The Intent of the Testator and Extrinsic Proof

June 3, 2020 § 2 Comments

It is black-letter law in Mississippi that a court called upon to interpret a will is bound by the intent of the testator, and the court is limited to the four corners of the will itself.

But what is the court to do when the will contains a provision such as this:

I have five adult children … to whom I leave in equal shares, property I possess, whether real, personal or mixed (less any debt owing to me by any heir at the time of my death, to come out of that child’s part).

The will included no itemization of any debt, but there had been loans by the decedent to several of the children. How is the estate to prove it except by extrinsic evidence?

That was the conundrum presented to the trial court in a dispute between Sandra Brown and Tracy Walker and the Estate of their mother, Sarah Walker.

The estate filed a complaint for declaratory judgment, and at trial sought to prove the debts by a notarized statement that Sarah Walker had prepared in 2007. It spelled out each child’s debt; Sandra’s was $85,644, and Tracy’s was zero. The chancellor denied the estate’s request to consider evidence outside the will, citing the four-corners principle, and the estate appealed.

In Estate of Walker v. Brown and Walker, decided May 19, 2020, the COA unanimously reversed and remanded. Judge Lawrence wrote the opinion:

¶18. Scott argues that the court erred in denying his request to use extrinsic documentation to determine each child’s debt. In the opinion and judgment, the court stated the following:

The Court declines to find that such document should be considered a part of, or read together with, the Last Will and Testament.

. . . .

Sandra accurately advises the Court that parol evidence cannot be utilized to interpret the testator’s will unless the terms of the will are ambiguous. The Court specifically finds that the will is not ambiguous, and should be construed and interpreted solely by the terms of and on the four corners of the will itself. The written statement of debts ostensibly owed the decedent is merely an allegation by the decedent of debts owed at a particular point in time, which point was almost nine years prior to her death.

The court found that the will was not ambiguous and any evidence concerning potential debts owed to the decedent many years prior to her death was “merely an allegation” of potential debts owed. The court refused to consider the debts owed because they were not listed “within the four corners of the will.” Finally, the court ruled that Scott was not allowed to deduct any debt that was not “contained within the will itself.”

¶19. “Our polestar consideration, as always, is the intent of the testator, the right our law has given each competent adult to direct from the grave the disposition of [her] worldly goods.” Tinnin v. First United Bank of Miss., 502 So. 2d 659, 667 (Miss. 1987). It is well established that “a will speaks at the death of the testator.” Johnson v. Bd. of Trs. Miss. Annual Conference Methodist Church, 492 So. 2d 269, 276 (Miss. 1986); see also Robert A. Weems, Mississippi Practice Series: Wills & Admin. of Estates in Mississippi § 9-4, at 296 (3d ed. 2003). Further, a testator’s will should be enforced so as to avoid clearly unintended consequences. Johnson, 492 So. 2d at 276.

¶20. It is true that “[i]n determining the testator’s intent, in the absence of ambiguity, this Court is limited to the ‘four corners’ of the will itself.” Estate of Blount v. Papps, 611 So. 2d 862, 866 (Miss. 1992). The plain language of the will shows it was clearly Sarah’s intention to have each child’s debt deducted from his or her share. That intent was further evidenced by witness testimony. Sanford testified that Sarah added the debt provision in a revised draft to the original will and her clear intent was for each child to receive as equal share minus any debts owed to Sarah. Scott testified that he and Sarah had conversations about that provision and that he encouraged her to keep track of each child’s debt. Thereafter, Sarah created the July 16, 2007, statement, which neither party disputes she drafted.

¶21. Brown did not testify at the hearings but complains through pleadings that the debts should not be considered since those debts are not within the four corners of the will. That argument is misplaced. Under such a provision, if the testator were required to offset each child’s equal estate with those debts only listed in the will, every loan to a child would necessitate a new will or at least another codicil. In this case, the testator’s intent was clear. The testator wanted each child to receive a total equal share of her property, whether that share was accumulated by loans during the life of the testator or by the will after the death of the testator. Because each child was to receive an equal share, if a child had borrowed money from the testator during her life, those loans would be deducted to ensure each child had an equal share at her death. That clear intent would be subverted if a child could borrow from the testator throughout life and then receive an equal share of what was left of the estate upon the death of the testator. To hold otherwise would allow one child to obtain unfair and unequal parts of the estate to the detriment of the other children’s shares by simply obtaining loans.

