The Limits of Confidentiality
May 13, 2014 § 2 Comments
When most of us in the legal profession think of client confidentiality, we tend to think in absolute terms. That is, if it involves a communication between lawyer and client, or client documents or other forms of client secrets, it can not be disclosed.
The rule is not absolute, however. Rule of Professional Conduct (RPC) 1.6 provides six exceptions by which the lawyer may reveal otherwise confidential information of a client. RPC 3.3 and 4.1 complement 1.6.
MRE 502 is the lawyer-client privilege rule. It states that a lawyer may invoke the privilege on behalf of a client in order to keep attorney-client communications confidential. Subsection (d) sets out five exceptions in which the privilege may not be invoked: (1) if the lawyer acted to aid a client in committing a crime or fraud; (2) claimants through the same deceased client; (3) if the communication is relevant to a claim of breach of duty by a lawyer to a client; (4) if the communication pertains to an attested document to which the lawyer is the attesting witness; and (5) communications relevant to interests of joint clients in certain situations.
That third exception reads that there is no privilege under MRE 502:
… As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction.
Exception 3 was the subject of an interlocutory order entered by the MSSC May 8, 2014, in the case of Flechas v. Pitts. The matter was before the court on “Motion for Immediate, Extraordinary Relief, and Petition for Reconsideration and/or Rehearing of Previous Ruling Based on Newly Discovered Evidence and Related Legal Issues filed by Petitioner; the Motion to Dismiss and to Strike the Motion for Immediate, Extraordinary Relief, and Petition for Reconsideration and/or Rehearing of Previous Ruling Based on Newly Discovered Evidence and Related Legal Issues, or to Partially Strike filed by Respondent; Respondent’s Rule 48A(d) Mississippi Rules of Appellate Procedure Motion for Access to Sealed Document, and all responses and rebuttals.”
The issue arose in the course of litigation involving a will contest between Alyce Pitts and Todd Pitts, who claimed to be beneficiaries of the decedent, Troy Pitts, under competing wills. Attorney Flechas had represented Troy Pitts in various matters. He also represented Todd in the will contest. Flechas was served by Alyce with a subpoena duces tecum for “all files, records, electronic communications, written or any documents . . . including . . . all divorce files, personal injury defense files, estate files, Will or trust files, [and] deed preparation files.”
Flechas responded to the subpoena with a motion to withdraw, since the subpoena placed him in a testimonial role as to the contested matter at issue. He also objected to the subpoena on grounds of attorney-client privilege. The chancellor overruled both the motion and the objection based on MRE 503(d), ordering the attorney to produce all of the requested information. Flechas appealed.
The MSSC reversed the chancellor’s ruling, directing that he conduct an in camera inspection of every document produced in order to determine whether it is relevant to the issues in the will contest, and that he limit disclosure to those relevant documents. The MSSC’s rationale, involving analysis of MRE 502, MRCP 26, and MRCP 45, and applicable case law, is worth your time to read.
Alyce noted for the first time in her response to Flechas’s motion that she had filed pleadings with the trial court to disqualify the attorney, and asking that he be directed to disgorge funds allegedly held fraudulently. The chancellor defended his actions, in part, based on the fraudulent acts provision of MRE 502(d)(1). The Supreme Court took note, but did not alter its position.
In an age where lawyers are increasingly finding themselves in the cross-hairs of litigation involving themselves or others, this order is important authority for the proposition that you may be called upon to disclose your client’s information entrusted to you, along with your work product, and you had better be ready to help the court understand the limitations involved.
What to do in an Administration When a Will Pops Up
April 30, 2014 § 2 Comments
You have opened administration of an intestate estate, and things are moving smoothly along. Your administratrix pops in one day and plops a document on your desk. “What’s this?” you ask. “Pop’s will,” she says. “Crap,” you think.
It happens now and then that a will surfaces in the midst of an intestate estate. It’s a common enough occurrence that there is even a statute telling us what to do when that happens. MCA 91-7-87 says:
If a will shall be found and probated and letters testamentary granted thereon, the same shall be a revocation of the administration; but acts lawfully done by the administrator without actual notice of such revocation shall be valid and binding.
The statute requires that the will be admitted to probate and letters testamentary issued before the administration is revoked.
If there is serious doubt as to the validity of the will, it would be best to file a caveat against probate and proceed per MCA 91-7-21. Otherwise, a petition spelling out the circumstances should be filed, specifically asking the court to revoke the administration per MCA 91-7-87. The judgment admitting the will to probate cancels the administration, and the acts done lawfuly up to that point by the administrator will be valid and binding. I don’t find any case law addressing whether the affidavit and publication for creditors filed in the administration would be valid and binding in the testate estate.
Junior Kimbrough’s Probate Blues
April 16, 2014 § Leave a comment
David “Junior” Kimbrough was a world-renowned bluesman of the North Mississippi hill country. He died after suffering a heart attack in 1998. He had a will leaving his entire estate to his long-time girlfriend, Mildred Washington, and it was admitted to probate shortly after Junior’s death.
The matter languished on the docket for reasons not disclosed in the record. A will contest was filed finally some eleven years after the estate was opened. Litigation snowballed, including an interlocutory appeal, and the matter culminated in a 2012 trial.
