Ex Parte Communication with a Treating Physician in an Estate Matter
May 16, 2017 § Leave a comment
Most of us are familiar with the prohibition in MRE 503(f) against ex parte communication with the treating physician of an opposing party, even when that party has put his own physical, mental, or emotional condition in issue.
Does that prohibition apply in a will contest where both parties claim to be personal representatives of the deceased?
In a case of first impression, the MSSC answered that it does not.
At the trial level, in a will contest involving Katherinne Lyons’ estate, between the testator’s brother (Larry Lyons) and nephew (Anthony Lobred), counsel for Lobred had ex parte communication with the testator’s treating physician before her depostion. Lyons filed a motion to strike the depostion testimony, which the chancellor granted. In the case of Estate of Lyons v. Lyons, handed down April 6, 2017, the MSSC reversed and remanded. Justice Coleman’s wrote for a unanimous court:
¶17. Although the facts surrounding Katherine’s testamentary capacity and Larry’s alleged undue influence are hotly disputed, the facts pertinent to the narrow issue before the Court on interlocutory appeal are not in dispute. It is undisputed that Lobred’s counsel communicated with Dr. Clement regarding Katherine’s medical condition prior to Dr. Clement’s deposition. The specific issue before the Court today is whether the testimony of the testator’s treating physician should be excluded based on contact between the treating physician and a party without the opposing party’s consent in a will contest wherein both parties are personal representatives of the deceased.
¶18. A panel of the Court ordered Larry to file a response to Lobred’s petition for permission to appeal addressing “whether the rule prohibiting ex parte communication with a treating physician applies in an estate matter.” The Court has held that the rule prohibiting ex parte communications under Mississippi Rule of Evidence 503(f) applies in the context of personal injury and medical malpractice cases. Scott v. Flynt, 704 So. 2d 998, 1000-01 (Miss. 1996). The comment to Rule 503 states that the “primary impact of subdivision (f) will be in personal injury actions, although the exception by its terms is not so limited.” According to the comment, the ex parte rule contained in Rule 503(f) could apply in estate matters. Thus, the question initially framed by a panel of the Court may be answered in the affirmative. However, the inquiry does not end here because the Court has yet to address how or if the rule prohibiting ex parte communications would apply in the context of a will contest where both parties can claim to be personal representatives of the deceased.
¶19. At the time of the trial court’s order on Larry’s motion to strike Dr. Clement’s testimony, Rule 503(f) provided:
(f) Any party to an action or proceeding subject to these rules who by his or her pleadings places in issue any aspect of his or her physical, mental or emotional condition thereby and to that extent only waives the privilege otherwise recognized by this rule. This exception does not authorize ex parte contact by the opposing party.
Miss. R. Evid. 503(f) (2015). Amended Rule 503(f) [Fn omitted] now provides:
(f) Waiver by Pleadings; Ex Parte Contact. A party whose pleadings place in issue any aspect of that party’s physical, mental, or emotional condition thereby–and to that extent only–waives the privilege. The exception in this subdivision (f) does not authorize ex parte contact by an opposing party.
Miss. R. Evid. 503(f) (2016).
¶20. In Scott, the trial court ordered the plaintiff in a medical-malpractice case to execute an unconditional medical waiver and permit ex parte conferences by the defendants with any medical provider of the plaintiff. Scott, 704 So. 2d at 999. On interlocutory appeal from the trial court’s order, the Scott Court addressed “two interrelated questions of law[,]” which were framed as “(1) the scope of the medical waiver as contemplated by Mississippi Rule of Evidence 503 and (2) whether or not ex parte contacts with medical providers are permissible under the rules of discovery in the Mississippi Rules of Civil Procedure.” Id. at 1000.
¶21. The Scott Court recognized that a “significant argument about ex parte interviews revolves around who is the holder of the privilege.” Id. at 1004. Before answering the question of how or if the ex parte rule would apply in the context of a will contest, the Court must determine who holds the medical privilege of the testator in a will contest. One of the two permitted methods stated by the Scott Court for obtaining relevant medical information ex parte from a treating physician is through “voluntary consensual disclosure by the patient who is the holder of the privilege.” Id. at 1007. Here, the patient is deceased, so consent would have to be obtained from whoever holds the privilege of the deceased. We hold that in the instant case both parties were personal representatives of the deceased and, therefore, under either the rule or the statute, no prohibited ex parte contact occurred. Because the result is the same whether we employ the rule or the statute, we do not today address any argument or disseminate any holding addressing which governs over the other.
¶22. Mississippi Code Section 13-1-21(1) provides:
(1) All communications made to a physician, osteopath, dentist, hospital, nurse, pharmacist, podiatrist, optometrist or chiropractor by a patient under his charge or by one seeking professional advice are hereby declared to be privileged, and such party shall not be required to disclose the same in any legal proceeding except at the instance of the patient or, in case of the death of the patient, at the instance of his personal representative or legal heirs in case there be no personal representative, or except, if the validity of the will of the decedent is in question, at the instance of the personal representative or any of the legal heirs or any contestant or proponent of the will. (Emphasis added.)
