The Intent of the Testator and Extrinsic Proof

June 3, 2020 § 2 Comments

It is black-letter law in Mississippi that a court called upon to interpret a will is bound by the intent of the testator, and the court is limited to the four corners of the will itself.

But what is the court to do when the will contains a provision such as this:

I have five adult children … to whom I leave in equal shares, property I possess, whether real, personal or mixed (less any debt owing to me by any heir at the time of my death, to come out of that child’s part).

The will included no itemization of any debt, but there had been loans by the decedent to several of the children. How is the estate to prove it except by extrinsic evidence?

That was the conundrum presented to the trial court in a dispute between Sandra Brown and Tracy Walker and the Estate of their mother, Sarah Walker.

The estate filed a complaint for declaratory judgment, and at trial sought to prove the debts by a notarized statement that Sarah Walker had prepared in 2007. It spelled out each child’s debt; Sandra’s was $85,644, and Tracy’s was zero. The chancellor denied the estate’s request to consider evidence outside the will, citing the four-corners principle, and the estate appealed.

In Estate of Walker v. Brown and Walker, decided May 19, 2020, the COA unanimously reversed and remanded. Judge Lawrence wrote the opinion:

¶18. Scott argues that the court erred in denying his request to use extrinsic documentation to determine each child’s debt. In the opinion and judgment, the court stated the following:

The Court declines to find that such document should be considered a part of, or read together with, the Last Will and Testament.

. . . .

Sandra accurately advises the Court that parol evidence cannot be utilized to interpret the testator’s will unless the terms of the will are ambiguous. The Court specifically finds that the will is not ambiguous, and should be construed and interpreted solely by the terms of and on the four corners of the will itself. The written statement of debts ostensibly owed the decedent is merely an allegation by the decedent of debts owed at a particular point in time, which point was almost nine years prior to her death.

The court found that the will was not ambiguous and any evidence concerning potential debts owed to the decedent many years prior to her death was “merely an allegation” of potential debts owed. The court refused to consider the debts owed because they were not listed “within the four corners of the will.” Finally, the court ruled that Scott was not allowed to deduct any debt that was not “contained within the will itself.”

¶19. “Our polestar consideration, as always, is the intent of the testator, the right our law has given each competent adult to direct from the grave the disposition of [her] worldly goods.” Tinnin v. First United Bank of Miss., 502 So. 2d 659, 667 (Miss. 1987). It is well established that “a will speaks at the death of the testator.” Johnson v. Bd. of Trs. Miss. Annual Conference Methodist Church, 492 So. 2d 269, 276 (Miss. 1986); see also Robert A. Weems, Mississippi Practice Series: Wills & Admin. of Estates in Mississippi § 9-4, at 296 (3d ed. 2003). Further, a testator’s will should be enforced so as to avoid clearly unintended consequences. Johnson, 492 So. 2d at 276.

¶20. It is true that “[i]n determining the testator’s intent, in the absence of ambiguity, this Court is limited to the ‘four corners’ of the will itself.” Estate of Blount v. Papps, 611 So. 2d 862, 866 (Miss. 1992). The plain language of the will shows it was clearly Sarah’s intention to have each child’s debt deducted from his or her share. That intent was further evidenced by witness testimony. Sanford testified that Sarah added the debt provision in a revised draft to the original will and her clear intent was for each child to receive as equal share minus any debts owed to Sarah. Scott testified that he and Sarah had conversations about that provision and that he encouraged her to keep track of each child’s debt. Thereafter, Sarah created the July 16, 2007, statement, which neither party disputes she drafted.

¶21. Brown did not testify at the hearings but complains through pleadings that the debts should not be considered since those debts are not within the four corners of the will. That argument is misplaced. Under such a provision, if the testator were required to offset each child’s equal estate with those debts only listed in the will, every loan to a child would necessitate a new will or at least another codicil. In this case, the testator’s intent was clear. The testator wanted each child to receive a total equal share of her property, whether that share was accumulated by loans during the life of the testator or by the will after the death of the testator. Because each child was to receive an equal share, if a child had borrowed money from the testator during her life, those loans would be deducted to ensure each child had an equal share at her death. That clear intent would be subverted if a child could borrow from the testator throughout life and then receive an equal share of what was left of the estate upon the death of the testator. To hold otherwise would allow one child to obtain unfair and unequal parts of the estate to the detriment of the other children’s shares by simply obtaining loans.

