The Will Contest and Summary Judgment

November 21, 2018 § Leave a comment

Every will contestant has the right to a trial by jury if desired.

Milt Burris had filed a will contest raising issues of testamentary capacity and undue influence regarding the will of his father, Eddie Burris. The chancellor granted summary judgment in favor of Renee Sims Burris, and Milt appealed, arguing that it was error for the chancellor to adjudicate facts rather than letting a jury decide them.

In Burris v. Estate of Burris et al., the COA affirmed on September 25, 2018. Judge Irving wrote the court’s opinion:

¶7. The Mississippi Supreme Court in In re Launius, 507 So. 2d at 29-30, explained the burden of the contestant of a will facing a motion for summary judgment as follows:

Appellees, as proponents of the will, have the burden of proving the will throughout. They meet this burden by showing the will was duly executed and admitted to probate. When the will is admitted to probate, proponents put on prima facie evidence that the testator had testamentary capacity and further that no undue influence was placed upon him. The burden of going forward then shifts to contestant, who must overcome the presumption raised by proponents that testator had testamentary capacity, (and, therefore, that the testator’s execution of the will was a free and voluntary act). When the Mississippi Rules of Civil Procedure come into play within a situation involving a contest to [a] will, where movants for summary judgment (appellees) have shown there is no genuine issue of material fact vis-a-vis probate of the will, contestant, as the adverse party, may not rest upon the mere allegations of denials of his pleadings, but his response, by affidavits or as
otherwise provided in this Rule, must set forth specific facts showing that there is a genuine issue for trial. M.R.C.P. 56(e).

(Citations and internal quotation marks omitted).

¶8. With this in mind, Milt argues that there existed genuine issues of material fact as to his father’s testamentary capacity and the presence of undue influence by Renee to defeat the summary judgment motion and continue the case to trial.

The court went on to analyze the trial court’s findings of fact on the issues of testamentary capacity and undue influence, finding no error, and returned to consideration of the chancellor’s role as finder of fact vs. that of a jury in a summary judgment proceeding:

¶16. The record supports Renee’s assessment of the proceedings in the chancery court. While Milt is correct in his assertion that it is improper for a chancellor in a will contest to adjudicate facts unless the parties have agreed to dispense with a jury, he fails to fully appreciate that there must be genuine issues of material facts to be determined by a jury and that after Renee moved for summary judgment, with supporting affidavits, showing no genuine issue of material fact on the issues of testamentary capacity and undue influence, he could not rest on his general allegations and suppositions regarding his father’s relationship with Renee and his father’s mental health. He, as the contestant of Eddie’s will, was required to bring forth an affidavit or affidavits demonstrating “sufficient evidence to establish the essential elements of [his] case on which [he] would bear the burden of proof at trial.” Karpinsky v. American Nat. Ins. Co., 109 So. 3d 84, 90 (¶17) (Miss. 2013). Our perusal of the record indicates that he did not come close to meeting his burden. [Emphasis added]

¶17. Milt offered no evidence to substantiate his claims at the trial level and does not do so here. The will was created three years prior to Eddie’s death, and there is no indication in the record that he lacked the testamentary capacity to create it or that he suffered undue influence from Renee. We hold that the chancellor’s findings on this issue are supported by substantial evidence. Therefore, the judgment of the Chancery Court of Amite County is AFFIRMED.

A couple of observations:

  • Yet another case to hammer home the point that, when the other side files affidavits in a summary judgment proceeding, you must file counter-affidavits or risk an adverse ruling.
  • I wonder about that statement that the chancellor may not adjudicate facts, ” … unless the parties have agreed to dispense with a jury … .” That statement seems to contradict MCA 91-7-19, which states that, “At the request of either party [to a proceeding to admit a will to probate] an issue shall be made up and tried by a jury as to whether or not the writing propounded be the will of the alleged testator.” [My emphasis] The court’s language is that the chancellor may not adjudicate the case unless the parties waive trial by jury. The statute requires a request, meaning that the default setting is a bench trial.

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.

In Terrorem Now has an Exception

September 4, 2014 § 5 Comments

In terrorem clauses, as you will recall dimly from law school, are provisions in wills and trusts that prohibit any beneficiary who contests the instrument from taking anything through it, in effect creating a forfeiture. They are designed to be a potent deterrent to litigation among the beneficiaries.

Mississippi has long adhered to the rule that, unless a particular provision is contrary to law, a testator or settlor is allowed to make any provisions for disposition of his property that he sees fit to make, including in terrorem clauses.

Here is a specimen in terrorem clause from a will:

If any beneficiary hereunder (including, but not limited to, any beneficiary of a trust created herein) shall contest the probate or validity of this Will or any provision thereof, or shall institute or join in (except as a party defendant) any proceeding to contest the validity of this Will or to prevent any provision thereof from being carried out in accordance with its terms (regardless of whether or not such proceedings are instituted in good faith and with probable cause), then all benefits provided for such beneficiary are revoked and such benefits shall pass to the residuary beneficiaries of this Will. . . .

That language was the subject of litigation in the MSSC case of Parker v. Benoist, decided by the MSSC on August 28, 2014.

William Benoist had admitted the 2010 will of his father, B.D. Benoist, to probate. It included the in terrorem language set out above. William’s sister, Bronwyn, who was a co-fiduciary with William over some of their father’s assets, filed a will contest charging undue influence, and asking the court for an accounting, to void any benefits William received as a result of his undue influence, and for equitable relief.

Following a trial, the jury returned a verdict that, although there was evidence of a confidential relationship, there was no evidence of undue influence. The chancellor then ruled that the in terrorem clause was valid and enforceable, and that, as a result, Bronwyn took nothing under the will. Bronwyn appealed.