¶23. Under Section 13-1-21(1), “the personal representative or any of the legal heirs or any contestant or proponent of the will” may waive the medical privilege. However, Rule 503(c) identifies the “personal representative” only as an individual who may waive the general medical privilege of a deceased patient. Rule 503(c) [Fn omitted] states:
(c) Who May Claim the Privilege. The privilege may be claimed by the patient, his guardian or conservator, or the personal representative of a deceased patient. The person who was the physician or psychotherapist at the time of the communication is presumed to have the authority to claim the privilege but only on behalf of the patient. Miss. R. Evid. 503(c).
¶24. Under Rule 503(c), a deceased patient’s “personal representative” may claim the medical privilege. Black’s Law Dictionary defines a “personal representative” as: “Someone who manages the legal affairs of another because of incapacity or death, such as the executor of an estate. Technically, an executor is a personal representative named in a will, while an administrator is a personal representative not named in a will.” Personal representative, Black’s Law Dictionary (10th ed. 2014).
¶25. Katherine unequivocally stated in her 2005 will: “I hereby nominate, constitute, and appoint my nephew, Anthony Lobred, Executor of this my Last Will and Testament and I authorize and empower my said Executor to do any and all things which in his opinion are necessary to complete the administration and settlement of my estate, including full right, power and authority, without the necessity of obtaining an order from any Court and upon such terms and conditions as my said Executor shall deem best for the settlement of my estate, to bargain, sell at public or private sale[,] convey, transfer, deed, mortgage, lease, exchange, pledge, manage and deal with any and all property belonging to my estate.” Here, Lobred carried out his duty as Katherine’s personal representative by probating her 2005 will as muniment of title. Katherine’s 2012 will contained a similar provision designating Larry as executor. As a result, both Lobred and Larry hold the general medical privilege as Katherine’s “personal representative” under the plain language of Rule 503(b).
¶26. Lobred argues that there is no conflict because Rule 503 is silent regarding will contests, whereas Section 13-1-21(1) specifically addresses the medical privilege in the context of will contests and provides rights not otherwise provided for by the rules of evidence. While we agree with the result urged by Lobred, we disagree that the result stems only from the combination of the statute and the silence of the rule. Rather, because Rule 503 provides that the personal representative may claim the privilege on behalf of a deceased person, and in Scott we held that the party who may claim the privilege may waive the privilege, it is not the silence of Rule 503 but its content that undergirds our holding.
¶27. Section 13-1-21(1), on the other hand, specifically addresses waiver of the medical privilege in the context of a will contest. Under both Rule 503 and Section 13-1-21(1), the medical privilege belongs to both Lyons and Lobred. Under Section 13-1-21(1), the medical privilege may be waived by the personal representative, any legal heir, or any proponent or contestant of a will. Thus, Section 13-1-21(1) authorizes Lobred to waive the entire medical privilege as a personal representative and contestant of the 2012 will. Because Rule 503(c) and Section 13-1-21(1) both authorize Lobred to waive the entire privilege, the ex parte rule of Rule 503(f) does not operate to bar his attorney from speaking alone with the physician witness.
Death of the Right to Renounce
May 9, 2017 § 2 Comments
In February, 1966, J.B. Ratliff executed a will that left his wife, Mavis, a life estate in an undivided one-half interest in his property, and bequeathed the residuary to a daughter by a prior marriage.
On October 2, 1966, J.B. shot Mavis in the head and then shot himself in the head. He died instantly, and Mavis died shortly thereafter.
Letters testamentary were issued in J.B.’s estate, and letters of administration were issued in Mavis’s estate. The administrator in Mavis’s estate sought court approval to file a renunciation in J.B.’s estate, which was granted. Following a hearing, the chancellor in J.B.’s estate denied the renunciation, and the administrator of Mavis’s estate appealed.
In Jenkins v. Borodofsky, 211 So.2d 874, 875 (Miss. 1968), the MSSC affirmed:
There is only one issue to be decided in this appeal. Does the personal representative of a deceased spouse have the right to renounce the will of a predeceased spouse under Mississippi Code 1942 Annotated section 668 (1956), or is the privilege one which must be invoked personally by the surviving spouse during her lifetime?
This issue has been before this Court on a prior occasion in the case of Estate of Mullins v. Estate of Mullins, 239 Miss. 751, 125 So.2d 93 (1960). In that case we said:
In short, the right of a beneficiary to accept or renounce provisions of a will is a personal privilege which must be exercised by him during his lifetime and may not, after his death, be undertaken by his personal representative, even where death occurs prior to the expiration of the statutory period for the election. (239 Miss. at 755, 125 So.2d at 95.)