¶22. The evidence was not offered to modify the terms of the will. Rather, it was offered to give effect to the clear intent expressed in the will. Therefore, the court should have factually determined if the evidence was credible and sufficient to prove the existence of debts or not and then acted accordingly consistent with the clear and unambiguous terms of the will. After review, we find that the July 16, 2007, statement, the calendar entries, and other documents offered into evidence, as well the testimony of witnesses, were evidence which should have been considered by the chancery court in an effort to determine the potential debt each child may have owed to Sarah. Thus, the chancellor should have considered the credibility and the sufficiency of the evidence offered and made factual findings as to each child’s debt, if any, to Sarah and then give the effect each deserved under the clear language of the will.

So, the process is for the court first to determine the intent of the testator from the four corners of the instrument itself, and then to consider whatever admissible evidence there is that fleshes out the testator’s intent.

In this particular case, though, the debts were outside the statute of limitations. Did that mean that they were uncollectable?

¶23. Brown also argues that any debt she owed as stated in the July 16, 2007, document is more than three years old, and therefore any collection of that debt would be barred by the statute of limitations. See Miss. Code Ann. § 15-1-29 (Rev. 2012). Brown’s argument is misplaced. The estate is not trying to collect any amount from Brown. Rather, the estate is simply trying to deduct that debt from her share of the inheritance.

In conclusion,

¶24. We find that the chancery court should have considered the evidence outside of the will to fulfill Sarah’s clear intent to have each child’s debt deducted from his or her share of the estate upon her death. Accordingly, we reverse the chancery court’s ruling and judgment and remand this case to the chancery court to determine what amount, if any, should be deducted from each child’s share in order to give legal effect to the clear intent of the



No Beneficiary = No Will

April 16, 2015 § 2 Comments

Ramon Regan was residing in a personal care home operated by Swilley. In 2008, Swilley arranged for a notary public to meet with Regan to help him prepare his will. The notary, Beckham, presented Regan with a pre-printed form, which Regan executed, and had properly witnessed. No attorney was involved.

The will specifically spelled out that it was Regan’s intent to make a testamentary disposition of his estate. It also mentioned that he had no surviving wife, and that he had had no children.

What the will failed to spell out, though, was who were to be the beneficiaries of his bounty. There were no specific or residuary beneficiaries named in the will.

After Regan died in 2011, Swilley filed a petition to probate the will. Elsie LeBlanc, Regan’s aunt, was determined to be his sole surviving heir. After Elsie died in 2013, her son Kenneth filed a caveat against probate of Regan’s will.

Kenneth filed a motion to declare Regan’s will invalid due to absence of any beneficiaries. Swilley responded that the document met the requirements of testamentary intent and attestation, and that parol evidence of Regan’s intent should be considered by the court.

The chancellor ruled that he was to look first to the four corners of the document to determine Regan’s intent. Since the document was not susceptible to multiple interpretations, but merely failed to name any beneficiaries, the court refused to consider parol evidence. The judge pointed out that he could not add language to the will, and that the absence of any named beneficiaries left him with nothing to interpret. He ruled that it was invalid to serve as a testamentary instrument. Swilley appealed, complaining that the chancellor erred in ruling the document invalid, and in refusing to consider parol evidence of Regan’s intent.

The COA, in the case of Estate of Regan: June Swilley v. Estate of LeBlanc, decided April 7, 2015, affirmed. Judge Carlton wrote for the unanimous court:

¶15. In the present case, Regan’s “Last Will and Testament” stated the following regarding the disposition of his property: “Upon my death, I want my property distributed as follows: All my estate, this includes monetary and real property.” As in In re Roland, [920 So.2d 539, 541 (Miss.App. 2006)] our review of Regan’s last will and testament reveals that the document contains no ambiguous language or imprecise description of a beneficiary. Instead, as the record reflects, Regan’s purported last will and testament simply failed to devise or bequeath Regan’s property because Regan failed to name or otherwise identify a beneficiary.

¶16. Because Regan’s last will and testament lacks ambiguity, we find that the chancellor correctly refused to allow parol evidence as to Regan’s testamentary intent. As the record reflects, to give effect to Regan’s will, this Court would have to insert a beneficiary’s name where the will completely failed to provide one. Although our precedent establishes that we construe a will in light of the circumstances surrounding the testator at the time he wrote the will, our caselaw also recognizes that “[c]ourts may not amend or reform a [w]ill, neither may courts add to or take from a [w]ill or make a new [w]ill for the parties.” Hemphill v. Robinson, 355 So. 2d 302, 306-07 (Miss. 1978) (citations omitted).

