A MINI-GLOSSARY OF PROBATE TERMS

July 27, 2011 § Leave a comment

Administration. Supervision of an intestate estate under the auspices of a court exercising jurisdiction.

Administrator. (f: Administratrix) One appointed by the court to take responsibility for an administration. Also used with certain modifying terms to designate a person appointed to replace an executor named in a will.

Administrator with the Will Annexed. (Administrator cum testamento annexo, or CTA) When the will names no executor, or where the nominated executor is unable or unwilling to serve, the court will appoint an administrator CTA (literally with the will in hand) to do the job.

Administrator de Bonis Non. (Administrator DBN) The original term was “Administrator de bonis non administratis,” which literally means administrator of the goods not [already] administered. The administrator DBN is appointed to administer the effects of a decedent that were not administered or omitted in a previous administration.

Administrator DBN CTA. An administrator appointed to replace an executor who had died or must otherwise be replaced before completing administration of the estate.

Administrator de Son Tort. One who, without any authority in a will or court order, assumes to act as executor or administrator of an estate, disposing of its goods and meddling in its affairs. Literally “Administrator in his own wrong.”

Beneficiary. One named in a will to receive a bequest, legacy or devise, or in a trust to receive the trust proceeds. Note that not all heirs are beneficiaries.

Bequest. Disposition of personal property by will.

Codicil. Written supplement to or addition to a will.

Decedent. The person whose death has occasioned the opening of an estate.

Devastavit. Literally “he or she has wasted.” An action against an executor or administrator charging him or her with mismanagement or neglect of duty that has caused loss and which obligates the fiduciary to the heirs, creditors or beneficiaries.

Devisavit vel non. The ancient name given to a proceeding in chancery court to determine whether or not the testator did devise, and whether the document presented was his will. Literally “Did he devise or not?”

Devise. Disposition of real property by will.

Devisee. Person to whom property is devised.

Executor. (f: Executrix) One appointed by the court to take responsibility for probate of a testate estate.

Fiduciary. Term embracing administrators, conservators, executors, guardians, trustees and others who have a special duty of good faith and responsibility to the court and interested parties in relation to the matters entrusted to him or her.

Heir. One who is designated under the laws of descent and distribution to receive the estate of a decedent not disposed of in a will. Although an heir may be a beneficiary, all beneficiaries are not necessarily heirs.

Holographic will. A will written entirely in the handwriting of the decedent.

Intestate. The state of not having written a will; also refers to the individual himself or herself.

Legacy. Same as bequest.

Legatee. One to whom a legacy or bequest is made.

Nuncupative will. An oral will knowingly made in extremis before the required number of witnesses.

Probate. The procedure to prove a will. Also, the collective term used for estates, administrations, guardianships, conservatorships and judicially-administered trusts, the common characteristic of which is appointment of a fiduciary to be responsible to the court and interested parties.

Probate in Common Form. Admission of a will to probate ex parte, without formalities.

Probate in Solemn Form. Admission of a will to probate after notice to all interested parties and a court hearing.

Residuary Estate. All that remains of an estate after the expenses of administration, debts, legacies and devises have been satisfied.

Settlor. One who creates a trust.

Testate. The state of having written a will; also refers to the individual himself or herself.

Testator. (f: Testatrix) The maker of a will, and one who dies leaving a will.

Trustor. Same as settlor.

Wrongful Death Beneficiaries. Statutory designation of persons who are entitled to a distribution of damages for another’s injury and death. Heirs and wrongful death beneficiaries are not necessarily the same persons. See MCA § 11-7-13.

THE AFFIDAVIT OF “REASONABLY DILIGENT INQUIRY” FOR CLAIMS AGAINST THE ESTATE

July 25, 2011 § 11 Comments

MCA § 91-7-145(1) requires the estate fiduciary to make “reasonably diligent inquiry” to identify persons who have claims against the estate, and to notify them by mail at their last known address that failure to probate a claim within the statutorily-prescribed time will bar their claims.

MCA § 91-7-145(2) provides that:

“The executor or administrator shall file with the clerk of the court an affidavit stating that such executor or administrator has made reasonably diligent efforts to identify persons having claims against the estate and has given notice by mail … to all persons so identified. Upon filing such affidavit, it shall be the duty of the executor or administrator to publish in some newspaper in the county a notice requiring all persons having claims against the estate to have same probated and registered by the cleerk of the court granting the letters, which notice shall state the time when the letters were granted and that a failure to probate and register within ninety (90) days after the first publication of such notice will bar the claim … ” [Emphasis added]

Most lawyers refer to this as the “Affidavit of Creditors.”