That, then, would seem to be that, except that the high court, in a more courtly era (no pun intended), tried to soften the blow:
The excellent, skillfully written briefs of appellant merit commendation, but they do not justify our modifying the rule of law set out in Mississippi Code 1942 Annotated section 668 (1956). Such is a prerogative of the legislature only and therefore should not be exercised by the judiciary. Mississippi can do as Tennessee has done and through its legislature enact a statute which would permit that which appellant earnestly urges here. Tennessee’s statute permits an election after the survivor’s death, as discussed in 83 A.L.R.2d 1073 (1962):
As already indicated, the right of election in the surviving spouse is purely statutory and a particular statute may permit an election to be made after the survivor’s death.
The statute in question in Hamilton Nat. Bank vs. Haynes (1943) 180 Tenn. 247, 174 S.W.2d 39 empowered the county court, on application of the personal representative of the surviving spouse, to declare a ‘dissent from the will’ in the event of the death of such survivor before the period allowed for the dissent had expired. (83 A.L.R.2d at 1082.)
Statutes in derogation of common law must be strictly construed, as we well know, and probate is a wholly statutory creature. The court went on to address appellant’s equitable estoppel argument:
Equitable estoppel does not and cannot authorize the exercise of a personal right which terminates with the death of a spouse. Appellee concedes that had J. B. Ratliff lived he would have been estopped from inheriting from his wife’s estate under the provisions of Mississippi Code 1942 Annotated sections 479 and 672 (1956). Appellant, however, does not seek to estop J. B. Ratliff. It is his estate, or more specifically his only daughter, Mrs. Betty Jane Ratliff Burrell, whom appellant seeks to estop. Appellant seeks to have Mrs. Burrell vicariously suffer the penalties which her father would have suffered had he survived his wife after killing her. Certainly Mr. Ratliff’s daughter, Mrs. Burrell, is guilty of no acts which would authorize and allow an equitable estoppel of her.
The court winds up with a flourish, invoking Les Misérables and the exquisitely miserable Inspector Javert:
In conclusion, we agree with appellant that Inspector Javert’s devotion to an immutable and inexorable code of laws which categorically demanded and required punishment is not the basic concept of law in this state. In passing, it was Javert’s fanatical dedication to his adamant belief which ultimately caused his self-destruction. The enactment, modification or repeal of laws, wise or foolish, is a problem for the legislature of this state. This Court has no authority in this regard.
Voilà, mes amis. So, if the spouse wishes to renounce, he or she must do so him- or herself personally “within ninety (90) days after probate” per MCA 91-5-25, unless under some legal disability for which the time is extended. It is a personal right that dies with the one holding it, and it may not be exercised later by her estate.
An attorney in this area posed an interesting, closely-related, question: In an estate opened in the 1980’s, surviving wife timely filed a renunciation of her deceased spouse’s will that was never brought to hearing. Now the renouncing wife has died. Her renunciation was timely filed and the estate has never been closed. Did her right of renunciation die with her, or did her filing open the door for her estate now to pursue it? If it survived, are further proceedings now barred by laches?
Lying in Wait
April 13, 2017 § Leave a comment
You represent the estate. A creditor timely probates a substantial claim against the estate. You study the claim and realize that it is meritorious. So, should you just go ahead and pay it? After all, MCA 91-7-155 directs that executor to “speedily pay” the probated claims.
There is another option. Professor Weems describes it:
One might conclude that if a creditor validly probates his or her claim, the creditor would not have to do anything else to protect it, but this is not always the case. The administrator may, through deliberation or procrastination, fail to pay the claim. If the administrator does not pay it, the creditor may have to take judicial action to compel payment. Administrators may not be sued for 90 days after taking office [MCA 91-7-239], and there is a four-year statute of limitations with regard to the action against administrators to recover claims against their decedent [MCA 15-1-25]. Consequently, actions to compel payment of such claims must be brought within four years and 90 days of the qualification of the administrator, even though the claim may have been probated. [Rogers v. Rosenstock, 117 Miss. 144, 77 So. 958 (1918); Toler v. Wells, 158 Miss. 628, 130 So. 298, 300 (1930)].
Weems, Wills and Administration of Estates in Mississippi, 3d Ed., § 2.31.
What about MCA 91-7-153, which states that registration of a probated claim, ” … shall stop the running of the general statute of limitations as to such claim …” Doesn’t that insulate the creditor from operation of MCA 15-1-25? No, I don’t think so, because MCA 91-7-153 specifically refers to the “general statute of limitations,” which is MCA 15-1-49, as opposed to the more specific MCA 15-1-25.
An interesting side note arises from the Toler case. There, although the administrator acknowledged the debt and promised to pay it, he was not later precluded from asserting the four-year and 90-day statute of limitations.
So, if you represent a creditor with a probated claim, you would do well to set the matter for hearing at an early date some time after the administrator has been qualified for more than 90 days. Get an order of the court for the administrator to pay the claim and then you can rest easy. The estate can not be closed unless and until the claim is paid. Don’t rely on MCA 91-7-155; the duty imposed by the statute must be enforced by the creditor.
On the other hand, if you represent the estate, you just might, “through deliberation or procrastination,” find it best to lie in wait.
