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.