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).
Grammy Nomination for this Opinion
February 12, 2014 § 3 Comments
This from the first paragraph of Judge Griffis’s decision in the COA case O’Brien v. O’Brien, handed down February 11, 2014:
¶1. Russell Gary O’Brien appeals the chancellor’s judgment of divorce. He argues that the decree “reads like a honky tonk chorus,” and he refers to Jerry Reed’s hit song “She Got The Goldmine (I Got The Shaft).” We affirm in part and reverse and remand in part.
A Proper MRCP 54(b) Certification
February 11, 2014 § Leave a comment
In February, 1969, John Whitehead, Jr., executed a will naming his wife, Marie, and their four sons at the time, each mentioned by name, as his beneficiaries. The will set up a family trust to support Marie for her life, and then to support the named sons until each reached age 30, at which time each would receive his share of the corpus.
There were two subsequent codicils to the will. There were also two after-born children, one legitimate and one illegitimate.
The will and codicils were admitted to probate, and Jonathan, the illegitimate son, filed a declaratory judgment action in the estate proceeding asking the court to declare that he was a residuary beneficiary because the trust failed.
The chancellor granted summary judgment in favor of the estate, adding a R54(b) certification of finality, finding that there was “no just cause for delay.”
The COA took the case and affirmed in Whitehead v. Estate of Whitehead, rendered September 24, 2013.
This case illustrates what I consider to be an ideal situation for application of R54(b). The judge’s ruling disposed of all of Jonathan’s issues in the estate. The declaratory judgment action was essentially put to an end by the R56 summary judgment, so there was no sense in making Jonathan await the closing of the estate, which may take some considerably longer time, before he could take his appeal. The R54(b) ruling had the added advantage that, if the COA reversed, Jonathan could possibly return to the chancery court to participate in the ongoing administration of the estate.
I’ve posted here many times about cases rejected by our appellate courts due to no or improper R54(b) certification. Reading the R54(b) decisions, it appears that oftentimes it is unclear whether the case is a proper one for its application. This case was pretty clear.
Pending Legislation of Interest to Chancery Practitioners
February 10, 2014 § 1 Comment
Here is a list of bills that may be of some interest to you in your chancery practice. I relied on the titles to select the bills to list; I have not read all of these.
You can click on this link to find any of the listed measures. You will find information on the bill, including its status, sponsor, and the committee(s) to which it has been referred.
HB 32 Partition of property; revise method of appointing freeholders.
HB 44 Courts; prohibit from applying foreign law under certain circumstances.
HB 67 Special judges; revise compensation cap.
HB 126 Protection from domestic abuse; clarify record.
HB 218 Uniform laws; create Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act.
HB 342 Uniform laws; enact Uniform Foreign-Country Money Judgments Recognition Act.
HB 409 Mississippi Bar; remove repealer.
HB 427 Licensed school employees; allow use of personal leave near holiday if summoned by court.
HB 486 Birth certificates; Tribal Court of the Choctaw Indians has same authority as chancery courts to make changes/corrections in.
HB 487 Tax liens; provide for centralized filing with the Department of Revenue.
HB 511 Liens; bring forward stop-notice sections.
HB 570 Evidence; revise provisions regarding certain privileged communications.
HB 579 Court Collections Fund; create.
HB 696 Real property; clarify certain identifying information for instruments presented to the chancery clerk for recording.
HB 810 “Andrew Lloyd Law”; require DHS to be notified before a mentally ill person receives treatment if person has minor children.
HB 837 Judicial qualifying deadline; bring forward for purposes of amendment.
HB 878 Sex offenders; clarify notice to volunteer organizations regarding status.
HB 882 Mississippi Entity Conversion and Domestication Act; enact.
HB 884 Unclaimed Property Act; revise several provisions of.
HB 885 Overdue child support; payable to custodial parent after emancipation of child.
HB 891 Rule against perpetuities; revise with respect to certain trusts.
HB 917 Mississippi Trust Decanting Act; create.
HB1014 Physician Order for Sustaining Treatment Act; create.
HB1026 Trial courts; bring forward circuit, chancery & district attorney sections.
HB1030 Commission Against Interpersonal Violence; create.
HB1031 Domestic abuse protection orders; authorize justice & municipal courts to issue final orders.
HB1033 Domestic violence; revise.
HB1042 Uniform Premarital and Marital Agreements Act; enact.
HB1058 Guardian ad litem; clarify duties and appointment.
HB1084 Uniform Power of Attorney Act; create.
HB1400 Abortion; prohibit performing at or after 20 weeks.
HB1411 Foreign executor or administrator; revise authority of financial institutions to turn over property or funds of a decedent to.