Testamentary Capacity
March 14, 2017 § Leave a comment
Lack of testamentary capacity is a common line of attack against wills.
The recent COA case Estate of Gardner: Callington, et al. v. Gardner, decided February 21, 2017, includes a nice exposition of the law on the subject, which I am providing for you in condensed form — a sort of hornbook-ette on the subject. From the opinion by Justice Wilson:
¶21. “For a will to be valid, the testator must possess testamentary capacity.” Noblin v. Burgess, 54 So. 3d 282, 291 (¶32) (Miss. Ct. App. 2010). To have testamentary capacity, an individual must be of “sound and disposing mind.” Miss. Code Ann. § 91-5-1 (Rev. 2013). “Testamentary capacity is determined based on three factors: (1) whether the testator had the ability at the time of the will to understand and appreciate the effects of his act; (2) whether the testator had the ability at the time of the will to understand the natural objects or persons to receive his bounty and their relation to him; and (3) whether the testator was capable of determining at the time of the will what disposition he desired to make of his property.” In re Estate of Laughter, 23 So. 3d 1055, 1061 (¶20) (Miss. 2009). In addition, “[r]ecognizing that a testator may not always possess testamentary capacity, [the Supreme Court has] held that he may nevertheless execute a valid will during a lucid interval.” In re Estate of Edwards, 520 So. 2d 1370, 1373 (Miss. 1988). “The key to testamentary capacity is mental competency at the time the will is made.” Lee v. Lee, 337 So. 2d 713, 715 (Miss. 1976).
¶22. “The burden of proving testamentary capacity is on the proponents of the will, who can present a prima facie case simply by offering into evidence the will and the record of probate.” Laughter, 23 So. 3d at 1061 (¶18). “Once a prima facie case has been established, the burden of going forward shifts to the contestants to overcome the prima facie case.” Id. The ultimate burden of proof remains on the proponent, who “may . . . present rebuttal proof if necessary.” Edwards, 520 So. 2d at 1373. The Supreme “Court has held that the testimony of subscribing witnesses is entitled to greater weight than the testimony of witnesses who were not present at the time of the will’s execution or did not see the testator on the day of the will’s execution.” Id. “In fact, the subscribing witnesses to a will may testify as experts on the question of testamentary capacity.” Id.
¶23. “Furthermore, . . . opinions of lay witnesses regarding testamentary capacity [must] be supported by ‘facts as a basis for the witnesses’ conclusion.’” Estate of Rutland v. Rutland, 24 So. 3d 347, 353 (¶20) (Miss. Ct. App. 2009) (quoting In re Estate of Briscoe, 293 So. 2d 6, 8 (Miss. 1974)). “Overly broad or generalized testimony indicating a lack of capacity will be deemed insufficient where it is contradicted by competent evidence and is ‘obviously based upon the infirmities of advancing age rather than upon any abnormal conduct indicative of mental aberration.’” Id. (quoting Briscoe, 293 So. 3d at 8).
After noting that the contestants had offered only vague and general proof that the decedent’s physical condition was “terrible” at the time of making the will, the court continued:
¶24. … the children failed to come forward with evidence “to overcome the prima facie case” of testamentary capacity. Laughter, 23 So. 3d at 1061 (¶18). … physical weakness does not preclude one from making a will, and a bare and unexplained assertion that a testator’s mental state was “terrible” does not raise a jury issue as to his mental capacity.
The court next pointed to the specific testimony of the subscribing witnesses:
¶26. The subscribing witnesses to the will—Sanders and Roussel—had both known Richard for many years, and both testified that he was mentally alert and capable of understanding what he was doing when he executed his will. Sanders further testified that Richard was clear and specific regarding his wishes. Moreover, in addition to the absence of any evidence that Richard lacked testamentary capacity, we note that the mental capacity required to execute a general power of attorney is essentially the same as the capacity required to execute a will. See Dowdy v. Smith, 818 So. 2d 1255, 1258-59 (¶16) (Miss. Ct. App. 2002). With Linda’s encouragement, Sylvia took Richard to Sanders’s office for the specific purpose of signing a general power of attorney, and Sylvia testified specifically that she believed that her father had the mental capacity to sign the power of attorney. Yet neither Sylvia nor Linda was able to explain at trial why they thought Richard had the capacity to sign the power of attorney but not the will.
¶27. In short, the children presented no evidence that Richard lacked testamentary capacity at the time he executed his will. All testimony relevant to his mental capacity on March 2, 2009, indicates that he had sufficient capacity to execute both a general power of attorney and a will. Accordingly, the chancellor’s ruling granting Mae Otha’s motion for JNOV was correct as it relates to the issue of testamentary capacity. See Hayward v. Hayward, 299 So. 2d 207, 209-11 (Miss. 1974); Noblin, 54 So. 3d 291-95 (¶¶34-45); Rutland, 24 So. 3d at 351-53 (¶¶10-22); In re Estate of Pigg, 877 So. 2d 406, 410-11 (¶¶12-23) (Miss. Ct. App. 2003).
