Estates and Administrations | The Better Chancery Practice Blog

When Objection to Administration is a Shareholder’s Derivative Action

March 12, 2018 § Leave a comment

Frankie Don Ware’s will directed that shares of three closely held corporations be distributed by his estate to a testamentary trust. When his widow, Carolyn, filed to close the estate and distribute the shares as directed, Frankie’s son, Richard, filed an objection arguing that the corporate bylaws required that the shares be offered first to the corporation before transfer. Carolyn responded that Richard lacked standing to object. Richard took the position that he had standing in his capacity as trustee of the testamentary trust. The chancellor agreed with Richard, and Carolyn appealed.

In Estate of Ware v. Ware, decided March 1, 2018, the MSSC reversed and remanded, holding that Richard did not have standing. Justice Randolph penned the opinion for a unanimous court:

¶16. Carolyn argues that Richard’s objection to the closing of the estate is a shareholder derivative action, and therefore Richard lacked standing to object. Despite Carolyn’s raising this issue throughout the proceedings, the trial court declined to address Richard’s standing.

¶17. “Standing is a jurisdictional issue.” Hotboxxx, LLC v. City of Gulfport, 154 So. 3d 21, 27 (Miss. 2015) (citations omitted). Therefore, “it may be raised by the Court sua sponte or by any party at any time, and the standard of review is de novo.” Id.

¶18. Carolyn cites Bruno v. Southeastern Services, Inc., 385 So. 2d 620, 622 (Miss. 1980), in which this Court adopted the rule

that an action to redress injuries to a corporation, whether arising in contract or in tort cannot be maintained by a stockholder in his own name, but must be brought by the corporation because the action belongs to the corporation and not the individual stockholders whose rights are merely derivative. The rule applies even though the complaining stockholder owns all or substantially all of the stock of the corporation.

¶19. Richard argues that his claim is not a shareholder derivative claim, but rather, an objection to the administration of the estate. Richard argues that because he is named a trustee of the trust created by Frankie’s will, he has standing to object to the closing of Frankie’s estate. Thus, Richard argues that Carolyn’s standing argument, as it applies to shareholder derivative actions, is inapplicable. Notably, Richard cites no authority for his position that his title of trustee confers upon him standing to object to the administration of an estate. Regardless, his argument is without merit. Richard is attempting to prevent assets from being distributed to the trust. “A trustee shall take reasonable steps to enforce claims of the trust and to defend claims against the trust.” Miss. Code Ann. § 91-8-811(a) (Rev. 2013) (emphasis added). Richard’s title of trustee alone is insufficient to confer standing unless he is enforcing claims on behalf of the Frankie Ware Family Trust or is defending claims against the family trust. Id.

¶20. In order to address standing, the Court must determine whether Richard “had the right to participate in this cause of action.” City of Picayune v. Southern Reg’l Corp., 916 So. 2d 510, 519-520 (Miss. 2005). “Fundamental to this review” is what body of law applies to the dispute. Id. Accordingly, whether Richard’s action is indeed a shareholder derivative action will determine what law applies, and in turn, determine Richard’s standing.

¶21. “[I]n determining whether the action belongs to the corporation or the individual, the focus of the inquiry is whether the corporation or the individual suffered injury.” Scafidi v. Hille, 180 So. 3d 634, 647 (Miss. 2015) (quoting Mathis v. ERA Franchise Sys., Inc., 25 So. 3d 298, 303 (Miss. 2009)). “The action is derivative if the gravamen of the complaint is injury to the corporation, or to the whole body of its stock or property without any severance or distribution among individual shareholders, or if it seeks to recover assets for the corporation or to prevent the dissipation of its assets.” Id. Richard’s objection to the closing of Frankie’s estate is, in reality, a shareholder derivative claim. Richard was seeking solely to enforce a putative corporate right. As such, the law applying to shareholder derivative actions must apply. See City of Picayune, 916 So. 2d at 519-520 (holding that “different standing requirements are accorded to different areas of the law,” and finding that because corporate law applied to the action, citizens did not have standing to challenge actions by a corporation).

¶22. In Mississippi, a shareholder may not institute a derivative suit unless certain statutory conditions are met. 3 Miss. Practice Encyclopedia of Miss. Law § 22:210 (2d ed. 2017). Mississippi Code Section 79-4-7.41(1) (Rev. 2013) provides that a shareholder may not commence a derivative suit unless he or she was a shareholder at the time of the act or omission in question. Mississippi Code Section 79-4-7.41(2) requires that the shareholder fairly and adequately represent the interests of the corporation. Furthermore, Mississippi Code Section 79-4-7.42 (Rev. 2013) requires the complaining shareholder to make a written demand upon the corporation or appropriate officers prior to commencing the proceeding, and section two of that statute requires ninety days to elapse after the written notice, unless the corporation earlier rejects the demand, or unless irreparable injury to the corporation would result by waiting for the ninety-day period to elapse. Finally, our caselaw requires that the corporation is made a party to the derivative action. See Bruno, 385 So. 2d at 622 (“The corporation is an indispensable party” to a shareholder derivative action); see also Fairchild v. Keyes, 448 So. 2d 292, 294 (Miss. 1984) ([T]he corporation is an indispensable party to
a suit brought to protect its interest . . . .”).

¶23. “The rationale for these procedural prerequisites has to do with the corporation’s status as a creature of the State.” 3 Miss. Practice Encyclopedia Miss. Law § 22:210 (2d ed. 2017). “Since the corporation is a separate entity, the shareholder has no legal interest in any of its property.” Id. These conditions “avoid multiple lawsuits, preserve creditors’ rights since any recovery will belong to the corporation, and provide for any recovery to benefit all shareholders.” Id.

¶24. Richard failed to satisfy the statutory conditions required of shareholder derivative actions. Notwithstanding, Richard argues that, even if his action is considered a shareholder derivative action, the chancery court has discretion to disregard the procedural prerequisites and treat the claim as a direct action if it makes certain findings under the Derouen doctrine. Derouen v. Murray, 604 So. 2d 1086, 1091 n.2 (Miss. 1992). The trial court declined to address the question of whether Richard’s action was a shareholder derivative action, and never made any findings under Derouen. In Derouen, this Court did not overrule Bruno, but stated in a footnote that [i]n the case of a closely held corporation . . . , the [chancery] court in its discretion may treat an action raising derivative claims as a direct action, exempt it from those restrictions and defenses applicable only to derivative actions, and order individual recovery, if it finds that to do so will not (i) unfairly expose the corporation or the defendants to a multiplicity of actions, (ii) materially prejudice the interests of creditors of the corporation, or (iii) interfere with a fair distribution of the recovery among all interested persons. Derouen, 385 So. 2d at 622. This Court later interpreted the Derouen doctrine to hold “that in derivative suits involving closely held corporations, the trial court may award damages on an individual basis, provided certain safeguards are met.” Investor Res. Servs., Inc. v. Cato, 15 So. 3d 412, 424 (Miss. 2009). Indeed, the facts of Derouen involved a shareholder
seeking individual recovery for his fifty-percent equity interest in proceeds from the business. Derouen, 604 So. 2d at 1089-90.