The proof was that Matthew Johnson, an officer of Fat Possum Records and Mockingbird Music, prepared the will that Kimbrough signed at the same time that he signed record deals with Johnson’s companies. The contestants claimed that Johnson had a confidential relationship with Kimbrough, and that he exercised undue influence over the bluesman to have Kimbrough’s girlfriend named as sole beneficiary. They claimed that the will should be set aside, putting them into position to inherit Kimbrough’s estate.
The chancellor granted a R41(b) motion dismissing the contestants’ claims, and they appealed. Although they raised IX points (that’s the Super Bowl version of “nine points”), the MSSC, which kept the case, addressed only whether the chancellor was in error in granting the R41(b) motion.
In Kimbrough, et al. v. Estate of Kimbrough and Washington, handed down March 20, 2014, Justice Pierce wrote for the unanimous court (Chandler not participating).
The court first addressed the question whether Johnson had abused his confidential relationship:
¶12. In re Estate of Laughter defines a confidential relationship as “ . . . between two people in which one person is in a position to exercise dominant influence upon the other because of the latter’s dependency on the former arising either from weakness of mind or body, or through trust[.]” In re Estate of Laughter, 23 So. 3d 1055, 1063 (Miss. 2009) (quoting Hendricks v. James, 421 So. 2d 1031, 1041 (Miss. 1982)). Further, this Court has identified the following seven factors to consider when determining whether a confidential relationship exists:
(1) whether one person has to be taken care of by others, (2) whether one person maintains a close relationship with another, (3) whether one person is provided transportation and has their medical care provided for by another, (4) whether one person maintains joint accounts with another, (5) whether one is physically or mentally weak, (6) whether one is of advanced age or poor health, and (7) whether there exists a power of attorney between the one and another.
Laughter, 23 So. 3d at 1063 (citing In re Estate of Holmes, 961 So. 2d 674, 680 (Miss. 2007) (citing Wright v. Roberts, 797 So. 2d 992, 998 (Miss. 2001))).
¶13. If it is determined that a confidential relationship exists, an abuse of that relationship must be shown for the Contestants to raise a proper presumption of undue influence. Costello v. Hall, 506 So. 2d 293, 298 (Miss. 1987). The existence of a confidential relationship, standing alone, does not raise a presumption of undue influence. Laughter, 23 So. 3d at 1064 (citing Wright, 797 So. 2d at 999 (citing Croft v. Alder, 237 Miss. 713, 723-24, 115 So. 2d 683, 686 (1959))); see also Matter of Will of Adams, 529 So. 2d 611, 615 (Miss. 1988); Matter of Will of Wasson, 562 So. 2d 74, 78 (Miss. 1990).
¶14. The person who allegedly is taking advantage of the confidential relationship “ . . . must have used that relationship for his personal gain or to thwart the intent of the testator.” Costello, 506 So. 2d at 298 (citing Croft, 237 Miss. at 723, 115 So. 2d at 686); see Barnett v. Barnett, 155 Miss. 449, 457, 124 So. 498, 500 (1929) (undue influence over the execution of a will arises when the testator’s will is replaced by the will of another); and Wasson, 562 So. 2d at 79 (undue influence results in a will reflecting the beneficiary’s wishes rather than the wishes of the testator); Matter of Will of Adams, 529 So. 2d 611, 615 (Miss. 1988) (To effectively raise the presumption of undue influence, there must be a showing that the confidential relationship was abused through dominance over the testator or by replacement of the testator’s intent for that of the beneficiary.).
¶15. Laughter reaffirmed that a presumption of undue influence arises when the following circumstances are present:
where the beneficiary has been actively concerned in some way with the preparation or execution of the will[;] or where the relationship is coupled with some suspicious circumstances, such as mental infirmity of the testator; or where the beneficiary in the confidential relation was active directly in preparing the will or procuring its execution, and obtained under it a substantial benefit.
Laughter, 23 So. 3d at 1064 (quoting Croft, 237 Miss. at 723-24, 115 So. 2d at 686) (internal citations omitted)).
¶16. Commonly, undue influence is exerted by a person who is a named beneficiary in the will. However, this Court has extended the doctrine to nonbeneficiaries. The extension to nonbeneficiaries is seen in Weston v. Lawler’s Estate, in which this Court stated, “Undue influence over a testator, while not exercised by a beneficiary under the will, may be done so through an agency or a third person.” Weston v. Lawler’s Estate, 406 So. 2d 31, 34 (Miss. 1981) (citations omitted); see also Wasson, 562 So. 2d at 79.
The court went on to distinguish the cases from this one, and concluded that there was no abuse of the relationship by Johnson. As Justice Pierce pointed out:
¶22. The chancellor also determined that the testimony overwhelmingly showed that Kimbrough “called his own shots.” The chancellor went on to conclude that, even though Kimbrough was uneducated, he was not ignorant, and in fact, he was an extremely intelligent man. The chancellor pointed to the testimony revealing that, since Kimbrough could not read or write, all of his songs were performed from his memory alone. He further pointed to testimony providing that Kimbrough was hardheaded and did not let others pressure him. The chancellor ultimately decided that the Contestants hadid not meet their burden of proof, because their allegations were nothing more than “a lot of suspicions.”
