Ex Parte Communication with a Treating Physician in an Estate Matter

May 16, 2017 § Leave a comment

Most of us are familiar with the prohibition in MRE 503(f) against ex parte communication with the treating physician of an opposing party, even when that party has put his own physical, mental, or emotional condition in issue.

Does that prohibition apply in a will contest where both parties claim to be personal representatives of the deceased?

In a case of first impression, the MSSC answered that it does not.

At the trial level, in a will contest involving Katherinne Lyons’ estate, between the testator’s brother (Larry Lyons) and nephew (Anthony Lobred), counsel for Lobred had ex parte communication with the testator’s treating physician before her depostion. Lyons filed a motion to strike the depostion testimony, which the chancellor granted. In the case of Estate of Lyons v. Lyons, handed down April 6, 2017, the MSSC reversed and remanded. Justice Coleman’s wrote for a unanimous court:

¶17. Although the facts surrounding Katherine’s testamentary capacity and Larry’s alleged undue influence are hotly disputed, the facts pertinent to the narrow issue before the Court on interlocutory appeal are not in dispute. It is undisputed that Lobred’s counsel communicated with Dr. Clement regarding Katherine’s medical condition prior to Dr. Clement’s deposition. The specific issue before the Court today is whether the testimony of the testator’s treating physician should be excluded based on contact between the treating physician and a party without the opposing party’s consent in a will contest wherein both parties are personal representatives of the deceased.

¶18. A panel of the Court ordered Larry to file a response to Lobred’s petition for permission to appeal addressing “whether the rule prohibiting ex parte communication with a treating physician applies in an estate matter.” The Court has held that the rule prohibiting ex parte communications under Mississippi Rule of Evidence 503(f) applies in the context of personal injury and medical malpractice cases. Scott v. Flynt, 704 So. 2d 998, 1000-01 (Miss. 1996). The comment to Rule 503 states that the “primary impact of subdivision (f) will be in personal injury actions, although the exception by its terms is not so limited.” According to the comment, the ex parte rule contained in Rule 503(f) could apply in estate matters. Thus, the question initially framed by a panel of the Court may be answered in the affirmative. However, the inquiry does not end here because the Court has yet to address how or if the rule prohibiting ex parte communications would apply in the context of a will contest where both parties can claim to be personal representatives of the deceased.

¶19. At the time of the trial court’s order on Larry’s motion to strike Dr. Clement’s testimony, Rule 503(f) provided:

(f) Any party to an action or proceeding subject to these rules who by his or her pleadings places in issue any aspect of his or her physical, mental or emotional condition thereby and to that extent only waives the privilege otherwise recognized by this rule. This exception does not authorize ex parte contact by the opposing party.

Miss. R. Evid. 503(f) (2015). Amended Rule 503(f) [Fn omitted] now provides:

(f) Waiver by Pleadings; Ex Parte Contact. A party whose pleadings place in issue any aspect of that party’s physical, mental, or emotional condition thereby–and to that extent only–waives the privilege. The exception in this subdivision (f) does not authorize ex parte contact by an opposing party.

Miss. R. Evid. 503(f) (2016).

¶20. In Scott, the trial court ordered the plaintiff in a medical-malpractice case to execute an unconditional medical waiver and permit ex parte conferences by the defendants with any medical provider of the plaintiff. Scott, 704 So. 2d at 999. On interlocutory appeal from the trial court’s order, the Scott Court addressed “two interrelated questions of law[,]” which were framed as “(1) the scope of the medical waiver as contemplated by Mississippi Rule of Evidence 503 and (2) whether or not ex parte contacts with medical providers are permissible under the rules of discovery in the Mississippi Rules of Civil Procedure.” Id. at 1000.