Clearly, then, the statute requires these measures, in this order:

  1. First, identify those having a claim against the estate;
  2. Send them notice conforming to the statute;
  3. File an affidavit with the clerk stating compliance with the statute;
  4. Publish notice to creditors.

Skip a step and you will have to start over. Go out of order and you will have to start over. Notice the language of the statute: it says that publication is undertaken “[u]pon filing such affidavit …” That clearly requires that you may not publish until after the affidavit has been filed. And, of course, the affidavit can not be filed until after you have made diligent inquiry and mailed your notices, if any.

In the case of In re Estate of Petrick, 635 So.2d 1389 (Miss. 1994), the untimely claim of a creditor was allowed because the administratrix published without notifying a creditor whom the court found was “reasonably ascertainable.” The court added that notice may be published only after the affidavit has been filed (at 1394).

In Houston v. Ladner, 911 So.2d 673 (Miss. App. 2005), the COA found the chancellor in error for finding a probated claim time-barred without first finding that the creditor was a reasonably ascertainable creditor. The creditor had not been sent notice by mail, and the COA pointed out that publication notice was not a substitute for mail notice; it was required in addition to mail notice.

Here are a couple of practice tips to help you comply with the statute:

  • Always question your fiduciary about bills of the decedent. It will be hard to argue that BOA Visa was not a “reasonably ascertainable” creditor when your fiduciary had been paying the bill herself for three months after the decedent died and before the estate was opened. It will be harder still to argue that the attending physician at the time of death was not “reasonably ascertainable.”
  • Why not include the required affidavit in your petition to open the estate, or in the fiduciary’s oath, whichever is the appropriate point for you? Maybe by eliminating one extra piece of paper you will be more likely to do it right.

Reminder: MCA § 93-13-38 makes the foregoing provisions applicable to guardianships and conservatorships, as well as estates.

The statutory requirements are technical and mandatory. Read the code and do what it says. Doing so can save you considerable grief down the road.

“A PERILOUS MISTAKE” IN HANDLING FIDUCIARY MATTERS

July 11, 2011 § 8 Comments

Lawyers in my district are aware that I have begun cracking down on the handling of estates, guardianships and conservatorships.  Delinquent and inadequate accountings, lack of inventories, absence of vouchers and other deficiencies are no longer tolerated.

My motivation in part has been the fact that there are lawsuits pending against local lawyers claiming mishandling of fiduciary matters.  On the coast only last year, it was discovered that a lawyer serving as county administrator until his death may have misappropriated funds in excess of a million dollars.

If you’re going to handle probate matters, understand that as the lawyer you have a grave responsibility for which you may be held liable by judgment for the proper handling of the estate by the fiduciary.  Let me repeat that you may be held liable by judgment.

My responsibility as chancellor is not only to ensure that the assets and rights of the ward or estate are protected, but also to see that the attorney does not err.

To get an idea of the gravity, you need to read and take to heart the Mississippi Supreme Court’s decision in Matthews v. Williams, 633 So.2d 1038 (Miss. 1994).  In that case, the conservator failed to file an inventory and, when he finally did, omitted financial assets.  He failed to file accountings, and when he finally did reported expenditures made without any prior approval of the court.  He made investments without approval of the court, and was unable to account properly for them.  The chancellor approved his actions, but when that chancellor left office, the next chancellor granted a petition to remove the conservator.  Here are some key excerpts from the court’s opinion (beginning at page 1039):

A chancery court-appointed conservator has the “same duties, powers and responsibilities as a guardian of a minor, and all laws relative to the guardianship of a minor shall be applicable to a conservator.” Miss.Code Ann. § 93-13-259 (1972).  [NOTE:  And MCA § 93-13-38 states that “All the provisions of law on the subject of executors and administrators, relating to settlement or disposition of property limitations, notice to creditors, probate and registration of claims, proceedings to insolvency and distribution of assets of insolvent estates, shall, insofar as applicable and not otherwise provided, be observed and enforced in all guardianships.”
I. INVENTORY
Miss.Code Ann. § 93-13-33 (1972) states:

Every guardian shall, within three months after his appointment, return to the court, under oath, a true and perfect inventory of the estate, real and personal, and of all money or other things which he may have received as the property of his ward; and he shall return additional inventories of whatever he may subsequently receive. And he shall annually return an inventory, under oath, of the increase of the estate, if there be any. A guardian who shall fail to return inventories may be removed and his bond put in suit, unless he can show cause for the default. (Emphasis added)

The first inventory was not filed until February 23, 1988, a year and two months following Dan’s appointment. It did not mention bonds owned by the estate. The third inventory filed May 13, 1990, purporting to show the inventory of the estate as of December 31, 1989, lists “Series E. Bonds $2,063.22.”