¶23. Lastly, it should be noted that, when reviewing a will contest, the polestar consideration is to carry out the intent of the testator. Wasson, 562 So. 2d at 79 (citing Tinnin v. First United Bank of Mississippi, 502 So. 2d 659, 667 (Miss. 1987)). During the chancellor’s ruling, he discussed that Kimbrough had a child with Washington, that Washington was the last woman Kimbrough lived with, and that he was on her couch the day before he died. Testimony provided that Washington and Kimbrough had a relationship for many years. Washington is pictured on the inside cover of his last-released album. Johnson testified that when Kimbrough became ill, he was instructed to pay Washington any sums owed to Kimbrough by his companies, because Washington was the person who took care of Kimbrough.
Aside from the fact that this case is an exposition on how the analysis of undue influence works, it demonstrates how undue influence is not limited to one who benefits from it.
The case also eloquently illustrates what I have told lawyers in my court many times: “The longer you leave open an estate, the more problems it attracts.” How much money would Mildred Washington have saved in attorney’s fees had the estate been closed ten years before the contest was filed? There may have been meritorious reasons that this particular estate stayed open for as many years as it did, but 99% of estates have no business remaining open this long.
A noteworthy aspect of this opinion is that it includes a mere single footnote consisting of a hyperlink to Fat Possum Records’ web site. Thank you, Justice Pierce for sharing your analysis in plain sight, and not in a plethora of footnotes.
Pot of Gold … NOT
April 9, 2014 § 1 Comment
Tom Freeland posted this on his blog not too long ago:
Over the years, I’ve seen several estate cases where some family members were claiming the deceased had a lock box with hundreds of thousands of dollars in cash in it, and even were willing to swear under oath to its existence.
But I’ve never seen one with a shred of actual tangible evidence of the existence of the lock box.
I can second that. His post brough to mind some experiences I have had in that vein.
- When I took the bench I inherited a case in which my predecessor had authorized the administrator to hire a professional treasure hunter to search the decedent’s property for the buried pelf that all of the heirs were convinced was there. Successive authorizations for further excavations were granted until, in the words of one of the attorneys involved, the decedent’s home was perched on a ten-foot pedestal of red-clay dirt with devastation of strip mining all about. It took a ladder to climb onto the front porch. After the heirs exhausted their savings in their quixotic, unsuccessful quest, I authorized them to dig on their own, until at length they gave out. The case took a bizarre turn when I was asked to order that the body of the decedent be dug up and autopsied. No.
- A woman hired me to recover money in her mother’s intestate estate. Her mother had squirrelled money away each month from her meager Social Security payments in a safe deposit box. She and her sister took turns accompanying momma to the bank, so both knew of the cash. Both sisters were on the card authorizing access. After momma’s death they met at the bank and went through the safe deposit box contents. There was $18,000 there. They decided to leave the money in the box and not tell their husbands. It would be their own little trove of mad money. A couple of days later, my client claimed she had a pang of worry about the money, so she drove to the bank. Her heart sunk when she went to sign the access card and saw that her sister had been there without her the day before. All the money was gone. Her sister denied getting the money. I explained to my client all of the problems in proving her claims, and set out all the lies the sister could spin to cover her tracks. We filed a petition with the court and, to make a long story short, were able to recoup the funds because the sister made the miscalculation of revealing to an honest lawyer what she had done, and he made her do the right thing. The worst aspect for the sisters, aside from the attorney’s fees, was that when all the dust cleared their husbands knew about the money.
- Some grandchildren of an old woman in Kemper County came in to my law office one day with a cardboard box filled with rusty tin cans. That’s where grandma would stash her money over the years, depositing the cans under the concrete steps up to the front porch. She would sit on the porch all day with a switch to ward off anyone who tried to get at her riches. When we tried to count it, we discovered that the money was wet, mildewed, worm-eaten, and stuck together. The family had to get a consultant with the Treasury Department to advise how to restore the bills, mostly ones. They followed the instructions and got a Treasury check in return for the currency in the grand total of $3,000. A little more than the expenses of administration.
- In an estate my former law partner handled decades ago, the decedent left a will giving his eldest son his diamond ring and his bank accounts, and his daughter his home. The youngest son, somewhat of a n’er-do-well, got the decedent’s briefcase, hat and cane, all of which were handed over to him unceremoniously. The young man came back later and told my partner that the briefcase was full of US savings bonds. If that were true, and he found a way to cash them in, he came out pretty well.
Before you leap into that estate with stars in your eyes, step back and be skeptical about tales of untold wealth that needs to be dug up. Most people don’t handle their business that way. In many estates, you would do well to make sure your fees and the expenses of adminstration can be paid.
Inter Vivos Gifts Between Spouses — the Next Step
March 27, 2014 § 4 Comments
It’s been a little more than two years since we last visited the saga of the litigation between the estate of Patricia Langston and her surviving spouse, Mansfield Langston. You can detour and refresh your recollection at this link. The facts that led to the litigation between Patricia’s estate and her surviving husband and joint owner, Mansfield, are in that earlier post.
In that last report, the COA had reversed and rendered, concluding that there was no undue influence by Mansfield that would justify setting aside a deed and CD that Patricia had placed into their joint ownership during her lifetime.
Following that COA ruling, however, the MSSC ordered that the case be remanded to give the estate an opportunity to prove undue influence. In its opinion, finding the issue to be one of first impression, the MSSC formulated a new rule in Mississippi law, that “[a] confidential relationship between spouses does not create a presumption that one spouse used undue influence over the other to obtain an inter vivos gift.”
