Wills & EstatesProfessor Robert Weems

Fall 2003

I. Intestate Succession

A: Joint Tenancies with a Right of Survivorship

Generally: Property that is distributed under the law of intestate succession is the kind in which the deceased person owned an inheritable interest but 1) the person did not leave a will, or 2) his will did not cover a certain piece of property is covered by the law of intestate succession. The only property which has caused litigation in this area is jointly-held property.

Jointly-held property: There are two kinds (the latter to which the law of intestate succession does not apply):

o Tenancy in common : If A and B own a tenancy in common, each owns a one-half interest in the property. If one dies and does not have a will, it will be inherited pursuant to the law of intestate succession.

o Joint tenancy with right of survivorship : If a decedent creates a joint bank account with the right of survivorship, the funds in the account at the death of the decedent belong to the survivor and not to the decedent’s heirs at law. This is so because the decedent owned no inheritable interest in the property.

Cooper v. Crabb: When property is clearly owned in a joint tenancy with right of survivorship, parol evidence will not be allowed to supplement the documents which make that clear.1

Life insurance proceeds: Unless the estate is the beneficiary, a life insurance policy will go to the named beneficiary.

In re Strange: A testator cannot defeat a joint tenancy with right of survivorship, even with will.

B: Intestate Succession of Real and Personal Property

Generallyo CL Rule : The intestate succession of real property was governed by the law of the state

or nation where the land was located, but the intestate succession of personal property was governed by the law of the decedent’s domicile.

o MS Rule : (MS § 91-1-1) Personal property located in MS will be inherited pursuant to the law of MS, no matter where the owner lived.

o Side effect : Ancillary administrations have been done away with in MS. An out of state party has to open up an original administration here in MS to get property that is covered by our law.

C. When Heirs are Determined

MS Rule: Whoever is in the inheritable class at the moment of death will inherit as long as they are “in being,” i.e. they must be alive.2

1 ? There must be language in documents (e.g. safety deposit box documents, account documents) that there was a joint tenancy with a right of survivorship.2 ? If the heir dies before they actually get the property, the property is a vested asset of their estate anyway as long as they were alive when the decedent died.

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Harper v. Archer: Under the afterborn heir (posthumous heir) rule, a person is “in being” for the purposes of inheritance from the moment of their conception.

Uniform Simultaneous Death Acto If a husband and wife die in a car wreck and it can be shown by a preponderance of the

evidence that she lived one minute longer than him, she will inherit everything he owned. o But if it is unprovable who survived whom, neither one inherits the other’s property, and it

will be inherited by survivors of both spouses as if the other spouse had died before the accident took place.

Right of representation: When a person has a right of representation, if that person’s parent would have inherited property had the parent been alive at the crucial time, but in fact the parent was not alive at that time, then that person and his siblings will inherit what their parent would have inherited had the parent been alive.

o MS law gives the right of representation to: Descendants of the person who died, as well as Descendants of the dead person’s siblings

o Dunaway v. McEachern: The right of representation does not go to spouses of a deceased intended-beneficiary, only descendants.3

o Rodgers v. Rodgers: MS goes to somewhat of an extreme in enforcing this principle. Facts : Lady died, and her two sons had died. Son A died with two children; the

other died with four children. So son A’s kids split their dad’s half two ways, and the other four ways. One group argued “we’re all grandchildren and we deserve an equal cut of the inheritance.”

Holding : MS splits the inheritance by parent when children assert the right of representation.4

Relatives by consanguinity fall into two groups:o Lineal : Divided into two groups . . .

Ancestors: If they had not lived, the decedent wouldn’t have lived. Descendants: If the decedent hadn’t lived, these people wouldn’t have lived.

o Collateral : Brothers, sisters, uncles, aunts, nieces, nephews, cousins, etc. (relatives who are not lineals).5

Right of inheritance of relatives (§91-1-3)o Four groups of inheritants : In MS, if a person dies without a will, the property will be

inherited by . . . Group I : Decedent’s children and the descendants of children who died before

the decedent died.6

One share is allotted for the decedent’s surviving spouse, if there is one. One share of the decedent’s estate is allotted for each of his children

who are “in being” at the time of his death. One share is allotted for each of his kids who died before he did but have

left descendants of their own (the share is divided up per stirpes).

3 ? It wouldn’t extend to John Paul’s wife if he and my sister were both dead; it would either go to his kids or, if he didn’t have any, his share would go to AnneRiley and Dawson and their descendants.4 ? Most jurisdictions would say that where all of the inheritors are in the same class, you use a per capita inheritance.5 ? These are not lineal relatives because their existence did not depend upon the decedent’s existence, nor did his existence depend upon theirs.6 ? Although not blood relatives, the decedent’s surviving spouse and adopted children are also placed in this most preferred group. This is based on § 91-1-7, which makes the surviving spouse the equivalent of a child as far as inheritance rights are concerned. See page eight for a good example of this.

