The Burden to Rebut the Presumption of Undue Influence

May 22, 2019 § Leave a comment

Marquan Stover filed a contest to probate of his great aunt’s second codicil to her will, claiming that it was the product of undue influence. Following a hearing, the chancellor found no undue influence and dismissed his contest. Stover appealed, and the COA affirmed on May 8, 2018. He filed a petition for cert, which was granted.

In Stover v. Davis, handed down April 25, 2019, the MSSC reversed and remanded, holding that the chancellor had applied the wrong legal standard. Justice Beam wrote the opinion:

¶11. “The sole issue in a will contest is devisavit vel non, [Fn 3] or will or no will.” Trotter v. Trotter, 490 So. 2d 827, 833 (Miss. 1986). The proponent of the will has the burden of proof of the will’s validity, and this burden of proof stays with the proponent throughout the trial. Harris v. Sellers, 446 So. 2d 1012, 1014 (Miss. 1984). The proponent makes a prima facie case of validity when the will and record of probate are admitted into evidence. Id. At that point, the burden shifts to the contestant to produce evidence challenging the will’s validity. Clardy v. Nat’l Bank of Commerce of Miss., 555 So. 2d 64, 66 (Miss. 1989).

¶12. The contestant raises a presumption of undue influence by showing the existence of a confidential relationship between the testator and a beneficiary under the will, along with suspicious circumstances. Croft v. Alder, 237 Miss. 713, 723, 115 So. 2d 683, 686 (1959). Suspicious circumstances may include the testator’s mental infirmity or direct involvement of the beneficiary in the confidential relationship in preparing or executing the will. Id. at 686. When a presumption of undue influence arises, then the proponent of the will bears the burden to rebut the presumption with clear and convincing evidence that the will was not the result of undue influence. In re Estate of Dabney, 740 So. 2d 915, 921 (Miss. 1999) (citing Croft v. Alder, 237 Miss. 713, 115 So. 2d 683, 686 (1959)). To rebut the presumption, the proponent must show three things: “(a) good faith on the part of the beneficiary, (b) the testatrix’s full knowledge and deliberation of the consequences of her actions, and (c) the testatrix received the advice of a competent person disconnected from the beneficiary and devoted wholly to him.” Id. at 921 (citing Murray v. Laird, 446 So. 2d 575, 578 (Miss. 1984)).

[Fn 3] Devisavit vel non means “he (or she) devises or not.” Devisavit vel non, Black’s Law Dictionary (10th ed. 2014). “An issue directed from a chancery court to a court of law to determine the validity of a will that has been contested, as by an allegation of fraud or testamentary incapacity. Id.

¶13. As the Court of Appeals recognized, the chancellor made no findings on whether a confidential relationship had existed between Robinson and Davis or whether a presumption of undue influence arose. Stover, 2018 WL 2110017, at *24. Yet the Court of Appeals held that, even if a presumption of undue influence had arisen, Davis rebutted it, because clear and convincing evidence existed in the record to satisfy the three-prong test. Stover, 2018 WL 2110017, at *27. We disagree. The record shows that the chancellor found that Davis had made a prima facie case of the will’s validity and that Stover had not met his burden to show that the second codicil was the product of undue influence. The chancellor misstated the burden of proof as preponderance of the evidence when the burden for a presumption of undue influence is clear and convincing. See In re Estate of Dabney, 740 So. 2d at 921 (citing Croft, 115 So. 2d at 686). Further, the record does not show the burden-shifting scheme set forth above. If a presumption of undue influence had, in fact, arisen, then Stover did meet his burden, and Davis, the proponent of the will and codicils, bore the burden to rebut the presumption with clear and convincing evidence.

¶14. As the chancellor rightly found, Davis’s submission of the will and the record of probate and its receipt into evidence established a prima facie case of the will’s validity. But Stover’s proof raised a presumption of undue influence, because he showed that Davis was in a confidential relationship with Robinson when the second codicil was executed and that the second codicil had been executed under suspicious circumstances.

¶15. Because Davis was Robinson’s duly appointed conservator, a confidential relationship was established. We have held that “[a] conservator stands in the position of a trustee, has a fiduciary relationship with the ward and is charged with a duty of loyalty toward the ward.” Bryan v. Holzer, 589 So. 2d 648, 657 (Miss. 1991). While the existence of a conservatorship alone is not immediate grounds for undue influence, the courts should not take lightly the role, power, trust, and influence of the conservatorship relationship between the person or ward and his or her conservator. Wards deserve the most meticulous judicial scrutiny in situations such as this to ensure the ward’s protection. When a confidential relationship exists, coupled with suspicious circumstances, the proponent of the will bears the burden of rebutting the presumption by clear and convincing evidence.

¶16. Suspicious circumstances were shown by the undisputed evidence that Robinson suffered from dementia. A conservatorship had been established for Robinson in 2006, and Davis, who stepped into the role of conservator after Myers died, was directly involved in the preparation of the will. Davis testified that she discussed the will with Robinson. Davis reminded Robinson of the deaths of a named beneficiary and the executrix, and the changes made in the codicil were both to Davis’s benefit. Davis called Attorney Moss on her own cell phone to initiate the process of procuring the second codicil. Given that these facts were uncontested, the burden shifted to Davis to prove, by clear and convincing evidence, “(a) good faith on the part of the beneficiary, (b) the testatrix’s full knowledge and deliberation of the consequences of her actions, and (c) [that] the testatrix received the advice of a competent person disconnected from the beneficiary and devoted wholly to him.” In re Estate of Dabney, 740 So. 2d at 921(citing Murray, 446 So. 2d at 578).

¶17. Because the chancellor erroneously did not recognize that a presumption of undue influence had arisen, the chancellor made no findings of fact on the three-part test for determining whether Davis had rebutted the presumption by clear and convincing evidence. Instead, the chancellor found that Stover had not met his burden. But Stover had, in fact, met his burden of production, resulting in the burden’s shifting to Davis to rebut the presumption with clear and convincing evidence. Because the evidence was such that the chancellor reasonably could have found either that Davis had rebutted the presumption or that she had not, we reverse the decisions of both courts and remand to the chancery court for factfinding on whether Davis rebutted the presumption by clear and convincing evidence.

When Influence is Undue

August 6, 2018 § Leave a comment

Kappi Jeffers filed suit against her sister, Korri Saget, claiming that their mother had been subject to Korri’s undue influence in changing life insurance and investment account beneficiaries, and making a will.