¶17. As reflected in the record, the invalidity of Regan’s purported last will and testament is rooted in the document’s failure to distribute any of Regan’s assets upon his death. Since Regan’s last will and testament failed to devise or bequeath his property to a named beneficiary, and since the document reflects no attempt within its four corners to identify a beneficiary, we affirm the chancellor’s decision declaring the will invalid and his refusal to admit parol evidence.  Accordingly, this assignment of error lacks merit. [Footnote omitted]

Earlier in the opinion, the court noted that MCA 91-1-13 requires that all property, “real and personal, not devised or bequeathed in the last will and testament of any person shall descend and be distributed in the same manner as the estate of an intestate; and the executor or administrator shall administer the same accordingly.”

There is some other authority in the opinion pertaining to parol evidence that you might find useful.

I have had several cases in which someone wanted me to vary the unambiguous terms of the will via parol evidence. The usual situation is that dad had made it abundantly clear to everyone that he was going to change his will, but he died before he got around to it. Their argument is that the will was no longer his testamentary intent. If the document is unambiguous, that parol evidence simply will not vary the written document’s terms.




December 4, 2012 § 1 Comment

In the MSSC decision in Estate of Holmes, decided November 29, 2012, there was a proceeding for solemn probate. The two subscribing witnesses were called to testify, and their testimony established that: they did not know they were witnessing a will; they that the testator did not request that they witness a will; and that they did not satisfy themselves that the testator was of sound and disposing mind when she executed the will. The MSSC reversed the chamncellor’s decision admitting the will, holding that the subscribing witnesses did not satisfy the requirement of “attesting” witnesses.

Justice Dickinson’s opinion states, beginning at ¶ 10:

Mississippi law empowers “[e]very person eighteen (18) years of age or older, being of sound and disposing mind” to make a will which, if not “wholly written and subscribed” by the testator, must be “attested by two (2) or more credible witnesses in the presence of the testator or testatrix [MCA 91-5-1]. The attesting witnesses must meet four requirements: First, the testator must request them to attest the will [Green v. Pearson, 145 Miss. 23, 110 So. 862, 864 (1927)]; second, they must see the testator sign the will [Matter of Jefferson’s Will, 349 So.3d 1032, 1036 (Miss. 1977)]; third, they must know that the document is the testator’s last will and testament [Estate of Griffith v. Griffith, 20 So.2d 1190, 1194 (Miss. 2010)]; and finally, they must satisfy themselves that the testator is of sound and disposing mind and capable of making a will [Matter of Jefferson’s Will, Id.].

¶11. These formalities associated with attesting a will are important, not only as safeguards against fraud by substitution of a different will than the one signed by the testator, but also to make sure a person executing a will is of sound and disposing mind.

And this at ¶ 14: “One may not witness a will in ignorance.”

I would say that most of us who have ever prepared simple wills as a routine matter for clients have not paid heed to the exacting requirements that are imposed on subscribing witnesses by operation of the case law in this area. But, as this case illustrates, it is worth re-examining how you select and instruct your subscribing/attesting witnesses as to their duties, and, more importantly, how you document what it is that they are witnessing. By that latter point, I mean to suggest that you might want to scrutinize that subscribing witness affidavit form that is fossilized in your comouter and which you have been using for more than 35 years, to see whether it is stout enough to pass muster in a trial of this sort, and whether it would help jog the memory of the witness to the extent that the witness’s testimony would be helpful.

Justice Pierce’s dissent raises some good points about the prudence of requiring witnesses, some of whom performed their duties decades before, to have almost perfect recall of the events surrounding the subscription of the document. I know that I have been asked several times to recall events surrounding similar transactions, and I have found my memory murkily general and unhelpful, at best. Imagine a lay person who is not familiar with all of these legalities and their import being asked similar questions.


January 11, 2012 § 18 Comments

MCA § 91-5-35 allows you to admit a will to probate as a muniment of title only (muniment = evidence or writing that enables one to defend title to an estate or a claim to rights or privileges, according to Webster). It’s an effective procedure where the decdent owned only real property in Mississippi, and especially where the decedent was a resident in another state and owned nothing but realty here.  

The statute enables the beneficiaries to dispense with the formalities of probate and have a judgment recorded that preserves the chain of title.

Your client can take advantage of the statute if the decedent died testate owning real property in Mississippi at the time of death, and the will purports to devise the real property.  