¶25. Here, Richard is not seeking individual recovery or individual damages. Rather, he has brought an action to enforce corporate bylaws. The Derouen doctrine does not apply because Richard does not seek individual recovery, but rather seeks to redress alleged wrongs to the three corporations.

¶26. The holding in Bruno applies in this case. Richard lacked standing to bring suit because the right belongs to the three corporations. It is of no consequence that Richard owns half of the shares of stock, as Bruno explicitly applies to closely held corporations, where “the complaining stockholder owns all or substantially all of the stock of the corporation.” Bruno, 385 So. 2d at 622. Accordingly, Richard lacked standing under Bruno to assert a claim individually on behalf of the corporations.

Thoughts:

Although shareholder derivative actions are something you won’t read about much on this blog, it’s worth giving some thought to how the rules of corporation law intersect with chancery matters, particularly estates and divorce. I can conjure up a fair number of scenarios where the holding in this case could apply.
“Standing is a jurisdictional issue” that may jump up and bite you at any point in the litigation. Even the judge may raise it.

Amendment Fail

February 7, 2018 § 1 Comment

I see all sorts of ways that people try to amend their pleadings. Some simply file amended pleadings without leave of court, whether within or without time for responsive pleadings. Some get a court order to amend and do so. I have seen some get a court order and never file an amended pleading. A few even comply strictly with the rule.

The COA decision in Estate of Flowers: Flowers v. Estate of Flowers, Flowers and Lang, decided January 2, 2018, involved a motion for leave to amend pleadings following a R12(b)(6) dismissal, and the chancellor’s refusal to allow the amendment. The COA affirmed. Judge Carlton wrote for the court:

¶59. Finally, Claire and Jane appeal the denial of Claire’s motion for leave to admit her amended petition for compensatory and punitive damages. Claire and Jane argue that leave to amend should have been granted because none of the respondents asserted that they would
be prejudiced if the motion were granted.

¶60. In her amended petition, Claire sought to include claims against the various attorneys involved in the representation of Richard’s estate, Brenda’s estate, and the guardianship of D.A. At a hearing on Claire’s motion, the chancellor made a bench ruling wherein he granted Oakes’s Rule 12(b)(6) motion to dismiss Claire’s petition for failure to state a claim upon which relief could be granted. The chancellor also granted Oakes’s and the Meltons’ (among others) motions to strike themselves as defendants in the cause due to Claire’s failure to obtain leave from the court under Mississippi Rule of Civil Procedure 21 to add them.

¶61. As stated, in response to the chancellor’s order of dismissal under Rule 12(b)(6), on February 16, 2016, Claire filed a motion for leave to amend her petition for compensatory and punitive damages, and her amended petition for compensatory and punitive damages in accordance with Rule 15(a). In her motion, Claire stated that she “specifically requests that she be allowed to amend those portions of the complaints by which the court ruled were insufficient at stating a claim for relief. Those portions include stating fraud and negligence per se with the correct specificity.”

¶62. The defendants listed in Claire’s petition joined Oakes’s motion requesting that Claire’s motion for leave to amend be denied. The defendants argued that Claire failed to “attach a proposed amended petition that would permit the chancellor to determine whether justice requires that leave to amend be granted” and that the parties were “dismissed as [respondents] . . . as a result of [Claire’s] failure to obtain leave of court to add [them] as part[ies].”

¶63. We review the denial of a motion to amend for abuse of discretion. Crater v. Bank of New York Mellon, 203 So. 3d 16, 19 (¶7) (Miss. Ct. App. 2016). We will affirm the chancellor’s decision “unless the discretion he used is found to be arbitrary and clearly erroneous.” Breeden v. Buchanan, 164 So. 3d 1057, 1064 (¶27) (Miss. Ct. App. 2015) (quoting Poole ex rel. Poole v. Avara, 908 So. 2d 716, 721 (¶8) (Miss. 2005)).

¶64. Rule 15(a) provides as follows:

On sustaining a motion to dismiss for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6), . . . leave to amend shall be granted when justice so requires upon conditions and within time as determined by the court, provided matters outside the pleadings are not presented at the hearing on the motion.

Regarding Rule 15 amendments to pleadings, the supreme court has held as follows:

While proposed amendments have been liberally permitted throughout Mississippi legal history and are encouraged under Rule 15[,] a party cannot fail to convey the subject matter of the proposed amendment to the trial judge and if they do so fail, no error can be predicated on the judge’s failure to allow the amendment.

Parker v. Miss. Game & Fish Comm’n, 555 So. 2d 725, 730-31 (Miss. 1989). Additionally, in Price v. Price, 430 So. 2d 848, 849 (Miss. 1983) (citing Watts v. Patton, 66 Miss. 54, 5 So. 628 (1888)), the supreme court explained that a chancellor’s refusal to allow the amendment of a pleading cannot be reviewed on appeal where the record fails to show the proposed amendment.

¶65. In his order denying Claire’s motion for leave to amend in accordance with Rule 15(a), the chancellor explained the following: “[T]he motion filed by [Claire] fails to state how she would amend her prior pleadings or fails to attach a proposed amended pleading which would allow the court to determine whether justice required that she be given leave to file amended pleadings[.]” The record reflects that the motion to amend filed by Claire contained only bare allegations and contained no facts or actions from which to determine the existence of a cause of action. See also M.R.C.P. 9(b) (providing that fraud must be pled with specificity); Faul v. Perlman, 104 So. 3d 148, 156 (¶26) (Miss. Ct. App. 2012)
(discussing the elements a plaintiff must show to establish negligence per se). The record reflects that the chancellor thus properly found that Claire failed to state a basis for amending her pleadings. See Parker, 555 So. 2d at 730-31.

¶66. Additionally, with respect to a claim of fraud, we recognize the following guidance:

[T]he facts on which the charge of fraud is predicated must be specifically stated with full definiteness of detail. No general averment of a fraudulent course of business, and no bare statement of a corrupt design on the part of the defendant, is sufficient. The acts themselves which are claimed to be fraudulent must be clearly set out. It must further appear by definite averment in what manner the fraudulent acts wrought injury to the complainant. Fraud cannot be inferred, but must be distinctly charged, and with such fullness and precision that a court of chancery would be enabled to grant full and complete relief and redress should the bill of complaint be taken as confessed.

