.’s thirtieth birthday or his death, Brenda’s will directed that the trust’s principal be evenly divided between D.A. and Knox “per stirpes to include adopted children.” The terms of the will next discussed disbursement of trust assets to beneficiaries who were under the age of twenty-one at the time of the trust’s termination, or who died before the trust’s termination. Finally, in establishing that D.A. and Knox inherit subject to a condition
subsequent of survivorship, the will stated as follows:
If there are no surviving beneficiaries, descendants of deceased former beneficiaries, former beneficiaries who are living, or descendants of deceased former beneficiaries, then his or her interest shall be distributed share and share alike to the [c]onservatorships for my two daughters[, Claire and Jane;] should either one or both of them not have a [c]onservatorship at the termination of this trust[,] then distribute their portion outright to them.
¶20. Thus, Brenda’s will established that, if D.A. and Knox failed to satisfy the condition of survivorship, they would be divested of their interests, which would then shift and be distributed to Claire and Jane. Accordingly, a review of Brenda’s will reflects that she gave Claire and Jane a shifting executory interest in the assets of the testamentary trust. [Fn 4] As stated, Mississippi precedent reflects that holders of a shifting executory interest enjoy limited rights to enjoin the possessory owner from waste of the inheritance. See Hemphill, 245 Miss. at 38, 145 So. 2d at 457. [Fn 5] We now turn to a review of applicable and instructive Mississippi precedent.
[Fn 4] See Hemphill, 145 So. 2d at 457 (finding that individuals who possessed a shifting executory interest in land taken and allegedly damaged by the Mississippi Highway Commission possessed limited compensable rights in the land); White v. Inman, 212 Miss. 237, 256, 54 So. 2d 375, 381-82 (1951) (finding the testator’s will devised to his daughter an estate in fee simple defeasible subject to an executory limitation). ).
[Fn 5] 5 Cf. Cannon, 59 Miss. at 302-05 (holding that contingent remainder beneficiaries could not recover damages from a life tenant for past waste but could enjoin the life tenant from future waste to the inheritance’s detriment
¶21. In Hemphill, the supreme court explained that an executory-interest owner’s limited right rests upon the constitutional provision for due process. Id. at 46, 145 So. 2d at 461. The Hemphill court found that Mississippi precedent and statutory law “place an independent
value and significance on future interests, whether ‘vested’ or not.” Id. at 47, 145 So. 2d at 462. The Hemphill court further explained that a contingent remainder interest “has achieved status as a protectable interest for many purposes” when the “contingent remainder is limited to an existing ascertained person[,]” like Claire and Jane in the instant case. Id. at 48, 145 So. 2d at 462. According to the Hemphill court, “[w]hen a contingent remainder is limited to an existing ascertained person[,] there is no question but that the courts will recognize the interest as having present existence.” Id.
¶22. Thus, upon review of relevant caselaw and the record before us, we find the chancellor erred in denying Claire and Jane’s request for an accounting of their mother’s estate and testamentary trust. As holders of a shifting executory interest in their mother’s estate, Claire and Jane possess limited rights to enjoin the possessory owners from future waste of the estate. See id. at 38, 145 So. 2d at 457.6 As a result, we reverse the chancellor’s judgment finding they lack standing to request an accounting, and we remand the case for further proceedings consistent with this opinion.
In all fairness, the COA did not have the benefit of the Ferrell decision when it decided Flowers. So the COA had to rely on tax-sale, eminent-domain, and property cases for the most part in reasoning through to a decision. But after all this, in light of Ferrell, did Claire and Jane have such a “direct pecuniary interest” so as to entitle them to that level of of protection? And isn’t the “colorable interest” test of Sass-Muni-V (a tax-sale case) less restrictive than the “direct pecuniary interest” of Ferrell (an estate case)?
Or are the interests of Claire and Jane so remote that they can’t be said to have that “direct interest” under Ferrell, which is estate law?
Now that the courts have Ferrell as a waypoint, I hope they can give those of us at ground level some clear, practical guidance.