¶21. The Scott Court recognized that a “significant argument about ex parte interviews revolves around who is the holder of the privilege.” Id. at 1004. Before answering the question of how or if the ex parte rule would apply in the context of a will contest, the Court must determine who holds the medical privilege of the testator in a will contest. One of the two permitted methods stated by the Scott Court for obtaining relevant medical information ex parte from a treating physician is through “voluntary consensual disclosure by the patient who is the holder of the privilege.” Id. at 1007. Here, the patient is deceased, so consent would have to be obtained from whoever holds the privilege of the deceased. We hold that in the instant case both parties were personal representatives of the deceased and, therefore, under either the rule or the statute, no prohibited ex parte contact occurred. Because the result is the same whether we employ the rule or the statute, we do not today address any argument or disseminate any holding addressing which governs over the other.

¶22. Mississippi Code Section 13-1-21(1) provides:

(1) All communications made to a physician, osteopath, dentist, hospital, nurse, pharmacist, podiatrist, optometrist or chiropractor by a patient under his charge or by one seeking professional advice are hereby declared to be privileged, and such party shall not be required to disclose the same in any legal proceeding except at the instance of the patient or, in case of the death of the patient, at the instance of his personal representative or legal heirs in case there be no personal representative, or except, if the validity of the will of the decedent is in question, at the instance of the personal representative or any of the legal heirs or any contestant or proponent of the will. (Emphasis added.)

¶23. Under Section 13-1-21(1), “the personal representative or any of the legal heirs or any contestant or proponent of the will” may waive the medical privilege. However, Rule 503(c) identifies the “personal representative” only as an individual who may waive the general medical privilege of a deceased patient. Rule 503(c) [Fn omitted] states:

(c) Who May Claim the Privilege. The privilege may be claimed by the patient, his guardian or conservator, or the personal representative of a deceased patient. The person who was the physician or psychotherapist at the time of the communication is presumed to have the authority to claim the privilege but only on behalf of the patient. Miss. R. Evid. 503(c).

¶24. Under Rule 503(c), a deceased patient’s “personal representative” may claim the medical privilege. Black’s Law Dictionary defines a “personal representative” as: “Someone who manages the legal affairs of another because of incapacity or death, such as the executor of an estate. Technically, an executor is a personal representative named in a will, while an administrator is a personal representative not named in a will.” Personal representative, Black’s Law Dictionary (10th ed. 2014).

¶25. Katherine unequivocally stated in her 2005 will: “I hereby nominate, constitute, and appoint my nephew, Anthony Lobred, Executor of this my Last Will and Testament and I authorize and empower my said Executor to do any and all things which in his opinion are necessary to complete the administration and settlement of my estate, including full right, power and authority, without the necessity of obtaining an order from any Court and upon such terms and conditions as my said Executor shall deem best for the settlement of my estate, to bargain, sell at public or private sale[,] convey, transfer, deed, mortgage, lease, exchange, pledge, manage and deal with any and all property belonging to my estate.” Here, Lobred carried out his duty as Katherine’s personal representative by probating her 2005 will as muniment of title. Katherine’s 2012 will contained a similar provision designating Larry as executor. As a result, both Lobred and Larry hold the general medical privilege as Katherine’s “personal representative” under the plain language of Rule 503(b).

¶26. Lobred argues that there is no conflict because Rule 503 is silent regarding will contests, whereas Section 13-1-21(1) specifically addresses the medical privilege in the context of will contests and provides rights not otherwise provided for by the rules of evidence. While we agree with the result urged by Lobred, we disagree that the result stems only from the combination of the statute and the silence of the rule. Rather, because Rule 503 provides that the personal representative may claim the privilege on behalf of a deceased person, and in Scott we held that the party who may claim the privilege may waive the privilege, it is not the silence of Rule 503 but its content that undergirds our holding.

¶27. Section 13-1-21(1), on the other hand, specifically addresses waiver of the medical privilege in the context of a will contest. Under both Rule 503 and Section 13-1-21(1), the medical privilege belongs to both Lyons and Lobred. Under Section 13-1-21(1), the medical privilege may be waived by the personal representative, any legal heir, or any proponent or contestant of a will. Thus, Section 13-1-21(1) authorizes Lobred to waive the entire medical privilege as a personal representative and contestant of the 2012 will. Because Rule 503(c) and Section 13-1-21(1) both authorize Lobred to waive the entire privilege, the ex parte rule of Rule 503(f) does not operate to bar his attorney from speaking alone with the physician witness.

