The Better Chancery Practice Blog

Every will contestant has the right to a trial by jury if desired.

Milt Burris had filed a will contest raising issues of testamentary capacity and undue influence regarding the will of his father, Eddie Burris. The chancellor granted summary judgment in favor of Renee Sims Burris, and Milt appealed, arguing that it was error for the chancellor to adjudicate facts rather than letting a jury decide them.

In Burris v. Estate of Burris et al., the COA affirmed on September 25, 2018. Judge Irving wrote the court’s opinion:

¶7. The Mississippi Supreme Court in In re Launius, 507 So. 2d at 29-30, explained the burden of the contestant of a will facing a motion for summary judgment as follows:

Appellees, as proponents of the will, have the burden of proving the will throughout. They meet this burden by showing the will was duly executed and admitted to probate. When the will is admitted to probate, proponents put on prima facie evidence that the testator had testamentary capacity and further that no undue influence was placed upon him. The burden of going forward then shifts to contestant, who must overcome the presumption raised by proponents that testator had testamentary capacity, (and, therefore, that the testator’s execution of the will was a free and voluntary act). When the Mississippi Rules of Civil Procedure come into play within a situation involving a contest to [a] will, where movants for summary judgment (appellees) have shown there is no genuine issue of material fact vis-a-vis probate of the will, contestant, as the adverse party, may not rest upon the mere allegations of denials of his pleadings, but his response, by affidavits or as
otherwise provided in this Rule, must set forth specific facts showing that there is a genuine issue for trial. M.R.C.P. 56(e).

(Citations and internal quotation marks omitted).

¶8. With this in mind, Milt argues that there existed genuine issues of material fact as to his father’s testamentary capacity and the presence of undue influence by Renee to defeat the summary judgment motion and continue the case to trial.

The court went on to analyze the trial court’s findings of fact on the issues of testamentary capacity and undue influence, finding no error, and returned to consideration of the chancellor’s role as finder of fact vs. that of a jury in a summary judgment proceeding:

¶16. The record supports Renee’s assessment of the proceedings in the chancery court. While Milt is correct in his assertion that it is improper for a chancellor in a will contest to adjudicate facts unless the parties have agreed to dispense with a jury, he fails to fully appreciate that there must be genuine issues of material facts to be determined by a jury and that after Renee moved for summary judgment, with supporting affidavits, showing no genuine issue of material fact on the issues of testamentary capacity and undue influence, he could not rest on his general allegations and suppositions regarding his father’s relationship with Renee and his father’s mental health. He, as the contestant of Eddie’s will, was required to bring forth an affidavit or affidavits demonstrating “sufficient evidence to establish the essential elements of [his] case on which [he] would bear the burden of proof at trial.” Karpinsky v. American Nat. Ins. Co., 109 So. 3d 84, 90 (¶17) (Miss. 2013). Our perusal of the record indicates that he did not come close to meeting his burden. [Emphasis added]

¶17. Milt offered no evidence to substantiate his claims at the trial level and does not do so here. The will was created three years prior to Eddie’s death, and there is no indication in the record that he lacked the testamentary capacity to create it or that he suffered undue influence from Renee. We hold that the chancellor’s findings on this issue are supported by substantial evidence. Therefore, the judgment of the Chancery Court of Amite County is AFFIRMED.

A couple of observations:

• Yet another case to hammer home the point that, when the other side files affidavits in a summary judgment proceeding, you must file counter-affidavits or risk an adverse ruling.
• I wonder about that statement that the chancellor may not adjudicate facts, ” … unless the parties have agreed to dispense with a jury … .” That statement seems to contradict MCA 91-7-19, which states that, “At the request of either party [to a proceeding to admit a will to probate] an issue shall be made up and tried by a jury as to whether or not the writing propounded be the will of the alleged testator.” [My emphasis] The court’s language is that the chancellor may not adjudicate the case unless the parties waive trial by jury. The statute requires a request, meaning that the default setting is a bench trial.