August 28, 2018 § Leave a comment
MCA § 91-7-295 provides that, to close an estate, “Summons shall be issued or publication be made for all parties interested.” The interested parties have the opportunity to contest the final account.
Only thing is, the statute does not define who is an interested party. And, to compound matters, neither has case law. Until August 23, 2018.
On that date the MSSC handed down Ferrell v. Cole, which looked to the will contest statute to help define who would constitute interested parties under Section 295. The unanimous decision (Randolph not partcipating) by Justice King said this:
¶10. The statute regarding will contests provides that all interested parties must be made parties to a will contest. Miss. Code Ann. § 91-7-25 (Rev. 2013). This Court has noted that interested parties under the will contest statute are those whose direct pecuniary interests will be affected by the will. Garrett v. Bohannon, 621 So. 2d 935, 937 (Miss. 1993). Interested parties includes heirs-at-law, beneficiaries under earlier wills, and beneficiaries under the will being contested. Id. The Mississippi Court of Appeals has noted that interested parties in a will contest may also include creditors, as they may have a direct pecuniary interest in the estate. See In re Estate of Necaise, 126 So. 3d 49, 56 (Miss. Ct. App. 2013). A similar standard should be used to define interested parties regarding the final accounting under Section 91-7-295. To be an interested party under the statute, the party must have some legal tie to the estate in the fashion of a direct pecuniary interest. …
In this case, Tullos, an attorney, had gotten the chancery court to approve a contingent fee contract for wrongful death litigation on behalf of the estate. When he went to close the estate, the Ferrell Group, attorneys, objected claiming a dispute with Tullos over fees. Ferrell had never probated a claim against the estate, and there was no mention of Ferrell in the contract pre-approved by the court. The MSSC affirmed the chancellor’s conclusion that Ferrell was not an interested party within the meaning of the statute.
Closely related to the issue of notice is the issue of who is an interested party for the purpose of standing. It would seem that a person would have to be an interested party within the meaning of the statute in order to have standing to intervene or to sue to demand an accounting, and that interested party ” … must have some legal tie to the estate in the fashion of a direct pecuniary interest.”
So, what constitutes that kind of “direct pecuniary interest?” We’ll look at a case tomorrow that raises some questions in an attempt to answer that question.
August 21, 2018 § 2 Comments
MCA 91-7-1 states that a will may me probated, and letters testamentary issued, in the county where:
- The testator or decedent had a fixed place of residence; or
- If she had no fixed place of residence and land is devised under the will, then in the county where the land, or some part of it, is located; or
- If the testator had no fixed place of residence and only personal property is disposed of in the will, then in the county where the testator dies, or where some part of the property may be.
A lawyer talked with me about a problem he ran into with 3, above. In his case, the decedent was a resident of another state, but had money on deposit in Mississippi. The lawyer attempted an ancillary probate to get the money for the beneficiaries, but the chancellor would not admit the will to probate in the county of the deposit because the judge was not satisfied that the funds met the definition of personal property within the meaning of the statute.
MCA § 1-3-41, defines personal property as follows:
The term “personal property,” when used in any statute, shall include goods, chattels, effects, evidences of rights of action, and all written instruments by which any pecuniary obligation, or any right, title, or interest in any real or personal estate, shall be created, acknowledged, transferred, incurred, defeated, discharged, or diminished.
All that, but no direct mention of cash, deposits, or funds.
The Mississippi Legislature cured the problem with SB 2508, effective July 1, 2018, which clarified the statute’s definition to embrace “all tangible and intangible personal property” and “cash, deposit accounts, and promissory notes.”
That should take care of that.
August 6, 2018 § Leave a comment
Kappi Jeffers filed suit against her sister, Korri Saget, claiming that their mother had been subject to Korri’s undue influence in changing life insurance and investment account beneficiaries, and making a will.
The will contest was the subject of a jury trial that resulted in a mistrial. All parties agreed that the evidence at the jury trial was identical to that on the remaining issues, and they submitted the case to the chancellor on the record made at the trial. The chancellor ruled that the evidence did not support a finding of undue influence, and Kappi appealed.