Excluding a Party from the Court Room During Trial

December 5, 2016 § 5 Comments

When it comes time for children to testify in a chancery court trial, there is a host of factors to take into account. Is it in the child’s best interest to testify? Is the child competent? Is it really necessary to subject the child to that experience?

Once the decision is made to allow the child to testify, the question arises as to how the testimony should be taken. Should the parents be present?

That question arose at trial in the case of Miller v. Smith, decided by the COA on November 22, 2016. In that case, the chancellor had excluded both the father and the mother from the court room in a contested child-custody modification case where an adolescent step-child offered testimony of sexual abuse. In an opinion affirming the trial judge, Judge Fair wrote for the COA:

¶18. At trial, Jessica’s daughter Kristen testified to several instances where Dale sexually harassed and/or abused her. The chancellor stated that due to the nature of the testimony, she preferred to clear the courtroom for Kristen’s interview, having present only the lawyers and the court reporter. The testimony was recorded, and a transcript appears in the record on appeal. Kristen testified that she went to the police to report one of the incidents (the police report was in evidence and part of the GAL’s report), but the police did not investigate further because there was no physical evidence of abuse. Also, the Mississippi Department of Human Services (MDHS) conducted an investigation (the report was also in the record and part of the GAL’s investigation) but found no physical evidence of sexual abuse. Kristen was cross-examined by Dale’s attorney, and Dale gave rebuttal testimony to his version of the events.

¶19. Dale argues the chancery court erred in allowing Kristen to testify outside of his presence. He specifically argues that doing so violated the confrontation clauses of both the United States and Mississippi Constitutions. He further argues that his forced absence from the courtroom violated Mississippi Rules of Evidence 615 and 617.

¶20. The Confrontation Clause only applies to criminal cases. “In all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both, to demand the nature and cause of the accusation, to be confronted by the witnesses against him . . . .” Miss. Const. art. 3, § 26 (emphasis added). So Dale’s first argument fails.

¶21. Article 3, Section 25 of the Mississippi Constitution simply provides that “[n]o person shall be debarred from prosecuting or defending any civil cause for or against him or herself . . . by him or herself, or counsel, or both.” Because Dale’s counsel was present during Kristen’s testimony, there was no violation of Article 3, Section 25.

¶22. Further, Dale’s argument that the chancery court violated Rule 617 is misplaced. No interview was taken using closed-circuit television, as provided in Rule 617. [Fn 7]

Rule 617 provides:

(a) Grounds. On the motion of a person named in subdivision (b), or on its own, the court may order that a child’s testimony be taken outside the courtroom and shown in the courtroom by means of closed-circuit television if the court determines that:

(1) the child is under the age of 16 years;

(2) the testimony is that an unlawful sexual act, contact, intrusion, penetration, or other sexual offense was committed on the child; and

(3) there is a substantial likelihood that the child will suffer traumatic emotional or mental distress if compelled to testify:

(A) in open court; and

(B) in a criminal case, in the presence of the accused. (Emphasis added).

¶23. Dale asserts that Rule 615, commonly known as “the Rule,” and occasionally more properly “the exclusionary rule,” deprived him of due process. Rule 615 states:

At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:

(a) a party who is a natural person . . . .

¶24. The chancellor disregarded Dale’s objection to being forced to leave the courtroom during Kristen’s testimony. Because Dale was a party, he argues that, under a strict interpretation of the Rule, the chancellor did not have the authority to exclude him from being present. The procedure used by the chancellor in this case (excluding parents and/or stepparents in basically an “in camera” proceeding) is common, either by agreement or without objection of parties, in custody cases. See Robison v. Lanford, 841 So. 2d 1119, 1121 (¶21) (Miss. 2003) (holding that, as a matter of first impression, records of in-chambers interviews with children during child custody modification proceedings were required to be made).

¶25. There are exceptions to the Rule. For example, in Rule 617, parties who are alleged to be guilty of sexual abuse of a child may be excluded from the personal presence of children ages sixteen and under. M.R.E. 617. There is not, however, reported precedent of enforced exclusion of a party under the present circumstances of testimony by a seventeen year-old stepchild.