The high court’s ruling as to spouses is in contrast with the general rule of inter vivos gifts, which is that, if you can establish a confidential relationship, a presumption arises that there was undue influence, which must be overcome by evidence of good faith.
On remand in this case the chancellor found no undue influence after applying the new rule. The estate appealed.
In Estate of Langston: Williams v. Langston, handed down March 18, 2014, the COA affirmed the chancellor.
The case is fact-intensive, and the chancellor resolved conflicting testimony in her findings. You can read the decision for yourself to see how any case you have might compare with the facts in this one. Suffice it to say that when you are striving to set aside spousal inter vivos gifts you have no presumption to aid you in scaling what is a rather steep jurisprudential cliff.
That would seem to me to be the end of the road for the Langston litigation. The MSSC had already clarified the law, and all that remained was for the chancellor to make her findings of fact and conclusions of law, which she did in due course. Now that the COA has blessed her ruling, I don’t see the MSSC taking it up again.
I think it’s a sound rule that a presumption does not arise out of the confidential relationship between spouses, because, after all, it’s the rare marriage that does not involve some degree of confidential relationship. Married couples make all sorts of decisions about joint ownership and exchanges of title based on what they judge to be in their mutual best interest. If all of those could be deemed presumptively questionable, we would see much more litigation, not much of which would benefit many folks.
No Appeal from an “Interim” Judgment
March 25, 2014 § Leave a comment
Frank Lewis is a name you might recall from a previous post. I posted about his case in a post entitled Guardian or Conservator?, back in 2011. Mr. Lewis was the indoividual for whom an adult guardianship was established in chancery court, and the COA reversed for failure to comply in all respects with the statute vis a vis joinder of relatives. The case was remanded for further proceedings to cure the defects and then to determine the need for a guardianship.
Mr. Lewis died, however, during the pendency of the appeal, which was not taken into account by the COA opinion, although a suggestion of death had been filed. His death, however, did not end the family- controversy-riddled matter.
The executor of Lewis’s estate filed a petition with the trial court to recover all of the attorney’s fees that had been paid out by the guardianship, totalling some $15,000, since the guardianship had been reversed on appeal. The attorneys against whom the petition was filed responded with a counterclaim under the Litigation Accountability Act (LAA) asking for attorney’s fees incurred in defending the executor’s action.
The chancellor ruled that the guardianship had, indeed, been necessary to tend to Mr. Lewis’s business. All parties then agreed that the court’s ruling rendered the executor’s claim for recovery of attorney’s fees moot.
That left the LAA counterclaim. The chancellor deferred a decision on the LAA to determine whether the executor’s action had been frivolous, and to consider proof of the actual damages incurred in defending it. He set the hearing for a future date.
The executor asked for an interlocutory appeal, and the court granted a recess to allow the parties to discuss it, without any result of record.
Several days later, the chancellor entered a two-page judgment entitled “Interim Judgment,” adjudicating the necessity of the guardianship and ruling the executor’s claims moot, but not adjudicating the LAA counterclaim. On the face of the Interim Judgment, the words “THIS IS A FINAL JUDGMENT” had been stricken through in ink [Note: The court in that district requires the stricken language to appear on the face of all final judgments].
The executor (referred to by the COA as “Junior”) appealed. In the case of Estate of Frank Lewis: Lewis v. Harvey and Logan, handed down March 18, 2014, the COA found that it lacked jurisdiction on familiar grounds. Judge Maxwell wrote for the court:
¶13. We employ a de novo standard in reviewing jurisdictional issues. R.A.S. v. S.S., 66 So. 3d 1257, 1259 (¶10) (Miss. Ct. App. 2011) (citing Calvert v. Griggs, 992 So. 2d 627, 631 (¶9) (Miss. 2008)). Although not raised by either party, we must examine the finality of a judgment on our own initiative. Id. (citing M.W.F. v. D.D.F., 926 So. 2d 897, 899 (¶4) (Miss. 2006)).
¶14. “As a general rule, only final judgments are appealable.” Maurer v. Boyd, 111 So. 3d 690, 693 (¶11) (Miss. Ct. App. 2013). See also Miss. Code Ann. § 9-3-9 (Rev. 2002); Miss. Code Ann. § 11-51-3 (Rev. 2012); M.R.A.P. 5. “A final, appealable judgment is one that ‘adjudicates the merits of the controversy [and] settles all issues as to all the parties’ and requires no further action by the trial court.” Maurer, 111 So. 3d at 693 (¶11) (quoting Walters v. Walters, 956 So. 2d 1050, 1053 (¶8) (Miss. Ct. App. 2007)). “When all the issues in a case or claims against all the parties are not resolved in a judgment, no appeal of right can be taken.” Thompson v. True Temper Sports, Inc., 74 So. 3d 936, 938 (¶6) (Miss. Ct. App. 2011) (quoting Williams v. Bud Wilson’s Mobile Home Serv., 887 So. 2d 830, 832 (¶5) (Miss. Ct. App. 2004)).