The will contest was the subject of a jury trial that resulted in a mistrial. All parties agreed that the evidence at the jury trial was identical to that on the remaining issues, and they submitted the case to the chancellor on the record made at the trial. The chancellor ruled that the evidence did not support a finding of undue influence, and Kappi appealed.

The COA affirmed in an April 23, 2018 opinion in Estate of Saget: Jeffers v. Saget, by Judge Greenlee. Since this opinion illuminates not only the law on point, but also shows how facts in these cases typically unfold, I have quoted at length:

¶9. Kappi raises three issues on appeal. First, she argues that the chancellor erred in finding that she, as the contestant, had the burden of proving undue influence. Secondly, she argues that the chancellor erred by not finding that once a confidential relationship was found between Korri and Rae, a presumption of undue influence arose. Thirdly, she argues that the chancellor erred in applying an incorrect legal standard regarding the presumption of undue influence. Finding that the chancellor’s determination was not manifestly in error, we affirm.

¶10. “Mississippi law is well-settled regarding . . . confidential relationships and undue influence.” Wheeler v. Wheeler, 125 So. 3d 689, 693 (¶12) (Miss. Ct. App. 2013). This law applies equally to testamentary and inter vivos gifts. Id. When asserting undue influence, the initial burden is on the contestant/plaintiff to show “by clear and convincing evidence, the existence of a confidential relationship between a grantor and a defendant grantee[.]” Howell v. May, 983 So. 2d 313, 318 (¶14) (Miss. Ct. App. 2007). The supreme court has stated that such a “confidential relationship arises when a dominant, over-mastering influence controls over a dependent person or trust, justifiably reposed.” Wright v. Roberts, 797 So. 2d 992, 998 (¶17) (Miss. 2001). Once the existence of a confidential relationship is shown, a presumption of undue influence arises, and “the burden of proof shifts to the beneficiary/grantee to show by clear and convincing evidence that the gift was not the product of undue influence.” Id. at (¶16). Further, the supreme court has enumerated several factors to be considered when determining the existence of the confidential relationship:

(1) whether one person has to be taken care of by others, (2) whether one person maintains a close relationship with another, (3) whether one person is provided transportation and has their medical care provided for by another, (4) whether one person maintains joint accounts with another, (5) whether one is physically or mentally weak, (6) whether one is of advanced age or poor health, and (7) whether there exists a power of attorney between the one and another.

In re Estate of Lane, 930 So. 2d 421, 425 (¶13) (Miss. Ct. App. 2005) (quoting In re Dabney, 740 So. 2d 915, 919 (¶12) (Miss. 1999)).

¶11. In the present case, Kappi asserts that the chancellor found that the required confidential relationship existed, and, therefore, the burden shifted to Korri to prove the nonexistence of her undue influence over Rae. However, Kappi’s assertion is neither supported by the evidence nor the record. The chancellor did not make a finding that Kappi had proven the required confidential relationship existed between Rae and Korri. [Fn 5] Moreover, in her judgment, the chancellor discussed and analyzed all seven of the Lane factors. From this analysis it is apparent that there was a lack of clear and convincing evidence of the existence of the required confidential relationship.

[Fn 5] The chancellor’s “Amended Final Judgment” does not find that a confidential relationship existed nor does it explicitly state that Kappi failed to prove a confidential relationship by clear and convincing evidence.

¶12. The chancellor, in her discussion of the Lane factors, found that: (1) insufficient evidence was produced to show Rae was taken care of by others; (2) Rae and Korri had a close relationship; (3) insufficient evidence was produced to show Rae was provided transportation or medical care by others; (4) Rae and Korri maintained a joint bank account; (5) Rae was not physically or mentally weak as she “knew what she wanted and was very clear about it;” (6) Rae was in poor health; and (7) there was no power of attorney. These determinations by the chancellor were supported by substantial evidence. We further note that Korri resided in Houston, Texas and Rae continued to live in Vicksburg, Mississippi until her death—over a year after the changes were made to the investment account designations. The chancellor was correct in not making a finding that clear and convincing evidence showed that Korri had exerted the required confidential relationship over Rae. The chancellor went further, finding that there was no undue influence exerted upon Rae in changing the beneficiaries on the investment accounts.

¶13. During the hearing on the matter, the chancellor heard from several witnesses including some of Rae’s family and friends. The chancellor found that there was conflicting testimony as to whether Rae was taken care of by others and whether Rae was provided transportation and medical care by others. Therefore, it was the chancellor’s job as trier of fact to determine which version she found more credible. LeBlanc v. Andrews, 931 So. 2d 683, 689 (¶19) (Miss. Ct. App. 2006).

¶14. While the record clearly shows that Rae was in poor health, having had numerous surgeries and health issues, the record also indicates that she was a strong-willed woman who “knew what she wanted and was very clear about it.” Several non-family witnesses who spoke with Rae on the day she made the changes to the investment account beneficiaries testified that Rae appeared neither physically nor mentally weak. One such witness, Mittie Town Warren, a close friend of Rae’s, testified that “[Rae] knew what she had” and that “[w]hen she made her mind to do something, then that’s what she was going to do and she did it.” Further, Warren testified that she would see Rae two to three times per week and that on August 23, 2012, “[Rae] knew exactly what she was doing. Nobody influenced her.” Notwithstanding the assertion of Kappi on appeal, the chancellor did not find that Korri had the required confidential relationship with Rae. Furthermore, the chancellor was correct in finding that the beneficiary changes to the accounts were valid. [Fn 6]

[Fn 6] Though appellate courts would prefer that trial court judges make explicit findings on issues we review on appeal, when chancellors make decisions based upon substantial evidence and discuss the required factors leading to informed decisions, we should not reverse for form over substance. See Spain v. Holland, 483 So. 2d 318, 320 (Miss. 1989).

Some comments next week.

 

Some Random Thoughts on Phelps

February 1, 2016 § 4 Comments

Last week we talked about the COA’s decision in a will contest, and how the decision lays out the analysis that is required in a testamentary capacity/undue influence case.

