Heirs vs. Beneficiaries
May 23, 2016 § Leave a comment
It often happens in a testate estate that I am called upon in one order or another to adjudicate a legatee or other person designated to receive a bequest as an “heir of the decedent.”
A beneficiary under a will may, indeed, be an heir, but not necessarily.
An heir is a person having a right of descent and distribution by virtue of MCA 91-1-1, et seq. when there is no will.
A beneficiary is a person designated in a will to receive a specific devise or bequest or to receive all or part of the residuary estate. It is not required that heirs be named as devisees or legatees in a will. Heirs may be disinherited.
Thus, it is inaccurate, and can be misleading, to include language in your pleadings and proposed orders and judgments naming devisees and legatees of wills as “heirs” when they are not necessarily so.
To be accurate, name the beneficiaries under the will in your case as “beneficiaries.” Save the designation of “heirs” for your intestate cases; however, in districts where your chancellors require determination of heirship even in testate estates, limit your use of the term “heirs” to those so determined to be, distinguishing them from the beneficiaries under the will.
A helpful glossary of terms used in probate matters can be found at this link.
The Probate Lawyer’s Fiduciary Duty
April 5, 2016 § Leave a comment
What exactly is the duty owed to beneficiaries by a lawyer who represents the executor of an estate? Is there a fiduciary relationship?
In the MSSC case Gibson v. Williams, Williams & Montgomery and Montgomery, decided March 10, 2016, the court raised that question in the context of a legal malpractice claim.
Bobby Gibson had sued the lawyer and law firm over administration of his deceased wife’s estate, claiming wrongful conduct. The defendants filed a motion for summary judgment, which the Special Chancellor granted, and Bobby appealed.
On appeal, the MSSC reversed. One of the arguments defendants had raised in the summary judgment was that they owed Bobby no fiduciary duty, and hence he could not sue them for violation of a duty they did not have. Justice Dickinson addressed the point in the court’s opinion:
¶50. It is axiomatic that “a fiduciary duty must exist before a breach of the duty can occur.”[Fn 43] Attorney-client relationships give rise to fiduciary duties as evidenced by this Court’s recognition of legal-malpractice claims based on fiduciary obligations. [Fn 44] And as discussed earlier, we hold that a genuine issue of material fact remains on the issue of whether such a relationship existed between Montgomery and Bobby.
[Fn 43] Baker Donelson Bearman Caldwell & Berkowitz, P.C. v. Seay, 42 So. 3d 474, 485 (Miss. 2010) (citing Black’s Law Dictionary 564 (5th ed. 1979)).
[Fn 44] See Crist v. Loyacono, 65 So. 3d 837, 842 (Miss. 2011).
¶51. But the absence of an attorney-client relationship does not foreclose the possibility of the existence of a fiduciary relationship. In Mississippi, “[a] fiduciary relationship may arise in a legal, moral, domestic, or personal context, where there appears ‘on the one side an overmastering influence or, on the other, weakness, dependence, or trust, justifiably reposed.’” [Fn 45] So fiduciaries’ duties may arise as a matter of law from certain specified relationships such as attorney and client; or they may be created by the facts and circumstances of a particular relationship, taking into account the above factors.
[Fn 45] Id. (citing Milner v. Bertasi, 530 So. 2d 168, 170 (Miss. 1988); Matter of Estate of Haney, 516 So. 2d 1359 (Miss. 1987)) (emphasis added).
¶52. In Baker Donelson, we recognized that, for decades, this Court has held that fiduciary relationships can arise in a variety of contexts, and that relationships between attorneys and third parties can give rise to a fiduciary relationship—and the requisite fiduciary duties—despite the absence of an actual “attorney-client” relationship. [Fn 46] Accordingly, the general rule in Mississippi is that, under certain facts and circumstances, attorneys can acquire fiduciary obligations to third parties who are not their clients where no attorney-client relationship is present. [Fn 47] Fiduciary relationships often turn on questions of fact related to exertion of influence, whether a party trusted and relied on another party, and whether the reliance was justified.
[Fn 46] Baker Donelson, 42 So. 3d 474, 485 (Miss. 2010).
[Fn 47] Id. 23
¶53. In other words, while it is true that we have never held—and we do not hold today—that attorneys for estates always owe fiduciary duties to every estate beneficiary, we see no reason to carve out a rule of special protection for estate attorneys, exempting them from any beneficiary claim of a fiduciary relationship. An attorney for the estate may, under certain circumstances, owe fiduciary duties to a beneficiary of the estate based on the same considerations relevant to determine fiduciary duties to all third parties. The existence of these fiduciary relationships are questions to be determined in the trial court, and here, we believe sufficient evidence exists in the record for a factfinder to conclude that Montgomery owed Bobby fiduciary duties, even without a finding of an attorney-client relationship.
¶54. And, should the trial court find that Montgomery assumed fiduciary duties to Bobby, we also find that—viewing the facts and allegations in the light most favorable to Bobby—Montgomery allegedly induced Bobby into signing a petition without first informing him of the consequences. This, in effect, caused Bobby to waive his statutory rights to contest and renounce Debbie’s will. Montgomery approached Bobby under circumstances which, if not enough to create an attorney-client relationship, could support an inference of dependence and trust, as Montgomery purported to have Bobby’s interests in mind and to exercise control over Debbie’s estate. There is evidence in the record to support Bobby’s claim that Montgomery coerced or compelled him to deduct $50,000 of life-insurance proceeds to fund a bequest in Debbie’s will. These acts, if true—and assuming a fiduciary relationship is found to have existed—would constitute a breach of that fiduciary duty. So genuine issues of material fact remain regarding Bobby’s fiduciary-duty claims.