Weir v. Jones, 84 Miss. 602, 36 So. 533, 534 (1904). Claire’s failure to provide a basis for amending her pleadings and her failure to plead fraud and negligence with the required specificity prevented the chancellor from determining whether Claire had a cause of action or just allegations without facts.

¶67. Furthermore, as previously stated, the record also shows that Oakes, Stuckey, Melton Jr., and Melton III were dismissed from the litigation as defendants because Claire failed to obtain leave of court before she added the attorneys as parties as required by Rule 21. Claire filed no appeal of the dismissal of the attorneys as parties. In Crater, 203 So. 3d at 21 (¶16), this Court addressed a Rule 15(a) motion to amend filed against a nonparty:

Because the motion to amend asserted claims only against a nonparty, devoid of any factual allegation, after the statute of limitations had run, and sought to exercise a statutory right that does not exist, the claims raised by [the petitioner] in her amended complaint were futile. Because the amendment was futile, the chancery court was not required to grant leave for the amendment. Therefore, the chancery judge did not abuse his discretion in ruling on the motion to dismiss prior to ruling on [the petitioner’s] motion to amend.

¶68. Accordingly, we find no abuse of discretion in the chancellor’s denial of Claire’s motion to amend.

Some afterthoughts:

Of course, any amended pleading must comply with R15 in order to do its job. My suggestion is to read the rule. I’ll bet most of you will be surprised at how many times you’ve failed to do it right.
When leave of court to amend is required, you must attach a copy of your proposed pleading so that the court can determine whether the motion should be granted. That’s especially true, as this case points out, where you are seeking to plead matters such as fraud that require specific allegations.
If you do not attach a copy of a proposed pleading and the judge overrules your motion to amend, you can’t complain about it on appeal.
When your pleadings are dismissed for failure to state a claim, don’t assume that you have the automatic right to amend. File a motion and attach your proposed pleading. Then, if the judge grants your motion, file the proposed pleading.
Again: if the judge grants your motion to amend, remember to file the pleading.
R21 requires a court order to add parties. In this case, the plaintiffs merely added parties without a court order, which allowed those parties to escape on a motion to dismiss, which snagged the plaintiffs on the statute of limitations (SOL).
SOL is seldom fatal in chancery matters, but that’s no reason not to amend and join parties per the rules.

An Approach to Due Execution of the Will

January 17, 2018 § 2 Comments

The subscribing witness has an important responsibility in connection with execution of the will. The witness’s duty is four-fold:

First, the testator must request them to attest the will [Green v. Pearson, 145 Miss. 23, 110 So. 862, 864 (1927)]; second, they must see the testator sign the will [Matter of Jefferson’s Will, 349 So.3d 1032, 1036 (Miss. 1977)]; third, they must know that the document is the testator’s last will and testament [Estate of Griffith v. Griffith, 20 So.2d 1190, 1194 (Miss. 2010)]; and finally, they must satisfy themselves that the testator is of sound and disposing mind and capable of making a will [Matter of Jefferson’s Will, Id.]. Estate of Holmes, 103 So.3d 1150 at ¶ 10 (Miss. 2012).

I blogged about the concept here.

As the attorney, you have a duty above that of the witnesses to ensure that your client, the testator, is competent to make decisions that result in a valid will.

But how do you do that?

In a recent post on the Expert Institute Blog, a geriatric psychiatrist offered a template for assessing your testator’s testamentary capacity:

1) Awareness of the situation/communicating a choice:

Can you tell me the purpose of today’s meeting?
What have you decided to do regarding your Will?

2) Factual understanding of the issues:

Can you tell me what a Will is?
Do you know or can you approximate the extent of your estate?
Who in your family may survive you?
Can you tell me in your own words what you would like to happen to your estate after you die?

3) Appreciation of likely consequences:

Do you believe that a Will is necessary? What do you believe would happen if you do not have a Will?
Can you tell me how your Will may affect your family?
How well does this Will represent your wishes?

4) Rational manipulation of information:

How did you reach your decisions when you thought about your Will?
What was important to you in reaching your decision?
What are the advantages and disadvantages of your decision?
Were there other possibilities that you considered but decided against? What were your reasons? What makes Person A a better choice as your heir than Person B?

As the blog states:

As the population ages, lawyers will increasingly need to detect intact versus impaired decision-making capacities. Lawyers can directly screen for decisional capacity … . In so doing, they rely on more than simple impressions of their clients, or on family members’ subjective, at times conflicted, views. Clients can mask their deficits and family members can misjudge the severity of those deficits, or be motivated by self-interest. Primary care physicians are often asked to determine competency, but they may not be trained to assess cognition, and their opinions may lack validity. This explains why physician competency evaluations often disagree. Unless a client’s decision-making capacities are specifically assessed, the presence or absence of those capacities cannot be presumed.

If you will conduct this inquiry in the presence of the subscribing witnesses, you can ensure that they can competently testify later if necessary about the testator’s testamentary capacity.

I suggest you make this template a form that you keep with the client’s file, including a dated note that it was discussed with the client, and including any observations. Also have the subscribing witnesses sign it. That could prove to be an invaluable aid in the event of a will contest.

Is Boles Still Good Law?

September 20, 2017 § Leave a comment

Earlier this month we talked about the MSSC’s decision in Lewis v. Pagel, in which the court overruled a long line of Mississippi cases that had held that venue is jurisdictional in divorce cases, and may not be waived.

That decision included the following footnote:

[Fn 3] In 2006—after Section 93-5-11 was amended—this Court, in dicta, found that Section 93-5-11’s venue requirement conferred subject-matter jurisdiction on the chancery courts. National Heritage Realty, Inc. v. Estate of Boles, 947 So. 2d 238, 248–49 (Miss. 2006) (applying Miss. Code Ann. § 91-7-63(1)). We decline to follow this interpretation of Section 93-5-11 post-amendment. It appears the Boles Court did not take the amendment into account. [Bold emphasis mine]

I posted about the Boles decision in a previous post raising this very same point: The Boles decision simply ignored that the statute had been amended and misstated the law of change of change of venue in divorce cases. The high court held that the chancellor erred in ordering an estate to be transferred from one county to another because venue is jurisdictional by statute, and the case may not be transferred, only dismissed.

But Boles is an estate case, you might point out. Yes, but the rationale of the Boles opinion analogized the situation in that estate case to the classic divorce venue statute, holding that the statute is the sole source of subject matter jurisdiction over estates. But wait — Article 6, Section 159(c), of the Mississippi Constitution specifically confers subject matter jurisdiction over “Matters testamentary and of administration” on the chancery court.