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Group II : Decedent’s father, mother, brothers, sisters, and descendants of brothers and sisters who died before the decedent died. This group is only considered when there’s no one in group one.

One share is allotted to each parent, brother, and sister who was in being when the decedent died.

One share is allotted for each of his siblings who died before he did but left descendants of their own (the share is divided up per stirpes).

Group III : Decedent’s grandparents and uncles and aunts. This group is only considered when there is no one in groups two or three.

One share is allotted for each grandparent, uncle and aunt, per capita, who is in being when the decedent dies.

No share is allotted for an uncle or aunt who dies before the decedent does, even if survived by descendants, because the right of representation does not extend to cousins.

Group IV : Decedent’s relatives of the highest degree as computed by the rule of civil law.

Half-bloodso General rule : A half-blood in groups two or three is no less a relative than a full-blood in

the same category. o Exceptions :

A half-blood will not inherit if the decedent was survived by a full-blood relative of the same degree.

The half-blood will not inherit if the decedent was survived by a relative whose inheritance position is equal to that of a full-blood relative of the same degree.7

The half-blood’s inheritance may be defeated by the operation of the principle of representation.8

o Half-blood nephews/nieces v. full-blood cousins : Half-blood nephews and nieces take to the exclusion of full-blood first cousins.

Adoptionso Majority rule : The majority position with regard to adoptions is that an adoption is like a

divorce as far as the natural family is concerned. They cannot inherit from him. The adopted child’s right to inherit is the same as natural children of the adoptive parents.

o MS Rule (MS § 93-17-13) : Right of adopted child to inherit from his adoptive family:

The adopted child is given the right to inherit: o (1) from and through (right of representation) the adoptive

parents, and o (2) from the other children of the adoptive parents just as if they

were all full-blooded siblings (but not other relatives). Rights of new family to inherit from adopted child: The adoptive parents and their

other children (not other relatives) are given the right to inherit from the adopted child just as if the adopted child were the adoptive parents’ natural child.

Right of adopted child to inherit from natural family: The right that the child had to inherit prior to the adoption remains intact.9

Right of natural family to inherit from adopted child: The right of natural family and their kindred to inherit from the adopted child has been totally extinguished.

Non-marital children (NMC’s)7 ? E.g. the decedent’s father or mother will inherit to the total exclusion of a half-blood brother.8 ? E.g. the children of a full-blooded sibling take precedence over a half-blood sibling.9 ? Even though the statute is silent, the maxim applies which holds that “statutes which are in derogation of Common Law must be strictly construed.” Still, the child very often does not know who the natural family members are.

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o Common law : The history of NMC’s was that they could not inherit from anyone other than their spouses or children.10

o Mississippi law : In 1980 in MS, the big change was that a paternity suit could be brought to determine heirship rights after the death of the alleged father.11

Suits to determine heirship and NMC’so Generally : A suit to determine heirship permits someone who has reason to have a court

adjudication to determine who the heirs of the deceased person are. o SOL for NMCs to bring heirship suit :

Once an estate is opened up, one of the first things that the personal representative has to do is to publish notice to creditors.

Creditors have 90 days from that time to probate that claim. The legislature has required the NMC to do the same thing (that is a very short statute of limitations).

o Judicial legislation on behalf of NMCs : The MS Supreme Court threw in a little judicial legislation. It has said that there

is an obligation on the part of the personal representative to look out for the interests of the heirs at law and creditors.

In effect, if the personal representative knows or should know that there are people out there who claim to be or of whom it is said is an NMC of the deceased person, then it is the obligation of the personal representative to give legal notice to the NMC of the requirement to bring a suit to determine heirship.

Heirs of NMC’so Context : There are a number of cases where the child has been killed and there is a

wrongful death action against the other driver and there was a settlement with the estate of the NMC that was killed. The father of the child is oftentimes standing there wanting to inherit from the child.

o Rule : The father or the father’s kindred may not inherit from an NMC unless the father openly treated the child as his and did not fail or refuse to support the child during the child’s lifetime.

Heirs of non-marital parents: An NMC cannot inherit property from his biological father if the child dies before having his own Group I heirs.

In-laws: In-laws simply have no right to inherit by intestate succession.

Non-resident alienso General rule : Nonresident aliens generally may not acquire and hold Mississippi land by

intestate succession or by will, subject to several exceptions. Nonresident aliens may inherit personal property without restriction.

o MS Stat 89-1-23 : There is an exception for residents of Syria or Lebanon. Persons who were or are United States citizens and became an alien by reason

of marriage are excepted. Treaties of the United States and the nonresident alien’s country supercede

Mississippi law, and a treaty between the two countries may permit the alien to own land in Mississippi under certain circumstances (De Tenorio).