¶55. To be clear, we do not address today the duties of attorneys who represent executors and administrators of estates. Montgomery claims he was the attorney for the estate and not for the executor of the estate. In thirty filings with the trial court, Montgomery was either listed as or signed as the “attorney for the Estate.” Indeed, we are unable to locate a single filing in which Montgomery identifies himself as, or claims to be, an attorney for the executor. Additionally, Montgomery is identified as attorney for the estate within the trial transcript and the appellee’s brief. And finally we note that, within the first five minutes at oral argument, Montgomery’s own counsel unequivocally stated that nothing in the record indicates anything other than that Montgomery and his law firm acted as attorneys for the Estate.
So the answer to the question, then, is “quite possibly.” It’s something to bear in mind as you go about the business of handling an estate. I recommend you read the entire opinion, especially the recitation of facts.
Some Random Thoughts on Phelps
February 1, 2016 § 4 Comments
Last week we talked about the COA’s decision in a will contest, and how the decision lays out the analysis that is required in a testamentary capacity/undue influence case.
As promised here are a few reflections on the case:
- When parties ask you to represent them in a will contest, it’s important to understand how the burden of proof operates. As was the case here, it was not enough to establish that a confidential relationship existed. There must be much more. And you can expect the other side to counter with strong proof in most cases.
- Also, physical frailty, illness, and even inability to manage one’s own business, do not establish testamentary incapacity as long as the testator understands the nature and effect of making a will, the natural objects or persons to receive his or her bounty and their relationship to him or her, and is able to determine how to dispose of his or her estate.
- This case also illustrates how critically important it is for the subscribing witness to understand his or her role. The subscribing witness is the first-line observer of the testator’s capacity.
- Cordell, the attorney, deserves posthumous kudos for his handling of Dorothy’s execution of the will. He allowed only her and the other subscribing witness into the room, satisfied himself that Dorothy had testamentary capacity, and that there was no undue influence.
- Also, Dorothy sought independent advice from Cordell, who was unconnected with Henry III. This helped overcome a finding of undue influence.
- Just because a confidential relationship exists, there is not necessarily undue influence. And even if there is a presumption of undue influence, it can be overcome by clear and convincing evidence of the factors set out in the Grantham case.
You should treat the execution of a will in your office with some solemnity and care. It is, after all, a serious occasion, oftentimes coming after long and careful deliberation by the testator. No one but the subscribing witnesses and testator should be present. Ask questions that will help you and the witnesses determine testamentary capacity: does she know her assets and their worth; does she know who her natural heirs are and how this will affect not only them but also her prior wills; how dependent is she in handling her affairs; has anyone pressured her to make this disposition? And so on. You should admonish the subscribing witnesses not to sign unless they are satisfied that the testator has capacity and is acting freely and voluntarily. You might want to make a few notes to refresh later recollection: who brought her to your office; time of day; who was present in the room when the will was signed, etc. You might even make a checklist to help you memory later. In my experience, testimony from the law office where the will was signed is often the deciding factor.
Testamentary Capacity, Undue Influence, and the Burden of Proof
January 27, 2016 § 4 Comments
A will contest can present a bewildering forest of legal issues that can entangle the best lawyers. So, any time we can find some clarification, it’s worth taking a break to look it over.
In the COA case of Estate of Phelps: Terry et al. v. Phelps, et al., handed down December 8, 2015, the court dealt with an appeal from a classic will challenge based on a claim of both lack of testamentary capacity and undue influence.
The chancellor held that the testator, Dorothy Phelps, did have testamentary capacity. He also ruled that there was a confidential relationship between Dorothy and her son, Henry III, but that Henry had rebutted the presumption of undue influence by clear and convincing evidence. The contestants, Henry III’s siblings Irene Phelps Terry and Mary Phelps Domin, appealed.
The COA affirmed. Since this is a pretty useful recitation of the law, I am going to quote at length from the opinion. Judge Lee wrote for the court:
A. Testamentary Capacity
¶14. In their first issue, Irene and Vicki claim the chancellor erred in finding that Dorothy possessed testamentary capacity.
¶15. “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). “For testamentary capacity to be present, the testator must be of ‘sound and disposing mind’ at the time of the will’s execution.” Id. (quoting Miss. Code Ann. § 91-5-1 (Rev. 2004)). “At that time, the testator must: ‘understand and appreciate the nature and effect of his act of making a will, the natural objects or persons to receive his bounty and their relation to him, and be able to determine what disposition he desires to make of his property.’” Id. (quoting In re Estate of Mask, 703 So. 2d 852, 856 (¶17) (Miss. 1997)).
¶16. Our supreme court has explained the burden of proof on the issue of testamentary capacity is as follows:
At trial, the will’s proponents carry the burden of proof, which they meet by the offering and receipt into evidence of the will and the record of probate. A prima facie case is made by the proponent solely by this proof. Afterwards, although the burden of proof remains on the proponents, the burden of going forward with proof of testamentary incapacity shifts to the contestants, who must overcome the prima facie case. The proponents may then present rebuttal proof if necessary. In short, the proponents must prove the testator’s testamentary capacity by a preponderance of the evidence.
In re Estate of Rutland, 24 So. 3d 347, 351 (¶10) (Miss. Ct. App. 2009) (quoting In re Estate of Edwards, 520 So. 2d 1370, 1372 (Miss. 1988)).
