Rock, Paper, Scissors … Will, Pre-Nup, Quitclaim Deed
May 20, 2014 § 7 Comments
If I remember correctly, rock beats scissors, paper beats rock, and scissors beats paper.
But as among a will, a pre-nuptial agreement, and a quitclaim deed, which beats what? That was the question posed in Estate of Jones: Dixon v. Jones, decided by the COA on April 29, 2014.
Johnnie Lee Jones, the decedent, and his soon-to-be wife, Annie Ruth, entered into a prenuptial agreement on March 19, 1997. The agreement provided that, upon Johnnie Lee’s death, the home titled in his sole name was to go to Bonnie Jones Dixon, his daughter from a prior relationship. The home was located at 171 Vine Street in Jackson.
After their marriage, Johnnie and Annie Ruth lived together in the Vine Street residence.
On September 16, 1998, Johnnie executed a will leaving the Vine Street home to Annie Ruth for her life, at which point the property was devised to his sister, Eliza Mae Webster. The will included the customary language that it revoked ” any and all previous testaments.”
Beginning in 2001, Johnnie and Annie Ruth claimed the property as their homestead.
On December 14, 2005, Johnnie executed a quitclaim deed conveying the Vine Street property to himself and his daughter Bonnie as joint tenants with right of survivorship. Annie did not sign the deed, although she and Johnnie were still married at the time.
Johnnie died on January 22, 2011, and Annie Ruth, who continued to live in the Vine Street home, filed pleadings on November 29, 2011, to admit Johnnie’s will to probate. Before an order was entered, however, Bonnie filed suit for declaratory judgment that she was the rightful owner of the property, and for damages. Bonnie relied on both the pre-nuptial agreement and the quitclaim deed. On January 17, 2012, the chancellor admitted the will to probate.
On November 29, 2012, the chancellor denied the declaratory relief. The judge ruled that the will revoked the pre-nuptial agreement, and that the deed was statutorily void because it conveyed homestead and did not bear Annie Ruth’s signature. Bonnie appealed.
The COA rejected Bonnie’s argument that the word “testaments” as used in the revocation language of the will referred solely to instruments disposing of personal property only, and not real property. The COA held that the use of the term “testaments” was interchangeable with “will,” and that MCA 91-5-3 expressly provides that a devise may be revoked by a testator’s subsequent will. The court concluded that the will revoked the pre-nuptial agreement. Interestingly, Bonnie’s attorney cited Wikipedia in support of her argument, and the COA cited www.yourdictionary in reaching its conclusion. Modern times.
As for the quitclaim deed, the court agreed with the chancellor that the quitclaim deed was void. The court cited MCA 89-1-29: “A conveyance, mortgage, deed of trust or other incumbrance upon a homestead exempted from execution shall not be valid or binding unless signed by the spouse of the owner if the owner is married and living with the spouse or by an attorney in fact for the spouse.”
The court also cited this language from Ward v. Ward, 517 So.2d 571, 573 (Miss. 1987):
Our legislature has chosen to place a restriction on the transfer or encumbrance of homesteads[,] and therefore, homesteads in Mississippi may not be alienated except in compliance with those restrictions. There can be no operative conveyance or effectual release of the exemption unless the method pointed out by the statute is pursued with strictness[,] and no requirement of the statute may be waived by the husband and wife or by either of them. Chancery will not interfere to give relief where by express law there is a limitation on the power of alienation of the homestead[,] and the final relief sought is merely to relieve that limitation. (emphasis added)
Our statutes and the case law applying them are quite protective of spouses’ homestead rights. This case is one in a long line of cases that lean in that protective direction.
The other lesson to be learned here is that a subsequently-executed will that includes appropriate revocation language will revoke any and all previous testamentary documents, including a pre-nuptial agreement.