Escheat: If there’s no one to inherit the property, the property goes to the state. That rarely happens.

10 ? In the 19th Century, the law changed so that a child could inherit from his mother and her kindred (the policy reason was based on provability of paternity). If the father and mother got married and the dad acknowledged the child, the child could inherit.11 ? The burden in these cases is proof beyond a reasonable doubt.

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Advancementso Children who have not received an advancement on their intestate inheritance may tell

the chancellor that during the lifetime of the parent, he or she made inter vivos advancements to other kids and that the parent had intended for these to be advancements on their inheritance.

o If the court believes the child, the court will tell the kid who got the advancement to bring the value of the gifts into court (into hotchpot), or they will not get any of the remaining inheritance.12 Then the estate can be split evenly based on its true value.

Losing the inheritanceo Willfully causing death of decedent :

A person who willfully causes or procures the death of another will not inherit from the decedent.13

The property will be inherited as if the killer had predeceased the course of action. Therefore, the children of the killer may have the right of representation.

o Spousal misconduct : A spouse can, if there’s misconduct which manifests a total abandonment of the marriage, forfeit the right to inherit.14

Contracts - release of expectancyo A person can contract away the right to inheritance he has under this area of the law if:

The parties are competent. It is clear that the right of inheritance is being contracted away. The compensation is adequate for the contract.

o Marital contracts : Courts look especially hard at the contracts between husbands and wives. If it appears to be terribly one-sided, the court will label it unconscionable.

o Children : A child may contract away his right to inherit from his parent. Such releases of expectancy, if valid, bind the releaser and his descendants who could have claimed through him.

Loss of right to inherit - assignment of expectancy o Issue : In an assignment of expectancy, are the people who would inherit through the

assignor bound by the contract of the assignor?o Holding : In an assignment of expectancy, the people who would inherit through the

assignor are not bound by the assignor’s contract signing away his expectancy. o Effect of competently-made will : Note that if the decedent is competent to make a will, it

supercedes any assignment, making an assignment worthless.

Disclaimer of inheritanceo Common law : In order for a gift to be valid, it must be accepted. At common law, the law

of intestate succession would not allow someone to refuse the gift. o Context : The desire to refuse a gift comes up in two situations . . .

1) A person does not want to pay the estate tax, 2) The person is hopelessly in debt and the creditors will get the inheritance the

moment the property comes in. o Uniform Disclaimer of Property Interest Act (§89-21) : A person who has inherited by way

of intestate succession may disclaim that interest, in whole or in part, by filing a disclaimer to that effect with the chancery clerk.

12 ? If the parent already gave the kid way more than they could ever get from intestate succession, then the kid will just not bring the estate into court. 13 ? The same rule applies to insurance policies. The MS Supreme Court has indicated that it would hold the same thing in a joint tenancy with right of survivorship.14 ? Repeated acts of adultery are not sufficient. A bigamous “common law” marriage (even though common law marriage is no longer recognized in Mississippi) would constitute an act of abandonment.

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Intestate succession - exempt propertyo Generally : There is some property which the law cannot seize by process of execution in

order to pay debts.

Suits to determine heirshipo Anyone with a legitimate interest in needing to know who the heirs to an estate are by

name may obtain that information.o People almost never institute suit to determine heirship, because the family almost

always believes that they know who the heirs are.

II. Administration of Intestate Estate

Three purposes of an administration:o Provides a process whereby the property of the deceased person can be accumulated.o Provides a procedure whereby the net estate will be distributed to those who deserve it.o Provides a method whereby creditors will be identified and paid (most important).

Appointment of administrator (personal representative) - jurisdiction and venue: o Generally : This is the process by which the property of the intestate decedent actually

gets into the hands and becomes the property of the heirs at law. o Jurisdiction : In MS, the chancery courts have jurisdiction over administration of estates.o Venue : Proper venue is in the county of the decedent’s residence. If decedent did not

reside in any MS county, venue is proper . . . In the county where he died, or Where some or all of his personal property is located.

o The process : Petition : Person goes to the appropriate chancery court and files a petition asking

for a letter of administration to issue. Letter of administration : Document which sets out that the person to

whom this document is issued by the court has the authority to deal with all personal property having to do with the decedent.