¶17. In the instant case, an objection to probate was entered prior to the will being admitted to probate.
¶18. Henry III made his prima facie case of the will’s validity through the testimony of Kay Ousley Hyer, Cordell’s [the lawyer who prepared the will] legal secretary at the time Dorothy’s will was executed. Although Hyer had no recollection of the events on February 10, 1988, Hyer testified that she would not have signed the will’s attestation clause if she felt, through her interactions with Dorothy on February 10, 1988, that Dorothy was not of sound and disposing mind and memory. When asked whether Cordell would have signed the attestation clause, Hyer stated: “He would not have affixed his signature if [Dorothy was] not of sound mind and body.”
¶19. To support their argument on this issue, both Irene and Vicki testified that Dorothy lacked testamentary capacity because of her grief over Henry II’s death and because of other medical issues.
¶20. However, “[t]he mere fact that someone is too ill to handle his affairs does not in and of itself render him . . . void of testamentary capacity.” In re Estate of Laughter, 23 So. 3d 1055, 1061 (¶22) (Miss. 2009). Furthermore, we recognize that “[t]he testimony of subscribing witnesses receives greater weight than the testimony of witnesses who were not present at the will’s execution.” In re Estate of McQueen, 918 So. 2d 864, 871 (¶30) (Miss. Ct. App. 2005) (citing Edwards, 520 So. 2d at 1373). Therefore, Hyer’s testimony is given more weight than the testimony of Irene and Vicki, who were not present at the will’s execution, did not interact with Dorothy on February 10, 1988, and have an interest in the outcome of this case.
¶21. Even if Irene and Vicki presented sufficient evidence to overcome Henry III’s prima facie case, we note that Henry III presented rebuttal evidence through the testimony of Flora Collins. Collins worked for Dorothy for approximately twenty-six years and interacted with Dorothy on an almost daily basis. Collins stated that Dorothy appeared to be herself, “like she’s always been,” after returning home from the hospital. Collins also stated that Dorothy told her about the will on two separate occasions: “She told me that I have a will and they’re going to be surprised who I’m going to leave everything to.” Additionally, we note that the will appears reflective of Dorothy’s intent in prior codicils. This issue is without merit.
B. Undue Influence
¶22. In their second issue, Irene and Vicki claim Henry III did not present sufficient evidence to overcome the presumption of undue influence.
1. Presumption of Undue Influence
¶23. A presumption of undue influence arises where: (1) a confidential relationship existed between the testator and a beneficiary, and (2) there existed suspicious circumstances—such as the testator’s mental infirmity—or the beneficiary in the confidential relationship was actively involved in some way with preparing or executing the will. In re Last Will & Testament of Bowling, 155 So. 3d 907, 910-11 (¶16) (Miss. Ct. App. 2014) (citing Croft v. Alder, 237 Miss. 713, 115 So. 2d 683, 688 (1959)).
¶24. It is conceded that there was a confidential relationship between Dorothy and Henry III. However, the fact, alone, that a confidential relationship existed between Henry III and Dorothy is not sufficient to give rise to the presumption of undue influence. See In re Estate of Grantham, 609 So. 2d 1220, 1224 (Miss. 1992).
¶25. Nevertheless, in In re Estate of Harris, 539 So. 2d 1040 (Miss. 1989), our supreme court held that the presumption was raised with very little besides a confidential relationship. In re Last Will & Testament of Smith, 722 So. 2d 606, 612 (¶18) (Miss. 1998). In Harris, “the beneficiary simply found an attorney at the testator’s request and drove the testator to the attorney’s office.” Id.
¶26. The facts in the instant case are distinguishable from those in Harris. Henry III did not contact the attorney prior to the execution of the will. Nor did Henry III have knowledge that he was driving Dorothy to Hollandale for the purpose of executing a will. Henry III merely drove Dorothy to Hollandale on February 10, 1988, so she could “tend to some business.”
¶27. Furthermore, Henry III was not present during the execution of the will. Hyer testified as to Cordell’s usual practice with respect to allowing other people in the room during the execution of a will. Hyer stated: “I cannot recall a time that he would do that. It was always just the individual . . . It would be just between [Cordell and] that individual.”
¶28. In finding a presumption of undue influence, the chancellor noted Dorothy’s health and age. The chancellor also noted that after the will’s execution, the will was placed in a safety deposit box in both Dorothy and Henry III’s names; therefore, Henry III had the opportunity to view the will after its execution. The circumstances listed by the chancellor had nothing to do with the preparation and execution of the will or with Dorothy’s independent action.
¶29. The fact, alone, that a confidential relationship existed between Henry III and Dorothy is not sufficient to give rise to the presumption of undue influence. See Grantham, 609 So.2d at 1224. Henry III was not actively involved in preparing or executing the will, nor were there suspicious circumstances that negate independent action. See Dean v. Kavanaugh, 920 So. 2d 528, 537 (¶46) (Miss. Ct. App. 2006). As such, the chancellor erred in finding that there was a presumption of undue influence. However, because we ultimately reach the same conclusion, this issue is without merit.
2. Overcoming the Presumption of Undue Influence
¶30. Even if there was a presumption of undue influence, Henry III presented sufficient evidence to overcome such a presumption.
¶31. Our supreme court has stated that:
[T]he presumption of undue influence is overcome if the beneficiary has proven by clear and convincing evidence:
(1) Good faith on the part of the beneficiary;
(2) the testator’s full knowledge and deliberation of his actions and their consequences; and
(3) independent consent and action on the part of the testator.