Applying the logic in Lewis v. Pagel, then, Boles should be bad law. Not only is the statute not the source of subject-matter jurisdiction in estate matters, the analogy relied on by the court back then was faulty and incorrect.

Holding the Money Hostage

August 10, 2017 § 2 Comments

What do you think is the natural result of an estate with no money, no real property, and no contingent claims? If you guessed that the heirs and beneficiaries totally lose interest and it becomes devilishly difficult to get anyone to sign and return pleadings, joinders, etc., then you’re right.

So what would you predict the result would be if you disburse all (or most) of the money to the heirs or beneficiaries before the estate is closed? Again, if you guessed that the heirs and beneficiaries totally lose interest and it becomes devilishly difficult to get anyone to sign and return pleadings, joinders, etc., then you’re right.

Yet, lawyers yield too often to pressure from the heirs and beneficiaries to get them their money now. In those cases, the lawyer always projects optimism that all will turn out well, that these are the most cooperative people he has ever dealt with, that they sure could use their money now, that they are really putting the heat on him, and blah, blah, blah. Then, a couple of years later he sits with flushed face before the judge complaining that he can’t get the fiduciary to sign the petition to close the estate, and he doesn’t even know now where are all the heirs and beneficiaries.

In a case before me, the lawyer optimistically disbursed all the cash. The remaining asset was a late-model Cadillac, which was ordered to be sold and the proceeds divided eight ways. Two years later, the car is not yet sold, the heirs have melted with their moolah into the woodwork, and now the lawyer’s calls, letters, and pleas to sign a petition to close go unanswered. And why should they bother? A one-eighth share of the car proceeds won’t be much. They already each got more than $40,000.

I say the result would have been far different if the lawyer had gotten an order from me refusing to disburse any funds until the matter was concluded. Money is an amazingly effective motivator. As long as you control it, you control the people who are supposed to wind up with it. When you lose control over the money, you lose control over the people who have gotten it. It’s that simple.

Failure to Join Necessary Parties

July 26, 2017 § Leave a comment

Dorothy True died in 2014, at age 100. Her husband had predeceased her. She was survived by her four children: Ann Schmidt; Mary Hegwood; John True, who died after Dorothy’s death; and Jim True.

Jim filed to admit Dorothy’s eight-page holographic will to probate. Ann and Mary petitioned the chancery court to contest the will based on some formal irregularities. Following a hearing, the chancellor ruled that the will was a valid holographic will. It appears that Ann and Mary had proceeded against the executor and anyone else who had entered an appearance. But the estate of John, and some other devisees, as well as some heirs of the decedent, were not made parties. Ann and Mary appealed.

The COA reversed in the case of In the Matter of the Last Will and Testament of True: Schmidt and Hegwood v. True, handed down May 23, 2017, Judge Wilson writing for the court:

¶7. On appeal, Ann and Mary argue that the chancery court lacked jurisdiction because necessary parties were not joined. Unfortunately, we must agree. Section 91-7-25 of the Mississippi Code Annotated provides that “[i]n any proceeding to contest the validity of a will, all persons interested in such contest shall be made parties.” Our Supreme Court has made clear that this requirement is both mandatory and jurisdictional:

We have consistently held that the statutory mandate is jurisdictional and the court has no power to proceed with the contest until all interested parties are joined. [Robert A.] Weems, Wills and Administration of Estates in Mississippi, § 8–4, p. 180 (1988) states:

[T]he Legislature has provided that all interested persons must be made parties to the will contest. This requirement is jurisdictional. The Court has no power to proceed with a will contest, if any of the interested parties are not before the court. If the court does proceed the decree is invalid. It does not bind anyone, including those who participated in the contest. Moreover, the right to appeal on the basis of nonjoinder is not waived by the failure to plead it in the trial court.

Interested parties are those whose direct, pecuniary interests will be either detrimentally or advantageously affected by the probate of the will. Included in this group would ordinarily be a decedent’s heirs at law, beneficiaries under earlier wills, and beneficiaries under the will being contested. (emphasis added)

. . . .

One of the primary purposes of the statute is the fervent desire to avoid multiple litigation, and the court’s interest in consistent, efficient and final settlement of controversies. In Moore v. Jackson, 247 Miss. 854, 860, 157 So. 2d 785, 787 (1963), we stated:

The court cannot properly entertain a contest of the will without having before it all the parties interested in such contest. It was error to proceed without having them before the court. “There ought to be only one contest of the will, and, if the parties are not before the court when the will is being contested, of course their rights could not be affected by such contest.” This Court has consistently followed that interpretation in other cases.

. . . .

[S]uch parties were necessary, indispensable parties to the contest of the will. The court was without power to proceed without them.

To grant validity and credence to [a] court’s action in proceeding with [a will] contest without joinder of all interested parties would undermine the legislative mandate of [section] 91-7-25. In Estate of Schneider, 585 So. 2d 1275, 1277 (Miss. 1991), we had the occasion to reflect on Moore and stated:

In Moore this Court held that a chancery court did not have the authority to hear a will contest until “all persons interested” were made parties.

. . . .

Moore remains good law insofar as it holds trial proceedings must be held in abeyance until all necessary parties are joined in a suit contesting a will. Garrett v. Bohannon, 621 So. 2d 935, 937-38 (Miss. 1993) (internal citations omitted). The Court held that a judgment entered in a will contest “absent joinder of all necessary parties is void” and “must be set aside.” Id. at 938. In both Garrett and Moore, supra, the Supreme Court made it absolutely clear that although a failure to join a necessary party may be waived in some types of cases, it cannot be waived in a will contest; it may be raised for the first time on appeal, even by a party who participated below and failed to join the missing parties. See id. at 937-38; Moore, 247 Miss. at 787-88; 157 So. 2d at 861-63.

¶8. Returning to the present case, it is evident that we must reverse and set aside the judgment below because all necessary parties were not joined. John’s estate and Jamie are entitled to inherit under the contested will but were not joined. John’s estate and Frances’s two daughters were entitled to inherit under the law of intestate succession but were not joined. All were interested parties within the meaning of section 91-7-25 and Supreme Court precedent.

¶9. On appeal, Jim argues that his sisters waived this issue, that the missing parties’ interests were adequately represented, and that their joinder would not have made the slightest difference. [Fn omitted] We are sympathetic to these arguments. However, our Supreme Court has held specifically and repeatedly that the statutory requirement cannot be waived because it is both mandatory and jurisdictional. Its decisions do not reflect careless or imprecise use of the term “jurisdictional.” [Fn omitted] Rather, the point has been made and reaffirmed with deliberation and clarity over the course of many years. As such, any relaxation of or exception to this requirement must come from the Supreme Court or the Legislature.

