May 26, 2020 § Leave a comment
May a person being sued by a conservatorship challenge the legality of the conservatorship and have it set aside?
That was an issue that arose in the course of litigation between the conservators of Mary Cook and John Ward, her erstwhile business partner. The conservators sued Ward to recover money he got from Cook, charging him with undue influence and claiming she was incompetent. During the trial, Ward moved the court to “set aside” the conservatorship because the record showed that Cook was not given 5-days’ notice of the conservatorship hearing as required by § 93-13-253 (now superseded by the GAP Act). The chancellor denied the motion, and Ward appealed.
In Ward v. Estate of Cook, et al., the COA affirmed. Judge Jack Wilson wrote for the unanimous court:
¶24. As noted above, the trial in this case was held on October 17, 2018, and November 9, 2018. On November 8, 2018, Ward filed a mid-trial motion to set aside the conservatorship, alleging that Cook did not receive five days’ notice of the hearing on the conservatorship petition as required by Mississippi Code Annotated section 93-13-253 (Rev. 2013). The chancellor denied the motion and ruled that Ward was a “stranger” to Cook’s conservatorship and lacked standing to challenge it. On appeal, Ward argues that the chancellor erred and that the conservatorship was void and should be set aside due to insufficient notice and for additional reasons.
¶25. A person has both standing and a right to petition for the removal of a conservator if that person “has a legitimate interest present or prospective in [the ward’s] estate, or . . . some personal responsibility as regards the estate or the care or welfare of the ward.” In re Conservatorship of Davis, 954 So. 2d 521, 524 (¶12) (Miss. Ct. App. 2007) (emphasis omitted) (quoting Conservatorship of Harris v. King, 480 So. 2d 1131, 1132 (Miss. 1985)). In addition, “the chancellor, as superior guardian, might take notice of petitions by strangers in such cases as a matter of information to him openly tendered,” but such a stranger has “no privilege of appeal” if the chancellor refuses to consider his petition. Id. (emphasis added) (quoting Harris, 480 So. 2d at 1132). In other words, it is “clear . . . under Mississippi law that the receipt of such petitions [from ‘strangers’] is within the chancellor’s discretion.” Id. (quoting Harris, 480 So. 2d at 1132).
¶26. In the chancery court, Ward argued that he had standing to challenge the conservatorship simply because he was being sued by the conservators. On appeal, he similarly argues that his claim to the Overstreet Drive property constitutes an “interest” in Cook’s estate. However, the chancellor correctly rejected Ward’s argument. The estate’s claim that Ward had wrongfully taken money and property from Cook did not give Ward a legitimate interest in Cook’s estate. Therefore, Ward was a mere “stranger” to the estate. Furthermore, the chancellor did not abuse her discretion by denying Ward’s eleventh-hour challenge to the conservatorship. This issue is without merit.
That’s kind of interesting that the court might take notice of a stranger’s petition as a matter of information, but the stranger has no privilege of appeal if the trial court refuses to act on it.