Grantham, 609 So. 2d at 1224 (citing Mullins v. Ratcliff, 515 So. 2d 1183 (Miss. 1987)).
¶32. In the instant case, the record contains sufficient evidence to satisfy each of these three prongs. With respect to the good-faith requirement, the chancellor considered the following factors: (a) the identity of the initiating party seeking preparation of the will; (b) the place of the execution of the will and in whose presence; (c) the fee paid; (d) by whom it was paid; and (e) the secrecy or openness surrounding the execution of the will. In re Estate of Holmes, 961 So. 2d 674, 682 (¶25) (Miss. 2007). The chancellor found that Dorothy initiated the preparation of the will, the terms of the will were discussed between Dorothy and Cordell outside the presence of others, and the will was executed before two attesting witnesses.[Fn 3] Although there was no evidence of the fee paid or who paid the fee, we agree there was clear and convincing evidence that Henry III acted in good faith.
[Fn3] See Rogers v. Pleasant, 729 So. 2d 192, 194 (¶9) (Miss. 1998).
¶33. With respect to the second requirement—that Dorothy had full knowledge and deliberation of the consequences of her actions—the chancellor considered the following factors: (a) whether Dorothy was aware of her total assets and their worth; (b) whether Dorothy understood who her natural inheritors were and how her action would legally affect prior wills; (c) whether Dorothy knew nonrelative beneficiaries would be included or excluded; and (d) whether Dorothy knew who controlled her finances and how dependent Dorothy was on anyone handling her finances. Holmes, 961 So. 2d at 684 (¶39). The chancellor found that the will gave each daughter not only a life estate in 320 acres of land but also exclusive control and possession of the income generated by that land, which was evidence that Dorothy was aware of her total assets. The chancellor also found that the revocation clause along with specific devises and bequests in the will was evidence that Dorothy understood who her natural inheritors were and how her action would legally affect prior wills. It is clear from prior documents that Dorothy never had any intention of including nonrelative beneficiaries. Finally, the chancellor found that there was evidence that Dorothy knew who controlled her finances. We agree there was clear and convincing evidence that Dorothy had full knowledge and deliberation of the consequences of her actions.
¶34. With respect to the last requirement, the chancellor found that Dorothy exhibited independent consent and action when she obtained independent advice from Cordell, who was a competent person, disconnected from Henry III, and devoted wholly to Dorothy’s interests. Holmes, 961 So. 2d at 680 (¶18). We agree there was clear and convincing evidence that Dorothy exhibited independent consent and action.
¶35. Assuming there was a presumption of undue influence, the presumption was overcome by clear and convincing evidence that Henry III acted in good faith, Dorothy had full knowledge and deliberation of the consequences of her actions, and Dorothy exhibited independent consent and action when she executed her will. This issue is without merit.
Some comments on this case next week.
A CD Pitfall
January 26, 2016 § 5 Comments
A 2015 COA case reveals a feature of CD’s that could cause problems for some of your clients, and could impact estates you handle.
In 1990, Audie Bell English and several other relatives purchased a $75,000 CD at Sunburst Bank, which later was acquired by Regions Bank. The CD automatically renewed every 6 months at the then-prevailing rate. Under its terms, any of the purchasers could cash out the CD without participation of the others, but to do so the original CD was required to be presented. There was a policy in place, however, for issuance of a replacement original in the event that the initial original certificate became lost.
All of the other purchasers died, and Audie Bell, the sole survivor, presented the original certificate to Regions for payment. The bank refused to honor it, however, because it could not locate any records, which it took to mean that the CD had already been redeemed.
After Audie Bell died, the executrix of her estate filed suit against Regions for breach of contract, seeking damages in the face value of the $75,000 CD, plus a little more than $247,000 in accrued interest.
Both the estate and the bank filed motions for summary judgment.
The chancellor granted Regions summary judgment, relying on a New York case that held, in essence, that there is a legal presumption of payment arising out of the fact of a long delay between the right to enforce an obligation and the attempt to do so. He found no genuine issue of material fact, and that Regions was entitled to a judgment as a matter of law.
In the case of Estate of English v. Regions Bank, decided August 25, 2015, the COA reversed, noting that Mississippi did not recognize the same presumption as in the New York case. The court remanded for a hearing on the fact issue whether the CD had been redeemed, or whether it should be paid.
It should be emphasized here that what was reversed here was the finding that there was no genuine issue of material fact. The chancellor may well resolve the fact issue against the estate at trial, but that will depend on presentation of evidence by both sides.
What I think merits your attention is that, more and more, it seems to me, the rules of banking are tilting in favor of the banks and against “small” depositors [to a bank, $75,000 is a piddling deposit; to most of us, it is a fortune]. You might want to factor this in when advising your clients about record-keeping and protecting assets. Some of your may have some comments about how your clients can protect themselves from an adverse outcome in a scenario such as this, and how to avoid litigation. I just think most of us believe that when we have in hand an original negotiable instrument such as a CD, we expect it to be honored, and that the burden of its own record-keeping should be on the bank.
When to Appeal from Denial of a Probated Claim
September 28, 2015 § Leave a comment
We should all know by now that a judgment that disposes of fewer than all of the contested issues in a case, or as to fewer than all of the parties, is not final and appealable, per MRCP 54(b).
So, consider this case …
You represent a creditor who has timely probated a claim against an estate. The executor files a contest to your client’s claim and notices it for hearing. At the close of the hearing the chancellor renders a bench opinion denying your client’s claim and enters a judgment to that effect. Now your client wants to appeal.