The Price of Breach of Trust
February 7, 2017 § Leave a comment
The law of trusts in Mississippi may be the least litigated area of our jurisprudence, judging from the paucity of reported cases on trust issues.
That’s why I was planning to do a post on the COA’s recent 30-page decision by Judge Barnes in Cassibry v. Cassibry, decided January 24, 2017. But Philip Thomas posted about the case on his excellent Mississippi Litigation Review and Commentary blog, so you can read his take at this link. At the trial level, the trustee was found to have violated the trust and was assessed a judgment in the amount of $144,865.86, plus post-judgment interest of eight percent per annum, and was ordered to pay $17,902 in costs and $28,500 in attorney’s fees. He was also ordered to transfer 7,757 shares of stock to the prevailing party. On appeal the COA affirmed but remanded for further proceedings on the issue of attorney’s fees, which the appellee conceded was not properly documented at trial.
One minor quibble with Mr. Thomas’s post: he refers to the trial court’s ruling as a “verdict,” but since it came from a chancellor and not a jury, it was a judgment. Not intended as a swipe at the knowledgeable Mr. Thomas. Just pointing this out for the young chancery lawyers and law students. Mr. Thomas will tell you that he spends most of his time in federal and circuit court, and not in chancery, so he can be forgiven the lapse into his more familiar verbiage.
Many trusts are extra-judicial, grant extremely broad discretion to the trustee, and waive accountings and other reporting. I guess that’s why relatively few are litigated. I had a case in my court years ago in which the beneficiary claimed a breach of trust because the trustee refused to disburse any money to him at all. The trust specifically gave the trustee unfettered discretion in that regard. The beneficiary also complained that the trustee had sold some of the assets of the trust; however, the trust gave him broad discretion in that area, also. The case fell to summary judgment and, to my knowledge was never appealed. It would have been interesting to litigate, since the were conflicting provisions as to which state’s laws controlled, and none of them were Mississippi.
An epic case in which the trustee was removed for non-monetary breach of duty to the beneficiaries is Wilbourn v. Wilbourn, decided April 24, 2012.
Abandonment of the Marriage
September 12, 2016 § 5 Comments
Sarah Young Estes and Joe Howard Estes married in 2006, after a six-month courtship. Each had children by previous relationships.
Sarah had a separate home she owned before the marriage, and she allowed her children and minor grandchildren to live in it. She worked a revolving schedule as a caregiver for sick and elderly. She also lived in Joe’s home. So she divided her time among the three.
Shortly after the marriage, Joe suffered a series of medical calamities that resulted in amputation of his leg, as well as surgery to unblock neck arteries. Due to her work and grandchild-care duties, it was left to Joe’s family to care for him. It was disputed in the proof as to just how much time and attention she devoted to Joe after his medical condition worsened.
In January, 2007, Sarah filed an unsuccessful petition to have Joe subjected to involuntary mental commitment.
A month later, Joe filed for a restraining order against Sarah. In March, 2007, she filed for divorce. The parties agreed to mutual injunctions, and a final trial date was set for the divorce trial. In May, 2007, Joe shot and killed himself.
Joe died testate, but the will made no provision for Sarah. She filed for a widow’s allowance and contested the will. The chancellor granted her a $12,000 widow’s allowance and a child’s share worth nearly $69,000. The executor appealed, and the COA reversed and remanded, concluding that Sarah was not entitled to a widow’s allowance because she was not living with Joe at the time of his death. The case was remanded for a determination whether Sarah had deserted and abandoned the marriage, which would disqualify her for a child’s share if so. On remand the chancellor found that she had not deserted and abandoned the marriage, and that she was, indeed, entitled to a child’s share. The executor again appealed.
In Estes and Estes, Co-Executors of the Estate of Estes v. Estes, handed down April 19, 2016, the COA reversed and rendered. Judge Ishee wrote for the majority:
¶18. When determining whether a spouse clearly deserted and abandoned a marriage, Mississippi caselaw provides a spectrum of factual scenarios for comparison. Most notably, Tillman v. Williams, 403 So. 2d 880 (Miss. 1981), serves as a benchmark case providing guidelines for determining abandonment. In Tillman, Narvel Tillman challenged the will of his wife, Ada Broadnex Tillman, after her death, and petitioned the trial court to recognize him as an heir to the estate. Id. at 880. The Tillmans were married for approximately twenty-nine years at the time of Ada’s death, but had been separated for approximately fifteen or twenty years. Id. Neither party had made any attempt to divorce the other or remarry. Id. Specifically, “[t]here was no evidence of any attempted remarriage or disclaimer of the marriage by either party during the years of separation. There was no evidence that either party attempted to secure a divorce.” Id. Ultimately, the Mississippi Supreme Court stated: “A thorough review of the record reveals that not only was an abandonment uncertain, . . . [t]here was, at most, just a separation proven. As stated, there [were] no marriage or divorce proceedings by either party . . . .” Id. at 882.