¶10. Accordingly, the judgment rendered by the chancellor absent joinder of all interested parties is void and must be set aside. The case is remanded for joinder of all interested parties pursuant to the statutory mandate. Garrett, 621 So. 2d at 938.

So, who were the unjoined interested parties who were necessary to jurisdiction in this case? Note at ¶8 that the COA finds both the unjoined devisees and the unjoined heirs as necessary for jurisdiction. That’s because if the will is set aside, the heirs would stand to inherit.

This one is on the lawyers. It’s not the judge’s job to investigate and inquire about who should be made parties in a case such as this.

Revocation by Implication

July 25, 2017 § Leave a comment

May a will be revoked by a subsequent property settlement agreement in a divorce? That was an issue in the case of In the Matter of the Estate of Chaney: Chaney, et al. v. Chaney, decided May 16, 2017.

In June, 1962, James Chaney executed his last will and testament during a time when he was married to Lillian Hunt Chaney. The will devised farmland, located in Crockett County, Tennessee, to Lillian. James and Lillian had one child, Alice Ann Chaney. James and Lillian were divorced on May, 1969. In connection with the divorce, they executed a joint property settlement agreement, and in it, they agreed that Lillian would “relinquish any right or claim to the farm in Crockett [County], Tennessee.”

In 1971, James married Josephine Chaney, and they moved to Mississippi where they lived until James’s death in 2011. They had no children.

In 2011, Lillian filed a petition to admit James’s 1962 will to probate in Mississippi, joined in by Alice. Josephine contested the validity of the will and moved to transfer the Crockett County farmland out of the estate. The chancellor found that the will was revoked by implication, and Lillian appealed.

The COA affirmed. Judge Griffis wrote for a unanimous court:

¶14. Lillian and Alice … argue that the chancellor erred when he found that James’s will was revoked by implication. They contend the terms of the property-settlement agreement should not be read in conjunction with the will. Further, they argue that Josephine failed to present proof that demonstrated “clear and unequivocal evidence” of James’s intent to revoke the will and his prior devise of the farmland to Lillian.

¶15. Under Mississippi law, “[a] devise so made, or any clause thereof, shall not be revocable [except] by the testator . . . destroying, canceling, or obliterating the [will], or causing it to be done in his or her presence, or by subsequent will, codicil, or declaration, in writing . . . .” Miss. Code Ann. § 91-5-3 (Rev. 2013). In Rasco [v. Estate of Rasco, 501 So.2d 421 (Miss. 1987)], the supreme court recognized that a will may be revoked by various circumstances, not specified within the statute. Rasco, 501 So. 2d at 423 (citations omitted). However, the supreme court “declined to adopt a rule of automatic revocation” in instances where a pre divorce will and a subsequent property-settlement agreement are in conflict. Hinders[v. Hinders,] 828 So. 2d at 1235 (¶1) [Miss. 2002]. Rather, the supreme court held that “a divorce with a property settlement agreement would not operate to impliedly revoke a will unless the settlement evidenced the testator’s intent to [revoke the will].” Rasco, 501 So. 2d at 423.

¶16. When presented with this issue, a chancellor should “question . . . whether the testator intended . . . [the] settlement [to] operate as . . . an ademption of a prior-created [will] and release the [former] spouse of all rights [to] the [decedent’s] estate.” Id. Further,“[a]ny document presented as a subsequent declaration must reveal by ‘clear and unequivocal’ evidence, an intention to revoke the will.” Id. at 424. In its analysis, the supreme court incorporated the Tennessee Supreme Court’s ruling, which provided: “[G]enerally a divorce accompanied by a property settlement agreement[,] which is fully carried out according to its terms[,] should have the effect of revoking a prior will in favor of a former spouse, especially where the parties thereafter ‘sever all ties.’” Id. (quoting In re Estate of Perigen, 653 S.W.2d 717, 720 (Tenn. 1983)).

¶17. Here, the chancellor applied the factors in Rasco. He “look[ed] to the facts and circumstances of [this] particular case, the terms of the [w]ill itself, the divorce decree and the property settlement, and the conduct of the parties,” and based his findings accordingly. Rasco, 501 So. 2d at 424. The chancellor, as the fact-finder, determined that the express terms of the will and the provisions of the property-settlement agreement were inconsistent. In his will, James declared: (1) that he was married; (2) that his wife’s name was Lillian Hunt Chaney; and (3) that he devised to his wife, Lillian Hunt Chaney, all of his estate, both real and personal, which he owned at the time of his death. The chancellor found that James and Lillian divorced and executed a property-settlement agreement at least forty years prior to James’s death. By the express terms of the property-settlement agreement, Lillian forfeited her interest in the Crockett County farmland. The chancellor further determined that after the divorce, James and Lillian never resided together as husband and wife, and James remained married to Josephine, until the time of his death.

¶18. Thus, the chancellor’s finding that the subsequent property-settlement agreement satisfied the requirements of section 91-5-3, as a “subsequent declaration [to the will] reveal[ed] the clear and unequivocal intention” of James to revoke his predivorce will and divest Lillian of any interest in the farmland. See Miss. Code Ann. § 91-5-3.

¶19. The terms of the property-settlement agreement were unambiguous. Lillian, in exchange for consideration, relinquished any interest in the Tennessee farmland. With both James’s and Lillian’s signatures affixed to the document, James’s intention to remain the sole owner of the real property is apparent. Further, the agreement, executed more than forty years before the will’s probate, had been in effect without any contention from Lillian and Alice, until after James’s death.

¶20. Moreover, James executed his will in 1962 and entered into the property-settlement agreement in 1969, and with nearly four decades between the settlement agreement and his death, he maintained no contact with Lillian. Likewise, after the settlement agreement, Lillian had no further ties to the property. Thus, it is unlikely that James intended for his ex-wife to inherit property that she agreed to forfeit some forty years prior. The property settlement agreement speaks for itself, and James’s intentions are clear.

¶21. The claim that James failed to satisfy the terms of the property-settlement agreement is not enough to find that the subsequent declaration is not binding. Whether James failed to make child-support payments or maintain insurance for his then minor child has no present effect on the Court’s analysis. James’s daughter was seven years old when the settlement agreement was executed, and more than thirty years passed between the settlement agreement and the date of James’s death. It can still be determined that the parties severed ties many years before this action.