… what is your appeal time?
On one hand, the judgment denying the probated claim obviously disposes of fewer than all of the contested issues in the case, and fewer than all of the other parties are finally affected (i.e., other creditors, heirs or beneficiaries, etc.). So is an appeal barred by R54(b)?
On the other hand, your client’s involvement in the case is most assuredly concluded. The estate will proceed on its merry way without your client’s further involvement. And it could take months or even years for the court to wind up the estate and enter a final judgment closing it. Why should your client have to wait.
The question did arise in the recent COA case, Estate of Holmes: Holmes v. Turner, decided September 1, 2015. In that case, Becky Turner and her nephew, Brett Holmes, were in a dispute over a claim that Brett probated against the estate of Frances B. Holmes. The chancellor denied the claim and Brett appealed. Becky asserted on appeal that the court’s order or judgment overruling the claim was not a final, appealable judgment, and that, therefore, Brett’s appeal was untimely. In footnote 3, at ¶16, Justice Maxwell, writing for the court, disagreed with Becky’s position:
Becky asserts this order was not final and appealable, comparing it to the interlocutory order in the lawsuit-within-an-estate case In re Estate of Drake, 134 So. 3d 328 (Miss. Ct. App. 2013). But in contrast to the order in that case, the chancellor’s order here finally resolved the probate claim by Jimmy’s estate that Brett lodged against Frances’s estate. Further, both the Mississippi Supreme Court and this court have exercised appellate jurisdiction over timely appeals from orders either allowing or disallowing claims against still-open estates. E.g., In re Estate of Petrick, 635 So. 2d 1389 (Miss. 1994); In re Estate of Ladner, 911 So. 2d 673 (Miss. Ct. App. 2005).
That sort of obliquely says that the time to appeal is within thirty days of the order or judgment denying the claim, but it does not come right out and say so.
There actually is a case, however, that directly answers the question. In Estate of Philyaw: Braxton v. Johnson, 514 So.2d 1232, 1236-7 (Miss. 1987), Braxton contested Johnson’s claim. Johnson prevailed, and Braxton did not immediately file an appeal, but rather waited until the judgment closing the estate was entered. The MSSC said this:
The question therefore is whether the time for an appeal for an administrator or executor unhappy with a decree allowing a contested claim runs from the date of such decree or from the date of the decree finally closing the estate. Darryl has not seen fit to cite this Court with any apposite authority supporting his response to Johnson.
We agree with Johnson, that the time for any appeal from a chancellor’s decision on the claim started on the date of the decree allowing it.
Miss. Code Ann. § 91-7-165 is the statutory procedure for contested creditors’ claims. Miss. Code Ann. § 11-51-9 recognizes final decrees include “matters testamentary and of administration …” Miss. Code Ann. § 11-51-99 specifically authorizes executors or administrators to appeal from any decree affecting them in their fiduciary capacity.
While the specific jurisdictional question raised by Johnson has never been addressed by this Court, it appears that appeals by administrators or executors unhappy with a decree allowing a contested claim have generally been taken from that decree. See: McKellar’s Estate v. Brown, 404 So.2d 550 (Miss.1981); Wooley v. Wooley, 194 Miss. 751, 12 So.2d 539 (1943); Ellis v. Berry, 145 Miss. 652, 110 So. 211 (1926).
That the administrator or executor’s time to appeal begins to run from date of the decree allowing the claim is supported by most of the authorities from other states which have addressed this question. See: Parsons v. M.E. McCabe & Son, 127 Kan. 847, 275 P. 173 (1929); In re Swanson’s Estate, 239 Iowa 294, 31 N.W.2d 385 (1948); In re Hildreth’s Estate, 113 Vt. 26, 28 A.2d 633 (1942).
There is, however, some contrary authority. See: In re Naegely’s Estate, 31 Cal.App.2d 470, 88 P.2d 715 (1939); In re Gooder’s Estate, 68 S.D. 415, 3 N.W.2d 478 (1942); In re Allen’s Estate, 175 Wash. 65, 26 P.2d 396 (1933).
We find the better view is that time for an appeal should run from the date of the decree on the claim.
The efficient and orderly administration of estates and payment of all just debts without unjustified delay compels our conclusion. To permit an administrator to wait until an estate is otherwise ready for closing before deciding whether or not to appeal a decree allowing a claim would countenance outrageous postponements in paying the indebtednesses due by the estate. Moreover, an administrator cannot close an estate until there has been a final adjudication as to precisely what debtors are due by the estate, which he has a duty to pay. See: Miss.Code Ann. § 91-7-291; Fidelity & Deposit Co. v. Doughtry, 181 Miss. 586, 179 So. 846 (1938); Walker v. Woods, 166 Miss. 471, 148 So. 354 (1933).
The time for taking an appeal from the November 8, 1982, decree having long since expired, this Court is without jurisdiction to hear any defense to Johnson’s claim against the Philyaw estate. Miss. Code Ann. § 11-51-5.
Philyaw deals with the time for an administrator or executor to appeal from a ruling adverse to the estate, but there is no logical reason why the same rationale should not apply to a creditor appealing from an adverse ruling. It’s that goose-and-gander thing.
Binding an Incompetent to a Contract
September 21, 2015 § Leave a comment
Can an incompetent person be bound to a contract?
That was one of the questions presented in Estate of Holmes: Holmes v. Turner, handed down by the COA on September 1, 2015.