As promised here are a few reflections on the case:

  • When parties ask you to represent them in a will contest, it’s important to understand how the burden of proof operates. As was the case here, it was not enough to establish that a confidential relationship existed. There must be much more. And you can expect the other side to counter with strong proof in most cases.
  • Also, physical frailty, illness, and even inability to manage one’s own business, do not establish testamentary incapacity as long as the testator understands the nature and effect of making a will, the natural objects or persons to receive his or her bounty and their relationship to him or her, and is able to determine how to dispose of his or her estate.
  • This case also illustrates how critically important it is for the subscribing witness to understand his or her role. The subscribing witness is the first-line observer of the testator’s capacity.
  • Cordell, the attorney, deserves posthumous kudos for his handling of Dorothy’s execution of the will. He allowed only her and the other subscribing witness into the room, satisfied himself that Dorothy had testamentary capacity, and that there was no undue influence.
  • Also, Dorothy sought independent advice from Cordell, who was unconnected with Henry III. This helped overcome a finding of undue influence.
  • Just because a confidential relationship exists, there is not necessarily undue influence. And even if there is a presumption of undue influence, it can be overcome by clear and convincing evidence of the factors set out in the Grantham case.

You should treat the execution of a will in your office with some solemnity and care. It is, after all, a serious occasion, oftentimes coming after long and careful deliberation by the testator. No one but the subscribing witnesses and testator should be present. Ask questions that will help you and the witnesses determine testamentary capacity: does she know her assets and their worth; does she know who her natural heirs are and how this will affect not only them but also her prior wills; how dependent is she in handling her affairs; has anyone pressured her to make this disposition? And so on. You should admonish the subscribing witnesses not to sign unless they are satisfied that the testator has capacity and is acting freely and voluntarily. You might want to make a few notes to refresh later recollection: who brought her to your office; time of day; who was present in the room when the will was signed, etc. You might even make a checklist to help you memory later. In my experience, testimony from the law office where the will was signed is often the deciding factor.

Testamentary Capacity, Undue Influence, and the Burden of Proof

January 27, 2016 § 4 Comments

A will contest can present a bewildering forest of legal issues that can entangle the best lawyers. So, any time we can find some clarification, it’s worth taking a break to look it over.

In the COA case of Estate of Phelps: Terry et al. v. Phelps, et al., handed down December 8, 2015, the court dealt with an appeal from a classic will challenge based on a claim of both lack of testamentary capacity and undue influence.

The chancellor held that the testator, Dorothy Phelps, did have testamentary capacity. He also ruled that there was a confidential relationship between Dorothy and her son, Henry III, but that Henry had rebutted the presumption of undue influence by clear and convincing evidence. The contestants, Henry III’s siblings Irene Phelps Terry and Mary Phelps Domin, appealed.

The COA affirmed. Since this is a pretty useful recitation of the law, I am going to quote at length from the opinion. Judge Lee wrote for the court:

A. Testamentary Capacity

¶14. In their first issue, Irene and Vicki claim the chancellor erred in finding that Dorothy possessed testamentary capacity.

¶15. “For a will to be valid, the testator must possess testamentary capacity.” Noblin v. Burgess, 54 So. 3d 282, 291 (¶32) (Miss. Ct. App. 2010). “For testamentary capacity to be present, the testator must be of ‘sound and disposing mind’ at the time of the will’s execution.” Id. (quoting Miss. Code Ann. § 91-5-1 (Rev. 2004)). “At that time, the testator must: ‘understand and appreciate the nature and effect of his act of making a will, the natural objects or persons to receive his bounty and their relation to him, and be able to determine what disposition he desires to make of his property.’” Id. (quoting In re Estate of Mask, 703 So. 2d 852, 856 (¶17) (Miss. 1997)).

¶16. Our supreme court has explained the burden of proof on the issue of testamentary capacity is as follows:

At trial, the will’s proponents carry the burden of proof, which they meet by the offering and receipt into evidence of the will and the record of probate. A prima facie case is made by the proponent solely by this proof. Afterwards, although the burden of proof remains on the proponents, the burden of going forward with proof of testamentary incapacity shifts to the contestants, who must overcome the prima facie case. The proponents may then present rebuttal proof if necessary. In short, the proponents must prove the testator’s testamentary capacity by a preponderance of the evidence.

In re Estate of Rutland, 24 So. 3d 347, 351 (¶10) (Miss. Ct. App. 2009) (quoting In re Estate of Edwards, 520 So. 2d 1370, 1372 (Miss. 1988)).

¶17. In the instant case, an objection to probate was entered prior to the will being admitted to probate.

¶18. Henry III made his prima facie case of the will’s validity through the testimony of Kay Ousley Hyer, Cordell’s [the lawyer who prepared the will] legal secretary at the time Dorothy’s will was executed. Although Hyer had no recollection of the events on February 10, 1988, Hyer testified that she would not have signed the will’s attestation clause if she felt, through her interactions with Dorothy on February 10, 1988, that Dorothy was not of sound and disposing mind and memory. When asked whether Cordell would have signed the attestation clause, Hyer stated: “He would not have affixed his signature if [Dorothy was] not of sound mind and body.”

¶19. To support their argument on this issue, both Irene and Vicki testified that Dorothy lacked testamentary capacity because of her grief over Henry II’s death and because of other medical issues.

¶20. However, “[t]he mere fact that someone is too ill to handle his affairs does not in and of itself render him . . . void of testamentary capacity.” In re Estate of Laughter, 23 So. 3d 1055, 1061 (¶22) (Miss. 2009). Furthermore, we recognize that “[t]he testimony of subscribing witnesses receives greater weight than the testimony of witnesses who were not present at the will’s execution.” In re Estate of McQueen, 918 So. 2d 864, 871 (¶30) (Miss. Ct. App. 2005) (citing Edwards, 520 So. 2d at 1373). Therefore, Hyer’s testimony is given more weight than the testimony of Irene and Vicki, who were not present at the will’s execution, did not interact with Dorothy on February 10, 1988, and have an interest in the outcome of this case.

¶21. Even if Irene and Vicki presented sufficient evidence to overcome Henry III’s prima facie case, we note that Henry III presented rebuttal evidence through the testimony of Flora Collins. Collins worked for Dorothy for approximately twenty-six years and interacted with Dorothy on an almost daily basis. Collins stated that Dorothy appeared to be herself, “like she’s always been,” after returning home from the hospital. Collins also stated that Dorothy told her about the will on two separate occasions: “She told me that I have a will and they’re going to be surprised who I’m going to leave everything to.” Additionally, we note that the will appears reflective of Dorothy’s intent in prior codicils. This issue is without merit.

B. Undue Influence

¶22. In their second issue, Irene and Vicki claim Henry III did not present sufficient evidence to overcome the presumption of undue influence.