The bonds were first identified by serial number and date of purchase in the fourth inventory showing assets as of December 18, 1990, and filed January 7, 1991, which states: “Series E Bonds (all $25.00/7 year Bonds),” and then lists twenty-seven bonds by serial number and showing dates of purchase from July 1966 through July 1969. Subsequent inventories were not timely filed, and no reason was given therefor. There is no explanation for failure to include the bonds.

II. ANNUAL ACCOUNTS

The annual accounts required by Miss.Code Ann. § 93-13-67 (1974) were not timely filed, and no reason was offered therefor.  [NOTE: MCA § 93-13-67 states: “Except as herein provided, and as provided in section 93-13-7, every guardian shall, at least once in each year, and oftener if required, exhibit his account, showing the receipts of money on account of his ward, and showing the annual product of the estate under his management, and the sale or other disposition thereof, and showing also each item of his expenditure in the maintenance and education of his ward and in the preservation and management of his estate, supported by legal vouchers…. And such accounts shall be examined, approved, and allowed by the court in the same way that the accounts of executors and administrators are examined, approved, and allowed. Compliance with the duties required, in this section, of guardian shall be enforced by the same means and in the same manner as is provided in respect to the accounts of executors and administrators. (Emphasis added)
III. EXPENDITURES WITHOUT COURT APPROVAL
Much more serious is the failure of Dan to seek court approval prior to making expenditures. Section 93-13-38 (1993) provides:

It shall be the duty of the guardian … to improve the estate committed to his charge, and to apply so much of the income, profit or body thereof as may be necessary for the comfortable maintenance and support of the ward and of his family, if he have any, after obtaining an order of the court fixing the amount…. The guardian is empowered to collect and sue for and recover all debts due his said ward … (Emphasis added)

This statute requires that a court order fixing the amount to be spent for the care and maintenance of the ward be obtained prior to making such expenditures. Dan simply made the expenditures as he saw fit. When this Court addressed such action in Welch v. Childers, 195 Miss. 415, 420, 15 So.2d 690, 691 (1943), we held:

A minor under guardianship is a ward of the Chancery Court. All receipts and disbursements of his estate are required to be under the authority and direction of the Chancery Court or the Chancellor in vacation. The expenses for the maintenance and support of the ward cannot be proved in any other way. The object of the law is to guard against dishonesty and mismanagement of the estate by the guardian…. The law does not leave the amount of the expenditures by the guardian for the maintenance, support and education to (the guardian’s) discretion. The sum must be fixed by the court. If the guardian contracts therefor without the sanction of the Chancery Court or Chancellor, the liability therefor is personal to him, and he cannot be allowed for it in his accounts for the ward. The guardian has no power to bind the estate of his ward without the sanction of the Chancery Court or the Chancellor.

That prior court approval is absolutely required by statute before a conservator makes expenditures seems never to have occurred to counsel representing Dan or the chancellor who then examined and approved them. Expenditures for the care and maintenance of Mrs. Mathews and her property were made by Dan as though he had some blanket power of attorney to spend as he thought best, and only then report it to a chancellor. No explanation was offered to the chancellor for all these expenditures having been made without court approval, nor did the chancellor require one. This is of profound concern to this Court. We again remind attorneys for estates of wards and decedents and the chancellors who examine accounts and inventories that they, too, have special and far-reaching fiduciary duties. It was the obligation of the attorney to advise the conservator as to his statutory duties, responsibilities, and limitations on expenditures. As for chancellors, a chancellor who must approve accounts and inventories has a duty beyond deciding lawsuits. He is under an obligation first to see that accounts and inventories filed comply with the statutes before he approves them. He is also the “superior guardian” of the ward. This Court long ago in Union Chevrolet Co. v. Arrington, 162 Miss. 816, 826, 827, 138 So. 593, 595 (1932), held:

Infants and persons of unsound mind are disabled under the law to act for themselves. Long ago it became the established rule for the court of chancery to act as the superior guardian for all persons under such disability. This inherent and traditional power and protective duty is made complete and irrefragable by the provisions of our present state constitution. It is not competent for the Legislature to abate the said powers and duties or for the said court to omit or neglect them. It is the inescapable duty of the said court and or the chancellor to act with constant care and solicitude towards the preservation and protection of the rights of infants and persons non compos mentis. The court will take nothing as confessed against them; will make for them every valuable election; will rescue them from faithless guardians, designing strangers, and even from unnatural parents, and in general will and must take all necessary steps to conserve and protect the best interest of these wards of the court. The court will not and cannot permit the rights of an infant to be prejudiced by an waiver, or omission or neglect or design of a guardian, or of any other person, so far as within the power of the court to prevent or correct. Grif.Chan.Prac. §§ 45, 360, 530, 533. All persons who deal with guardians or with courts in respect to the rights of infants are charged with the knowledge of the above principles, and act to the contrary thereof at their peril. (Emphasis added)  Also, Mississippi State Bar Association v. Moyo, 525 So.2d 1289, 1293 (Miss.1988).

Solicitors for guardians and conservators and chancellors who must approve their accounts and inventories who ignore these fiduciary responsibilities make a perilous mistake.  [Note from the opinion:  We are not comforted by the May 18, 1990, decree approving the third annual account in which the chancellor first authorized the conservator to “pay all future medical, personal, and other expenses for the creature comforts of Frances Mathews.” With no representation from Dan as to why any of these expenses might be, the chancellor gave him blanket authorization to expend his estate’s funds.

IV. INVESTMENTS WITHOUT COURT APPROVAL

Section 93-13-57 Miss.Code Ann. (1972) deals with the method the guardian is to utilize in disposing of surplus money not necessary for the current expenditures for the ward. This section provides in part:

Whenever the guardian shall have money of his ward not needed for current expenditures, or directed to be invested for the ward, he shall apply to the court, or chancellor in vacation, for direction as to the disposition he shall make of it. The court or chancellor shall determine whether he shall lend it at interest, and upon what security, or how he shall dispose of it. If the court or chancellor designate the person to whom the loan shall be made, or the security on which it shall be made, and the loan to be so made, responsibility shall not attach thereafter to the guardian; but if the court or chancellor shall entrust him with discretion in the matter, he shall be bound for the exercise of sound judgment…. Any guardian who fails to report to the court the fact that he has money of his ward not needed or allowed to be used for current expenditures, and to ask the order of the court as to the disposition of such money, may be chargeable with interest on the same at the rate of eight per centum (8%) per annum during the time of failure. (Emphasis added)

Dan, on behalf of Mrs. Mathews, purchased certificates of deposit, invested in stock, and sold stock, all without prior court approval.

Moreover, we have been unable to trace the certificates of deposit from one accounting period to the next because the numbers identifying them differed. Interest proceeds appear to have been treated inconsistently, some deposited in the ward’s checking account, other reinvested. Interest deposited in the checking account identified by certificate of deposit numbers differed from the numbers identifying the certificates in the inventory for that period.

On January 23, 1987, Dan petitioned and on January 26, 1987, received court approval to commence legal action to recover money fraudulently obtained from her. No report was ever made to the court of the outcome of this action.

V. QUESTIONABLE EXPENDITURES

In deciding whether Dan should be removed as conservator, the chancellor also had authority to consider his expenditure, and without prior court approval, of more than $1,800 in repairs on a pickup truck valued at $800, and in an 18-month period following the ward’s admittance to the nursing home, $498 for oil, gas and service for the truck. Utilities and household expenses, including a telephone, were kept active after Mrs. Mathews went to a nursing home, and expenditures made, all without court approval. Some vouchers were made to “cash.”

We do not have before us and do not address the justification for any expenditures made by Dan as conservator, or their reasonableness or necessity. These may be proper inquiries upon remand. Neville v. Kelso, 247 So.2d 828, 834-835 (Miss.1971).

The chancellor should also upon remand see that inventories reflect and accurately trace the investment of all funds.

Our sole inquiry on this appeal is whether the chancellor abused his discretion in removing Dan as conservator, and for the reasons set forth she clearly did not. Harris v. King, 480 So.2d 1131, 1132 (Miss.1985); Conner v. Polk, 161 Miss. 24, 29, 133 So. 604, 605 (1931).

I don’t know how it could be any clearer.  You deal lackadaisically with probate matters at your peril.  Your law license, your reputation as an attorney, your malpractice coverage, and even your own assets are on the line.  I am not being melodramatic when I say this; I am being completely truthful and trying to wave a huge caution flag.  Matthews v. Williams makes it abundantly clear that the approval of the chancellor will not shield you or your fiduciary.