¶26. In a number of criminal cases, our supreme court has found that failure of enforcement of the exclusionary rule does not automatically result in reversal, holding that prejudice must accompany failure to exclude. See Avery v. State, 119 So. 3d 317, 320 (¶9) (Miss. 2013); Woulard v. State, 832 So. 2d 561, 565 (¶13) (Miss. 2002). Here, Dale has failed to show how he was prejudiced from the chancellor’s error. Not only was his attorney present during Kristen’s testimony, he cross-examined Kristen. The chancellor also allowed Dale to give rebuttal testimony to factual assertions by Kristen. Consequently, we find that no reversible error has been shown under this issue.

The situation described here is, as Judge Fair notes, fairly common in chancery court. In my experience, the parties often agree that they will leave the court room during the child’s testimony, as long as their attorneys can remain and participate. Most parents do not want to appear to be trying to pressure the child or to be putting their own interests ahead of the child’s, so they agree. In those cases where they both do not agree, however, and the chancellor finds that it would be in the child’s best interest for them to be excluded, this case is authority to support that action.

The Pause that Refreshes

October 12, 2016 § Leave a comment

In a divorce case, your client Harold is testifying about the condition of the former marital residence when he returned home from work and discovered that Maude, his wife, had left him and taken many household items with her. Now, when you ask Harold to list the items taken, he draws a blank:

Harold: Well, I remember the fireplace logs and the stuffed squirrel lamp, but my memory’s kind of hazy about the rest.

“No problem,” you think, recalling that Harold told you he made a complete list later the evening of the day in question, after he had time to take stock of what was missing. You sift through the bales of paper on the courtroom table and find the dog-eared document. You snatch it up and hand it to him.

You: Here; look at this paper. Does that help you recall?

Counsel opposite: Objection. That document is not in evidence. Best Evidence Rule. Hearsay. Privileged. Unduly prejudicial. Surprise.

“Yikes,” you think. What did I do wrong?

When a witness is unable to recall, your first remedy is MRE 612. That rule provides that a witness may use a “writing, recording or object” to refresh his memory, if by referring to the item it refreshes his present ability to recall. But there is a proper way to do it:

  1. You have to establish that the witness is unable to recall.
  2. You must try to jog the witness’s memory before resorting to refreshing memory. In federal court, leading questions are permitted; I’m not so sure of authority in state court, but it seems that this would be “necessary to develop the witness’s testimony” for which leading is permitted per MRE 611(c).
  3. If the witness still can not recall, ask him whether there is anything to which he could refer to refresh his recollection.
  4. Hand the witness the item and ask him to study or read it silently. After he has had a chance to do so, ask him if he now has a recollection independent of the writing or other item. If yes, his recollection has been refreshed, and you may then question him as to that recollection. Take the object away and question him based on his newly-refreshed recollection. If you have gone through this and he still has no independent recollection, you have to proceed under MRE 803(5), as explained below.

Notice that no foundation for the document or thing has to be established, other than that the witness does not recall and needs to refer to a given object. The thing does not need to be admissible in evidence; however, counsel opposite may review the entire item that the witness referred to, and may use it in cross-examination and may demand that all or part of it be introduced into evidence.

Some older lawyers still (after 31 years) still insist that you have to lay a non-hearsay foundation for the document or thing, but that requirement went out the window when the MRE was adopted in September, 1985. If you run into this particular buzz-saw and have a puzzled-looking judge, simply refer the judge to the fifth paragraph of the Advisory Committee Notes (former known as “Comments”) to MRE 612, which offers a helpful explanation of the distinction.

Some lawyers confuse MRE 612 with the rule for Recorded Recollection, which is MRE 803(5), and is an exception to the hearsay rule. It does require that you lay a foundation. But remember, you don’t need to go to 803(5) if the witness’s recollection is refreshed by looking at the object.