Frances Holmes suffered from Alzheimer’s disease, and was a total-care nursing home patient for the last ten years of her life. Her son Jimmy had her power of attorney and was responsible for paying her bills for her. Frances had more than $150,000 invested in the stock market, but Jimmy elected not to liquidate her investments, apparently for tax reasons, choosing instead to pay Frances’s nursing home bills from his own money. He wrote $85,000 in checks for that purpose between 2007 and 2009, when a conservatorship was established, with Jimmy’s sister Becky as conservator, and she liquidated the stock to pay their mother’s expenses. Jimmy was not happy that Becky sold the stock, and left angry voicemails complaining that the proceeds of the stock sale belonged to him, due to his payment of his mother’s expenses. Becky responded with a letter explaining that the money was being used for Frances’s care. Jimmy never filed a claim against the conservatorship.
Jimmy died in March, 2011, and Frances died in September of the same year.
Becky had the conservatorship closed and admitted Frances’s will to probate. Under the terms of the will, Jimmy’s son Brett was to inherit Jimmy’s interest, since Jimmy had predeceased Frances. Becky notified Brett that his grandmother’s will had been probated. When Becky filed her Affidavit of Known Creditors, however, she did not name Jimmy. Notice to Creditors was published, and no claim was filed by Brett, who was fiduciary in Jimmy’s estate. A year later Brett did file a claim against Frances’s estate. Becky defended on the ground that Frances was incompetent, and so was incapable as a matter of law of entering into a contract. She also argued that Brett filed his claim too late. The chancellor disallowed the claim, and Brett appealed.
Judge Maxwell wrote for the court:
¶18. Becky argued—and the chancellor agreed—that Frances, who suffered from Alzheimer’s, was mentally incapable to enter a contract to repay the almost $85,000 worth of checks Jimmy wrote her. Of course, to be valid, a contract requires “parties with legal capacity to make a contract.” Rotenberry v. Hooker, 864 So. 2d 266, 270 (¶13) (Miss. 2003). But this case presents a unique circumstance where Frances’s mental incapacity was not a barrier to an implied contract arising. See Talbert v. Ellzey, 203 Miss. 612, 620, 35 So. 2d 628, 631-32 (1948).
¶19. In Talbert, the Mississippi Supreme Court recognize an implied contract existed between an incapacitated woman and her brother. Id. The brother had removed his incapacitated sister from the state mental hospital and took care of her until her death. According to the supreme court, “when necessaries are furnished to a person who by reason of mental incapacity cannot himself make a contract, the law implies or imposes an obligation or agreement on his part to pay for them; his liability for necessaries is deemed rather a benefit than a disadvantage to him.” Id. (citations omitted).
¶20. Here, Becky has conceded the checks Jimmy wrote to Frances were used for Frances’s benefit. While Frances lacked the mental capacity to make a contract with Jimmy to pay him back, the law recognizes she was not disadvantaged by the liability for her nursing care. So according to Talbert, the law imposed an obligation on Frances’s part to repay Jimmy the $85,000 he expended to pay for needed care. See id.
The court went on to find Brett’s claim to be untimely, which is the subject of another post.
These kinds of cases at the trial level are often fact-intensive and the facts are shaded with nuances. For instance, a daughter who can not afford to live on her own moves in with her mother. She cooks, cleans, and provides personal care for her increasingly incapacitated mother. At what point does the free room and board succumb to a claim for services rendered? If the mother never paid the daughter a cent during her lifetime, does that not raise a presumption that the mother considered the services a gift offered out of love and affection rather than compensable services?
In Holmes, it was clear — and undisputed — that the money was spent specifically for Frances’s care. Most of these type cases don’t offer so neat a fact package.
An Exception to the Slayer Statute
August 6, 2015 § 1 Comment
Only yesterday I posted here about the danger posed by the untreated mentally ill in society.
Last week the MSSC handed down a decision in a case involving a “severely mentally ill man,” a homicide, and an adjudication at the trial level that he was not to inherit from his victim. The court reversed and remanded.
Here is the brief statement of grisly facts from the opinion by Justice Randolph in Estate of Armstrong: Armstrong v. Armstrong, handed down July 30, 2015:
¶2. On August 7, 2010, Joan Armstrong was contacted by several of her son’s neighbors, who were worried about their children’s safety, after they noticed John acting erratically. John had a long history of serious mental illness, having been treated since 1989. [Fn omitted] Joan picked up John at his apartment and brought him back to her condominium. Joan had invited some of her friends to come over to the condominium swimming pool. Worried that his mother was leaving him, John went upstairs and retrieved a crochet-covered brick, which he used to hit Joan repeatedly over the head. He then moved her body to the bathroom and repeatedly stabbed her. He informed law enforcement officers from the Ocean Springs Police Department (OSPD) that he was preparing her body to be buried by bleeding her.
¶3. Joan’s death certificate listed her cause of death as “contusion of brain with subdural and subarachnoid hemorrhage [due to] multiple blunt force injuries of head.” Joan also sustained multiple stab wounds and rib fractures. Joan’s death was listed as a homicide due to the multiple strikes to her head.
John, who experienced delusions and hallucinations and had been diagnosed as paranoid schizophrenic, admitted to the police and his sister that he had killed his mother. He was found by the circuit court not to be competent to stand trial, and was sent to Whitfield until he might become competent to stand trial.