1. Presumption of Undue Influence

¶23. A presumption of undue influence arises where: (1) a confidential relationship existed between the testator and a beneficiary, and (2) there existed suspicious circumstances—such as the testator’s mental infirmity—or the beneficiary in the confidential relationship was actively involved in some way with preparing or executing the will. In re Last Will & Testament of Bowling, 155 So. 3d 907, 910-11 (¶16) (Miss. Ct. App. 2014) (citing Croft v. Alder, 237 Miss. 713, 115 So. 2d 683, 688 (1959)).

¶24. It is conceded that there was a confidential relationship between Dorothy and Henry III. However, the fact, alone, that a confidential relationship existed between Henry III and Dorothy is not sufficient to give rise to the presumption of undue influence. See In re Estate of Grantham, 609 So. 2d 1220, 1224 (Miss. 1992).

¶25. Nevertheless, in In re Estate of Harris, 539 So. 2d 1040 (Miss. 1989), our supreme court held that the presumption was raised with very little besides a confidential relationship. In re Last Will & Testament of Smith, 722 So. 2d 606, 612 (¶18) (Miss. 1998). In Harris, “the beneficiary simply found an attorney at the testator’s request and drove the testator to the attorney’s office.” Id.

¶26. The facts in the instant case are distinguishable from those in Harris. Henry III did not contact the attorney prior to the execution of the will. Nor did Henry III have knowledge that he was driving Dorothy to Hollandale for the purpose of executing a will. Henry III merely drove Dorothy to Hollandale on February 10, 1988, so she could “tend to some business.”

¶27. Furthermore, Henry III was not present during the execution of the will. Hyer testified as to Cordell’s usual practice with respect to allowing other people in the room during the execution of a will. Hyer stated: “I cannot recall a time that he would do that. It was always just the individual . . . It would be just between [Cordell and] that individual.”

¶28. In finding a presumption of undue influence, the chancellor noted Dorothy’s health and age. The chancellor also noted that after the will’s execution, the will was placed in a safety deposit box in both Dorothy and Henry III’s names; therefore, Henry III had the opportunity to view the will after its execution. The circumstances listed by the chancellor had nothing to do with the preparation and execution of the will or with Dorothy’s independent action.

¶29. The fact, alone, that a confidential relationship existed between Henry III and Dorothy is not sufficient to give rise to the presumption of undue influence. See Grantham, 609 So.2d at 1224. Henry III was not actively involved in preparing or executing the will, nor were there suspicious circumstances that negate independent action. See Dean v. Kavanaugh, 920 So. 2d 528, 537 (¶46) (Miss. Ct. App. 2006). As such, the chancellor erred in finding that there was a presumption of undue influence. However, because we ultimately reach the same conclusion, this issue is without merit.

2. Overcoming the Presumption of Undue Influence

¶30. Even if there was a presumption of undue influence, Henry III presented sufficient evidence to overcome such a presumption.

¶31. Our supreme court has stated that:

[T]he presumption of undue influence is overcome if the beneficiary has proven by clear and convincing evidence:

(1) Good faith on the part of the beneficiary;

(2) the testator’s full knowledge and deliberation of his actions and their consequences; and

(3) independent consent and action on the part of the testator.

Grantham, 609 So. 2d at 1224 (citing Mullins v. Ratcliff, 515 So. 2d 1183 (Miss. 1987)).

¶32. In the instant case, the record contains sufficient evidence to satisfy each of these three prongs. With respect to the good-faith requirement, the chancellor considered the following factors: (a) the identity of the initiating party seeking preparation of the will; (b) the place of the execution of the will and in whose presence; (c) the fee paid; (d) by whom it was paid; and (e) the secrecy or openness surrounding the execution of the will. In re Estate of Holmes, 961 So. 2d 674, 682 (¶25) (Miss. 2007). The chancellor found that Dorothy initiated the preparation of the will, the terms of the will were discussed between Dorothy and Cordell outside the presence of others, and the will was executed before two attesting witnesses.[Fn 3] Although there was no evidence of the fee paid or who paid the fee, we agree there was clear and convincing evidence that Henry III acted in good faith.

[Fn3] See Rogers v. Pleasant, 729 So. 2d 192, 194 (¶9) (Miss. 1998).

¶33. With respect to the second requirement—that Dorothy had full knowledge and deliberation of the consequences of her actions—the chancellor considered the following factors: (a) whether Dorothy was aware of her total assets and their worth; (b) whether Dorothy understood who her natural inheritors were and how her action would legally affect prior wills; (c) whether Dorothy knew nonrelative beneficiaries would be included or excluded; and (d) whether Dorothy knew who controlled her finances and how dependent Dorothy was on anyone handling her finances. Holmes, 961 So. 2d at 684 (¶39). The chancellor found that the will gave each daughter not only a life estate in 320 acres of land but also exclusive control and possession of the income generated by that land, which was evidence that Dorothy was aware of her total assets. The chancellor also found that the revocation clause along with specific devises and bequests in the will was evidence that Dorothy understood who her natural inheritors were and how her action would legally affect prior wills. It is clear from prior documents that Dorothy never had any intention of including nonrelative beneficiaries. Finally, the chancellor found that there was evidence that Dorothy knew who controlled her finances. We agree there was clear and convincing evidence that Dorothy had full knowledge and deliberation of the consequences of her actions.

¶34. With respect to the last requirement, the chancellor found that Dorothy exhibited independent consent and action when she obtained independent advice from Cordell, who was a competent person, disconnected from Henry III, and devoted wholly to Dorothy’s interests. Holmes, 961 So. 2d at 680 (¶18). We agree there was clear and convincing evidence that Dorothy exhibited independent consent and action.

¶35. Assuming there was a presumption of undue influence, the presumption was overcome by clear and convincing evidence that Henry III acted in good faith, Dorothy had full knowledge and deliberation of the consequences of her actions, and Dorothy exhibited independent consent and action when she executed her will. This issue is without merit.

Some comments on this case next week.

Junior Kimbrough’s Probate Blues

April 16, 2014 § Leave a comment

David “Junior” Kimbrough was a world-renowned bluesman of the North Mississippi hill country. He died after suffering a heart attack in 1998. He had a will leaving his entire estate to his long-time girlfriend, Mildred Washington, and it was admitted to probate shortly after Junior’s death.

The matter languished on the docket for reasons not disclosed in the record. A will contest was filed finally some eleven years after the estate was opened. Litigation snowballed, including an interlocutory appeal, and the matter culminated in a 2012 trial.

The proof was that Matthew Johnson, an officer of Fat Possum Records and Mockingbird Music, prepared the will that Kimbrough signed at the same time that he signed record deals with Johnson’s companies. The contestants claimed that Johnson had a confidential relationship with Kimbrough, and that he exercised undue influence over the bluesman to have Kimbrough’s girlfriend named as sole beneficiary. They claimed that the will should be set aside, putting them into position to inherit Kimbrough’s estate.