If you’ve reached Step 4, above, and your witness still is stuck, here is how to avail yourself of MRE 803(5):

  1. If you establish that there is a record (i.e., memorandum, report, data compilation, electronically stored information, or the like) that pertains to a matter the witness once knew about but can not now recall well enough to testify fully and accurately, and
  2. The record was made or adopted by the witness at a time when the matter was fresh in his memory; and
  3. It accurately reflects the witness’s memory,

Then, the witness may testify from it and even read all or part into the record, but it may be received into evidence only if offered by the adverse party. The classic situation where we encounter this in chancery is a private detective who has notes she made during and shortly after surveillance and now, two years later, has no clear recollection of dates, times, and other details.

I hope this helps clear up some confusion on this point. I sometimes find myself squirming along with attorneys struggling to figure out how to help the witness over the hump in the face of objection on top of objection.

Questioning the Child Witness

July 14, 2016 § 1 Comment

Children are often called as witnesses in chancery court. It should go without saying that some children, due to various factors, have to be handled gingerly in how they are questioned. Age, emotional maturity, emotional content of the testimony, education and cognitive development, and the courtroom environment all affect a child’s effectiveness as a witness. Other factors may as well.

The Children’s Advocacy Centers of Mississippi have published a booklet entitled A Guidebook for Accommodating Children in Court that includes some helpful information on the subject. Here are some key points:

  • Use simple grammar and concrete words; the child can better understand the questions.
  • Children have a right to be asked questions they understand and should be informed that they should let the court know if they do not understand. Even so, some children may be reluctant to admit they do not understand if they think it is a question that they should understand, and some children may think they understand the question when they really do not. Every now and then a check question like “What do you think I just asked you?” may help make sure there is no misunderstanding.
  • Children use the vocabulary they have. For instance, a child may describe having been “stabbed” in an episode when there was no knife used or even present; what the child is describing is what the experience felt like, because there are no other words in his or her vocabulary for it.
  • Young children may not organize their thoughts logically, and often have limited understanding of space and time.
  • To promote more accurate answers, use common, everyday words and phrases, and avoid legal words and jargon such as attorney, deny, subsequent to, take the witness stand, court (in reference to the judge), allegation, defendant, statement, oath, testify.
  • Use names and places instead of pronouns and adverbs. Instead of “Was he there then?” ask “Was John at the apartment when you arrived?” Instead of “Were they all there?” ask “Were your mom, aunt Sue, and your brother Bill at the park with you?”
  • Negative questions are most often misinterpreted. Avoid no, not, and never in your questions. “Did you go into the house?” is better than “Did you not go into the house?” And avoid double negatives.
  • Start questions off with the main idea. “Did you hear the bell go off when you were eating with your family?” is more effective than “When you were eating with your family, did you hear the bell go off?”
  • Avoid multi-part and multi-idea questions.
  • Pausing is productive. Pausing between phrases, sentences, and after questions allows children to process their thoughts, which aids comprehension for more accurate communication.
  • Cultural and ethnic differences can lead to differences in demeanor on the witness stand. Native Americans, for instance, may have long pauses in communication that can be incorrectly interpreted negatively.

If you can get a copy of this booklet, I think you will find it helpful. CAC’s address is P. O. Box 5348, Jackson, MS, 39296. Phone 601-940-6183. Their website is at this link.

Five Sure-fire Ways to P*** off Your Chancellor

June 2, 2016 § Leave a comment

It should go without saying that chancellors have god-like powers over your cases, and it behooves you (and your client) to respect those powers when it comes to interactions with the court.

There are some irascible chancellors, I will grant you. But in my experience the great majority are sympathetic, patient, focused on doing the right thing the right way, and interested in improving practice in their courts.

So, whether you are dealing with a splenetic judge or one with the disposition of Saint Teresa, you want to be sure you avoid behaviors that will be sure to get you on the chancellor’s bad side.

Here are my top five:

5.   Being chronically late for court. Everyone has occasional emergencies that affect the ability to be on time, but when it’s chronic, it’s an annoyance beyond measure. Your judge may have a higher pain threshold than I, but to me being late merely because you’re late is an ultimate insult not only to the judge, but also to everyone else involved in the case. It communicates that you consider yourself more important than anyone else awaiting your arrival, and I assure you that, in that situation, you will be the only one there who agrees with your opinion. If you find yourself being late more than on rare occasions, you’d best do some rearranging of your priorities and your ways of doing business.