Who is entitled to it : First, the surviving spouse; next, the heirs (the people who would inherit the property or part of it); otherwise, a bank or trust company can do it.15

Posting bond : Before the letters issue by the clerk, the person has to take an oath and post a bond promising to faithfully discharge all duties required by law.16

If the personal representative intentionally or negligently causes a loss to the estate, then the administrator is liable to the heirs.17

Paying debts : The only property that the personal rep is concerned with is personal property, which is used to pay debts and expenses of administration.18

15 ? If no one comes forward within 30 days to open the estate, the court can grant letters of administration to any suitable person.16 ? A bond basically says “I, American National Insurance, promise to pay up to $____ of the bond to anyone to whom damage is caused by the wrongdoing of the principle (the administrator).” The purpose of the bond is to give anyone who suffers financial loss as a result of the wrongdoing of the administrator in the management of the estate a source of recovery other than the administrator’s resources.17 ? The bond gives the heirs or creditors someone to look to besides the administrator if he does not have the money and he has blown their inheritance.18 ? The personal representative will have to deal with the real property of the deceased person only when the personal property is not enough to pay all creditors.

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Inventory and appraisement: After the estate is opened up, three appraisers must come and find what property the deceased person owned. The administrator will give a detailed inventory and give it to the appraisers.

Setting aside exempt personal property: Some kinds of personal property are exempt from seizure under execution or attachment. This property is simply not part of the estate. Items included are:

o Tangible personal property worth less than $10,000o A part of wages earnedo $50,000 life insurance policy on the life of a decedent payable to the administrator of the

estate. o The homestead is exempt in MS up to a value of $75,000.19 o Where there are no unpaid creditors, the dollar limitation on the homestead exemption is

immaterial.20

Support for one year: The personal representative must pay to the surviving spouse and dependent kids enough money to enable them to live for one full year.

Attorney of personal rep: If the personal representative is not an attorney, he must get one. The attorney is the attorney for the personal representative, not for the estate.21

Removal of personal representativeo Misconduct : Once properly appointed, an administrator may generally not be removed

without proof of misconduct in the management of the estate.22 o Other reasons : If a person in a superior office to the current administrator applies for the

position of administrator, the court may replace the administrator in that case.

Process for identifying and paying creditorso Notice : The administrator must . . .

Make reasonably diligent efforts to identify persons having claims against the estate, 23 and

Must mail to the identified persons a notice informing them that the failure to have their claim probated and registered by the clerk within 90 days from the first publication of the notice to creditors will bar their claim.

o Affidavit : Then you must file an affidavit saying you have complied with the diligent efforts requirement.

o Publishing notice : Then the administrator must publish notice once a week for three consecutive weeks in “some newspaper in the county.” The creditor has 90 days from the first publication to respond.

If these things are not done, the 90-day period will not run against the creditor. If these things are done and the 90-day period runs, the creditor may not probate

a claim against the estate.

19 ? If a person in MS has a $300,000 home, the law says that the judgment debtor ought not to be able to keep the creditor from getting part of the home. He would execute a sale of the home, auction it, and then give the judgment debtor the first $75,000. Keep in mind that if the deceased person dies and is survived by Group I people, the homestead is free from creditors’ claims of up to $75,000. If the owner who dies intestate is survived by Group II or III, the homestead is not protected from claims of creditors.20 ? I.e. just because acreage makes the homestead worth more than $75,000 doesn’t mean that a surviving spouse should get any less of his or her intestate inheritance.21 ? Although the personal rep may agree to pay a certain amount to the attorney, the court ultimately decides what a reasonable fee is after considering the totality of the circumstances surrounding his service. It is preferable to have the court fix a reasonable fee first and then pay the fee allowed.22 ? However, before the administrator is removed, he must first be given notice.23 ? “Due diligence” means you must at least check the mail for bills, talk to members of the family, etc.

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o What kind of claims must/must not be probated : Ex contractu liquidated types of claims (open accounts, bank loans, judgments, general indebtedness, alimony, etc.) must be probated even if they are not yet due.24 Tort claims don’t have to be probated.

How probated : It’s probated by the creditor who goes down to the chancery clerk’s office and presents two things . . .

1) Written evidence of the debt (e.g. a note, judgment, or itemized account)

2) An affidavit that says that the statement of the claim is correct and the money is due from the deceased person.

Failure to probate : If the creditor gets a letter and doesn’t probate the claim within 90 days, the claim is barred.

o Payment of claims : The administrator has no authority to pay a claim until it has been properly

probated. The administrator should not pay a claim unless he is certain that it truly is due

and owing. The fact that a claim has been probated is not an adjudication of that fact.

If there appears to be even a remote chance of insolvency, the administrator should not pay any claims until the end of the 90-day period.

The personal representative is not supposed to pay claims unless they have been probated properly in “substantial compliance with the statute.”25

o Amendment : After the 90-day period has expired, the creditor may amend his probate claim as long as he has the prior approval of the court.

Alimony: An obligation on an estate’s behalf to pay alimony is terminated upon death unless the party has expressly agreed to continue payments until the death or remarriage of the surviving spouse.