The COA affirmed in an April 23, 2018 opinion in Estate of Saget: Jeffers v. Saget, by Judge Greenlee. Since this opinion illuminates not only the law on point, but also shows how facts in these cases typically unfold, I have quoted at length:
¶9. Kappi raises three issues on appeal. First, she argues that the chancellor erred in finding that she, as the contestant, had the burden of proving undue influence. Secondly, she argues that the chancellor erred by not finding that once a confidential relationship was found between Korri and Rae, a presumption of undue influence arose. Thirdly, she argues that the chancellor erred in applying an incorrect legal standard regarding the presumption of undue influence. Finding that the chancellor’s determination was not manifestly in error, we affirm.
¶10. “Mississippi law is well-settled regarding . . . confidential relationships and undue influence.” Wheeler v. Wheeler, 125 So. 3d 689, 693 (¶12) (Miss. Ct. App. 2013). This law applies equally to testamentary and inter vivos gifts. Id. When asserting undue influence, the initial burden is on the contestant/plaintiff to show “by clear and convincing evidence, the existence of a confidential relationship between a grantor and a defendant grantee[.]” Howell v. May, 983 So. 2d 313, 318 (¶14) (Miss. Ct. App. 2007). The supreme court has stated that such a “confidential relationship arises when a dominant, over-mastering influence controls over a dependent person or trust, justifiably reposed.” Wright v. Roberts, 797 So. 2d 992, 998 (¶17) (Miss. 2001). Once the existence of a confidential relationship is shown, a presumption of undue influence arises, and “the burden of proof shifts to the beneficiary/grantee to show by clear and convincing evidence that the gift was not the product of undue influence.” Id. at (¶16). Further, the supreme court has enumerated several factors to be considered when determining the existence of the confidential relationship:
(1) whether one person has to be taken care of by others, (2) whether one person maintains a close relationship with another, (3) whether one person is provided transportation and has their medical care provided for by another, (4) whether one person maintains joint accounts with another, (5) whether one is physically or mentally weak, (6) whether one is of advanced age or poor health, and (7) whether there exists a power of attorney between the one and another.
In re Estate of Lane, 930 So. 2d 421, 425 (¶13) (Miss. Ct. App. 2005) (quoting In re Dabney, 740 So. 2d 915, 919 (¶12) (Miss. 1999)).
¶11. In the present case, Kappi asserts that the chancellor found that the required confidential relationship existed, and, therefore, the burden shifted to Korri to prove the nonexistence of her undue influence over Rae. However, Kappi’s assertion is neither supported by the evidence nor the record. The chancellor did not make a finding that Kappi had proven the required confidential relationship existed between Rae and Korri. [Fn 5] Moreover, in her judgment, the chancellor discussed and analyzed all seven of the Lane factors. From this analysis it is apparent that there was a lack of clear and convincing evidence of the existence of the required confidential relationship.
[Fn 5] The chancellor’s “Amended Final Judgment” does not find that a confidential relationship existed nor does it explicitly state that Kappi failed to prove a confidential relationship by clear and convincing evidence.
¶12. The chancellor, in her discussion of the Lane factors, found that: (1) insufficient evidence was produced to show Rae was taken care of by others; (2) Rae and Korri had a close relationship; (3) insufficient evidence was produced to show Rae was provided transportation or medical care by others; (4) Rae and Korri maintained a joint bank account; (5) Rae was not physically or mentally weak as she “knew what she wanted and was very clear about it;” (6) Rae was in poor health; and (7) there was no power of attorney. These determinations by the chancellor were supported by substantial evidence. We further note that Korri resided in Houston, Texas and Rae continued to live in Vicksburg, Mississippi until her death—over a year after the changes were made to the investment account designations. The chancellor was correct in not making a finding that clear and convincing evidence showed that Korri had exerted the required confidential relationship over Rae. The chancellor went further, finding that there was no undue influence exerted upon Rae in changing the beneficiaries on the investment accounts.