4.  Not learning from your mistakes. It gets tiresome having to deal with the same lawyers making the same mistakes over and over, such as late and incomplete accountings, improper process, failure to comply with discovery orders, and failure to present orders after being ordered to do so, to name only a few. It’s not the judge’s job to pull your irons out of the fire. And if it’s a contested case, it would be improper for the judge to aid one side or the other. If this is your problem, don’t be surprised if one day the judge loses patience, throws her hands up, and says, in effect, get your own self out of this mess; I’m not doing it any more.

3.  Being unprepared. You have to ask the court to delay your divorce or modification hearing to give you time to throw together an 8.05. Or you try to convince the judge to take a particular position, but you don’t have any case law to cite because you haven’t done a lick of research. Or you have to ask for a continuance because your pleadings are not in order. Or you neglected to tell your client to be there for court. These are not only symptoms of unpreparedness; they also indicate lack of competence. Once you convince the judge that you are unprepared and/or incompetent, you can expect that everything you do will be carefully scrutinized, slowing down your ability to get things done for your clients.

2.  Being disrespectful. We all have bad days in court. Those are compounded when the judge has one, too. No matter the outcome, it is your professional duty as a lawyer to suck it up, keep your thoughts to yourself, and show respect. Like a bell that can not be unrung, a snide or flip comment will continue to resonate with your judge long after you regretted saying it. Likewise, being disrespectful of opposing counsel, opposing party, witnesses, and anyone else involved will diminish you, and not the object of your disdain. Arrogance is a trait best left at your office.

1.  Lying. This is the cardinal sin — the one that may earn you years of or even permanent distrust from your chancellor. Never lie even when the truth will hurt. If you’re in the wrong, admit it and ask the court’s indulgence. Lame excuses sound like lies and often are. If you find out that something you represented to the court turns out to be untrue, get with the judge as soon as possible to straighten it out.

A Bluewater Bravo

February 9, 2016 § 3 Comments

The old rule that, if a trial judge in a ruling adopts one party’s proposed findings of fact and conclusions of law verbatim, her ruling is subject to less deference and greater scrutiny was abolished several years ago in the Bluewater Logistics case. I’ve posted about it here and here.

Now the COA has joined the party, so to speak, in the case of Carlson v. Brabham, decided January 19, 2016, in which the chancellor had adopted one party’s proposed findings of fact and conclusions of law verbatim. Although it was not expressly assigned as error, Judge Griffis took the opportunity to make this pronouncement:

¶12. Further, the supreme court has held that appellate courts must “apply the familiar abuse-of-discretion standard to a trial judge’s factual findings, even where the judge adopts verbatim a party’s proposed findings of fact.” Bluewater Logistics LLC v. Williford, 55 So. 3d 148, 157 (¶32) (Miss. 2011).

Hear, hear!

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.

Rules for Interpreting a Contract

January 5, 2016 § Leave a comment

Only yesterday we discussed the importance of clarity in drafting agreements for your clients. What the parties were thinking and believed at the time is of no consequence in interpreting a contract unless the court first finds that the language is ambiguous. Only then can the court delve into what went into and what was behind the drafting.

In the case of Gibbs v. Moody, decided December 1, 2015, the COA, by Judge Carlton, quoted at ¶ 13 from Royer Homes of Miss., Inc. v. Chandeleur Homes, Inc., 857 So.2d 748, 751-753 (Miss. 2003), to lay out the process the trial court is required to follow:

The primary purpose of all contract construction principles and methods is to determine and record the intent of the contracting parties. In contract construction cases[,] a court’s focus is upon the objective fact—the language of the contract. A reviewing court is concerned with what the contracting parties have said to each other, not some secret thought of one not communicated to the other. A reviewing court should seek the legal purpose and intent of the parties from an objective reading of the words employed in the contract to the exclusion of parol or extrinsic evidence. The reviewing court is not at liberty to infer intent contrary to that emanating from the text at issue.