A COMPENDIUM OF ESTATE POSTS

July 5, 2011 § 6 Comments

UPDATED CHECKLIST OF CHECKLISTS

May 27, 2011 § 5 Comments

Proving your case by proving certain factors is a fact of legal life in Mississippi.  I’ve referred to it as trial by checklist.  If you’re not putting on proof of the factors when they apply in your case, you are wasting your and the court’s time, as well as your client’s money, and you are committing malpractice to boot. 

Many lawyers have told me that they print out these checklists and use them at trial.  I encourage you to copy these checklists and use them in your trial notebooks.  And while you’re at it, you’re free to copy any post for your own personal use, but not for commercial use.  Lawyers have told me that they are building notebooks tabbed with various subjects and inserting copies of my posts (along with other useful material, I imagine).  Good.  If it improves practice and makes your (and my) job easier and more effective, I’m all for it. 

Here is an updated list of links to the checklists I’ve posted:

Attorney’s fees.

Attorney’s fees in an estate.

Adverse possession.

Child custody.

Closing an estate.

Doing an accounting in a probate matter.

Grandparent visitation.

Equitable distribution.

Income tax dependency exemption.

Modification of child support.

Periodic and rehabilitative alimony.

Lump sum alimony.

Separate maintenance.

FIVE TIPS TO IMPROVE YOUR PROBATE PRACTICE

April 19, 2011 § 7 Comments

  • Always accompany the executor, administrator, guardian or conservator to the bank or other financial institution to open the estate account.  That way you can make sure that the funds are properly deposited into a restricted account, and that the fiduciary does what she is supposed to do. 
  • Always ask that a duplicate bank statement be sent to you for the estate account.  If the bank balks, direct that the bank statement be sent to you and not the fiduciary.  Review each bank statement promptly when you receive it to make sure that no unauthorized disbursements are being made.  Also, when the next accounting comes due — Voila! — you have a complete set of bank statements.
  • Have your secretary or paralegal call the fiduciary every couple of months to inquire how things are going, to remind of upcoming deadlines, and to ensure that the address and telephone info in your file is accurate.  This is not only great client relations, it’s one of the best means possible to discover and address problems in their early stages.
  • Accompany your fiduciary to inventory that safe deposit box, and, if possible, bring a witness.  It seems that there is often someone lurking in the wings ready to allege that there were all sorts of valuable items in there that the fiduciary is not accounting for.
  • Do an inventory even when one is not required.  Inventory establishes the baseline for accounting.  It also can help neutralize the claims of many disgruntled heirs and sideline-sitters.

CHECKLIST FOR DOING AN ACCOUNTING IN A PROBATE MATTER

April 11, 2011 § 16 Comments

_____ State the time period covered by the accounting, starting with the date of the last accounting, or if a first account with the date the estate, guardianship or conservatorsip was opened.

_____ List all assets of the estate as of the ending date of the last accounting. (MCA §91-7-277, §91-7-93, §93-1333, §93-13-67, and §93-113-259 and UCCR 6.03).

______ List the date, source, and amount of each item of income since the last accounting. (MCA §91-7-277, and §93-13-67).

______ Total the income and state a total.

______ List the date, payee, explanation or description, amount, and authority (the date of each authorizing court order) for each disbursement since the ending date of the last accounting. (MCA §91-7-277, 91-7-279, §93-13-67p, and §93-13-71 and UCCR 6.04 and 6.05).

______ Attach all documents supporting all income and disbursements. This is the “voucher” requirement that was previously posted about here. The required documentation includes ALL statements of any accounts or investments showing income or disbursements. This may also include canceled checks and receipts. (See statutes and rules cited above).

______ Total the disbursements and state the totals.

______ List and explain for all non-financial assets that appeared on the previous accounts, but are no longer in the control of the fiduciary.

______ A request for payment for the fiduciary including a bill or itemization to support request. (MCA §91-7-299 and §93-13-67 and UCCR 6.11).

______ A request for attorney fees, including a bill or itemization to support said request. (MCA §91-7-281 and §93-13-79 and UCCR 6.12).

______ Close with a summary calculation of the value of the estate coming into the hands of the fiduciary at the opening of the accounting period, a total of the income, a total of the disbursements, and a total balance in the fiduciary’s control that will be the beginning figure for the next account.

______ Have the fiduciary sign and swear to the accounting. (MCA §91-7-277 and §93-13-37 and UCCR 6.02).

Thanks to Jane Miller, Senior Staff Attorney for the 12th District.