¶13. During the hearing on the matter, the chancellor heard from several witnesses including some of Rae’s family and friends. The chancellor found that there was conflicting testimony as to whether Rae was taken care of by others and whether Rae was provided transportation and medical care by others. Therefore, it was the chancellor’s job as trier of fact to determine which version she found more credible. LeBlanc v. Andrews, 931 So. 2d 683, 689 (¶19) (Miss. Ct. App. 2006).
¶14. While the record clearly shows that Rae was in poor health, having had numerous surgeries and health issues, the record also indicates that she was a strong-willed woman who “knew what she wanted and was very clear about it.” Several non-family witnesses who spoke with Rae on the day she made the changes to the investment account beneficiaries testified that Rae appeared neither physically nor mentally weak. One such witness, Mittie Town Warren, a close friend of Rae’s, testified that “[Rae] knew what she had” and that “[w]hen she made her mind to do something, then that’s what she was going to do and she did it.” Further, Warren testified that she would see Rae two to three times per week and that on August 23, 2012, “[Rae] knew exactly what she was doing. Nobody influenced her.” Notwithstanding the assertion of Kappi on appeal, the chancellor did not find that Korri had the required confidential relationship with Rae. Furthermore, the chancellor was correct in finding that the beneficiary changes to the accounts were valid. [Fn 6]
[Fn 6] Though appellate courts would prefer that trial court judges make explicit findings on issues we review on appeal, when chancellors make decisions based upon substantial evidence and discuss the required factors leading to informed decisions, we should not reverse for form over substance. See Spain v. Holland, 483 So. 2d 318, 320 (Miss. 1989).
Some comments next week.
July 18, 2018 § 2 Comments
Lawyers are often confronted with the problem how to access a decedent’s safe deposit box. Usually no one is certain that there is anything of value in it; they just want to make sure. So do we pay the costs to open an estate for temporary administration in the off-chance that there is something there? And then do we have to go forward with an estate that maybe no one really wants to pursue?
The legislature addressed the issue with SB 2668, which took effect July 1, 2018. Here is a summary of the new law by Senator Gray Tollison, who presented a program on 2018 legislation at Summer School for Lawyers:
SB 2668 provides the order of priority by which a financial institution must grant access to a safe-deposit box upon the death of the lessee. The bill also provides that a person seeking access to a safe-deposit box must provide to a financial institution certain documentation. Finally, the bill provides liability protections to financial institutions in certain instances.
Persons entitled to access in absence of probate or administration. At any time after 180 days from the death of a sole lessee or the last surviving co-lessee of a safe-deposit box, a financial institution must grant access in the following order of priority:
(a) The personal representative named in the lessee’s will if an estate has not been opened.
(b) A successor of the deceased safe-deposit box lessee, without necessity of administration, if an estate has not been opened.
Documentation required. A person seeking access to the safe-deposit box must provide the financial institution with the following:
(a) Reasonable proof of the lessee’s death;
(b) Reasonable proof of the identity of the person seeking access; and
(c) An affidavit containing the following information:
(i) The name of the person leasing the safe-deposit box and the date of the lessee’s death;
(ii) The county in which the lessee was domiciled at the time of the lessee’s death;
(iii) A statement that no application or petition for the appointment of a personal representative has been granted or is pending in any jurisdiction;
(iv) A statement that the value of the entire estate of the decedent, wherever located, excluding all liens and encumbrances thereon, does not exceed $50,000.00; and
(v) A statement under penalty of perjury that the affiant is qualified under this bill to obtain access to the safe-deposit box leased by the individual and the facts establishing the qualification.
Interim access. A person shall be given access to a safe-deposit box before expiration of the required one-hundred-eighty-day period only to remove any will or burial instructions contained therein. The person must first meet all the requirements and conditions concerning the persons required to be present and a full inventory of the contents of the safe-deposit box; but no other contents of the safe-deposit box may be removed until the one-hundred-eighty-day requirement has been satisfied. The person given interim access to the safe-deposit box must immediately deliver all wills found and removed from the safe-deposit box to the clerk of the chancery court of the county in which
the decedent was domiciled at the time of the decedent’s death; failure to do so shall subject the person to criminal liability under Section 97-9-77.