HC 25 Parental rights; State of Mississippi recognizes.
B026 Tax liens; provide for centralized filing with the Department of Revenue.
SB2125 Authority of chancery court to revise birth certificates; Tribal Court of MS Band of Choctaw Indians has same authority.
SB2180 Adoption; expedited for readoptions of foreign-born adoptees.
SB2240 Uniform laws; create Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act.
SB2471 Cyber-bullying; revise and clarify electronic communication offenses.
SB2474 Trial courts; redistrict.
SB2476 Domestic violence; clarify sentencing status of multiple offender, revise protection order.
SB2480 Adoption records, confidentiality of; provide for contempt and misdemeanor proceedings.
SB2483 Mental commitment cases; revise screening process.
SB2559 Commercial Real Estate Broker Lien Act; create.
SB2622 Contractor’s liens; revise stop notice law.
SB2626 Domestic violence; revise penalty.
SB2629 Domestic violence; clarify when arrest may be made without warrant.
SB2676 Witness fees; conform to juror pay.
SB2727 Mississippi Uniform Trust Code; create.
SB2809 Uniform Power of Attorney Act; create.
SB2837 Domestic Violence Protection Order Registry; require arresting officer to perform check.
SC 523 Amendment to the United States Constitution relating to parental rights; urge Congress to propose.
SC 531 Post-ratify federal voting age 18 amendment to the United States Constitution.SC 542 United States Constitutional Convention under Article V; apply for federal debt consideration.
“Quote Unquote”
February 7, 2014 § Leave a comment
“Responsibility does not only lie with the leaders of our countries or with those who have been appointed or elected to do a particular job. It lies with each of us individually. Peace, for example, starts within each one of us. When we have inner peace, we can be at peace with those around us.” — Dalai Lama
“Responsibility: A detachable burden easily shifted to the shoulders of God, Fate, Fortune, Luck or one’s neighbor. In the days of astrology it was customary to unload it upon a star.” — Ambrose Bierce
“One of the annoying things about believing in free will and individual responsibility is the difficulty of finding somebody to blame your problems on. And when you do find somebody, it’s remarkable how often his picture turns up on your driver’s license.” — P.J. O’Rourke
Reprise: That Checklist Thing
February 6, 2014 § 2 Comments
Reprise replays posts from the past that you may find useful today.
UPDATED CHECKLIST OF CHECKLISTS
May 27, 2011 § 2 Comments
Proving your case by proving certain factors is a fact of legal life in Mississippi. I’ve referred to it as trial by checklist. If you’re not putting on proof of the factors when they apply in your case, you are wasting your and the court’s time, as well as your client’s money, and you are committing malpractice to boot.
Many lawyers have told me that they print out these checklists and use them at trial. I encourage you to copy these checklists and use them in your trial notebooks. And while you’re at it, you’re free to copy any post for your own personal use, but not for commercial use. Lawyers have told me that they are building notebooks tabbed with various subjects and inserting copies of my posts (along with other useful material, I imagine). Good. If it improves practice and makes your (and my) job easier and more effective, I’m all for it.
Here is an updated list of links to the checklists I’ve posted:
Doing an accounting in a probate matter.
Income tax dependency exemption.
Modification of child support.
Another Deference Decision with an Appellate Attorney’s Fees Point
February 5, 2014 § 2 Comments
The COA’s decision in Proctor v. Proctor, handed down January 28, 2014, is one of those cases where the appellate court deferred to the chancellor’s discretion, both on application of the Ferguson factors in equitable distribution, and on the Armstrong factors vis a vis alimony.
I talked about deference in a previous post. Proctor is an illustration of how stout the trial judge’s judgment can be when she invokes the applicable factors and her decision is supported by substantial evidence in the record. You might want to pay particular attention to Judge Barnes’ opinion at ¶ 19, where she points out that equitable division need only be equitable, not equal. That seems to be a concept that many lawyers and litigants do not grasp.
Another point that bears mention is at ¶ 36, where Judge Barnes addresses Ms. Proctor’s request for an award of attorney’s fees on appeal:
Donna makes a cursory request that this Court award her attorney’s fees on her appeal, in an amount equal to one-half of the amount that was awarded by the chancery court, according to Grant v. Grant, 765 So. 2d 1263, 1268 (¶19) (Miss. 2000), and Durr v. Durr, 912 So. 2d 1033, 1041 (¶30) (Miss. Ct. App. 2005). The distinguishing feature of these cases, however, is that the appellee was requesting attorney’s fees for defending the case on appeal, not the appellant prosecuting the appeal, unsuccessfully. Therefore, we deny Donna’s request.
The Better Chancery Practice Blog 