¶15. It really cannot be argued that an order labeled “Interim Judgment” is a final, appealable judgment—particularly when the language “THIS IS A FINAL JUDGMENT” has been scratched out and initialed by the judge, and the judge has apparently not ruled on a pending issue. While there are exceptions to the final-judgment rule—including obtaining permission to pursue an interlocutory appeal under Mississippi Rule of Appellate Procedure 5 or appealing from a Mississippi Rule of Civil Procedure 54(b)-certified final judgment—none are applicable here. [Foontnote omitted]
¶16. Because there is no record evidence that the issue of attorneys’ fees incurred defending Junior’s allegedly frivolous petition was ever resolved, the “Interim Judgment” is not final and appealable. So we must dismiss for lack of jurisdiction.
Nothing really earth-shattering here. It’s just a different spin on a theme we’ve visited fairly frequently over the past couple of years: that a judgment disposing of fewer than all of the issues is not a final, appealable judgment.
Nobody asked me, but I’m going to offer my view that if the document had been styled merely “Judgment,” and the words “THIS IS A FINAL JUDGMENT” had not been stricken, the same result would apply. And that’s so even if the chancellor had given the green light for an interlocutory appeal. All of that is so because the order entered disposed of fewer than all of the pending issues, and the court did not make any specific findings as to why there was no just reason for delay in entry of a judgment, as required by R54(b). You might see it differently.
SOL No Bar in an Egregious Undue Influence and Fraud Case
March 24, 2014 § Leave a comment
We talked here recently about the statute of limitations (SOL) applicable in an action to recover land procured by fraud. A 2002 MSSC case sheds further light on when that statute begins to run, and some other related aspects.
In 1979, 24-year-old Michael Cupit appeared uninvited at the home of Mary Lea Reid, a 78-year-old widow living in Liberty, MS. Cupit, who lived some 40-miles distant in Brookhaven, attributed the visit to his interest in antebellum homes and that some of his relatives had sharecropped on Reid’s land decades earlier. From that visit, Cupit contiinued to visit Reid, and he developed a strong relationship with her, despite his departure to commence law school that fall.
The relationship became intimate, according to witnesses and letters exchanged between the two, although Cupit contended that it was a mother-son relationship.
Cupit testified that he had had conversations with fellow law students about how to obtain Reid’s property.
In 1982, Cupit took Reid to a Brookhaven law firm with the intention of being adopted by Reid so as to cut off claims of any of her heirs. After the lawyer met with Reid, he suggested that an adoption was not necessary. Cupit then asked the lawyer to prepare a deed by which Reid conveyed her real property to Cupit reserving a life estate, which was done, and the deed was recorded.
The next day, Cupit assisted Reid in preparing a holographic will devising all of her property to him. As of the date when this was done, apparently, Cupit had been admitted to the bar. The chancellor found that Cupit, not Reid, was the client of the Brookhaven attorney, and that Reid was Cupit’s client.
In 1983, Reid again visited the Brookhaven law firm accompanied by Cupit, this time meeting with a different attorney. The attorney met separately with Reid and took steps to satisfy himself of her independent will and competence. The product of this meeting was a will essentially identical in substance to the holographic will.
In 1986, Reid adopted Cupit.
In 1995, Cupit had Reid’s power of attorney transferred to himself.
Through the years, Cupit alienated Reid from her family and friends, and restricted their access to her.
Reid died in 1997, and Thomas Pluskat filed for administration of the estate. He was appointed administrator, and initiated an action to set aside the will, the deed, adoption, and power of attorney.
At trial, the chancellor found that Cupit had exercised undue influence over Reid, and that the will, deed, adoption and power of attorney should all be set aside. His opinion stated:
The Court finds that the evidence regarding Michael Cupit’s efforts to exclude most, if not all of the family members and some long-time friends of Mary Reid from her, together with Mary Reid’s strong desire to have a child which she had never had, coupled with the engaging and unique personality and tendencies of Michael Cupit, as observed by the court in the evidence as well as personal observations of Mr. Cupit throughout the course of the trial, combined so as to put Mr. Cupit in a position with Mary Reid that Mr. Cupit could and did over-reach and influence Mary Reid to his advantage and her ultimate disadvantage. Mr. Cupit’s influence, subtle and undetected by some of Mary Reid’s friends, was used in order to gain advantage of Mary Reid and to obtain her property consisting of approximately 205 acres of land, an antebellum home that had been in her family for about 140 or so years and substantial and unique family heirlooms located within the home as well as significant amounts of money from the time of Mr. Cupit’s law school days through the time of Mary Reid’s death. During a portion of this time, subsequent to Mr. Cupit’s beginning of the practice of law, he occupied a dual fiduciary role in that he was her attorney and counselor at law.
* * *
The Court finds as a matter of fact and law that the deed, will, adoption, and subsequent power of attorney granted by Mary Reid and /or pursued by Mary Reid and Michael Cupit were the direct result of Mr. Cupit’s efforts to obtain the property of Mary Reid to his own advantage and to her ultimate harm and disadvantage. Therefore, the Court finds that the deed and will were procured as a result of undue influence, overreaching, breach of a fiduciary relationship, breach of an attorney-client relationship, breach of a position of trust that Michael Cupit had gained with and over Mary Reid notwithstanding the fact that she was “strong-willed.”
Michael appealed.