¶22. The chancellor correctly found that the parties intended to settle any and all property rights against each other and that James “acted by implication and intent” to void the previous bequests. Rasco, 501 So. 2d at 423. The chancellor viewed the will and the property-settlement agreement “in light of the surrounding circumstances” and found “clear and unequivocal” evidence that James intended to revoke his will. Hinders, 828 So. 2d at 1240 (¶15). Here, proof of intent is known based on the reference to the farmland and James’s specificity as to Lillian’s relinquishment of her interest. In exchange for later claims against the property, James offered consideration, and Lillian agreed. Lillian cannot now renege and revive her interest.

¶23. We find that the chancery court’s judgment was supported by substantial evidence. The chancellor did not err in finding that James’s will was revoked by implication. We affirm the chancellor’s findings.

Do not assume, and never let your clients assume, that a divorce, whether agreed or contested, will operate to revoke a will. As Hinders and Rasco both clearly state, there must be a specific, clear intent on the part of the testator to revoke. Here, the intent was clear, and Lillian’s agreement to forfeit her interest sealed the deal. Suppose, though, that the PSA had only included some of that standard language to the effect that what’s titled in her name is hers, and what’s titled in his name is his. Would that have been enough to revoke the will? I think not.

A previous post talking about advising your clients in the aftermath of divorce is here.

You Don’t Play — You Pay

July 17, 2017 § 3 Comments

Robert A. Johnson filed a contest to his father’s will, which left everything to Robert’s stepmother, Myra Henderson, and bequeathed nothing to Robert and his brother.

Henderson gave notice of a deposition to be taken in her attorney’s office in Mississippi. Johnson, who lived in California, filed a motion to quash and for a protective order on the basis that it was unduly burdensome on short notice, and that Henderson should either have to pay his travel expenses, or should do the deposition by remote video, or should travel to California to depose him. The chancellor ruled that Johnson would have to travel to Mississippi to give the deposition, but did allow him thirty days’ notice.

Based on the court’s ruling, Henderson re-noticed the deposition for thirty-two days later at her attorney’s Mississippi office. Three days before the scheduled time, however, Johnson’s lawyer called Henderson’s lawyer and told him that Johnson would not appear. Johnson did not appear at the appointed time and date.

Henderson filed for sanctions. At the hearing on the motion, Johnson’s attorney argued that Johnson had been to busy to attend. The chancellor inquired why Johnson had not filed anything to stay the date to a less busy period, and the attorney replied that he wanted to, but was unable to coordinate documentation with Johnson’s California lawyer. Henderson argued for financial sanctions. The chancellor, however, had other ideas: “I can not allow somebody to file an action in a will contest or otherwise in my Court and not make themselves available to the Court for necessary discovery. I can’t allow it. It’s frankly, contemptuous. And also, if it’s not done, all it does is slow down the wheels of justice.” He dismissed Johnson’s complaint with prejudice, and Johnson appealed.

The case was taken by the MSSC, which affirmed in In the Matter of the Estate of Johnson: Johnson v. Henderson, decided June 1, 2017. Justice Maxwell wrote for the 5-4 majority:

¶11. The rule governing a party’s failure to attend a properly noticed deposition is very clear. “If a party . . . fails . . . to appear before the officer who is to take his deposition, after being served with a proper notice, . . . the court in which the action is pending on motion . . . may take any action authorized under subsections (A), (B), and (C) of subsection (b)(2) of this rule.” M.R.C.P. 37(d) (emphasis added). One of the actions authorized by subsection (b)(2) is the issuing of an order “dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party[.]” M.R.C.P. 37(b)(2)(C). So under Rule 37, dismissal is an authorized sanction.

¶12. Johnson does not claim he lacked proper notice of the December 11, 2015 deposition. So under Rule 37(d)’s plain language, his failure to appear triggered the chancellor’s discretionary authority to dismiss his will contest with prejudice. Johnson recognizes this authority but tries to temper his nonappearance by arguing it was not willful. As his lawyer later pitched it to the chancellor, he was just too busy to be there.

¶13. Johnson insists this Court’s precedent cuts against his being hit with the ultimate sanction of dismissal. See, e.g., Pierce v. Heritage Props., Inc., 688 So. 2d 1385, 1388 (Miss. 1997) (finding the plaintiff’s willful discovery violation supported the trial judge’s sanction of dismissal). But the record shows his nonattendance was willful. Opting against seeking court permission or intervention, he gambled on forgiveness, and intentionally skipped out on his properly noticed deposition. Johnson made no prior mention of work obligations or serious conflicting business duties. It was only afterward, when looking down the barrel of dismissal, that his attorney suggested to the chancellor that Johnson’s California business would have been disrupted had he attended the deposition. Johnson had not mentioned this excuse to the court before ditching his deposition. Nor did he seek court intervention or direct his counsel to work with Henderson’s lawyer to find a more suitable date to be deposed.

¶14. In fact, Johnson apparently never intended to inform Henderson he was not coming. Our review shows it was Henderson’s lawyer who contacted Johnson’s attorney three days before the scheduled deposition to verify Johnson would be there. And only then, according to Henderson’s attorney, did Johnson’s lawyer tell him his client was not coming.

¶15. In addition to willfulness, we also consider “whether the failure to comply is attributable to the party itself, or their attorney,” and “whether the failure to comply was a consequence of simple confusion or a misunderstanding of the trial court’s order.” Beck v. Sapet, 937 So. 2d 945, 949 (Miss. 2006) (citing Pierce, 688 So. 2d at 1389). Here, the record supports the chancellor’s finding that it was in fact Johnson—not his attorney—who decided to skip the deposition. And his absence was not based on confusion over the judge’s November 9 ruling that he come to Mississippi to be deposed. It was willful.

¶16. Based on this willful, unexcused failure to attend the December 11 deposition, we find the chancellor was within his discretion under Rule 37(d) to sanction Johnson by dismissing his action. See Salts, 872 So. 2d at 674 (affirming the trial judge’s dismissal under Rule 37(b)(2)(C) for failure to attend a deposition as within the judge’s discretion); Gilbert v. Wal-Mart Stores, Inc., 749 So. 2d 361, 364 (Miss. Ct. App. 1999) (affirming trial judge’s sanction of dismissal because “the record reveals that it was more wilfulness or bad faith on the part of Gilbert that prevented his appearance” at the scheduled deposition).