But you have to do it right. Here’s what the statute requires:

  • The petition must be signed and sworn to by all beneficiaries named in the will, and by the spouse if not named in the will.
  • The petition must recite that the value of the decedent’s personal estate in Mississippi at the time of death, exclusive of any interest in real property, was less than $10,000, not including exempt property.
  • The petition must recite that all of the known debts of the decedent and estate have been paid, if any, including any estate and income taxes.
  • Any beneficiary under a legal disability must sign the petition by legal guardian or parent. 
  • Since the petition is sworn, and since the statute lays down specific requirements, it is a good idea to include all of the statutory prerequisites (e.g., that the decedent died owning real property in the state of Mississippi, that no estate or income taxes are due, etc.), and to track the language of the statute verbatim. If I were doing it, I would simply draft my petition tracking the statute phrase for phrase.

I have seen lawyers come to grief over their petitions simply because they got creative. One tried to argue with me that this sentence was enough to qualify under the statute: “The only property the decedent owned at the time of death is the real property described herein.” That’s not good enough, in my opinion, because there must be shown in the petition that “The value of the decedent’s personal estate in the state of Mississippi at the time of his or her death, exclusive of any interest in real property, did not exceed … etc.”). Again: I suggest that you simply track verbatim the language of the statute as far as you can.

I have never had to present live testimony beyond the sworn petition to obtain a judgment under the statute, and I do not require it; however, I have heard that some chancellors do require testimony, so you need to find out how your chancellor does it before you set aside time to present your petition.

The statute specifically provides that the procedure does not deprive any interested party of the right to a formal administration of the estate, or to file a will contest. Thus, probate as a muniment is not an effective, shorthand substitute for actual probate of a will. 

Where to file? That should be governed by MCA § 91-7-3.

Caveat: Do not include language in your judgment that adjudicates ownership, heirship or anything of the sort. An adjudication that the petitioners are all of the named beneficiaries in the will, and that the property is admitted to probate as a muniment of title only is all that the statute contemplates.


January 5, 2011 § 5 Comments

Does it ever happen to you that an heir shows up in your office and says something to the effect that “Mom says you kept the original of dad’s will. All we have is this [dogeared, coffee-stained, footprinted] copy,” and hands you a bedraggled handful of papyrus?  Well, if it hasn’t, it will.

Of course, you did not retain the original [for you younger attorneys: NEVER keep the original of your client’s will]. So what will you do with this forlorn sheaf? 

You will probate it. Yes, probate it.  But it’s only a copy, you say; and the original will is required to be produced (See, MCA § 91-7-5, -7 and -31).  True.  But it is possible to probate a lost or destroyed will.

In the case of Estate of Mitchell, 623 So.2d 274, 275 (Miss. 1993), the court said:   

The law regarding admission into probate of a lost will is discussed at length in Warren v. Sidney’s Estate, 183 Miss. 669, 184 So. 806 (1938). Sidney’s Estate sets forth the elements necessary to probate a copy of a lost will are: (1) the proof of the existence of the will; (2) evidence of its loss or destruction; and (3) proof of its contents. Sidney’s Estate, 183 Miss. at 675-76, 184 So. at 807. A fourth element has been added: (4) that the testator did not destroy the will with the intent to revoke it. Robert A. Weems, Wills and Estates § 7-17, p. 216 (1983). This last element, which is most central to this case, arose from the theory that when a will cannot be found following the death of a testator and it can be shown that the testator was the last person in possession of the will, there arises a rebuttable presumption of revocation.

Where a will which cannot be found following the death of the testator is shown to have been in his possession when last seen, the presumption is, in the absence of other evidence, that he destroyed it animo revocandi … 57 Am.Jur., Wills, § 551.  Adams v. Davis, 233 Miss. 228, 237, 102 So.2d 190, 193 (1958); Phinizee v. Alexander, 210 Miss. 196, 200, 49 So.2d 250, 252 (1950); Horner, Probate Prac. & Est. § 79 (4th ed.). This presumption extends to all duplicate copies, even executed duplicates. Adams, 233 Miss. at 237, 102 So.2d at 194; Phinizee, 210 Miss. at 199, 49 So.2d at 252; Horner § 79. 

The proponent of the will must prove each of these elements by clear and convincing evidence. See Estate of Leggett v. Smith, 584 So.2d 400, 403 (Miss.1991); Estate of Willis v. Willis, 207 So.2d 348, 349 (Miss.1968); Adams, 233 Miss. at 237-38, 102 So.2d at 194. (“The intent to revoke must appear clearly and unequivocally.” Sidney’s Estate, 183 Miss. at 676, 184 So. at 807. “The policy of the law requires such contents to be established by the clearest, most convincing and satisfactory proof.” Robert A. Weems, Wills and Estates § 7-17, p. 216 (1983).