His first issue on appeal was whether the administrator’s action to set aside the deed was barred by the SOL. In its decision in the case of Estate of Mary L. Reid: Cupit v. Pluskat, handed down May 30, 2002, The MSSC addressed it this way:
¶17. This Court has held that statutes of limitation in actions to recover land begin to run as soon as a cause of action exists. Aultman v. Kelly, 236 Miss. 1, 5, 109 So.2d 344, 346 (1959). However, § 15-1-7 has been construed to require possession by the defendants claiming its protection. Greenlee v. Mitchell, 607 So.2d 97,110 (Miss. 1992); Bowen v. Bianchi, 359 So.2d 758, 760 (Miss.1978); Trigg v. Trigg, 233 Miss. 84, 99, 101 So.2d 507, 514 (1958).
¶18. In Greenlee this Court held that the ten-year statute of limitations on action to recover land did not commence to run as soon as a cause of action existed, upon execution of deed pursuant to undue influence, but only when plaintiffs, the grantor’s heirs, had notice of the existence of an attempted deed, where the defendants had not taken possession in the interim. 607 So.2d at 110.
¶19. Here Cupit did not gain possession with the recording of the 1982 deed. Reid retained a life estate and remained in possession until her death. The only person who could have contested the deed during this period was Reid herself, who was in possession. Therefore, the statute of limitations did not begin to run against Thomas Pluskat until 1997 when Reid died.
¶20. As this suit was commenced well within ten years after Reid died and the defendant was not in possession during her lifetime, Cupit’s claim that the statute had run is without merit.
Cupit also argued that Pluskat had no standing to challenge the adoption, but the MSSC rejected that argument on the basis that it was a fraud on the court, and was part of a long-term scheme by Cupit to take advantage of Reid by fraud and overreaching. The court did conclude, however, that its findings as to the adoption “are specific to the facts of this case.”
Both the will and the deed were found by the chancellor to have been products of undue influence. The MSSC affirmed, saying:
¶25. Cupit argues that the chancellor erred in finding that Reid’s will is void because Reid was competent to make a will and there was no confidential relationship between the two of them.
¶26. As previously discussed, the chancellor found that a confidential relationship and an attorney/client or fiduciary relationship existed between Reid and Cupit. This finding is based on substantial evidence.
¶27. Once a confidential relationship is found, the beneficiary must disprove the presumption of undue influence by clear and convincing evidence. In re Estate of Dabney, 740 So.2d at 921; In re Estate of Smith, 543 So.2d 1155, 1161 (Miss. 1989).
¶28. To overcome the presumption of undue influence, the proponents must show (a) good faith on the part of the beneficiary, (b) the grantor’s full knowledge and deliberation of the consequences of her actions, and (c) the grantor’s independent consent and action. Mullins [v. Ratcliff], 515 So.2d [1183,] at 1193.
¶29. For many of the same reasons he found that the deed was a product of undue influence, the chancellor also found that Reid’s will was a product of undue influence. The attested will was an almost exact copy of the holographic will which Cupit helped Reid prepare. As discussed previously, the chancellor found that Cupit did not act in good faith in any part of his dealings with Reid. The chancellor also found that Reid did not receive independent counsel in the making of her will. We find that the attorney who prepared the will acted as a mere scrivener and that Reid did not receive independent counsel concerning her will. In re Estate of Moses, 227 So. 2d 829, 833 (Miss. 1969). We affirm the chancellor’s decision to set aside the will.
I commend the decision to your reading both as an object lesson in unethical, dishonest and rapacious conduct by an attorney, and as an exposition on the particular points of law in this case.
An interesting sidelight: two of the attorneys in the case have judicial experience. Current District 14 Circuit Court Judge Mike Taylor was one of the attorneys representing Pluskat. Former Mississippi Supreme Court Justice James Robertson was one of the attorneys representing Cupit.
Wrongful Death and Chancery Court
March 6, 2014 § 3 Comments
If you are going to do any wrongful death practice at all, you must familiarize yourself with the MSSC’s decision in the seminal case of Long v. McKinney, 897 So.2d 160 (Miss. 2004), reh den. April 7, 2005.
The decision clarifies many important concepts involved in wrongful death claims, including priority of jurisdiction, the distinction between heirs and wrongful death beneficiaries, allocation of attorneys fees, costs and expenses, representation, conflicts of interest, and control of litigation.
What is important in this case to the chancery practitioner, however, is Justice Dickinson’s exposition on the role of chancery court.
There is much confusion in the bar, and perhaps the bench as well, about exactly what is the proper role of chancery court in wrongful death. Justice Dickinson expounds:
¶59. Perhaps no aspect of wrongful death litigation is more misunderstood and misapplied than the role of the chancery court.[Fn 13] With respect to a wrongful death suit to be pursued in circuit court, chancery jurisdiction should be invoked for the following purposes:
Fn 13. The misunderstanding can be partly attributed to the Uniform Chancery Court Rules, which address petitions for authority to compromise, and petitions for allowance of attorney fees, in wrongful death suits. U.C.C.R. 6.10, 6.12. These rules apply only to wrongful death suits which require chancery jurisdiction. See discussion infra.
Estate.
¶60. In the event the litigants wish to pursue a claim on behalf of the estate of the deceased, [Fn 14] such estate must, of course, be opened and administered through the chancery court. As is true in all estates administered through the chancery court, chancery approval is required for the appointment of the personal representative of the estate, whether executor, executrix, administrator or administratrix.