¶17. The dissent and Johnson try to distinguish Salts and Gilbert by arguing, in those cases, the plaintiffs had been ordered to attend the depositions. And in his case, Johnson was never ordered by the chancellor to show up on December 11. But the fact the parties in Salts and Gilbert were under court order—and Johnson was not—is immaterial to our analysis. It simply makes their failures to appear not only violations of Rule 37(d) but also Rule 37(b), which specifically governs the failure to comply with discovery-related court orders. See Salts, 872 So. 2d at 674; Gilbert, 749 So. 2d at 364. There is nothing in Rule 37(d)—the subsection that specifically governs a party’s failure to attend his own properly noticed deposition—that limits the trial court’s discretionary authority to dismiss to only those case where a party has been expressly ordered by the court to attend a deposition. Compare M.R.C.P. 37(d) (governing “Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection”) with M.R.C.P. 37(b) (governing “Failure to Comply With Order”). Again, Rule 37(d) makes clear a party cannot ignore a properly served notice of deposition with impunity. Instead, he must appear or, if appearance is not feasible, seek the other side’s cooperation and, if necessary, the court’s intervention. In this case, Johnson did nothing. He simply rolled the dice and decided not to come to Mississippi to be deposed, despite the judge’s ruling.

¶18. The dissent also suggests the chancellor did not consider lesser sanctions—another factor we weigh when reviewing the sanction of dismissal. See Beck, 937 So. 2d at 949 (citing Pierce, 688 So. 2d at 1389). But we find he did. At the motion-for-sanctions hearing, Johnson’s counsel specifically argued that, “if sanctions are imposed, they should be financial sanctions.” This, he insisted, would “allow [Johnson] to compensate the opposing party but still have his day in court here.” The chancellor considered but rejected this suggestion.

¶19. It is obvious the chancellor felt lesser sanctions would not suffice. In meting out the appropriate sanction, he found he could not allow practitioners to file lawsuits then thwart necessary discovery through their nonavailability. He deemed such a course as “frankly, contemptuous.” In his view, this sort of willful behavior “slow[s] down the wheels of justice.” From this exchange, it is evident the judge acknowledged and considered Johnson’s argument but found dismissal the only viable sanction for Johnson’s willful conduct. See Pierce, 688 So. 2d at 1390-91 (affirming the sanction of dismissal, in part, because the trial court had considered less-drastic sanctions but found none would have the same deterrent value). While this court may have crafted a different sanction, we cannot say the chancellor lacked discretion to dismiss with prejudice under Rule 37(d).

¶20. As a final matter, Johnson argues the chancellor wrongly denied his motion for a protective order. This was the motion he filed in response to the first notice of the October 22, 2015 deposition. The record contains no transcript from the November 9, 2015 hearing on Johnson’s motion. But during the January 5, 2016 sanctions hearing, Johnson’s attorney recapped the judge’s prior ruling, acknowledging “[p]reviously . . . the court ruled that it was better to have in person depositions and we agreed.” (Emphasis added.) But even if Johnson disagreed with the judge’s ruling that he had to come to Mississippi to be deposed, he could not simply ignore the properly noticed December 11 deposition. Johnson could have filed a second motion for protective order based on the timing of the deposition, but he did not. [Fn omitted] Instead, he deliberately chose not to attend. Based on this unexcused absence, we find the chancellor was within his discretionary authority under Rule 37(d) to sanction Johnson with dismissal.

There is a rigorous dissent, which you might want to read for authority in case you find yourself on the uphill side in a similar case.

What you need to take notice of here is that R37(d) has got some serious teeth that can inflict fatal damage on your case. You can’t always control a recalcitrant client such as Johnson apparently was in this case, but you may be able to file a timely motion for a protective order that might insulate him from the most extreme sanction.

In any event, this case is anecdotal evidence that judges are becoming less patient with people who file lawsuits and then gum up the works. If you come to play, you need to play. If you don’t, the ultimate price is what you may have to pay.

The Testamentary Contract

June 28, 2017 § Leave a comment

When is a contract really a will?

That was the question before the COA in the case of Estate of Greer: Oakes v. Ball, about which I posted a little over a year ago at the link. In that case, Greer had included this provision in a lease with the Nunnerys:

In the event of the death of the Lessor, this lease agreement shall not terminate, rather the rights and limitations of Lessor shall immediately be transferred to Linda Ball, who will also have the right to receive payments hereunder.

When the case went to trial, the chancellor concluded that the provision was merely a transfer of the Lessor’s interest, and was not testamentary.

On appeal, the COA reversed, holding that the provision was, indeed, testamentary in nature and, therefore, was unenforceable because it did not meet the requirements of a testamentary instrument such as subscription and being witnessed by two witnesses. The COA’s decision is at this link.

The MSSC granted cert., and on June 1, 2017, affirmed the COA. You can read the court’s opinion at this link; it includes so many footnotes that I simply do not have time to reformat to accommodate all of them.

The important point from this case is that, if the grantee’s right will vest only upon the death of the grantee, then the instrument is is testamentary and must meet the formal requirements of a will in order to enforceable according to its terms.

The court rejected the argument that Ball could validly enforce the contract as a third-party beneficiary.

Justices Kitchens, King, and Chamberlin would have distinguished the case from prior case law on the basis that this one involved a lease contract as opposed to a deed. They make several other compelling arguments that you might find helpful when dealing with similar issues.

Abandonment of the Marriage Redux

June 27, 2017 § 1 Comment

When a widow renounces a will that does not make provision for her or makes inadequate provision, the will proponent may assert abandonment or desertion of the marriage as a defense to the renunciation.

That is what happened in the case of Estes and Estes, Co-Executors of the Estate of Estes v. Estes. I previously posted about the case, in which the COA reversed the ruling of the chancellor that Sarah Estes had not abandoned or deserted her dying husband so as to bar her from renunciation. You can read my take on the case at this link. I made this statement in that post:

What bothers me somewhat here is that our law allows the chancellor, and the chancellor alone, to choose whom to believe and what weight to give testimony. Here, the facts were in dispute, and the chancellor gave more weight to Sarah’s side of the story, as was his prerogative.

Sarah filed a petition for cert, which the MSSC granted. In Estes and Estes, Co-Executors of the Estate of Estes v. Estes, handed down June 1, 2017, the MSSC reversed the COA, affirmed the chancellor, and remanded the case for further proceedings consistent with the court’s ruling. Chief Justice Waller wrote for a unanimous court, Maxwell not participating:

¶10. The standard of review on “findings of fact by a trial judge without a jury [is] manifest error, including whether the findings were the product of prejudice, bias, or fraud, or manifestly against the weight of the credible evidence.” Hale v. State Democratic Exec. Comm., 168 So. 3d 946, 951 (Miss. 2015) (quoting Young v. Stevens, 968 So. 2d 1260, 1263 (Miss. 2007)). This standard of review precludes the “scouring [of] every record before the Court for any and all information which might contradict a . . . court’s factual finding” since this would “amount to an inspection for errors that are far less conspicuous than those that are ‘unmistakable, clear, plain, or indisputable.’”Id. (quoting Black’s Law Dictionary 963
(6th ed. 1990)).