Townsend: If the personal representative probates a claim pursuant to the wishes of some, but not all, of the heirs, only the heirs who were present will be bound by the agreement.26

Contest of claimso A probated claim may be contested by the administrator, an heir, or a creditor.27 If the

personal representative does not believe that the payment is due on a probated claim, he must not pay it and should contest the probated claim.

o Regardless of who institutes the claim, the burden is on the claimant to prove the claim is valid.28

Secured claimso If a bank loans a party money and takes a security interest in the property and the party

dies, the bank does not have to probate the claim (but it probably should). The secured creditor can simply go get the property that the decedent used the bank’s money to buy.

o If the bank, without probating the claim in the 90-day period, goes and gets the property and sells it and that doesn’t cover the amount that has not been paid back to the bank by the decedent, the bank will lose the money that has not been paid.

24 ? This is sometimes best accomplished by reducing the figure to present value and pay based on the life expectancy of the one to whom the debt is owed. 25 ? The law has gotten more lenient with what constitutes “substantial compliance,” but it definitely means that if the claimant’s affidavit does not conform to the statute in any particular way and where there’s no evidence of the debt attached, the probate will be held to be invalid.26 ? I.e. if the personal rep paid improperly probated claims, the personal rep will only be liable to the absent heirs.27 ? A creditor may only contest a probated claim if the claim would render the estate insolvent28 ? Be aware that just because a creditor probated and registered the claim with the clerk does not constitute prima facie evidence that the claim is valid.

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Claims for services rendered (quantum meruit)o A party may probate a claim for quantum meruit if the court concludes that a reasonable

person would not have expected that the person would have done work without payment.29

o The claim must be probated within 90 days, proving that the agreement had been made, that the claimant was to be paid, and that he had not been paid.

Claims against the estate - statute of limitations o If the limitations period pertaining to a creditor’s claim expired prior to the decedent’s

death, then it may not be recovered against the estate, regardless of any act or promise of the administrator.

o The death of the decedent (the one the claim is against) does not interrupt the running of the SOL.

Exception: If the decedent dies in the last year of the SOL, it is extended so as to expire one year from the date of the decedent’s death.

o The appointment of an administrator tolls the SOL for an extra 90 days. o Upon publication of notice to creditors, all probatable claims must be probated within 90

days of the date of first publication.

Creditor’s action to compel payment of probated claimo Even though a claim may have been properly probated by a creditor, it does not legally

entitle him to the money. o If the administrator fails to pay an alleged debt, the creditor will have to take judicial

action to compel payment. o Actions to compel payments of claims must be brought within four years (and 90 days) of

the qualification of the administrator, even though the claim has been duly probated.30

Taxes o Previous tax rule : Previously, MS treated taxes like any other debt (except the

government did not have to probate it). Therefore, taxes had to be paid out of the estate before the money was distributed to the heirs.

o Uniform Estate Tax Apportionment Act : Provides that federal and state estate taxes must be apportioned among all persons interested in the estate in the proportion that the value of the interest of each person bears to the total value of the estate (unless the decedent has a will and it provides otherwise).

o Translation : If you inherit ¼ of the value of the estate, you’re going to have to pay ¼ of the estate taxes.

Personal injury actions against estateo Old rule : At common law, tort actions permanently abated upon the death of either the

injured person or the injuring person. o Today’s rule : Personal actions survive the decedent (with the exception of libel and

slander and actions to recover punitive damages).31 What our court has defined as a “personal action”:

Suit to recover personal property Action for contractual damages (Powell). Injury to person or property

o Reviving or bringing a claim :

29 ? A party is allowed to file a claim for services rendered (quantum meruit) even if he cannot bring a claim for contract to make a will because there was no written contract and SOF principles bar evidence of the contract.30 ? The reason for this is that administrators may not be sued for 90 days after taking office, and there is a four-year statute of limitations for actions against administrators.31 ? The plaintiff just sues the administrator.

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Tort claims cannot be probated and are not affected by the 90-day period. They are governed by the four-year SOL.

Other statutes of limitations applicable to claims against estates in general apply to tort claims as well (see general rules above).

Management of estate: The administrator is a type of junior co-manager of the estate with the chancellor. The administrator must get authority from the chancellor before doing anything with the estate.32

Management of estate - growing crops, farms, and businesseso A growing agricultural crop is a personal asset that goes to the administrator for the

payment of the decedent’s debts and expenses.o The court may allow the administrator to operate the decedent’s farm or lease it to

someone else for a period of no more than fifteen months.o If necessary to pay debts, the court may allow the administrator to cultivate or lease the

farm from year to year. o When a decedent dies while engaged in operating a business, the court may authorize

the administrator to continue the business as a going concern for a time no more than three years.