Fn 14. We recognize that, because of the limited recovery available to the estate in many cases, litigants may choose, with advice of counsel, to proceed without including a claim on behalf of the personal representative or the estate. As discussed infra, such decision should be made only after full disclosure to all who might benefit from the estate.
¶61. There is no general requirement under law that the personal representative obtain chancery approval to pursue the claims of the estate in the litigation. Nor is there a general requirement that counsel representing the personal representative and the estate in the litigation obtain prior chancery approval of such representation or the agreement for compensation of counsel. However, obtaining such prior approval is a widely accepted and wise practice.[Fn15] Such prior approval will, in most instances, avoid difficulty when the chancellor is approached for an order approving the accountings and the final distribution of estate proceeds, where such payments include compensation to counsel.
Fn 15. This is especially true where counsel representing the estate in the wrongful death litigation has not agreed, and does not intend, to represent the estate generally.
¶62. Where a recovery is had by the estate in the litigation, the proceeds must be administered and distributed though the chancery court in the same manner as other assets of the estate, and counsel for the estate must be paid from estate proceeds or assets, upon approval of the chancery court in the same manner as other debts and obligations of the estate. * * *
Minors.
¶66. Frequently, wrongful death litigation will involve a minor, either as an heir of the estate, a wrongful death beneficiary, or both. In such cases, the representation of the minor’s interests, and any agreement for the payment of attorney fees from the minor’s share of proceeds, must be approved by a chancellor, as in other cases. [BCP Note: settlement of the minor’s claim must also be approved by the chncellor, in the same manner as any other minor’s settlement.]
Determination of wrongful death beneficiaries.
¶67. Section 11-7-13 provides that wrongful death litigation may be brought by the personal representative of the deceased or by any one or more of several statutory beneficiaries, for the benefit of all entitled to recover. Unless all persons entitled to recover join in the suit, those who do have a fiduciary obligation to those do not. Miss. Code Ann § 91-1-27 (Rev. 2004) provides for a chancery determination of the heirs at law of a decedent; that is, those who inherit in the absence of a will. Although our statutes mandate no specific procedure for the identification of wrongful death beneficiaries, a chancery court may make such determinations. Those bringing the action, together with their counsel, have a duty to identify the beneficiaries, and they should do so early in the proceedings. [Fn 16]
Fn 16. Recognizing that the lack of a specific procedural framework for determining wrongful death beneficiaries is a handicap for practitioners, this Court – in its continuing review of procedural rules – will address this need.
One of the biggest sources of confusion, in my experience, is the disconnect between the status of persons as heirs and as wrongful death beneficiaries. The categories overlap, but they are not the same. A person may be a wrongful death beneficiary, and yet not be an heir. You need to read and stidy the statutes to learn the difference and to be able to identify all of the individuals who must be included. Merely filing an action to determine and discover unknown heirs at law will not identify all the wrongful death beneficiaries.
From a chancellor’s perspective, I think the most important aspect of all is that of the minor’s settlement. You can make any agreement in circuit court about how to settle the wrongful death action, but you can not tie the hands of the chancellor as to whether the settlement is reasonable or adequate for the child(ren), or as the amount of fees to which it is subject, or to its amount.
As a Muniment of Title Only
February 18, 2014 § 3 Comments
A lawyer emailed me last week with a quandary. She had prepared a judgment to admit a will to probate as a muniment of title. Before she finalized it, she checked this blog and read with confusion my post on the subject that cautioned against including language adjudicating heirship or ownership. She said that her firm usually included such language in their judgments. And she asked a most apt question: If you’re not going to adjudicate ownership, what’s the point?
Let’s look at the statute first:
SEC. 91-5-35. Will devising real property admitted to probate as muniment of title only; rights of interested parties unaffected.
(1) When a person dies testate owning at the time of death real property in the state of Mississippi and his will purports to devise such realty, then said will may be admitted to probate, as a muniment of title only, by petition signed and sworn to by all beneficiaries named in the will, and the spouse of such deceased person if such spouse is not named as a beneficiary in the will, without the necessity of administration or the appointment of an executor or administrator with the will annexed, provided it be shown by said petition that:
(a) The value of the decedent’s personal estate in the state of Mississippi at the time of his or her death, exclusive of any interest in real property, did not exceed the sum of Ten Thousand Dollars ($10,000.00), exclusive of exempt property; and
(b) All known debts of the decedent and his estate have been paid, including estate and income taxes, if any.
(2) If any beneficiary to any will admitted to probate pursuant to this section shall be under a disability, then the petition may be signed for him by one of his parents or his legal guardian.
(3) The probate of a will under this section shall in no way affect the rights of any interested party to petition for a formal administration of the estate or to contest the will as provided by Section 91-7-23, Mississippi Code of 1972, or the right of anyone desiring to contest a will presented for probate as provided by Section 91-7-21, or as otherwise provided by law.
(4) This section shall apply to wills admitted to probate from and after July 1, 1984, notwithstanding that the testator or testatrix may have died on or before July 1, 1984.
Note that the very language of the statute says that ” … said will may be admitted to probate, as a muniment of title only …” The limiting word “only” means that it may be admitted for that sole purpose and for no other purpose. A muniment is documentary evidence. To recast the statute in plain language, then:
The will may be admitted for the sole purpose of serving as documentary evidence of title.