TRIAL BY CHECKLIST: ATTORNEY’S FEES IN AN ESTATE

March 16, 2011 § 15 Comments

A practice tip about trial factors is here.

I previously posted here about what it takes to comply with the UCCR to document your claim for attorney’s fees in an estate.

Ordinarily, attorney’s fees claims are governed by the factors in McKee v. McKee, but in an estate, the factors are slightly, but significantly, different.

In estate matters, the proper factors to consider in determining reasonable attorney’s fees are:

  1. The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
  2. The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
  3. The fee customarily charged in the locality for similar legal services;
  4. The amount involved and the results obtained;
  5. The time limitation imposed by the client or by the circumstances;
  6. The nature and length of the professional relationship with the client;
  7. The experience, reputation and ability of the lawyer or lawyers performing the services; and
  8. Whether the fee is fixed or contingent.

In re Estate of Johnson v. Moore, 735 So. 2d 231, 237 (¶27) (Miss. 1999) (quoting Moreland v. Riley, 716 So. 2d 1057, 1062 (¶16) (Miss. 1998)).

 In the case of Catchings v. Estate of McCullough, decided March 15, 2011, the COA reviewed a chancellor’s decision that reduced attorney’s fees in an estate.  The attorney claimed $88,000 in fees in connection with a $300,000 estate, but the chancellor found that the amount of work done did not warrant that amount of fees and reduced the fee award to $36,000, based on application of the Johnson factors stated above. The COA found no abuse of discretion and upheld the chancellor’s determination. 

If you have an exceptionally large claim for attorney’s fees in an estate, it would be a good idea to attach your and a fiduciary’s affidavit itemizing the time spent and addressin each of the Johnson factors.

UNDUE INFLUENCE IN INTER VIVOS GIFTS BETWEEN SPOUSES

February 28, 2011 § 6 Comments

Mansfield and Patricia were married in 1994, when both were in their 40’s. It was the second marriage for each, and they had children by the previous marriages. Patricia suffered health problems during the marriage, and she received a Phen-Phen settlement in 2001.

On March 15, 2002, Patricia executed a will devising her entire estate to her three adult children and her sister. The will included this language: “Mansfield Langston, my husband, has his own estate in his name, therefore no provision for him is made in this will.”

Soon after in 2002, there was a series of transactions between the parties that ultimately resulted in a home being titled in joint ownership between Mansfield and Patricia, with right of survivorship. The home had formerly been in her sole name. There were other related transactions, the most significant of which was that a $200,000 CD was converted to joint tenancy with right of survivorship.

On May 11, 2005, Patricia died of a sudden illness, and Patricia’s estate was opened by her mother. The estate sought to set aside the joint tenancies in the marital home and the certificate of deposit in order to bring those assets into the estate for distribution to the will beneficiaries, who were Patricia’s adult children and Patricia’s sister.

Following the trial, the chancellor found that a confidential relationship existed between Mansfield and Patricia. Therefore, the chancellor ruled that the burden shifted to Mansfield to prove by clear and convincing evidence that the creation of the joint tenancies was not the result of undue influence. The chancellor held that Mansfield did not meet this burden, and both joint tenancies were set aside and brought into Patricia’s estate.

In the case of Estate of Langston, in a well-reasoned, authoritative opinion by Judge Griffis, the COA on March 30, 2010, reversed the chancellor and held that the presumption of undue influence did not apply to inter vivos transactions between husband and wife.  The ruling in effect extended the prior rule that the presumption of undue influence did not apply to testamentary dispositions between spouses.

On February 24, 2011, the Mississippi Supreme Court affirmed the COA in the case of Estate of Langston v. Williams in an opinion authored  by Justice Dickinson and joined by all but Graves, who has departed for his federal gig in New Orleans, that concludes with this key language:

“A confidential relationship between spouses does not create a presumption that one spouse used undue influence over the other to obtain an inter vivos gift. And one who claims the gift was the product of undue influence bears the burden of proof.”

The burden of proof is by clear and convincing evidence.

The case was remanded to Sunflower County Chancery Court to allow the estate to make a record on the issue, since the chancellor had ruled (properly under the law in effect at the time) that such a presumption did exist, so that the estate was neither required to prove, nor was it given the opportunity to prove, undue influence.

It’s not uncommon for issues like these to surface in second marriages of older couples where there are children by a prior marriage.  If you find yourself being presented with undue influence claims in a similar case, I encourage you to read Judge Griffis’s COA opinion.  It’s about as good an exposition of all the applicable case law that you will find.

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