¶22. The evidence was not offered to modify the terms of the will. Rather, it was offered to give effect to the clear intent expressed in the will. Therefore, the court should have factually determined if the evidence was credible and sufficient to prove the existence of debts or not and then acted accordingly consistent with the clear and unambiguous terms of the will. After review, we find that the July 16, 2007, statement, the calendar entries, and other documents offered into evidence, as well the testimony of witnesses, were evidence which should have been considered by the chancery court in an effort to determine the potential debt each child may have owed to Sarah. Thus, the chancellor should have considered the credibility and the sufficiency of the evidence offered and made factual findings as to each child’s debt, if any, to Sarah and then give the effect each deserved under the clear language of the will.

So, the process is for the court first to determine the intent of the testator from the four corners of the instrument itself, and then to consider whatever admissible evidence there is that fleshes out the testator’s intent.

In this particular case, though, the debts were outside the statute of limitations. Did that mean that they were uncollectable?

¶23. Brown also argues that any debt she owed as stated in the July 16, 2007, document is more than three years old, and therefore any collection of that debt would be barred by the statute of limitations. See Miss. Code Ann. § 15-1-29 (Rev. 2012). Brown’s argument is misplaced. The estate is not trying to collect any amount from Brown. Rather, the estate is simply trying to deduct that debt from her share of the inheritance.

In conclusion,

¶24. We find that the chancery court should have considered the evidence outside of the will to fulfill Sarah’s clear intent to have each child’s debt deducted from his or her share of the estate upon her death. Accordingly, we reverse the chancery court’s ruling and judgment and remand this case to the chancery court to determine what amount, if any, should be deducted from each child’s share in order to give legal effect to the clear intent of the
testator.

 

 

Parol Evidence and the Unambiguous Will

October 29, 2013 § 2 Comments

Every now and then, a lawyer will offer testimony about the testator’s intent, arguing that it is admissible as an exception to the hearsay rule under MRE 802(3), which states:

(3) Then Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of the declarant’s will. [Emphasis added]

Once that rule is invoked, like a magical incantation, opposing counsel often sits down and docilely allows the floodgates of testimony to open without further objection, freeing a torrent of testimony that the court must process in its final opinion.

Consider, however, that before the court can hear all those statements of memory or belief, you have to ask yourself whether this parol evidence is admissible in the first place — regardless whether it is or is not hearsay?

In Estate of Black v. Clark, decided by the COA on October 8, 2013, the COA said:

¶5. If the language of a will only allows one interpretation as to how the testator’s property is distributed, the will is unambiguous, and courts may not consider parol evidence to determine the intent of the testator. Stovall v. Stovall, 360 So. 2d 679, 681 (Miss. 1978) (citing Seal v. Seal, 312 So. 2d 19, 21 (Miss. 1975)). Parol evidence may only be considered if the language of the will itself can be construed to result in more than one interpretation as to the disposition of property. Seal, 312 So. 2d at 21.

So before MRE 803 is invoked and parol testimony is allowed, it must be established that the will is ambiguous.

The fact that the parties disagree as to a document’s meaning does not make it ambiguous as a matter of law. Ivison v. Ivison, 762 So.2d 329, 335 (Miss. 2000). In determining the meaning of a writing, the court must employ an objective standard rather than taking into consideration the subjective intent or a party’s belief. Palmere v. Curtis, 789 So.2d 126, 131 (Miss. App. 2001).

The process of contract interpretation adds some insight. In the case of Williams v. Williams, 37 So.3d 1196, 1200 (Miss. App. 2009), that process was set out as follows:

“We have delineated a three-tiered process for contract interpretation. Pursue Energy Corp. v. Perkins, 558 So.2d 349, 351 (Miss. 1990). First, we look to the “four corners” of the agreement and review the actual language the parties used in their agreement. Id. at 352. When the language of the contract is clear and unambiguous, we must effectuate the parties’ intent. Id. However, if the language of the contract is not so clear, we will, if possible, “harmonize the provisions in accord with the parties’ apparent intent.” Id. Next, if the parties’ intent remains uncertain, we may employ canons of contract construction. Id. at 352-353 (citing numerous cases delineating various canons of contract construction employed in Mississippi). Finally, we may consider parol or extrinsic evidence if necessary. Id. at 353″ [West v. West, 891 So.2d 203, 210 (Miss. 2004)]

 

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