¶19. In sum, to prove desertion or abandonment in cases such as this, a clear indication that one party is no longer committed to a marriage is necessary. While we recognize that separation alone is not proof enough that a marriage has been abandoned, Mississippi courts have recognized qualifying indicators to include filing for divorce, filing for remarriage, and evidence of bigamy. See id.; Rowell v. Rowell, 170 So. 2d 267, 271-72 (Miss. 1964).
¶20. Here, it is undisputed that Young filed the first petition for divorce between the parties in March 2007. The chancery court cited the possibility that Estes’s petition for a restraining order against Young may have incited Young to file for divorce. The chancery court further stated that it could not determine that Young “willfully left and had the intention of permanently separating from the marital relationship. Mere absence from the home, without more, does not show willfulness.”
¶21. We find the chancery court’s conclusions to be in conflict with the evidence. A summary of the undisputed chronological series of pertinent events during the parties’ nine month marriage consists of the following: (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 his 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. Regardless of any other factors present in this case, the most glaring evidence of Young’s abandonment of the marriage was her petition for divorce. Again, the supreme court has clearly noted that filing for divorce serves as an indicator that a party intends to leave the relationship. Furthermore, nothing in the record following Young’s petition for divorce signals that the parties reconciled in any manner. Conversely, it would appear that the parties remained estranged and set on divorcing from one another.
¶22. As such, we find that the chancery court abused its discretion in determining that Young did not desert and abandon her marriage to Estes. In doing so, we reverse and render the chancery court’s award to Young of a child’s share of Estes’s estate.
You can take this case as a reminder that, if the proof establishes that the spouse has deserted and abandoned the marriage, she or he loses the right to revoke the will and assert a claim to a child’s share. That is a fact determination.
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. From the recitation of facts in the decision, I am not convinced that the testimony was as clear-cut as spelled out in ¶21, above.
By Their Deeds Ye Shall Know Them
August 29, 2016 § Leave a comment
In a series of transactions between 1993 and 1998, Mary Frances Wright gained ownership of some 18 acres of land from her mother, Annie Dora Conley, subject to Conley’s life estate in a portion of the property. The transactions effectively excluded Wright’s siblings from ownership.
Conley died in 2000, and Wright probated the estate as Administrator. Notice to creditors was published in 2002, and the estate was finally closed in 2004.
It was not until 2011 that Wright’s brother, Ulysses Conley, claimed that he first discovered the deeds conveying ownership to Wright. In 2013, he filed suit alleging that the transactions were illegal, asking that they be set aside.
Wright denied his claims and filed a motion to dismiss on the ground that Conley’s claims were barred by the statute of limitations (SOL).Following a hearing, the chancellor ruled that Conley’s claims were barred by the general three-year SOL. Conley appealed, claiming that the 10-year SOL regarding recovery of property governed, and not the three-year general statute.In Conley v. Wright, decided May 31, 2016, the COA affirmed. Judge Ishee wrote for the court:
¶8. Conley’s first argument on appeal centers around the chancery court’s application of the statute of limitations. In its order, the chancery court cited McWilliams v. McWilliams, 970 So. 2d 200 (Miss. 2007), for its proposition that the three-year general statute of limitations bars Conley’s claim. Conley is correct in his assertion that the Mississippi Supreme Court overruled McWilliams with respect to the applicable statute of limitations regarding recovery of land in Lott v. Saulters, 133 So. 3d 794, 799-801 (¶¶7-13) (Miss. 2014). In Lott, the supreme court clarified that since our Legislature has not created a statute shortening the limitations period for claims regarding land recovery in equity, the governing statute remains Mississippi Code Annotated section 15-1-9 (Rev. 2012). Id. at 799 (¶9). Section 15-1-9 provides for a ten-year statute of limitations for land recovery in equity through explicit reference to Mississippi Code Annotated section 15-1-7 (Rev. 2012), which states: “A person may not make an entry or commence an action to recover land except within ten years next after the time at which the right to make the entry or to bring the action shall have first accrued . . . .” Hence, the chancery court did err in its inference that a three year statute of limitations was applicable.
¶9. However, this error was harmless. As noted by the chancery court, the most recently dated deed associated with the transfer of ownership of the property was filed and became a public record in November 1998. All three of the deeds that conveyed ownership of the property to Wright occurred between August and November of 1998 – almost fifteen years from the filing of Conley’s complaint. Nonetheless, the supreme court has noted that when a life estate is tied to property, the statute of limitations does not begin to run on a successive possessor’s claim to the property until the person holding the life estate has passed. In re Estate of Reid, 825 So 2d 1, 7 (¶¶18-19) (Miss. 2002) (citation omitted). Hence, Conley’s right to bring an action to recover the property accrued at the time Annie died in 2000.