Joan’s testate estate was opened, and John, along with his siblings, were beneficiaries. The executor filed a motion to declare John’s devise void, pursuant to MCA 91-5-33, known as the “Slayer Statute,” which provides in part as follows:
If any person shall wilfully cause or procure the death of another in any manner, he shall not take the property, or any part thereof, real or personal, of such other under any will, testament, or codicil. Any devise to such person shall be void and, as to the property so devised, the decedent shall be deemed to have died intestate.
A guardian ad litem was appointed. She defended the motion on several grounds, but primarily on the basis that the executor failed to show that John had willfully caused Joan’s death as prescribed in the statute. The chancellor found that willfulness as provided in the statute had to be interpreted in a civil, not criminal, context, and that John’s willfulness was evidenced by:
1. John was discovered at Joan’s home with Joan’s body by law enforcement. John was covered in Joan’s blood.
2. In the immediate aftermath of the homicide, John confessed to law enforcement. This confession was witnessed by John’s sister-in-law who offered testimony at this motion hearing.
3. OSPD, at the conclusion of their investigation, issued a Complaint alleging John, “feloniously, willfully and unlawfully with deliberate design” caused the death of Joan.
4. A Jackson County Grand Jury returned an indictment against John for the willful and felonious murder of Joan.
The chancellor granted the motion, and John’s GAL appealed.
In a case of first impression, the MSSC reversed and remanded the case to the chancery court for a determination whether John was insane at the time of the killing:
¶22. It is clear from well-established precedent that willful is synonymous with intentionally, knowingly, deliberately, and purposely. In order for the Slayer Statute to apply to this case, John must have acted willfully in killing his mother. The record reveals that John has suffered from hallucinations and delusions for more than two decades. He has been diagnosed as a paranoid schizophrenic. John’s thoughts are disorganized and very difficult to understand, and he often speaks in “word salad,” which means that he uses words that are unrelated and disconnected. However, the record is silent as to John’s mental state at the time of the killing.
¶23. In this matter of first impression, this Court concludes that Mississippi should follow the majority of states and holds that the Slayer Statute requires a finding of willful conduct to preclude a person from inheriting from his or her victim. Because an insane person lacks the requisite ability willfully to kill another person, the Slayer Statute is not applicable in cases where the killer is determined to be insane at the time of the killing.
[T]he words used by Mr. Justice Nelson, when Chief Justice of New York, said that “self-destruction by a fellow being bereft of reason can with no more propriety be ascribed to the act of his own hand than to the deadly instrument that may have been used by him for the purpose,” and “was no more his act, in the sense of the law, than if he had been impelled by irresistible physical force.”
Great S. Life Ins. Co. v. Campbell, 148 Miss. 173, 114 So. 262, 263-64 (1927) (quoting Manhattan Life Ins. Co. v. Broughton, 109 U.S. 121, 132, 3 S. Ct. 99, 105, 27 L. Ed. 878 (1883)).
¶24. While this result is grounded in legal precedent, it may prove to be unsettling to some. However, it is not the duty of this Court to determine public policy. If the law as it now exists is in need of change, that task is for the Legislature.
A few thoughts about this case:
- Does this case forebode a shift in the standard for criminal responsibility?
- My hat is off to attorney Stacie Zorn for her work as GAL. She did exactly what a GAL in that role is supposed to do, and she accomplished a change in the law in the process.
- Operation of the “Slayer Statute” is a subject I have posted about here before.
- I had written yesterday’s post about mental illness week before last and scheduled it for publication yesterday. The MSSC’s Armstrong Estate decision came down in time for the resulting juxtaposition.
A Procedural Peculiarity
June 11, 2015 § Leave a comment
We’ve talked here many times about the R54(b) principle that, if the judgment disposes of fewer than all of the issues, it is not a final, appealable judgment unless the judge certifies so in the manner prescribed by the rule. We’ve sounded that theme so often that I’m not going to add links in this post. You can search them for yourself, if you care to.
It’s that principle that has me scratching my head over the COA case Wood, et al. v. Miller, decided June 2, 2015.
Donna Smith and Audrey Kemp filed a complaint in chancery court in 2004 to quiet and confirm title, to determine heirship, and to partition some 261 acres of land that had descended via heirship and devise to the parties named in the suit. They filed an amended complaint in 2007.
Following a hearing in 2009, the chancellor entered a judgment quieting and confirming title and ordering partition. The commissioners some time in 2010 filed a report detailing how the property could be divided into three shares.
In October, 2010, the defendants filed a separate pleading in the same civil action seeking to obtain title of all the property by adverse possession. The pleading was not styled as a counterclaim.
In May, 2012, the chancellor entered a judgment confirming the commissioners’ report, and ordered that the petitioners would have one share, the respondents another share, and another group of heirs the third share.
Afterward the plaintiffs filed a pleading asking for a judgment for waste based on the defendants’ refusal to allow the land to be rented during the litigation. At the hearing on that pleading, the question arose about the pending adverse-possession claim that had never been addressed. The attorney for the defendants announced that he would schedule a hearing on the matter at a later date. He never did. The chancellor entered judgment against the defendants for waste for more than $90,000.
The defendants appealed, raising only two issues: (1) that the chancellor erred when she ruled that two of the petitioners had inherited Thornton Miller’s interest in the property through the will of Thornton’s widow, Magnolia; and (2) that they had adversely possessed the property. They did not otherwise contest the heirship determination, the partition, or the judgment for waste. It does not appear from the opinion that they raised any issue as to the original judgment quieting and confirming title.