The chancellor granted a R41(b) motion dismissing the contestants’ claims, and they appealed. Although they raised IX points (that’s the Super Bowl version of “nine points”), the MSSC, which kept the case, addressed only whether the chancellor was in error in granting the R41(b) motion.

In Kimbrough, et al. v. Estate of Kimbrough and Washington, handed down March 20, 2014, Justice Pierce wrote for the unanimous court (Chandler not participating).

The court first addressed the question whether Johnson had abused his confidential relationship:

¶12. In re Estate of Laughter defines a confidential relationship as “ . . . between two people in which one person is in a position to exercise dominant influence upon the other because of the latter’s dependency on the former arising either from weakness of mind or body, or through trust[.]” In re Estate of Laughter, 23 So. 3d 1055, 1063 (Miss. 2009) (quoting Hendricks v. James, 421 So. 2d 1031, 1041 (Miss. 1982)). Further, this Court has identified the following seven factors to consider when determining whether a confidential relationship exists:

(1) whether one person has to be taken care of by others, (2) whether one person maintains a close relationship with another, (3) whether one person is provided transportation and has their medical care provided for by another, (4) whether one person maintains joint accounts with another, (5) whether one is physically or mentally weak, (6) whether one is of advanced age or poor health, and (7) whether there exists a power of attorney between the one and another.

Laughter, 23 So. 3d at 1063 (citing In re Estate of Holmes, 961 So. 2d 674, 680 (Miss. 2007) (citing Wright v. Roberts, 797 So. 2d 992, 998 (Miss. 2001))).

¶13. If it is determined that a confidential relationship exists, an abuse of that relationship must be shown for the Contestants to raise a proper presumption of undue influence. Costello v. Hall, 506 So. 2d 293, 298 (Miss. 1987). The existence of a confidential relationship, standing alone, does not raise a presumption of undue influence. Laughter, 23 So. 3d at 1064 (citing Wright, 797 So. 2d at 999 (citing Croft v. Alder, 237 Miss. 713, 723-24, 115 So. 2d 683, 686 (1959))); see also Matter of Will of Adams, 529 So. 2d 611, 615 (Miss. 1988); Matter of Will of Wasson, 562 So. 2d 74, 78 (Miss. 1990).

¶14. The person who allegedly is taking advantage of the confidential relationship “ . . . must have used that relationship for his personal gain or to thwart the intent of the testator.” Costello, 506 So. 2d at 298 (citing Croft, 237 Miss. at 723, 115 So. 2d at 686); see Barnett v. Barnett, 155 Miss. 449, 457, 124 So. 498, 500 (1929) (undue influence over the execution of a will arises when the testator’s will is replaced by the will of another); and Wasson, 562 So. 2d at 79 (undue influence results in a will reflecting the beneficiary’s wishes rather than the wishes of the testator); Matter of Will of Adams, 529 So. 2d 611, 615 (Miss. 1988) (To effectively raise the presumption of undue influence, there must be a showing that the confidential relationship was abused through dominance over the testator or by replacement of the testator’s intent for that of the beneficiary.).

¶15. Laughter reaffirmed that a presumption of undue influence arises when the following circumstances are present:

where the beneficiary has been actively concerned in some way with the preparation or execution of the will[;] or where the relationship is coupled with some suspicious circumstances, such as mental infirmity of the testator; or where the beneficiary in the confidential relation was active directly in preparing the will or procuring its execution, and obtained under it a substantial benefit.

Laughter, 23 So. 3d at 1064 (quoting Croft, 237 Miss. at 723-24, 115 So. 2d at 686) (internal citations omitted)).

¶16. Commonly, undue influence is exerted by a person who is a named beneficiary in the will. However, this Court has extended the doctrine to nonbeneficiaries. The extension to nonbeneficiaries is seen in Weston v. Lawler’s Estate, in which this Court stated, “Undue influence over a testator, while not exercised by a beneficiary under the will, may be done so through an agency or a third person.” Weston v. Lawler’s Estate, 406 So. 2d 31, 34 (Miss. 1981) (citations omitted); see also Wasson, 562 So. 2d at 79.

The court went on to distinguish the cases from this one, and concluded that there was no abuse of the relationship by Johnson. As Justice Pierce pointed out:

¶22. The chancellor also determined that the testimony overwhelmingly showed that Kimbrough “called his own shots.” The chancellor went on to conclude that, even though Kimbrough was uneducated, he was not ignorant, and in fact, he was an extremely intelligent man. The chancellor pointed to the testimony revealing that, since Kimbrough could not read or write, all of his songs were performed from his memory alone. He further pointed to testimony providing that Kimbrough was hardheaded and did not let others pressure him. The chancellor ultimately decided that the Contestants hadid not meet their burden of proof, because their allegations were nothing more than “a lot of suspicions.”

¶23. Lastly, it should be noted that, when reviewing a will contest, the polestar consideration is to carry out the intent of the testator. Wasson, 562 So. 2d at 79 (citing Tinnin v. First United Bank of Mississippi, 502 So. 2d 659, 667 (Miss. 1987)). During the chancellor’s ruling, he discussed that Kimbrough had a child with Washington, that Washington was the last woman Kimbrough lived with, and that he was on her couch the day before he died. Testimony provided that Washington and Kimbrough had a relationship for many years. Washington is pictured on the inside cover of his last-released album. Johnson testified that when Kimbrough became ill, he was instructed to pay Washington any sums owed to Kimbrough by his companies, because Washington was the person who took care of Kimbrough.

Aside from the fact that this case is an exposition on how the analysis of undue influence works, it demonstrates how undue influence is not limited to one who benefits from it.

The case also eloquently illustrates what I have told lawyers in my court many times: “The longer you leave open an estate, the more problems it attracts.” How much money would Mildred Washington have saved in attorney’s fees had the estate been closed ten years before the contest was filed? There may have been meritorious reasons that this particular estate stayed open for as many years as it did, but 99% of estates have no business remaining open this long.

A noteworthy aspect of this opinion is that it includes a mere single footnote consisting of a hyperlink to Fat Possum Records’ web site. Thank you, Justice Pierce for sharing your analysis in plain sight, and not in a plethora of footnotes.

SOL No Bar in an Egregious Undue Influence and Fraud Case

March 24, 2014 § Leave a comment

We talked here recently about the statute of limitations (SOL) applicable in an action to recover land procured by fraud. A 2002 MSSC case sheds further light on when that statute begins to run, and some other related aspects.