This Court has set out a three-tiered approach to contract interpretation. Legal purpose or intent should first be sought in an objective reading of the words employed in the contract to the exclusion of parol or extrinsic evidence. First, the “four corners” test is applied, wherein the reviewing court looks to the language that the parties used in expressing their agreement. We must look to the “four corners” of the contract whenever possible to determine how to interpret it. When construing a contract, we will read the contract as a whole, so as to give effect to all of its clauses. Our concern is not nearly so much with what the parties may have intended, but with what they said, since the words employed are by far the best resource for ascertaining the intent and assigning meaning with fairness and accuracy. Thus, the courts are not at liberty to infer intent contrary to that emanating from the text at issue. On the other hand, if the contract is unclear or ambiguous, the court should attempt to harmonize the provisions in accord with the parties’ apparent intent. Only if the contract is unclear or ambiguous can a court go beyond the text to determine the parties’ true intent. The mere fact that the parties disagree about the meaning of a contract does not make the contract ambiguous as a matter of law.

Secondly, if the court is unable to translate a clear understanding of the parties’ intent, the court should apply the discretionary “canons” of contract construction. Where the language of an otherwise enforceable contract is subject to more than one fair reading, the reading applied will be the one most favorable to the non-drafting party. Finally, if the contract continues to evade clarity as to the parties’ intent, the court should consider extrinsic or parol evidence. It is only when the review of a contract reaches this point that prior negotiation, agreements[,] and conversations might be considered in determining the parties’ intentions in the construction of the contract. Of course, the so-called three-tiered process is not recognized as a rigid “step-by-step” process. Indeed, overlapping of steps is not inconceivable.

I reiterate: If you intend for your contract to say a particular thing, then include language that expressly says that particular thing. Just because you can draw an inference from your draftsmanship does not mean that a judge — or anyone else — will draw the same inference. And unless a judge rules that the language is ambiguous, the door to your thought processes and what you intended remains locked.


No More Heightened Scrutiny, But …

November 23, 2015 § Leave a comment

Back in April of last year I pondered the COA’s decision in Burnham v. Burnham, which affirmed the chancellor’s rulings on child support and equitable distribution in a divorce, but subjected his findings to “heightened scrutiny” and “less deference” because he adopted one side’s proposed findings of fact and conclusions of law verbatim. That post is here.

Dissatisfied with the COA’s affirmance, Matthew Burnham filed a petition for cert, which the MSSC granted. One issue he raised was the chancellor’s verbatim adoption of the other side’s proposed findings of fact and conclusions of law.

In ¶7 of the MSSC’s opinion in Burnham v. Burnham, handed down November 12, 2015, Justice Dickinson stated:

In Bluewater Logistics, LLC v. Williford, we abandoned the rule that a chancellor’s decision to adopt a party’s proposed findings of fact was subject to “heightened scrutiny.” A chancellor’s factual findings , even those adopted from a party, are reviewed for an abuse of discretion. [footnotes omitted]

So that would seem to be the last word on that subject.

This case does, however, highlight a pitfall of proposed findings. The MSSC reversed because several of the chancellor’s findings of fact, particularly those upon which he based a finding of dissipation of assets, were unsupported by evidence in the record. Those findings of fact were submitted to the chancellor by the attorneys for Mrs. Burnham. Although the chancellor had the duty to satisfy himself that the proposed findings he adopted were accurate and supported in the record, the first duty was on her attorneys to ensure that their proposed findings were accurate. As the outcome of this case illustrates, if you play loose with the facts, it can cost your client down the road.

Chancellors have different approaches to proposed findings. Some ask for them in many cases, particularly complicated ones. Others have told me that they do not like them because lawyers tilt them in favor of their clients. Still others, as I do, call for them selectively.

If you’re going to offer proposed findings, make sure you draft them like the judge is supposed to — relying only on facts in evidence and drawing fair inferences, and applying the law as it is applies. If you use proposed findings as a partisan opportunity, you just might snatch defeat from the jaws of victory.

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