In a case of first impression, the MSSC reversed the chancellor’s enforcement of the in terrorem clause. This language is from ¶ 1:

In this appeal, we must determine whether Mississippi law should recognize a good faith and probable cause exception to a forfeiture in terrorem clause in a will. We hold that it should, and that Bronwyn has sufficiently shown that her suit was brought in good faith and was founded upon probable cause.

At ¶ 8, the court, in an opinion written by Justice Kitchens, said that “We hold that such a provision is unconstitutional under Mississippi’s Constitution, void as against public policy, and fundamentally inequitable, and we join the large number of jurisdictions who permit a good faith and probable cause exception to forfeiture clauses in wills.”

The opinion goes on to say that such clauses frustrate the fundamental purpose of courts, which is to detemine the truth and to decide whether or not a will is valid, contrary to the Mississippi Constitution’s guarantee of the right of access to the courts. Although forfeiture provisions may serve the useful purpose of discouraging and punishing persons from seeking unjustified enrichment and corecive settlements, they go too far when they deprive the court of its duty to determine the validity of a donative transfer. The solution is to allow a good faith and probable cause exception. This is what the court said at ¶ 14:

… The will of the testator should control, but courts exist to determine whether the testator’s will is a valid reflection of the testator’s wishes. Black’s Law Dictionary defines “probate” as a “[c]ourt procedure by which a will is proved to be valid or invalid. . . .” Black’s Law Dictionary 1081 (5th ed. 1979). By definition, probating a will is proving that it is valid. This must occur through litigation. A strict interpretation of no-contest provisions in wills would hamper courts’ goal of determining what is, once and for all, the will of the testator. A bona fide inquiry into the validity of the will should not be defeated by language contained in the will itself.  We hold that, in Mississippi, forfeiture provisions in wills are enforceable unless a contest is brought in good faith and based on probable cause. “Probable cause exists when, at the time of instituting the proceeding, there was evidence that would lead a reasonable person, properly informed and advised, to conclude that there was a substantial likelihood that the challenge would be successful.” Restatement (Third) of Property: Wills and Other Donative Transfers at § 8.5 cmt. c. The determination of good faith and probable cause should be inferred from the totality of the circumstances. [Emphasis added] 

The bottom line in this case is that, although in terrorem clauses can still be used in wills and trusts, they may now be overcome and adjudged unenforceable if subjected to challenges found to be made in good faith and based on probable cause. And the right to have a court scrutinize the validity of the will can not be thwarted by the language of the will. These are important points of law on which to advise your clients when drafting donative instruments.

In this case, the court found that Bronwyn did have probable cause because: she understood her parents’ previous intentions from prior wills and discussions she had had with them; the 2010 will was unknown to her and contradicted her prior understanding; her father had been in failing health complicated by alcoholism and use of pain killers around the wtime he executed the 2010 will; he was taking medication for cognition problems; large withdrawals were made from his accounts that went directly to William; and he conveyed large tracts of real estate to William around the time of making the 2010 will. The 2010 circumstances occurred while B.D. was in William’s care. There was no evidence of bad faith on Bronwyn’s part in bringing her suit.

By the way, I got a thrill out of ¶ 12 of the court’s opinion, where Justice Kitchens invokes maxims of equity and actually quotes from Griffith’s Mississippi Chancery Practice.

There are some other interesting aspects to this case, including: the award of attorney’s fees from the estate to defend the will; the denial of an award of attorney’s fees against Bronwyn; and whether William should have been disqualified and removed as executor. Each of those deserves its own, separate post. Until then, you can read the court’s opinion for yourself.

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.

ANATOMY OF A WILL CONTEST: PROVING LACK OF TESTAMENTARY CAPACITY

September 14, 2010 § 6 Comments

Before the contestants in a will contest may proceed, the proponents of the will must first establish their position that the will is valid.

In Estate of Holmes, 961 So.2d 674, 679 (Miss. 2007), the Mississippi Supreme Court stated:

The proponents of the will meet their burden of proof by the offering and receipt of the will into evidence and the record of probate. [Citation omitted] The proponents make a prima facie case solely on this proof. Id. The burden then shifts to the contestants to overcome the prima facie case, but the burden of proof remains with the proponents to show by a preponderance of the evidence that the testator had capacity. Id.

The proponents typically make a prima facie case by admitting into evidence the will, the witness affidavits, the order granting letters testamentary, and the letters testamentary.

In order to determine testamentary capacity, the trial court must consider three factors:

  1. Whether the testator had the ability at the time of making his will to understand the nature and effect of his acts.
  2. Whether the testator had the ability at the time of making his will to understand the natural objects or persons to receive his bounty and their relation to him; and
  3. Whether the testator was capable of determining at the time of making the will what disposition he desired to make of his property.  Estate of Holmes, Id.

“In considering all the evidence, some testimony will receive greater weight. The testimony of subscribing witnesses receives greater weight than the testimony of witnesses who were not present at the will’s execution … The date of execution is the most important date, given that we recognize that a testator may not possess capacity one day and within several days have the capacity to execute a valid will.”  Rocco v. Sims, 918 So.2d 864, 871-872 (Miss. App. 2005).

The same capacity that is required to make a valid deed is required the for making a valid will.  Whitworth v. Kines, 604 So.2d 225, 228 (Miss. 1992).   Since the party seeking to set aside a deed must prove by clear and convincing evidence that the grantor lacked mental capacity at the time of execution, and not simply that the grantor suffered general weakness.  In re Conservatorship of Cook, 937 So.2d 467, 470 (Miss. App. 2006), it would follow that the same standard of proof would apply to a case in which the party seeks to set aside a will on the same basis. 

 

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