In 1979, 24-year-old Michael Cupit appeared uninvited at the home of Mary Lea Reid, a 78-year-old widow living in Liberty, MS. Cupit, who lived some 40-miles distant in Brookhaven, attributed the visit to his interest in antebellum homes and that some of his relatives had sharecropped on Reid’s land decades earlier. From that visit, Cupit contiinued to visit Reid, and he developed a strong relationship with her, despite his departure to commence law school that fall.

The relationship became intimate, according to witnesses and letters exchanged between the two, although Cupit contended that it was a mother-son relationship.

Cupit testified that he had had conversations with fellow law students about how to obtain Reid’s property.

In 1982, Cupit took Reid to a Brookhaven law firm with the intention of being adopted by Reid so as to cut off claims of any of her heirs. After the lawyer met with Reid, he suggested that an adoption was not necessary. Cupit then asked the lawyer to prepare a deed by which Reid conveyed her real property to Cupit reserving a life estate, which was done, and the deed was recorded.

The next day, Cupit assisted Reid in preparing a holographic will devising all of her property to him. As of the date when this was done, apparently, Cupit had been admitted to the bar. The chancellor found that Cupit, not Reid, was the client of the Brookhaven attorney, and that Reid was Cupit’s client.

In 1983, Reid again visited the Brookhaven law firm accompanied by Cupit, this time meeting with a different attorney. The attorney met separately with Reid and took steps to satisfy himself of her independent will and competence. The product of this meeting was a will essentially identical in substance to the holographic will.

In 1986, Reid adopted Cupit.

In 1995, Cupit had Reid’s power of attorney transferred to himself.

Through the years, Cupit alienated Reid from her family and friends, and restricted their access to her.

Reid died in 1997, and Thomas Pluskat filed for administration of the estate. He was appointed administrator, and initiated an action to set aside the will, the deed, adoption, and power of attorney.

At trial, the chancellor found that Cupit had exercised undue influence over Reid, and that the will, deed, adoption and power of attorney should all be set aside. His opinion stated:

The Court finds that the evidence regarding Michael Cupit’s efforts to exclude most, if not all of the family members and some long-time friends of Mary Reid from her, together with Mary Reid’s strong desire to have a child which she had never had, coupled with the engaging and unique personality  and tendencies of Michael Cupit, as observed by the court in the evidence as well as personal observations of Mr. Cupit throughout the course of the trial, combined so as to put Mr. Cupit in a position with Mary Reid that Mr. Cupit could and did over-reach and influence Mary Reid to his advantage and her ultimate disadvantage. Mr. Cupit’s influence, subtle and undetected by some of Mary Reid’s friends, was used in order to gain advantage of Mary Reid and to obtain her property consisting of approximately 205 acres of land, an antebellum home that had been in her family for about 140 or so years and substantial and unique family heirlooms located within the home as well as significant amounts of money from the time of Mr. Cupit’s law school days through the time of Mary Reid’s death. During a portion of this time, subsequent to Mr. Cupit’s beginning of the practice of law, he occupied a dual fiduciary role in that he was her attorney and counselor at law.

* * *

The Court finds as a matter of fact and law that the deed, will, adoption, and subsequent power of attorney granted by Mary Reid and /or pursued by Mary Reid and Michael Cupit were the direct result of Mr. Cupit’s efforts to obtain the property of Mary Reid to his own advantage and to her ultimate harm and disadvantage. Therefore, the Court finds that the deed and will were procured as a result of undue influence, overreaching, breach of a fiduciary relationship, breach of an attorney-client relationship, breach of a position of trust that Michael Cupit had gained with and over Mary Reid notwithstanding the fact that she was “strong-willed.”

Michael appealed.

His first issue on appeal was whether the administrator’s action to set aside the deed was barred  by the SOL. In its decision in the case of Estate of Mary L. Reid: Cupit v. Pluskat, handed down May 30, 2002, The MSSC addressed it this way:

¶17. This Court has held that statutes of limitation in actions to recover land begin to run as soon as a cause of action exists. Aultman v. Kelly, 236 Miss. 1, 5, 109 So.2d 344, 346 (1959). However, § 15-1-7 has been construed to require possession by the defendants claiming its protection. Greenlee v. Mitchell, 607 So.2d 97,110 (Miss. 1992); Bowen v. Bianchi, 359 So.2d 758, 760 (Miss.1978); Trigg v. Trigg, 233 Miss. 84, 99, 101 So.2d 507, 514 (1958).

¶18. In Greenlee this Court held that the ten-year statute of limitations on action to recover land did not commence to run as soon as a cause of action existed, upon execution of deed pursuant to undue influence, but only when plaintiffs, the grantor’s heirs, had notice of the existence of an attempted deed, where the defendants had not taken possession in the interim. 607 So.2d at 110.

¶19. Here Cupit did not gain possession with the recording of the 1982 deed. Reid retained a life estate and remained in possession until her death. The only person who could have contested the deed during this period was Reid herself, who was in possession. Therefore, the statute of limitations did not begin to run against Thomas Pluskat until 1997 when Reid died.

¶20. As this suit was commenced well within ten years after Reid died and the defendant was not in possession during her lifetime, Cupit’s claim that the statute had run is without merit.

Cupit also argued that Pluskat had no standing to challenge the adoption, but the MSSC rejected that argument on the basis that it was a fraud on the court, and was part of a long-term scheme by Cupit to take advantage of Reid by fraud and overreaching. The court did conclude, however, that its findings as to the adoption “are specific to the facts of this case.”

Both the will and the deed were found by the chancellor to have been products of undue influence. The MSSC affirmed, saying:

¶25. Cupit argues that the chancellor erred in finding that Reid’s will is void because Reid was competent to make a will and there was no confidential relationship between the two of them.

¶26. As previously discussed, the chancellor found that a confidential relationship and an attorney/client or fiduciary relationship existed between Reid and Cupit. This finding is based on substantial evidence.

¶27. Once a confidential relationship is found, the beneficiary must disprove the presumption of undue influence by clear and convincing evidence. In re Estate of Dabney, 740 So.2d at 921; In re Estate of Smith, 543 So.2d 1155, 1161 (Miss. 1989).

¶28. To overcome the presumption of undue influence, the proponents must show (a) good faith on the part of the beneficiary, (b) the grantor’s full knowledge and deliberation of the consequences of her actions, and (c) the grantor’s independent consent and action. Mullins [v. Ratcliff], 515 So.2d [1183,] at 1193.

