No Beneficiary = No Will
April 16, 2015 § 2 Comments
Ramon Regan was residing in a personal care home operated by Swilley. In 2008, Swilley arranged for a notary public to meet with Regan to help him prepare his will. The notary, Beckham, presented Regan with a pre-printed form, which Regan executed, and had properly witnessed. No attorney was involved.
The will specifically spelled out that it was Regan’s intent to make a testamentary disposition of his estate. It also mentioned that he had no surviving wife, and that he had had no children.
What the will failed to spell out, though, was who were to be the beneficiaries of his bounty. There were no specific or residuary beneficiaries named in the will.
After Regan died in 2011, Swilley filed a petition to probate the will. Elsie LeBlanc, Regan’s aunt, was determined to be his sole surviving heir. After Elsie died in 2013, her son Kenneth filed a caveat against probate of Regan’s will.
Kenneth filed a motion to declare Regan’s will invalid due to absence of any beneficiaries. Swilley responded that the document met the requirements of testamentary intent and attestation, and that parol evidence of Regan’s intent should be considered by the court.
The chancellor ruled that he was to look first to the four corners of the document to determine Regan’s intent. Since the document was not susceptible to multiple interpretations, but merely failed to name any beneficiaries, the court refused to consider parol evidence. The judge pointed out that he could not add language to the will, and that the absence of any named beneficiaries left him with nothing to interpret. He ruled that it was invalid to serve as a testamentary instrument. Swilley appealed, complaining that the chancellor erred in ruling the document invalid, and in refusing to consider parol evidence of Regan’s intent.
The COA, in the case of Estate of Regan: June Swilley v. Estate of LeBlanc, decided April 7, 2015, affirmed. Judge Carlton wrote for the unanimous court:
¶15. In the present case, Regan’s “Last Will and Testament” stated the following regarding the disposition of his property: “Upon my death, I want my property distributed as follows: All my estate, this includes monetary and real property.” As in In re Roland, [920 So.2d 539, 541 (Miss.App. 2006)] our review of Regan’s last will and testament reveals that the document contains no ambiguous language or imprecise description of a beneficiary. Instead, as the record reflects, Regan’s purported last will and testament simply failed to devise or bequeath Regan’s property because Regan failed to name or otherwise identify a beneficiary.
¶16. Because Regan’s last will and testament lacks ambiguity, we find that the chancellor correctly refused to allow parol evidence as to Regan’s testamentary intent. As the record reflects, to give effect to Regan’s will, this Court would have to insert a beneficiary’s name where the will completely failed to provide one. Although our precedent establishes that we construe a will in light of the circumstances surrounding the testator at the time he wrote the will, our caselaw also recognizes that “[c]ourts may not amend or reform a [w]ill, neither may courts add to or take from a [w]ill or make a new [w]ill for the parties.” Hemphill v. Robinson, 355 So. 2d 302, 306-07 (Miss. 1978) (citations omitted).
¶17. As reflected in the record, the invalidity of Regan’s purported last will and testament is rooted in the document’s failure to distribute any of Regan’s assets upon his death. Since Regan’s last will and testament failed to devise or bequeath his property to a named beneficiary, and since the document reflects no attempt within its four corners to identify a beneficiary, we affirm the chancellor’s decision declaring the will invalid and his refusal to admit parol evidence. Accordingly, this assignment of error lacks merit. [Footnote omitted]
Earlier in the opinion, the court noted that MCA 91-1-13 requires that all property, “real and personal, not devised or bequeathed in the last will and testament of any person shall descend and be distributed in the same manner as the estate of an intestate; and the executor or administrator shall administer the same accordingly.”
There is some other authority in the opinion pertaining to parol evidence that you might find useful.
I have had several cases in which someone wanted me to vary the unambiguous terms of the will via parol evidence. The usual situation is that dad had made it abundantly clear to everyone that he was going to change his will, but he died before he got around to it. Their argument is that the will was no longer his testamentary intent. If the document is unambiguous, that parol evidence simply will not vary the written document’s terms.
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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