¶11. The Court of Appeals in Estes I directed the chancellor, on remand, to consider the “clear-abandonment standard” of Tillman v. Williams, 403 So. 2d 880 (Miss. 1981). Following the trial, the chancellor addressed the issue of clear desertion, finding that Estes had failed to meet the burden of proof. The following was included in the chancellor’s factual findings and judgment:

Critical to a determination of Sarah’s clear desertion and abandonment of the marriage and resultant estoppel from claiming a statutory right to an inheritance are the facts following Joe’s October hospitalization. According to Sarah, after Joe was discharged from the hospital, he began to act irrationally. He accused her of infidelity and the theft of groceries. On November 26, 2006, Sarah called Joe’s physician, Dr. Pinson, to seek advice on how to help Joe. Sarah then filed a complaint with the Lee County Sheriff’s Department that Joe was threatening her and acting irrationally. A deputy sheriff came to Joe’s residence and made a report. Joe’s irrational behavior is born [sic] out by his refusal to dress appropriately and by him discharging a gun from inside his house through an open window. The severity of Joe’s mental difficulties is perhaps best documented, however, by his tragic May 18, 2007 suicide.

Regardless of the date of separation, the chronology of events following the parties’ separation is not disputed. On January 30, 2007, Sarah files a commitment proceeding against Joe. She attaches a copy of the previously mentioned Sheriff’s report. The two examining physicians fail to find Joe a danger to himself or other[s], i.e., not in need of involuntary commitment. On February 2, 2007, Joe seeks a restraining order against Sarah. Sarah counters on March 7, 2007, by filing for divorce. Joe answers and files a Counter-Complaint on March 27, 2007. On March 26, 2007, the parties agree to a mutual restraining order. On March 29, 2007, a temporary order is entered directing Joe to allow Sarah to retrieve her personal property. Guided by the applicable law and applying that law to the facts and having observed the witnesses, the Court is of the opinion that those urging an estoppel have failed to prove that estoppel.

While the facts exist which show a non-traditional marriage, Joe knew when the parties married that Sarah had, on a daily basis, the responsibilities of attending to her grandchildren. Moreover, Joe’s behavior was at times bizarre and the Court cannot say that Sarah willfully left and had the intention of permanently separating from the marital relationship. Mere absence from home, without more, does not show willfulness.

The court would note that Sarah’s consultation with Dr. Pinson on November 26, 2006, creates an inference that Sarah was trying to get Joe help. Moreover, seeking to have Joe committed, on January 30, 2007, rather than filing for divorce is suggestive to the Court that Sarah was trying to get Joe help and that the marriage was not over. Efforts by a spouse to get a spouse professional help should not be used against that spouse. Finally, the Court notes that Joe filed a Petition to restrain Sarah on February 2, 2007, which may well have caused Sarah to seek a divorce almost a month later. (Citations omitted).

¶12. The Court of Appeals listed the following facts it found in “conflict” with the chancellor’s findings:

(1) Estes becomes ill; (2) Young slowly reduces the amount of time spent with Estes; (3) Young attempts to involuntarily commit Estes; (4) Estes seeks a restraining order against Young upon release from the commitment proceedings; (5) Young files for divorce and restraining orders; (6) Estes counterfiles for divorce; and, (7) Estes takes his own life after receipt of notice for a final hearing on the divorce proceedings.

Estes v. Estes (Estes II), 2016 WL 1564404, *4 (Miss. Ct. App. Apr. 19, 2016). The Court of Appeals then stated the “most glaring evidence of Young’s abandonment of the marriage was her petition for divorce,” citing Tillman as primary legal support. Id.

¶13. However, the Tillman case actually used the language “secure a divorce.” Tillman, 403 So. 2d at 881. In Tillman, this Court reversed the trial court’s judgment, finding that “[a] thorough review of the record reveals that not only was an abandonment uncertain, but there just was not any substantial evidence to show a desertion or abandonment.” Tillman, 403 So. 2d at 882. In fact, Tillman holds that the requirement for clear proof of abandonment must be strictly construed:

Our Legislature has not seen fit to enact any legislation on this abandonment question. It is, therefore, obvious that the statute has to be strictly construed unless there is a clear desertion and abandonment that sets up the estoppel. In Walker, the surviving wife had engaged in a marriage ceremony with another man, and her deceased husband also had married another. There was a clear abandonment of the marriage relationship. Id. (citing Walker v. Matthews, 191 Miss. 489, 3 So. 2d 820 (1941)).

¶14. In Rowell v. Rowell, the Court also focused on the legal status change and determined that the trial court had erred when it had found that the widow’s adulterous relationship was grounds to show abandonment or desertion. Rowell v. Rowell, 251 Miss. 472, 170 So. 2d 267, 271-72 (1964). Relying on an Alabama case, the Court stated, “[a]s long as the marriage relation continued in law, the rights of the wife continued under the [descent and distribution] statute.” Id. at 270 (citing Nolan v. Doss, 133 Ala. 259, 261-62, 31 So. 969, 969-70 (1902)). The Rowell Court found that an adulterous relationship was not sufficient evidence of abandonment or desertion and that no evidence was presented that showed a bigamous marriage, which may have been grounds for abandonment. Id. at 271. The Court again focused on the legal change that occurs when someone remarries. Williams v. Johnson, 148 Miss. 634, 114 So. 733 (1927) (finding that the adulterous conduct was not at issue but only
whether a bigamous marriage resulted).

¶15. Following the renunciation of a will that fails to include the spouse, the will proponent may raise abandonment and desertion as estoppel to the renunciation. Rowell, 251 Miss. at 477-78, 170 So. 2d at 268. Mississippi Code Section 91-5-25 allows the surviving spouse automatically to renounce the will, thus the burden to show evidence of clear abandonment or desertion is on the aggrieved party. Miss. Code Ann. § 91-5-25 (Rev. 2013).

¶16. As this case is close factually and there was no legal change of marital status, we cannot say the chancellor was manifestly wrong in granting Sarah Young a child’s share of Joe Estes’s estate.

This decision illustrates the principle that, if the chancellor’s decision correctly applies the law, and her findings of fact are supported by substantial evidence in the record, the decision should be, and most often is, affirmed on appeal, no matter how close the question or how eyebrow-raising the outcome.

There is much useful law here on the law of renunciation and its defense. This is actually an issue that arises from time to time in chancery, and you would do well to be ready for it.

Where Am I?