Revocation by Implication

July 25, 2017 § Leave a comment

May a will be revoked by a subsequent property settlement agreement in a divorce? That was an issue in the case of In the Matter of the Estate of Chaney: Chaney, et al. v. Chaney, decided May 16, 2017.

In June, 1962, James Chaney executed his last will and testament during a time when he was married to Lillian Hunt Chaney. The will devised farmland, located in Crockett County, Tennessee, to Lillian. James and Lillian had one child, Alice Ann Chaney. James and Lillian were divorced on May, 1969. In connection with the divorce, they executed a joint property settlement agreement, and in it, they agreed that Lillian would “relinquish any right or claim to the farm in Crockett [County], Tennessee.”

In 1971, James married Josephine Chaney, and they moved to Mississippi where they lived until James’s death in 2011. They had no children.

In 2011, Lillian filed a petition to admit James’s 1962 will to probate in Mississippi, joined in by Alice. Josephine contested the validity of the will and moved to transfer the Crockett County farmland out of the estate. The chancellor found that the will was revoked by implication, and Lillian appealed.

The COA affirmed. Judge Griffis wrote for a unanimous court:

¶14. Lillian and Alice … argue that the chancellor erred when he found that James’s will was revoked by implication. They contend the terms of the property-settlement agreement should not be read in conjunction with the will. Further, they argue that Josephine failed to present proof that demonstrated “clear and unequivocal evidence” of James’s intent to revoke the will and his prior devise of the farmland to Lillian.

¶15. Under Mississippi law, “[a] devise so made, or any clause thereof, shall not be revocable [except] by the testator . . . destroying, canceling, or obliterating the [will], or causing it to be done in his or her presence, or by subsequent will, codicil, or declaration, in writing . . . .” Miss. Code Ann. § 91-5-3 (Rev. 2013). In Rasco [v. Estate of Rasco, 501 So.2d 421 (Miss. 1987)], the supreme court recognized that a will may be revoked by various circumstances, not specified within the statute. Rasco, 501 So. 2d at 423 (citations omitted). However, the supreme court “declined to adopt a rule of automatic revocation” in instances where a pre divorce will and a subsequent property-settlement agreement are in conflict. Hinders[v. Hinders,] 828 So. 2d at 1235 (¶1) [Miss. 2002]. Rather, the supreme court held that “a divorce with a property settlement agreement would not operate to impliedly revoke a will unless the settlement evidenced the testator’s intent to [revoke the will].” Rasco, 501 So. 2d at 423.

¶16. When presented with this issue, a chancellor should “question . . . whether the testator intended . . . [the] settlement [to] operate as . . . an ademption of a prior-created [will] and release the [former] spouse of all rights [to] the [decedent’s] estate.” Id. Further,“[a]ny document presented as a subsequent declaration must reveal by ‘clear and unequivocal’ evidence, an intention to revoke the will.” Id. at 424. In its analysis, the supreme court incorporated the Tennessee Supreme Court’s ruling, which provided: “[G]enerally a divorce accompanied by a property settlement agreement[,] which is fully carried out according to its terms[,] should have the effect of revoking a prior will in favor of a former spouse, especially where the parties thereafter ‘sever all ties.’” Id. (quoting In re Estate of Perigen, 653 S.W.2d 717, 720 (Tenn. 1983)).

¶17. Here, the chancellor applied the factors in Rasco. He “look[ed] to the facts and circumstances of [this] particular case, the terms of the [w]ill itself, the divorce decree and the property settlement, and the conduct of the parties,” and based his findings accordingly. Rasco, 501 So. 2d at 424. The chancellor, as the fact-finder, determined that the express terms of the will and the provisions of the property-settlement agreement were inconsistent. In his will, James declared: (1) that he was married; (2) that his wife’s name was Lillian Hunt Chaney; and (3) that he devised to his wife, Lillian Hunt Chaney, all of his estate, both real and personal, which he owned at the time of his death. The chancellor found that James and Lillian divorced and executed a property-settlement agreement at least forty years prior to James’s death. By the express terms of the property-settlement agreement, Lillian forfeited her interest in the Crockett County farmland. The chancellor further determined that after the divorce, James and Lillian never resided together as husband and wife, and James remained married to Josephine, until the time of his death.

¶18. Thus, the chancellor’s finding that the subsequent property-settlement agreement satisfied the requirements of section 91-5-3, as a “subsequent declaration [to the will] reveal[ed] the clear and unequivocal intention” of James to revoke his predivorce will and divest Lillian of any interest in the farmland. See Miss. Code Ann. § 91-5-3.

¶19. The terms of the property-settlement agreement were unambiguous. Lillian, in exchange for consideration, relinquished any interest in the Tennessee farmland. With both James’s and Lillian’s signatures affixed to the document, James’s intention to remain the sole owner of the real property is apparent. Further, the agreement, executed more than forty years before the will’s probate, had been in effect without any contention from Lillian and Alice, until after James’s death.

¶20. Moreover, James executed his will in 1962 and entered into the property-settlement agreement in 1969, and with nearly four decades between the settlement agreement and his death, he maintained no contact with Lillian. Likewise, after the settlement agreement, Lillian had no further ties to the property. Thus, it is unlikely that James intended for his ex-wife to inherit property that she agreed to forfeit some forty years prior. The property settlement agreement speaks for itself, and James’s intentions are clear.

¶21. The claim that James failed to satisfy the terms of the property-settlement agreement is not enough to find that the subsequent declaration is not binding. Whether James failed to make child-support payments or maintain insurance for his then minor child has no present effect on the Court’s analysis. James’s daughter was seven years old when the settlement agreement was executed, and more than thirty years passed between the settlement agreement and the date of James’s death. It can still be determined that the parties severed ties many years before this action.

¶22. The chancellor correctly found that the parties intended to settle any and all property rights against each other and that James “acted by implication and intent” to void the previous bequests. Rasco, 501 So. 2d at 423. The chancellor viewed the will and the property-settlement agreement “in light of the surrounding circumstances” and found “clear and unequivocal” evidence that James intended to revoke his will. Hinders, 828 So. 2d at 1240 (¶15). Here, proof of intent is known based on the reference to the farmland and James’s specificity as to Lillian’s relinquishment of her interest. In exchange for later claims against the property, James offered consideration, and Lillian agreed. Lillian cannot now renege and revive her interest.

¶23. We find that the chancery court’s judgment was supported by substantial evidence. The chancellor did not err in finding that James’s will was revoked by implication. We affirm the chancellor’s findings.

Do not assume, and never let your clients assume, that a divorce, whether agreed or contested, will operate to revoke a will. As Hinders and Rasco both clearly state, there must be a specific, clear intent on the part of the testator to revoke. Here, the intent was clear, and Lillian’s agreement to forfeit her interest sealed the deal. Suppose, though, that the PSA had only included some of that standard language to the effect that what’s titled in her name is hers, and what’s titled in his name is his. Would that have been enough to revoke the will? I think not.

A previous post talking about advising your clients in the aftermath of divorce is here.

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.

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