¶29. For many of the same reasons he found that the deed was a product of undue influence, the chancellor also found that Reid’s will was a product of undue influence. The attested will was an almost exact copy of the holographic will which Cupit helped Reid prepare. As discussed previously, the chancellor found that Cupit did not act in good faith in any part of his dealings with Reid. The chancellor also found that Reid did not receive independent counsel in the making of her will. We find that the attorney who prepared the will acted as a mere scrivener and that Reid did not receive independent counsel concerning her will. In re Estate of Moses, 227 So. 2d 829, 833 (Miss. 1969). We affirm the chancellor’s decision to set aside the will.

I commend the decision to your reading both as an object lesson in unethical, dishonest and rapacious conduct by an attorney, and as an exposition on the particular points of law in this case.

An interesting sidelight: two of the attorneys in the case have judicial experience. Current District 14 Circuit Court Judge Mike Taylor was one of the attorneys representing Pluskat. Former Mississippi Supreme Court Justice James Robertson was one of the attorneys representing Cupit.

Who has Standing to Appeal?

February 3, 2014 § 1 Comment

Whether a party has standing to appeal is a question that does not often surface in our courts, but it did in a recent COA case.

The case of Posey v. Pope and Posey, handed down January 28, 2014, offers an interesting scenario invoving a standing issue on appeal.

Madison Posey died in 2004, leaving approximately 138 acres of land to his surviving wife, Gladys. Madison and Gladys had four children: Dorothy, Willard, Robert and Paul. 

Dorothy had been deeded 2 1/2 acres by her father in 1984, and she used another 25 acres of the 138 on which she built and maintained fences, cut timber, and constructed buildings.

Some time around 1994, Willard began using some 60 acres of the 138 from which he cut timber, sharing the proceeds with his mother. He never obtained a deed for any of the 60 acres.

In 2007, by two, separate deeds, Gladys conveyed 132 acres of land to Paul and Robert, retaining a life estate.

Dorothy and Willard filed suit to set aside the 2007 deeds on the grounds of undue influence and adverse possession. The chancery court concluded not only that the deeds should be set aside because they were procured by undue influence, but also that Dorothy and Willard had title by adverse possession.

Robert and Paul appealed only from the decision that Dorothy and Willard had title via adverse possession. They did not attack the chancellor’s ruling of undue influence.

Dorothy and Willard moved to dismiss the appeal on the basis that the court’s finding of undue influence deprived Robert and Paul of standing to appeal solely from the adverse possession ruling. The COA agreed, and dismissed the appeal. Here’s what Judge Barnes, writing for a unanimous court said:

¶7. “[P]arties have standing to ‘sue or intervene when they assert a colorable interest in the subject matter of the litigation or experience an adverse effect from the conduct of the defendant, or as otherwise authorized by law.’” DeSoto Times Today v. Memphis Publ’g Co., 991 So. 2d 609, 612 (¶8) (Miss. 2008) (quoting Fordice v. Bryan, 651 So. 2d 998, 1003 (Miss. 1995)). Clearly, as recipients of the deeds from Gladys, the Appellants had standing to participate in the underlying chancery court action.

¶8. However, as a result of the chancellor’s ruling of undue influence, which voided the deeds, the Appellants no longer maintained any property interest when the appeal was filed. “A party’s claim ‘must be grounded in some legal right recognized by law, whether by statute or by common law[,]’ and that party must be able to show that it has ‘a present, existent actionable title or interest.’” In re City of Biloxi, 113 So. 3d 565, 570 (¶13) (Miss. 2013) (quoting City of Picayune v. S. Reg’l Corp., 916 So. 2d 510, 526 (¶40) (Miss. 2005)). Since the Appellants do not appeal the chancellor’s decision to void the warranty deeds, they no longer possess a “present, existent actionable interest” in the property at issue. The Appellants have also acknowledged that, at the time of appeal, Gladys was the only person who would benefit from a reversal of the chancellor’s finding that the Appellees gained title through adverse possession. Consequently, we find the Appellants lack standing to appeal the chancellor’s decision.

The appellants argued that they had standing as “anticipatory heirs,” which the COA rejected for the reason that Mississippi does not recognize heirship status until a person has died. They also contended that Paul had obtained a POA from Gladys that empowered him to pursue litigation on her behalf, which the court also rejected because she had never joined in the action, either at trial or on appeal.

One significant reason you should be interested in this case is that it highlights how joinder and non-joinder of persons in litigation may have repercussions that you should consider well before you file the initial complaint and any counterclaim. This result would likely have been avoided had Gladys been brought in as a party.

Another reason is that you need to analyze the effect on your client’s interests of limiting issues on appeal. Reading between the lines in this case, it appears that Robert and Paul were doing their best to keep Gladys out of the cross-fire among the siblings (indeed, she died during pendency of the appeal), but the result was the end of their litigation. I’m not being critical of or even questioning any legal advice in this particular case, but as a matter of general principle, always exercise independent, objective judgment and give advice on how to proceed based on that judgment; never let the clients call the shots about who should or should not be included as a party, or what issues should or should not be pursued.  

Not Under the Influence

November 14, 2013 § Leave a comment

Two recent cases, both decided by the COA on October 22, 2013, upheld chancellors’ rulings that decedents’ actions were not the product of undue influence.

In Wheeler v. Wheeler, the court upheld a chancellors’ decision that, although the decedent and his brother had a confidential relationship, the will and deeds in favor of the brother were not the product of undue influence so that they should be set aside.

And in Estate of Mace: Colbert v. Gardner, the court affirmed the chancellor’s refusal to set aside a will based on undue influence. The court also rejected the plaintiff’s claim that the decedent lacked testamentary capacity.

We’ve talked here before about the onerous burden that the plaintiff bears to convince the trial court that a will, deed, or other instrument should be set aside for undue influence. We also talked about the proof necessary to prove lack of testamentary capacity.

The law sets a high bar for those who are seeking to set aside instruments. If you are approached by a prospective client, even one with a fistful of dollars to finance litigation, you should make sure that the proof rises to the level that would justify the relief you are seeking.

You can read these recent cases and draw your own conclusions.

Speculation About Undue Influence Will Not Win the Case

August 8, 2013 § 1 Comment

We’ve talked here before about what one needs to prove to make out a case of undue influence in a will contest. It’s not an easy case to make, and the proof must be clear and convincing

In the COA case of Estate of Strong: Johnson, et al. v. Washington, handed down July 16, 2013, contestants Johnson, Foster, Miller and Wright claimed that their father, Rev Strong, had been subjected to undue influence when he executed a will in 1986. Washington came to be appointed executrix of the contested will.

