Non-marital Children, Estates, and the Statute of Limitations
November 18, 2014 § 4 Comments
Boyce Elmore died in 2000. His widow, Kathleen, opened an administration and was appointed administrator in 2002.
In 2010, more than ten years after Boyce Elmore died, Cedric Williams filed a paternity action in an effort to establish a claim to recover from Boyce’s estate.
The version of MCA 91-1-15(3)(c) in effect at the time provided that a non-marital child might file an action to establish paternity ” … within one (1) year of the death of the intestate or within ninety (90) days after the first publication of notice to creditors to present their claims, whichever is less …” Since Boyce’s estate had not been opened in the first year following his death, the publication provision was inapplicable.
Faced with the issue of Cedric’s timeliness, the chancellor ruled that, because Kathleen had failed to give Cedric notice of the estate, the statute of limitations had been tolled, and his action was timely.
The COA reversed the chancellor’s decision that failure to give Cedric notice tolled the statute of limitations, but would not apply the one-year statute because the appellant had failed to raise the issue on appeal.
MSSC granted cert.
In In the Matter of the Estate of Elmore: Jamison v. Williams, handed down November 6, 2014, the court affirmed the COA’s decision, but held that the appellant had “squarely presented” the issue before the chancellor on appeal and at trial by raising the issue of application of SOL under 91-1-15, so that the one-year statute did apply, and barred Cedric’s suit.
Based on all of this, I believe it is fair to say that failure to give notice to a purported non-marital heir will not toll the statute under the language in effect before 2005. The Mississippi legislature resolved the question in 2005 by adding language to MCA 91-1-15 that ” … this one-year limitation shall be self-executing, and may not be tolled for any reason, including lack of notice.”
A COMPENDIUM OF ESTATE POSTS
July 5, 2011 § 6 Comments
- Before you file the pleadings, ask yourself whether it is necessary to open an estate in this case.
- And here’s some more info on how to pass assets without an estate.
- Exempt property is not a part of the estate. Here’s a guide to what is exempt and what is not.
- The original will must be probated and retained by the clerk.
- Bonds in testate and intestate estates.
- Probating a will in common form.
- How to probate a copy or a lost will.
- Administering an intestate estate.
- Determining the heirs in an intestate estate.
- When can inventory and appraisement be waived?
- Oops, you filed that estate in the wrong county. Here’s why it can not be transferred.
- What happens when a testator leaves a bequest that can not be satisfied? It’s called ademption.
- And here’s how to handle lapsed legacies.
- Can you set aside an inter vivos gift between spouses? Here’s the rule.
- Contesting probated claims.
- Will contests: Undue Influence.
- Will contests: Lack of testamentary capacity.
- Five tips to improve your probate practice.
- A few random estate matters.
- What you need to know before trying to sell real property in an estate.
- Navigating your way through an insolvent estate.
- You need to know how to deal with this wrinkle in publishing process to close an estate.
- Waiving accounting.
- A checklist for an accounting.
- Reading the duties of an attorney in a probate matter might give you second thoughts about taking that case.
- Sure, you want to get paid. Here’s what you need to prove to get an award of an attorney’s fee in a probate matter.
- A checklist for closing an estate.
- Handling estate matters in District 12, Place 2.
CONTESTING PROBATED CLAIMS IN AN ESTATE
October 19, 2010 § 4 Comments
Section 91-7-165, MCA, allows the executor, administrator, legatee, heir or any creditor to contest a claim presented against the estate. The statute requires notice to the claimant and a hearing.
This court requires notice on the claimant via a Rule 81 summons, returnable to a specific date and time. Any other interested party who may have an interest contrary to the contestant should also be summoned, in this judge’s opinion.
At hearing, the burden of establishing a claim is on the claimant by clear and convincing evidence, or as one case characterized it, “by clear and reasonably positive evidence,” even though the claim has been admitted to probate by the clerk (in other words, the admission to probate of a claim does not have the same effect as admission of a will to probate).
The decree of the court is limited to allowing or disallowing the claim, and the court can not enter a money judgment or judgment for other relief.
Appeal time runs from the date of entry of the decree allowing or disallowing the claim, and not from the date the estate is closed.
PROBATE IN SOLEMN FORM
August 30, 2010 § Leave a comment
[This outline is based on the 15th Chancery Court District Newsletter published by Chancellor Ed Patten]
Petition filed to probate will in solemn form.
- Notice to all interested persons. § 91-7-19, MCA.
- Process is issued under Rule 81, MRCP.
- At the petition of either party, the issue of devisavit vel non — whether the will is the valid last will and testament of the decedent — may be tried.
Hearing.
- Either party may request a jury trial. § 91-7-19, MCA.
- Burden of proof is by a preponderance of the evidence.
- If the will has already been admitted to probate in common form, the prima facie burden of proof has been met, and the burden of proof shifts to the contestants to overcome thr proponent’s prima facie proof as to the will’s validity. § 91-7-27, MCA.
- Tactical advantage if the will has already been admitted to probate in common form. § 91-7-29, MCA.
Adjudication.
- Binding on those made parties to the proceeding.
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