Management of estate - sale of personal propertyo Perishable property and livestock may be sold for cash for any purpose, without an order. o Any item of personal property may be sold for cash without an order if:

The reason for the sale is to pay debts of the estate, and The appraised value has been obtained.

o If the reason is not to pay debts and where the sale is to be public, five days notice to interested parties is required.

o When the purpose of the sale is to reduce to cash property which cannot be equally divided in kind, the heirs must be made aware by summons or publication unless the value of the property does not exceed $500.

Management of the estate - sale of land: Nonexempt real property must be sold when a decedent’s nonexempt personal property is not sufficient to pay his or her debts and the expenses of administration.

Management of the estate - mortgage or lease of land: When a decedent’s personal property isn’t enough to pay his debts and the expenses of administration, the court may order that the decedent’s land be mortgaged to secure a loan to pay the debts or expenses.

Management of the estate - COA of decedento The personal rep may “revive” a COA or initiate a new COA.o All recovery for wrongful death goes to the beneficiaries of the estate, not subject to the

claims of creditors (except for the three items listed in the wrongful death statute).33

Management of estate - compromise and settlement of claims o The chancellor may authorize an administrator to settle and compromise any claim

belonging to an estate which cannot be readily collected. o A new chancery rule was written to abate the problem of chancellors approving

settlements that were not fair to the beneficiaries.

32 ? However, the administrator may invest or deposit funds in interest-bearing accounts in federally insured banks and S & L associations whose main offices are located in MS.33 ? I.e. the part of the recovery allotted for medical expenses goes to pay off the medical expenses; funeral expenses go to pay the funeral expenses; car damage goes to the car.

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Petitions for authority to compromise claims for wrongful death or injury (Art. 6.10): Witnesses must be called to testify as to liability and injuries (basically, it’s no longer a perfunctory matter).

Suits by or against administrators: An administrator may bring suit on matters that accrue to the decedent during administration and may be sued as to such matters as well (after the 90-day period).

Management of the estate - prohibited acts: Even if the chancellor approves it, an administrator is expressly prohibited from . . .

o Borrowing or using for his benefit any of the funds or property of the estate,o Taking a position contrary to the heirs,o Loaning funds or property to the administrator’s family, attorney, or agent, oro Moving any of the estate property outside of the state of Mississippi.

Executor de son tort: A person who intermeddles with, alienates, or embezzles any of the money or personal property of a deceased person before taking out letters of administration or letters testamentary is characterized as an executor de son tort.34

Insolvent estates o When it becomes apparent that there’s not enough money to pay all debts and expenses,

everyone who has a claim is given notice to come to court and the chancellor will take up each claim, examining the claims that either:

Were probated within 90 days, or If not probatable, were filed with the clerk prior to the hearing.

o When that is over, the chancellor has a list of claims found to be due and owing.o Preference claims are paid first (expenses of last illness, funeral, administration, and

attorneys fees). If there’s not enough, they will be paid on a pro rata basis. o If there’s any left over, then it goes to the other creditors.

Annual accountso If a year goes by after the administrator is appointed and he is not ready to close the

estate, he must file an annual report.35 o The purpose of it is to let the court know that the matter is proceeding as it ought to

proceed (and the administrator isn’t plundering the estate of its money).o Statutory Amendment : The burden is on the clerk to give an accounting of every estate

that has been opened up, not closed, and for which there has not been an accounting. It is the duty of the administrator to do it, of the attorney to see that it is done, and of the clerk to notify the chancellor if it is not done.

Compelling distribution or final settlement: If an heir is anxious to receive his inheritance, he has two possible remedies . . .

o First, six months after letters of administration have been distributed, an heir can petition the court to order the administrator to make the heir’s distribution.

If the heir requests this before the final settlement, the heir must put up a refund bond with sufficient sureties, communicating that if it should turn out that the estate must have the money back for some unforeseeable reason (e.g. debt), the early heir will pay it back.

o Second, the heir may petition the court to order the administrator to make the final settlement and close the estate.

34 ? He will be liable to creditors and others aggrieved by his actions and will be held to the same standard of trust as an administrator.35 ? You don’t give notice about it, but it is a public record and anyone interested can go look at it.

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Final accountso This contains a summary of the financial picture of the estate. o The petition on the final account is required to include the name and addresses of the

people who the personal rep believes to be the heirs at law of the deceased person. The SOL on reopening the estate only applies to those who were made parties to

the closing of the estate. A suit to determine heirship can help clear up any potential problems. When an heir shows up later, the court will ask if a reasonably prudent

administrator would have found the heir. o Service of process is given to all of the people named in the petition.36 o After it is approved, the administrator writes himself and the attorney a check for the

approved amount.

Administrator’s attorneys’ fees - commissions and expenses: Those services which the person performed as a lawyer should be compensated as a lawyer would be compensated. The non-legal services should not be compensated at a lawyer’s rate of compensation.37

Reopening the estate: Interested people can reopen the estate for two years after it’s closed as long as the issue on which the reopening is based wasn’t brought up at the hearing of the final account.