In its opinion, the COA, by Judge Roberts, pointed out, quite accurately, that any issue of invalidity of Magnolia’s will had not been raised before the chancellor; nor could it, because MCA 91-7-23 requires such claims be brought within two years of probate of the contested will, and not later. Magnolia’s will had been probated in 1986, so the claim as to the will’s invalidity was untimely and barred by the statute. On those grounds, then, the COA refused to review the issue on appeal.
This was unquestionably the right conclusion as to issue (1).
As for the adverse possession claim, issue (2), the court concluded that, since it had never been presented to the chancellor for review, the issue was not properly before it, and refused to entertain this issue also.
With this issue, I have this question: since the judgment of the trial court disposed of fewer than all of the issues, should the COA have accepted jurisdiction over the appeal in the first place? R54(b) provides:
When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an expressed direction for entry of the judgment. In the absence of such determination and direction, any order or other form of decision, however designated which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all of the parties shall not terminate the action as to any of the claims or parties and the order or other form of decision is subject to revision at any time before entry of the judgment adjudicating all the claims and the rights and liabilities of all the parties.
Since the adverse possession issue is still pending as a claim in this case, was there a final, appealable judgment, or should the COA have rejected jurisdiction? Well, no matter, I think that the COA reached the proper conclusion because:
- You can not adversely possess against co-owners. The determination of heirship resolved the issue of Magnolia’s bequest and ownership, making all of the parties co-owners. Even if the matter had been properly presented at hearing to the chancellor, it did not state a claim upon which relief could be granted.
- Any adverse possession claim should have been presented as a compulsory counterclaim to the claim to quiet and confirm, per R13. The reason for the rule is to prevent the very thing that was attempted in this case.
- The chancery court’s order quieting and confirming disposed of any adverse possession claims.
- This matter was pending in the trial court for nine years. If you haven’t demanded a hearing on your claims you should not have the right to ask or demand that the court deal with it later. You’re already late enough.
In other words, the outcome would not have changed. Just to be clear … I agree with the court’s ruling in this case. I just thought it presented a peculiar set of issues and procedures that would be of some interest.
Pro Se Times Five
June 9, 2015 § 5 Comments
Every now and then one of those tv commentators with a big head, staring all-knowingly into the eye of the camera, will pontificate that members of my generation believe — somewhat arrogantly, they say — that we can do anything.
I take issue with that. I know, for example, that I would not be a very successful brain surgeon, what with my less-than-steady hands and absolute ignorance of surgical techniques, not to mention minimal understanding of brain and skull structure. Of course my lack of success in that field would make me a spectacularly successful defendant — from the perspective of plaintiffs.
You would probably agree with me, as would most rational people, that it is singularly ill-advised for laypeople to attempt brain surgery on someone else, or even themselves.
Brain surgery requires a high degree of education, smarts, and practice. As does the law.
Why, then, do ordinarily sensible people — who would not dream of doing brain surgery, and who have had the wherewithal to reach adulthood without blowing themselves up or being devoured by wild beasts or falling into any similar calamity — insist on representing themselves in litigation and — horrors — on appeal?
That’s what happened in the case of Estate of Forrest: Forrest v. Forrest, decided June 2, 2015, by the COA. In that case, Diane Forrest had a falling-out with the sons of her deceased husband over assets and expenses of the estate. When Diane filed a petition to close the estate, the sons showed up at the hearing, ready to do battle. But the chancellor, in solomonic fashion, conferred with the parties and announced that they had reached a settlement agreeable to all. The COA opinion by Judge Ishee describes what happened next:
¶5. After reading the agreement into the record, the chancellor asked the parties if they understood and assented to the agreement as dictated into the record. All parties responded affirmatively. Diane then filed this appeal.
Pro se, I might add.
Diane’s appeal was doomed because Diane’s attorney (herself) apparently did not grasp the fundamental concept that an appeal involves legal argument. Judge Ishee explicated:
¶7. Diane filed her appellant’s brief pro se. In her brief, Diane failed to cite any authority in support of her claims. Pursuant to Mississippi Rule of Appellate Procedure 28(a)(6), an appellant’s brief must “contain the contentions of appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.” It is well settled under Mississippi caselaw that “failure to cite any authority is a procedural bar, and a reviewing court is under no obligation to consider the assignment.” Norwood v. Miss. Dep’t of Emp’t Sec., 105 So. 3d 408, 410 (¶5) (Miss. Ct. App. 2012) (citation omitted).
¶8. Although Diane has chosen to appeal this matter without the assistance of counsel, the Mississippi Supreme Court has consistently held that “[a] pro se litigant shall be held to the same standard as an attorney.” Bailey v. Wheatley Estates Corp., 829 So. 2d 1278, 1281 (¶11) (Miss. Ct. App. 2002). As such, we decline to address Diane’s assignments of error because she failed to cite any authority in her briefs.
Actually, Diane’s failure to cite any authority is probably indicative of the fact that there is no authority that would support reversing the chancellor in this case. Diane made her deal, affirmed her agreement in open court, and then tried to renege via appeal. That’s not a formula for success.
Oh, and did I mention that all four of the sons, who were appellees, are listed as pro se also? So were they better lawyers than Diane because they won? Not necessarily. Their one defensive ploy was to move to strike Diane’s brief because it was filed too late. The COA dismissed that issue as mooted out by the larger and much more obvious issue of failure to cite any authority.
I know what you’re probably thinking: “it’s obvious that they were pro se because they did not want to pay lawyers.” I get that. I know that lawyers, particularly in bulk, can be expensive. But that’s sort of beside the point. The point is that a pro se appeal is about as futile as doing brain surgery on oneself — and about as messy and painful.
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