The statute does not contemplate that the will is admitted to adjudicate heirship, or ownership, or anything else. When the judge signs the judgment admitting the will to probate as a muniment of title, that judgment tells people searching the land records that he or she can rely on the will as documentary evidence of title, even though there has been no further, formal administration of the estate.
Subsection (3) underscores the function of the statute. It says that the rights of anyone desiring to contest the will are not affected.
When the will is admitted to probate under this section, it provides evidence of ownership, but not conclusive evidence, because it does not operate to extinguish claims: (1) of any person that the will was fraudulent or made with lack of capacity or the product of undue influence; (2) of illegitimates who could attack the validity of the will; or (3) of creditors who claim that they were not paid.
So, if you’re not going to adjudicate ownership or even heirship, what is the point? Why bother with this procedure? Well, it gives persons who want a complete chain of title, and who don’t have the money or the time for a full administration, a shorthand way to add this particular link to that chain. And, keep in mind that it only applies in certain, limited situations. If the estate doesn’t fit, full administration is the way to go.
Now, what about the inquirer’s concern that her firm has been presenting judgments with adjudications included? I told her if her chancellor will do that, go ahead and include it, but my sense of the consensus among chancellors is that most will not adjudicate anything other than admission of the will as a muniment of title only. If you’re in doubt, pop into your chancellor’s office and ask. Most chancellors will be happy to chat with you about it. Keep subsection (3) in mind, though. That adjudicatory language you included won’t be the final word in any contest.
In this district, we will not sign a judgment that does anything other than admit the will to probate as a muniment of title. That’s how we understand the statute.
What is the practice in your district?
Getting All the Heirs Aboard
February 13, 2014 § 4 Comments
Since 2010, it has been the common practice across the state for chancellors to require an heirship determination in intestate estates (some chancellors require it in testate estates also).
That’s because MCA 91-1-29 specifically requires it, as does MCA 91-7-293.
Most attorneys accomplish the requirement by filing a petition to determine heirs, publishing process for unknown heirs.
So, you have opened the estate and had your administratrix qualified. You joined the three siblings, and you have started publishing notice in the local newspaper for unknown heirs. Have you and your fiduciary done all that the law requires?
Not necessarily.
In the case of Estate of Thomas v. Thomas, 883 So.2d 1173, 1177 (Miss. 2004), the MSSC said this:
¶ 12. Under Mississippi case law, the administratrix of an estate is under a duty to use reasonable diligence to ascertain potential heirs. Smith ex rel. Young v. Estate of King, 579 So.2d 1250, 1252 (Miss.1991). See also In re Estate of Johnson, 705 So.2d 819, 822 (Miss.1996). Another duty of the administratrix is to provide notice to known or reasonably ascertainable illegitimate children who are potential heirs and whose claims would be barred if the 90-day statutory time period had run. King, 579 So.2d at 1253. Under Mississippi law, an administratrix acts as a fiduciary for all persons interested in the estate. Shepherd v. Townsend, 249 Miss. 383, 162 So.2d 878, 881 (1964). The administratrix has this duty of notice by statute. Miss.Code Ann. § 91-1-29 (Rev.2004). In King, as here, the administratrix failed to notify the court of a reasonably ascertainable heir and failed to notify the heirs that the paternity claims would be barred if not timely filed.
MCA 91-1-15(3)(c) is a statute of limitations for claims of illegitimates against an estate, and in most circumstances that limitation does not begin to run until the illegitimate receives actual notice( be sure to read this statute).
So, let’s say that your client, the administratrix, actually knows that the decedent had an illegitimate child. If she conceals that fact from you, and it later comes to light, the administration of the estate, including any final judgment, closing, and disbursement, is subject to a finding of fraud on the court and consequent setting aside. And … there is no time limit on an action to set aside a judgment for fraud on the court.
Likewise, if you and your fiduciary do not do due diligence to discover any illegitimates, your administration of the estate is in jeopardy from later claims of illegitimates who say that they were not properly noticed.
How do you protect yourself and the heirs? Some suggestions:
- Grill your client about who all the heirs might be, and ask whether there are any “outside children.” Ask if there has even been a suspicion that there might be illegitimates, and ascertain not only who they might be, but also who might be the father, the grandparents, aunts, uncles, or persons with knowledge. Investigate, make contact, ask questions.
- Get your client to sign an affidavit you can file with the court spelling out what knowledge the fiduciary has as to any illegitimates, and the diligent search and inquiry that has been done to identify and contact them.
- As a further measure of internal protection, you might want to compose a letter to your client recounting what he or she told you about illegitimates, and itemizing the efforts made to identify and contact them. Then have your client sign a file copy acknowledging receipt.
- Sometimes it happens that a person believed to be an illegitimate heir disclaims the heirship or any interest in the estate. If possible, get that person to sign a disclaimer of heirship and any interest in the estate, and file it with the court. If he or she refuses, have personal process served.
- If you unearth certain or purported illegitimate heirs, have them personally served with process and notice per MCA 91-1-15(3)(c) that his or claims will be barred unless filed within the statutory time.
- Be sure to include the names of any known or purported illegitimate heirs in your petition for determination of heirship and publication notice. Ask the court to adjudicate them not to be heirs unless they file a timely action per MCA 91-1-15(3)(c).
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