A POTPOURRI OF POINTS
April 21, 2011 § 2 Comments
Every now and then a case comes tumbling down from the appellate stratosphere that is remarkable not so much for the law of that particular case, but rather for the cascade of legal nuggets it unearths that one can mine and tuck away for future profitable use. Such is Jernigan v. Young, handed down by the COA on April 19, 2011.
Samuel Jernigan and his wife Mae Bell were married in 1997. Two years later, Samuel conveyed a .38-acre tract of land to Mae Bell by quitclaim deed. He had filed for disability and was under the mistaken belief that if the land were no longer in his name his chances of a favorable ruling would improve. Samuel claims that he and Mae Bell had an oral agreement that she would convey the property back to him. There was no writing evidencing the alleged agreement.
In 1998, Mae Bell conveyed the property to her daughter Amy. It is not disclosed in the record whether Samuel was aware of the transaction.
In 1999, Samuel and Mae Bell decided to get a divorce on the sole ground of irreconcilable differences. They proceeded pro se using fill-in-the-blank forms. In one of the blanks designated to identify what property would belong to each party appeared the handwritten notation “none.”
Four days after the divorce judgment was entered, Samuel filed a document styled “Withdrawal of Consent” and asked that the divorce be set aside. He also filed a Complaint for Divorce and a pleading asking that the deed to Amy be set aisde, all of which were consolidated. The case sat idle for seven years until Amy filed for summary judgment. The chancellor granted summary judgment, which the COA affirmed.
Here are the nuggets from Judge Griffis’ opinion:
- “[W]avering on whether a divorce should be entered may often occur and does not invalidate the divorce … What is important is that the agreement be validly expressed on the day that the chancellor is considering the issue.” Sanford v. Sanford, 749 So.2d 353, 356 (Miss. App. 1999); Harvey v. Harvey, 918 So.2d 837, 839 (Miss. App. 2005).
- Relief under MRCP 60(b) requires a showing of “exceptional circumstances.” In re Dissolution of Marriage of De St. Germain, 977 So.2d 412, 416 (Miss. App. 2008).
- No hearing or testimony is required to validate a divorce on the ground of irreconcilable differences. MCA § 93-5-24(4). In an irreconcilable differences divorce the parties “bargain on the premise that reaching an agreement will avoid the necessity of presenting proof at trial.” Perkins v. Perkins, 737 So.2d 1256, 1263 (Miss. App. 2001).
- Although MCA § 93-5-2(2) requires the chancellor to determine whether the parties’ agreement in an irreconcilable differences divorce is “adequate and sufficient,” that is not a “magic phrase,” and its absence in the divorce judgment approving the agreement is not a ground for reversal. Cobb v. Cobb, 29 So.3d 145, 149 (Miss. App. 2010).
- It is not in and of itself reversible error for the chancellor not to require financial disclosure via UCCR 8.05 financial statements in an irreconcilable differences divorce. St. Germain at 417-418. Where the lack of disclosure allowed a spouse to conceal major assets, however, it could amount to reversible error. Kalman v. Kalman, 905 So.2d 760, 764 (Miss. App. 2004).
- An inter vivos deed of gift need not be supported by separate consideration. Holmes v. O’Bryant, 741 So.2d 366, 370 (Miss. App. 1999). “A man of sound mind may execute a will or deed from any sort of motive satisfactory to him, whether that motive be love, affection, gratitude, partiality, prejudice, or even whim or caprice.” Herrington v. Herrington, 232 Miss. 244. 250-251, 98 So. 2d 646, 649 (1957).
- MCA § 91-9-1 requires that any trust in land must be in writing signed by the person declaring or creating the trust, or it is void. The court may impose a constructive or resulting trust on land in the absence of a written agreement, provided that certain criteria are present. Simmons v. Simmons, 724 So.2d 1054, 1057 (Miss. App. 1998).
And the most important point of all: You get exactly what you pay for when you get a do-it-yourself divorce without benefit of legal counsel.
The Better Chancery Practice Blog 