¶10. Even assuming there was concealed fraud in the property’s conveyance through the 1998 deeds, the probate of Annie’s estate provided a review of the deeds specifically. Hence, Conley would have been charged with the duty of discovering the alleged fraud during this time through reasonable diligence. If nothing else, the 2002 publishing of a notice to creditors regarding the estate’s ownership was a glaring opportunity for Wright’s alleged fraudulent interest in the property to have come to Conley’s attention.
¶11. The exercise of reasonable diligence would have revealed any purported inconsistencies in the property’s ownership by 2002 at the very latest. We find no applicable exception to the statute of limitations at play here. This issue is without merit.
¶12. Finally, we address Conley’s assertion that he is due relief in the form of a constructive trust. After reviewing the record in this case, we find no mention of the issue of a constructive trust having been presented to the chancery court. It appears that Conley’s argument of a constructive trust has been presented for the first time on appeal to this Court. It is well settled “that issues not raised at trial cannot be raised on appeal.” Southern v. Miss. State Hosp., 853 So. 2d 1212, 1215 (¶5) (Miss. 2003) (citation omitted). “A trial judge cannot be put in error on a matter not presented to him.” Id. at 1214 (¶5) (citation omitted). Accordingly, we are without authority to address Conley’s argument regarding a constructive trust.
CONCLUSION
¶13. We acknowledge that the chancery court erred in its reference to the three-year statute of limitations. Indeed, the ten-year statute of limitations was the proper statute of limitations to be applied here. However, such an error was harmless considering the length of time from the accrual of Conley’s right to file the action and the date the action was filed. The deeds conveying the property to Wright became public record, at the latest, in November 1998. After Annie’s death in 2000, her estate was probated and a notice to creditors was published in 2002, thereby providing Conley with ample opportunity to take notice of Wright’s alleged fraudulent interest in the property had he exercised reasonable diligence. While Conley presents numerous explanations for the fifteen-year delay in filing suit, these explanations do not negate that he and his siblings had a duty to exercise reasonable diligence to discover any alleged error regarding the property’s ownership. We cannot find that the chancery court was erroneous in dismissing the action as barred by a statute of limitations. As we are without authority to review Conley’s argument regarding a constructive trust, we rest on our prior conclusions and uphold the judgment of the chancery court dismissing Conley’s action as time-barred.
Points to ponder:
- In many districts, chancellors do not have staff attorneys to do research for them. They have to rely on the attorneys to furnish authority. Time to review and double-check that authority is at a premium, what with other trials, dockets in other counties in the district, administrative matters, and personal life (to which even chancellors are entitled). If you expect the chancellor to make an unassailable ruling, provide him or her with accurate and on-point, valid authority.
- This case highlights just how effectively an estate can operate as a seal against later litigation. An inventory showing that the estate had no ownership interest in the 18 acres would have been pretty conclusive against Ulysses when he joined in the petition to close the estate. That’s one reason why I urge lawyers to do an inventory even when it has been waived in the will: it provides an additional layer of documentation of the estate assets that is hard, if not impossible, to assail once the estate is closed.
Some Random Thoughts and Tips on Probate Practice
August 12, 2016 § 1 Comment
Probate practice is entirely statutory. That means that everything you need to know is spelled out in the code, right?
Well, yes and no. The black letter of the law is there, true. But case law, the Uniform Chancery Court Rules (UCCR), and common sense fill in the gaps.
Here are some thoughts about probate, along with a few tips:
- MCA 93-7-145 (b) requires that the “executor or administrator” shall file an affidavit with the clerk that he/she has made reasonably diligent efforts to identify persons having claims against the estate. The affidavit can only be made by the executor or administrator. Thus, if you have it signed and notarized before the person is appointed by court order and before the person qualifies (by taking the oath and posting any bond), it is ineffective, and, in this district, you will have to start over. That’s because the person has not yet assumed the office of executor or administrator. The attorney may not sign the affidavit on behalf of the fiduciary. I posted about this here before.
- UCCR 6.13 requires that every pleading, account, report, etc. filed by a fiduciary be sworn. In the recent case of Miss. Comm. on Judicial Performance v. Shoemake, handed down April 14, 2016, the MSSC as much as said that every pleading and other document calling for court attention filed in an estate must be sworn to by the fiduciary. In this district we no longer accept any pleadings, accountings, motions, etc. signed solely by the attorney, with the sole exception of the situation where the attorney has completely lost contact with the fiduciary, and the attorney must file a report with the court per UCCR 6.01 and 6.02.
- For publication process on unknown heirs and unknown wrongful death beneficiaries: remember that there must be some sworn statement, either in pleading or via affidavit, that there are no other known heirs, and the names of any other heirs, if any, are unknown, or words to that effect, per MRCP 4(c)(4)(D). AND, since you will be publishing process, you must include in the sworn statement that diligent search has been made for them, as required in MRCP 4(c)(4)(A).
TIP: Why not include the necessary language in your petition to determine heirs, or even in your complaint to open the estate? Since UCCR 6.13 requires the fiduciary to swear to all pleadings, you can kill 2 birds with one proverbial stone.