Your petition will have to recite on personal knowledge of the petitioner, or supported by affidavits on personal knowledge, all four of the required factors. 

You should probate the lost or destroyed will in solemn form.  To do otherwise gives an unfair advantage to the proponent of the missing document.  Probate in solemn form also seals off the protests of other interested parties and, as a practical matter, takes you directly to the hearing with notice that you will likely wind up in anyway.   

At hearing, you will need to prove your four elements by clear and convincing evidence. 

  • Proving the existence of the will is not usually much of a problem.  You will have that copy, or, if no copy is available, someone with personal knowledge can testify that the will did exist.  MRE 1001-1008 would appear to govern the issue.  As Rule 1008 states, the issue is for the trier of fact to determine.
  • Loss of the will can be proven by testimony that the decedent kept his or her papers in a particular place and that an exhaustive search has not turned it up, or that the cabinet where the will was kept was destroyed by fire, or that it was in a repository that has now vanished. 
  • The “Dead Man’s Statute” has been supplanted by MRE 803(3), so proof of its contents should not be a major obstacle, so long as there is a witness with personal knowledge.
  • And the same hearsay exception would apply to the testator’s destruction or intended revocation.      

An interesting wrinkle appears in an ancient case, Vining v. Hall, 40 Miss. 83 (Miss. Err. & App. 1866), that is still good law.  In Vining, there was conflicting and inconclusive testimony about the contents of the lost or destroyed will, but no disagreement that it included a revocation clause expressly revoking all prior wills.  The court held that the revocation clause was effective despite the fact that the dispositive terms of the will could not be determined.  See, Weems, Wills and Administration of Estates in Mississippi, Third Ed., § 7.15.


June 30, 2010 § 2 Comments

[This outline is based on the 15th Chancery Court District Newsletter published by Chancellor Ed Patten]

Admission of will to probate:

  • Original will must be presented and filed, if available.
  • Petition must have copy of the will attached.  Uniform Chancery Court Rule 6.15.
  • Will must be proven by at least one subscribing witness, usually through affidavit attached to self-proving will, or by proof of will executed later.  §91-7-7, MCA.


  • Will may not be probated in common form if there is a previously-filed written objection to probate.  §91-7-21, MCA.

Executor appointed and Letters Testamentary Granted:

  • Court appoints executor named in the will, if appropriate.
  • Executor must be over 18 years of age, of sound mind, and not a convict of felony.
  • If no person qualifies or agrees to act as executor, court may appoint one.  §§91-7-35 and 91-7-39.

Oath and Bond:

  • At the time that Letters Testamentary are granted, executor must take and subscribe the oath set out in §91-7-41, MCA.
  • At the time that the executor takes the oath, the executor must also post bond equal to the full value of the estate, unless bond is waived by the terms of the will.  Even so, the court has authority to require a bond.  §91-7-41, MCA.

Notice to Creditors:

Executor has the responsibility to give notice to creditors in the prescribed form and in the proper order set out in §91-7-145, MCA, as follows:

  • Executor to make reasonable effort to identify creditors having a claim against the estate and to mail them actual notice of the 90-day time period in which to file a claim.
  • Executor must file an affidavit of known creditors and attest to having served actual notice on them.
  • Executor must publish notice in newspaper publsihed in the county informing creditors that they have 90 days in which to file a claim against the estate; publication to run 3 times, once per week for 3 consecutive weeks.
  • Executor is required to file proof of newspaper publication in the court file.
  • Publication may be waived by the court in very small estates having value not more than $500.

Inventory and Appraisal:

  • If not specifically waived in the will, the executor is required to complete and file inventory and appraisal within 90 days from the grant of Letters Testamentary.  §91-7-45, MCA.
  • The court may require inventory and appraisal eben if waived in the will.

Interim Hearings:

  • Held as necessary to resolve interlocutory conflicts between the parties.


  • Accountings are required annually and upon closing the estate. 
  • All parties may agree to waive final accounting, and by custom also annual accountings.

Petition to Close Estate and Discharge Executor:

  •  Final account must be filed with petition to close unless excused by the court.
  • All parties in interest must be summoned to hearing on final account and petition to close.  §91-7-295, MCA.
  • Any party may enter an appearance by consent and waiver.
  • If approved, the court enters its final judgment for final distribution of any property remaining in the executor’s care.  §91-7-297, MCA.

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