The financial institution may make a complete copy of any document removed and delivered and place that copy, together with a copy of the inventory and supporting documentation noted with the date of delivery, in the safe-deposit box to remain there pending removal of the contents of the box as provided by this section or other law.
Reliance on affidavit. A financial institution that acts in reliance upon an affidavit without knowledge that the representations contained therein are incorrect is not liable to any person for so acting. A financial institution that does not have actual knowledge that the facts contained in the affidavit are incorrect may assume without inquiry the existence of the facts contained in the affidavit.
A financial institution shall not be held liable for any costs, expenses, damages or attorney’s fees arising from a grant of access to, or delivery of, the contents held in a safe-deposit box when the access or delivery is under the provisions of this section.
May 23, 2018 § 1 Comment
House Bill 1091, which has been signed by the Governor and takes effect July 1, 2018, amends the wrongful death statute (MCA § 11-7-13) as follows:
Any widow, husband, child, father, mother, sister or brother of the deceased or unborn quick child, or interested party may bring an action pursuant to the provisions of this section outside an estate, regardless of whether there are real or personal assets of an estate.
That should be welcome news to you PI lawyers out there who would prefer to take blood thinners and then dive into a swimming pool full of hungry leeches rather than have to deal with a chancellor.
It is equally welcome news to us chancellors who too often wind up having to chase PI lawyers all over kingdom come to try to get them to tend to their usually delinquent probate matters.
April 23, 2018 § 4 Comments
It’s frustrating and expensive to find out that your summons by publication for unknown heirs is rejected because you didn’t do it right. Nine out of ten times the flaw is in the affidavit that is required to precede publication.
“What?” you say, “there must be an affidavit?”
Oui, mon ami. Consider the language of MRCP 4:
MRCP 4(c)(4)(D): When unknown heirs are made parties defendant in any proceeding in the chancery court, upon affidavit that the names of such heirs are unknown, the plaintiff may have publication of summons for them and such proceedings shall be thereupon in all respects as are authorized in the case of a nonresident defendant …
MRCP 4(d)(4)(A): If the defendant in any proceeding in a chancery court, or in any proceeding in any other court where process by publication is authorized by statute, be shown by sworn complaint or sworn petition, or by a filed affidavit, to be a nonresident of this state or not to be found therein on diligent inquiry and the post office address of such defendant be stated in the complaint, petition, or affidavit, or if it be stated in such sworn complaint or petition that the post office address of the defendant is not known to the plaintiff or petitioner after diligent inquiry, or if the affidavit be made by another for the plaintiff or petitioner, that such post office address is unknown to the affiant after diligent inquiry and he believes it is unknown to the plaintiff or petitioner after diligent inquiry by the plaintiff or petitioner, the clerk, upon filing the complaint or petition, account or other commencement of a proceeding, shall promptly prepare and publish a summons to the defendant to appear and defend the suit. The summons shall be substantially in the form set forth in Form 1-C.
Notice that the affidavit is required to be made and filed before publication.
Here’s the 1-2-3 of how to do it:
- Have your fiduciary or someone with personal knowledge sign an affidavit that (a) there are no other persons known to be heirs of the decedent, and, if there are, they are unknown to the affiant, (b) after diligent inquiry.
- The affidavit must be filed before issuance of the summons.
- The publication must be substantially in the form of Form 1-C.
That’s all there is to it. That will result in an effective publication.
It’s important that you do it right, because bad process is ineffective to confer jurisdiction. A judgment rendered without jurisdiction is void.
Here are some tips for the more zealous among you:
- Any sworn statement with the proper language filed before issuance of the summons will do the job, so why not revamp your form complaint to open an intestate estate to include the affidavit language.