TIP: When opening an administration, why not include sworn language in your complaint that no other heirs are known after diligent inquiry, and petitioning the court to determine and adjudicate heirship. This will eliminate the need to file a separate petition.
- If you are asking for approval of attorney’s fees in any probate matter, including a guardianship or conservatorship, I require that you include a statement of the amount of fees for which you are seeking approval within the pleading asking for it. That way, when the fiduciary signs it, he or she is put on notice of the amount. If there is a disagreement over the amount, include: (1) a statement of the amount claimed, (2) that there is a dispute, and (3) a request that the court resolve the dispute. Set the matter for hearing and be prepared for both sides to present their positions. Whether your chancellor requires it or not, you might want to consider following this practice.
- There are factors that the court must consider in determining whether and how much to award for attorney’s fees in an estate. In addition to those, I especially take into account: how diligent was the attorney in doing all that was necessary to close the estate in a reasonable time; how timely were the inventory and accountings; how responsible was the fiduciary; how timely were publications and how correct were they; and how much did the attorney’s diligence or lack thereof save or cost the estate, guardianship, or conservatorship.
- Most attorneys know by now, but let me emphasize: If you do not file an Affidavit of Known Creditors BEFORE you publish notice to creditors, your publication is ineffective because MCA 91-7-145 states that “Upon filing such affidavit …” it is the duty of the fiduciary to publish notice to creditors. In other words, only after the filing of the affidavit may you publish. In this district, if you publish without having first filed the affidavit, you will be required to re-publish your notice, delaying closing of the estate. See, Estate of Petrick: Vann v. Mississippi Neurosurgery, PA, 635 So.2d 1389 (Miss. 1994).
- Speaking of inventories, I know it will come as a surprise to many of you – judging from the estate files I look at – that MCA 91-7-93 requires the executor or administrator to file an inventory within 90 days of the date when letters are issued, unless the court has either waived inventory or extends the time. MCA 91-7-105 states that the court can revoke letters of a delinquent fiduciary.
A Caveat for Affidavits of Known Creditors
July 26, 2016 § 2 Comments
Your client is going to be appointed executor of an estate. So it makes perfect sense that, when he comes in to sign the petition, at the same time you have him sign the oath, affidavit of known creditors, and notices to those known creditors. Why should he have to make more than one trip to your office, right? Then, after the order appointing him is signed by the judge, you go ahead and file the pre-signed oath, affidavit, and notices.
But is that effective? Does it comply with the statute?
As far as the oath is concerned, I see no problem. The oath is taken in his capacity as an individual, and is only effective once the order appointing him is signed by the judge and the oath is thereafter filed.
But the notice and affidavit requirements are a different matter. MCA 91-7-45(1) specifically requires the “executor or administrator” to make reasonable and diligent efforts to identify and give notice to creditors. Only the executor or administrator can do this function, and there is no executor or administrator until the judge signs the appointing order, and a bond (if required) and oath are filed.
Likewise, MCA 91-7-45(2) requires the “executor or administrator” to file the affidavit of known creditors that must be on file before the Notice to Creditors is published. Only the executor or administrator can do this. Signing the affidavit before one is appointed and qualified is not signing in the capacity of executor or administrator.
I am not aware of any case law specifically addressing these points, but the many cases construing probate statutes are emphatic that the specific language of the statutes control, and that substantial or nominal compliance is not enough.
Another post discussing the right way and order to do the notice and affidavit is here.
Payment of Funeral Expenses in an Estate
July 19, 2016 § 3 Comments
You represent the administratrix in an estate (or she could be an executrix). She paid the funeral expenses and would like to be reimbursed. Does she have to probate a claim?
This is a frequent question, and the answer is pretty clear. No, she does not.
Here is your authority:
¶ 9. The Mississippi Supreme Court established in 1938 that a claim for funeral expenses is not required to be probated because funeral expenses are considered to be part of the cost of the administration of an estate. Tom E. Taylor Undertaking Co. v. Smith’s Estate, 183 Miss. 45, 46, 183 So. 391, 391 (1938). The supreme court noted that the requirement to probate a claim “applies alone to obligations incurred by the decedent in his lifetime.” Id. The case has never been overruled or modified. The holding and the general notion was, in fact, discussed and upheld as recently as 2010 by the United States District Court for the Southern District of Mississippi, and later affirmed by the United States Court of Appeals for the Fifth Circuit in 2012. Bell v. Texaco, Inc., No. 5:09cv192KS-MTP, 2010 WL 1490144, at *1 (S.D.Miss. April 13, 2010); Bell v. Texaco, Inc., 493 Fed.Appx. 587, at 592 (5th Cir.2012).
¶ 10. The law is clear that the ninety-day time limit in which creditors must probate claims against an estate does not apply to claims for reimbursement of funeral expenses …
In re Estate of Whitley: Whitley v. Love, 129 So.3d 260, 261 (Miss. App. 2013).
The Better Chancery Practice Blog 