Under the terms of the will in question, Rev. Strong left $10,000 to Miller, and bequeathed some real property to Wright. All of the residuary estate went to his wife, Earnestine, who was the step-mother of the contestants. Johnson and Foster were disinherited.

The parties engaged in discovery, following which Washington filed a motion for summary judgment.

The contestants filed three affidavits in oppositiion to the motion, alleging that Earnestine had been controlling, and that Rev. Strong had stated on many occasions that he regretted marrying her. They averred that Earnestine would not even allow the contestants into the home to visit their father. The contestants admitted that their father had testamentary capacity at the time he executed the will, and that he was of sound mind, They emphasized that Rev. Strong was a private person who handled his own financial and business affairs. There was no proof that Rev. Strong was in poor health or suffered from any condition that made him dependent on Earnestine. The record also established that Earnestine was not present when Rev. Strong executed the will, and that he kept it in a safe deposit box to which Earnestine did not have access.

If the contestants made a triable issue for a jury, then, it turned on their allegations that Earnestine was overbearing and controlling. Did they make a case sufficient to get by MRCP 56?

The chancellor ruled that they did not, granted summary judgment, and the contestants appealed.

Here is how the COA addressed the issues, per Judge James:

¶12. The only evidence the Contestants have to support their assertion of undue influence is the three affidavits alleging that Earnestine was overpowering and controlling toward Rev. Strong. However, not one of the affidavits contains specific facts showing that Rev. Strong was improperly influenced by Earnestine during the execution of the disputed will. The Contestants’ blanket allegations do not pass muster to show a triable issue. “The trial court should only submit an issue to the jury when the evidence creates a question of fact over which reasonable jurors could disagree.” In re Last Will & Testament & Estate of Smith, 722 So. 2d 606, 611 (¶17) (Miss. 1998) (citing Vines v. Windham, 606 So. 2d 128, 131 (Miss. 1992)). Here, the evidence does not formulate a factual question over which reasonable jurors could disagree.

¶13. “A presumption of undue influence arises in a will contest when a beneficiary occupies a confidential relationship with the testator and there is active participation by the beneficiary in either procuring the will or in preparing the will.” [In re Last Will and Testament of] Smith, 722 So. 2d [606] at 611-12 (¶18) (citing Simm v. Adams, 529 So. 2d 611, 615 (Miss. 1988)). However, the existence of a confidential relationship, alone, does not automatically raise a presumption of undue influence. [In re Estate of] Laughter, 23 So. 3d [1055] at 1064 (¶37) (citing Wright v. Roberts, 797 So. 2d 992, 999 (¶21) (Miss. 2001)). There must be circumstances where the beneficiary in the relationship took some active part in preparing the will. Id. (citing Croft v. Alder, 237 Miss. 713, 723-24, 115 So. 2d 683, 686 (1959)). There is no evidence of undue influence here. As previously mentioned, there is nothing in the record to suggest that Rev. Strong was dependent upon Earnestine in any capacity. According to the Contestants, Rev. Strong was very independent and handled his own financial affairs. Earnestine was never granted power of attorney during their marriage. Furthermore, there is no evidence that Earnestine actively participated in the will’s preparation or was present during its execution.

The court also quoted from In re Estate of Pigg, 877 So.2d 406, 412 (Miss. App. 2003) as to what the contestants need to show to make a jury issue:

[¶10] … Those contesting a will need not present sufficient evidence to prove undue influence. The contestants, however, must at least raise sufficient question to cause jurors to conclude that the proponents failed to prove that the will was free of improper influence[.] . . . The jurors had to decide if the inferences of undue influence made the quantum of evidence in support of due execution less than a preponderance. The best evidence on the issue was the testimony of the subscribing witnesses and others who were present during the execution. From no one contemporaneously involved . . . was there any suggestion that Mrs. Pigg was unaware of what she was doing or that her personal desires had been overwhelmed by someone else. Doubts about due execution that arise solely from speculation are insufficient. That would be too light a counterweight to the evidence of proper execution. [Emphasis in original].

The counterweight sufficient to overcome evidence of proper execution is clear and convincing evidence that the the dominant person in the relationship was in a position to exercise undue influence due to the other’s weakness of mind or body, or due to trust, and it has to be proven by clear and convincing evidence. It’s not necessarily whether the dominant person did or did not exercise dominant influence; rather, the issue is whether he was in a position to do so. If the answer to the inquiry is that there is clear and convincing evidence that the dominant person was indeed in a position to exercise undue influence, the presumption arises, and the burden shifts.

In this case the contestants’ proof fell short because they could only speculate that their father acted against his true wishes, and they had no proof that Earnestine was actually in a position to exercise undue influence. The mere facts that she was domineering and even alienating were not enough.

CLEARLY CONVINCING

May 24, 2012 § Leave a comment

Several chancery matters require proof by clear and convincing evidence.

There are others, I am sure, but you get the point. Muster the necessary quality of proof or fail.

So, what exactly does constititute clear and convincing evidence, anyway? The COA in Hill v. Harper, 18 So.3d 310, 318 (Miss. App. 2005), defined clear and convincing evidence as:

“That weight of proof which produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidnce so clear, direct and weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case. Moran v. Fairley, 919 So.2d 969, 975 ¶24 (Miss. Ct. App. 2005) (quoting Travelhost, Inc. v. Blandford, 68 F.3d 958, 960 (5th Cir. 1995)). ‘Clear and convincing evidence is such a high standard that even the overwhelming weight of the evidence does not rise to the same level.’ Id. (Citing In re C.B., 574 So.2d 1369, 1375 (Miss. 1990).”

 30 Am.Jur.2d, Evidence, §1167, provides this:

“The requirement of “clear and convincing” … evidence does not call for “unanswerable” or “conclusive” evidence. The quality of proof, to be clear and convincing has … been said to be somewhere between the rule in ordinary civil cases and the requirement of criminal procedure — that is, it must be more than a mere preponderance but not beyond a reasonable doubt. It has also been said that the term “clear and convincing” evidence means that the witnesses to a fact must be found to be credible, and that the facts to which they have testified are distinctly remembered and the details thereof narrated exactly and in due order, so as to enable the trier of facts to come to a clear conviction, without hesitancy, of the truth of the weighing, comparing , testing, and judging its worth when considered in connection with all the facts and circumstances in evidence.

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