- If you do a stand-alone complaint for determination of heirship, add a paragraph with the appropriate language and make sure it is sworn to by a client with knowledge. One lawyer I know added a prayer for determination of heirship to his estate-opening complaint so that he did not have to file a separate pleading.
- While you’re at it, erase all the faulty affidavits and pleadings from your cloud or hard drive lest you repeat the same old errors by using incorrect forms.
Why is all this necessary? Because MCA § 91-7-293 requires in part that “The executor or administrator shall file with his final account a written statement, under oath, of the names of the heirs or devisees and legatees of the estate, so far as known … the statement must aver that diligent inquiry has been made to learn the same without avail …”
This is a subject I have posted about often, and probably will again as long as lawyers keep tripping over themselves. You can access those prior posts by entering “unknown heirs” in the search box.
March 14, 2018 § Leave a comment
Annie Patterson owned an Alfa life insurance policy in the amount of $50,000 on the life of her nephew and ward, Christopher Nance. Annie was also the beneficiary. She named Christopher’s mother, Angela Nance, as contingent beneficiary. The policy included a provision that, “upon death of the owner, ownership and control of the policy … shall pass to the estate of the deceased owner.”
Annie died in April, 2013, and her father, C.D. Pulliam, attempted to make himself owner and beneficiary, along with his siblings. They submitted an affidavit to Alfa claiming to be Annie’s sole heirs. One of C.D.’s siblings also completed a “Change of Ownership” form that purported to make C.D. owner and primary beneficiary of the policy. C.D. claimed that Alfa produced the form and directed that it be signed. He also claimed that he paid all premiums on the policy after Annie’s death.
No estate was ever opened for Annie.
After Christopher died in November, 2014, Alfa issued a letter to Annie stating that her recent policy change request had been “closed as incomplete” due to irregularities in the form submitted.
Alfa interpled the policy proceeds per MRCP 22 in January, 2015, naming C.D. and his siblings as defendants, since they claimed to be beneficiaries. C.D. filed a counterclaim against Alfa. The chancellor ruled that Alfa had properly interpled the funds and dismissed C.D.’s counterclaim as moot. The chancellor also ruled that C.D. had no legal right or authority to change ownership or beneficiaries of the policy. C.D. appealed.
In Pulliam v. Alfa Ins. Co. and Nance, handed down January 30, 2018, the COA affirmed on the issue of C.D.’s power and authority to change ownership and beneficiaries. Judge Wilson wrote for a unanimous court:
¶23. “Generally, a policy of life insurance is a stand-alone contract whose purpose is to provide a sum of money to the named beneficiary upon the death of the listed insured.” Barber v. Balboa Life Ins., 747 So. 2d 863, 866 (¶11) (Miss. Ct. App. 1999). The policy owner may select any individual as the policy’s beneficiary. Van Zandt v. Morris, 196 Miss. 374, 380, 17 So. 2d 435, 436 (1944). However, “[t]he policy owner’s rights largely end at the death of the insured. The policy beneficiary then has a right to the proceeds, which until death is only an expectancy. At the insured’s death the right to change the beneficiary no longer exists; the rights of the beneficiary have vested.” Evans v. Moore, 853 So. 2d 850, 855 (¶22) (Miss. Ct. App. 2003) (citations omitted).
¶24. As discussed above, the policy was issued to Annie as the owner and primary beneficiary, with Angela designated as the contingent beneficiary. The policy provides that “upon the death of the owner, ownership and control of the policy . . . shall pass to the estate of the deceased owner.” “The language and provisions of insurance policies are viewed as contracts and are subject to the same rules of interpretation as other contracts.” Hayne v. The Doctors Co., 145 So. 3d 1175, 1180 (¶12) (Miss. 2014). “Because insurance policies are creatures of contract, if the language is clear and unambiguous, then the language of the policy must be interpreted as written.” Id. Therefore, when Annie died ownership and control of the policy passed to her estate.