Suits for devastatvit (“waste”) against administrator and surety: Any heir, creditor, or beneficiary may institute proceedings for a devastavit against the administrator and the surety on his bond when it is believed that the administrator has neglected his duty and caused a loss to the decedent’s estate.

Choosing not to have administrationo There does not have to be an administration of anyone’s estate. There are thousands of

instances in MS alone every year without an administration of the estate.38 o To protect property holders and to permit the decedent’s heirs at law to take possession

of the property without the necessity of a formal administration, the legislature has enacted legislation which authorizes:

A bank to pay the decedent’s nearest relative any sum to the credit of the decedent not to exceed $12,500;

A savings association to do the same upon receipt of an affidavit and bond; Any person indebted to the decedent or having property of the decedent may pay

the successor (subject to some exceptions); and Any person owing wages to a decedent may pay them to the decedent’s Group I

or Group II relatives.

Gifts inter vivos: The person who claims to own property by inter vivos gift has the burden to prove by clear and convincing evidence that there was a delivery of the property and the donor surrendered all dominion over it.

Gifts causa mortis: GCMs are gifts made in contemplation of death. These gifts are ambulatory and can be revoked at any time in the donor’s life.39 Note that such a gift is subject to claims of creditors if the other property of the decedent is not sufficient to pay them.

36 ? In lieu of serving process, most sign a waiver and answer which shows that the heirs agree to the way the estate is being closed.37 ? It used to be that estate work was very lucrative work for a lawyer, because the method of payment was oftentimes a percentage of the estate. Small estates didn’t even get the lawyer his hourly rate. There has been a trend for the courts to look at the amount of time involved and calculate the fee on an hourly basis.38 ? The most important thing is that it puts to rest claims against a creditor.39 ? Land may not be conveyed by a gift causa mortis.

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III. Wills

Power of a will: A person can, with a valid will, make moot the law of intestate succession. This is the only chance for some people to have a shot at the big house (or double-wide), and they will try to find some way to attack the will when they are left out of a will.

Wills - nature and purpose of writingo First step : The first step in the process of interpreting a will is determining whether the

writing attempts to do what a will does. o Intent of testator that the instrument make testamentary dispositions : The document must

communicate that it only has legal validity upon the death of the testator. o Ambulatory nature of a will : The person who made the will is free to modify or revoke it at

any time. If a will is not ambulatory, it’s not a will, because that’s what sets a will apart from other documents.

Will or deed with reservation of life estateo The tension between a deed and will :

There have been many cases in Mississippi regarding whether a document was a will or a reservation of a deed with a life estate.

This comes up when it is not clear whether the intent of the maker was to make: A deed by conveying a future interest in the land which vest in the

grantee upon delivery of the deed, though reserving in the grantor a life estate, the effect of which is to postpone only the grantee’s right of possession;40 or

A will by making no present conveyance of any interest in the land and to have the interest vest or the instrument be effective only upon the death of the testator.41

o The difference : Regardless of what it’s called, if a document makes a testamentary disposition, it

is a will. However, if the parties did not consider it to be a will and it was not executed like

a will (because the parties did not realize the need to execute it like a will), it is not a will and the property will go by intestate succession.

o MS Rule : If it’s in the form of a deed, and is called a deed, the court must construe it as a deed unless the terms of the writing make it totally clear that no interest is passing until the death of the donor.42

Conditional willso If the testator of the will wants the will to have permanence, he should be very wary about

putting any language in the will which could be construed as conditional. o Declarations by the testator to the contrary of the condition in the will are not admissible.

Nuncupative wills (oral wills)o An oral will may be a valid conveyance of personal property provided many conditions

are satisfied, but an oral will cannot convey land. The conditions (which can pretty much only be met by a Hollywood-type deathbed scene):

The will must be made at the time of the testator’s last illness. The testator must believe that he is dying.

40 ? These cases revolve around situations where parents tell the child that they are going to get the family farm, but don’t want to hand the property over immediately. They need a writing that will make it possible to reserve it for the child without immediately giving it to them.41 ? This instrument is void if not executed as a will must be executed. 42 ? I.e. there is a strong presumption that an instrument that looks and sounds like a deed is a deed.

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The testator must actually be “dying” to the degree that he’s unable to make a written will.

The testator must intend for the spoken will to be his will.43 This must be shown by the clearest and most indisputable evidence.

Two witnesses must testify that the testator called on some person present to take notice that the words spoken were the testator’s will.

Two kinds of written wills recognized by Mississippi law:o Attested (non-holographic, typewritten) wills :

An attested will is a will which has been attested to by at least two witnesses who have signed their names on the will.