¶25. The chancellor concluded, and we agree, that C.D. and Otis had no authority to change the ownership of the policy or designate new beneficiaries. No estate was ever opened for Annie, nor was there ever any determination of her heirs. The only purported authority for C.D.’s and Otis’s action is an affidavit they provided to Alfa identifying themselves (and Willie Mae) as Annie’s heirs. This was insufficient to give them authority to change the ownership of a policy that, by its clear and unambiguous terms, was the property of Annie’s estate. Cf. Long v. McKinney, 897 So. 2d 160, 174 (¶60) (Miss. 2004) (holding that an “estate must, of course, be opened and administered through the chancery court” before claims may be pursued on its behalf); Delta Health Group Inc. v. Estate of Pope ex rel. Payne, 995 So. 2d 123, 125-26 (¶12) (Miss. 2008) (holding that when “no estate had been opened,” a party could not act as “the administrator of a non-existent estate”).
¶26. While there does not appear to be a Mississippi case addressing this precise issue, courts in other states have reached the logical conclusion that parties such as C.D. and Otis lack authority to make changes to the ownership or beneficiaries of a life insurance policy owned by a deceased relative. In Prudential Insurance Co. v. Stephens, 498 F. Supp. 155, 157 (E.D. Va. 1980), the court held that when the policy owner died,
title to the policy passed to her administrator whenever he may qualify as such, not to her husband . . . in his capacity as the sole heir of her estate. Although her husband was preferred by statute for appointment as administrator of her estate, he had to apply to qualify as administrator. Because he never qualified, title to the policy never passed to him, and any act of dominion he exercised over the policy, other than those acts specifically permitted by statute, had no legal effect. A change of the beneficiary of a life insurance policy does not fall within the . . . narrow categories of permitted acts.
Id. at 157. [Fn 1] (Emphasis supplied) (internal citation omitted).
[Fn 1] Like Virginia, Mississippi has certain statutes that permit a decedent’s heirs at law to take possession of certain categories of the decedent’s assets without opening and administering an estate. See, e.g., Miss. Code Ann. § 91-7-322 (Rev. 2013); see generally Robert A. Weems, Wills and Administration of Estates in Mississippi § 2.52 (3d ed. 2003). It is not apparent that any of these statutes would apply to the facts of this case or that C.D. complied with the necessary statutory requirements. Nor has C.D. argued that any of these statutes apply or authorized him to change the ownership and beneficiaries of the policy. Therefore, this opinion does not address the applicability of any such statutes.
¶27. Similarly, in [Ky. Cent. Life Ins.] v. Vollenweider, supra, the Missouri Court of Appeals held that the deceased policy owner’s husband lacked authority make changes to the policy, although he was the insured and was named as her executor in her will. See Vollenweider, 844 S.W.2d  at 462 [(Mo. Ct. App. 1992)]. The court held that the husband “never became the personal representative of [his deceased wife’s] estate because her estate was not opened until after [his] death,” and the husband lacked authority to make himself “the owner of the policy merely because he was named as personal representative under [her] will.” Id.
¶28. The result is the same in this case. Neither C.D. nor Otis opened an estate or took any other steps to obtain the authority necessary to act on behalf of Annie’s estate. Therefore, C.D. and Otis lacked the authority to make changes to the ownership or beneficiary designations of the subject life insurance policy, which became the property of Annie’s estate upon her death. Accordingly, Annie’s designation of Angela as the policy’s contingent beneficiary remained in effect at the time of Christopher’s death. And the chancery court correctly concluded that there was no genuine issue of material fact and that Angela was entitled to the proceeds of the policy.
The court reversed and remanded on the issue of dismissal of C.D.’s counterclaim. That’s an issue for another post.
As for that footnote, it’s worth your time to dig through the statutes to discover the various ways that heirs (usually called “successors” in the statutes) can transfer ownership of a decedent without going through probate. Bank and securities accounts and car titles are susceptible to such procedures. I have not researched whether life insurance may be changed via a similar statute. My uninformed guess is that the reason no such statute was pled or argued on appeal in this case is that there is none.