Attestation is an absolute requirement for the legal validity of the will when it is not entirely written in the handwriting of the testator.

o Holographic wills A holographic will is a will written entirely in the handwriting of the testator. It must be signed at the bottom. It does not have to be witnessed by anyone. A holographic will may revoke or modify an attested will.

Joint willso A joint will is a single document which contains the wills of two or more people.o An instrument which purports to be a joint will but which provides that it will not be

effective until the death of the survivor is not a valid will of either person.o A holographic will may not be a joint will.o In the absence of a contract to the contrary, a joint will may be revoked by the survivor.

Mutual or reciprocal willso These are wills which are executed in pursuance of an agreement between two or more

persons to dispose of their property in a particular manner either to each other or to third persons.44

o E.g. : A makes a will and he leaves property to B and other property to other people. Then B makes a will and it says exactly the same thing, except A’s name is in her will in the place where her name is in his will. These are usually between a husband and wife.

o Issue : Can the survivor change his mind with regard to who the property will be left to at the survivor’s death?

MS Rule : In order to prevent the survivor from changing his will which contains mutual provisions, it must be proven that there was a contract that the will would not be changed.45

Other jurisdictions : Others would have held that the woman could not alter the will because a mutual will constitutes a contract. These courts take the view that the existence of a mutual will itself constitutes a contract.

Duplicate wills: When two wills are simultaneously prepared and the testator and witnesses sign their names on both of them, it is valid evidence of the document. The execution of a document is what makes it an original.46

43 ? If the testator speaks the words for the purpose of having them written down so he can then execute the writing, the spoken words will not be a valid nuncupative will.44 ? A joint will may, but does not necessarily, contain such provisions. 45 ? See Monroe v. Holliman, where the will said that it was a “will and a contract.” In that case, the survivor was not allowed to renege on the agreement because the will contained contractual agreements. 46 ? The problem is that a party can revoke a will by tearing it up. Having two original wills can create a lot of uncertainty as to whether or not the surviving will has been revoked. Most everyone recommends that you not make duplicate wills even though it is allowed. After the party has signed the will, a good idea is to have a couple of copies made of it. To have a copy is proof that the original was signed by the testator. However, keep in mind

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Foreign willso Generally : A foreign will is the will of a person who was domiciled outside the state of

Mississippi at the time of his death.o Common Law Rule : When a person died without a will, the will had to be probated first in

the state of domicile. Since the law of the domicile controlled the inheritance of personalty, then the person could come to Mississippi and get the property and take it back to the state of domicile. However, no state was or is willing to give over its real property to the control of a foreign state.

o MS Law : Mississippi law controls the inheritance of personal and real property.

Soldiers’ and sailors’ wills: MS has a statute that says that any 18 year-old can execute a will if he’s in the military or a solider. At the time this statute was passed, you had to be 21 to make a will.

Codicilo The purpose of a codicil is to make some change to a previously executed will (even

entirely revoking the will).o To be effective, it must be executed exactly as a will. o It does not have to be the same kind of instrument as the will it operates upon; a

holographic will may have a nonholographic codicil. o A codicil must be signed, just as a will must be signed.47 o A codicil has the power to republish a will.48

o The codicil governs because it was executed last.

Contract to make a will49

o Contractual requirements : If a document complies with the requirements for a contract (the terms are clear and certain, there is legally sufficient consideration), it is a valid contract. The MS Supreme Court has not appeared to want to enforce these contracts unless they are written.

o Minority and majority rules : If a party never makes a will after contracting to do so, some courts just go ahead and make a will for the party. However, most courts (including Mississippi) either:

Specifically perform the contract as it should have been performed; or Impose a constructive trust.

o Constructive trust : Equity device that is employed when a person owns property that he shouldn’t have. Heirs at law have legal title to property, but the court says that because of the contract the testator entered into, the heirs are just holding it for the promisee.50

o Revocation : If a promisor made the will he contracted to make, but later revoked it, the court may enforce the contract by . . .

Declaring the will irrevocable and probating the will as originally written; or

that you cannot probate a copy of a will.47 ? E.g. the lady who tried to change her will but just drew an x through the provision she wanted changed and wrote a different provision to the side. If she had at least just put her initials to the side, it would have been a holographic codicil.48 ? E.g. the case where the testator had written out a will in his own handwriting, but did not sign it for some reason. A few years later, on a different piece of paper, he rewrote it out on a different piece of paper. He said that he wanted to make the following changes. He attached the codicil to the will. The will was no good until the point that he attached the codicil. It had the effect of republishing the will (actually executing the will for the first time).49 ? This almost always comes up in situations where an elderly person has requested that someone take care of them in exchange for a certain amount in their will.50 ? The court will order the constructive trust to be executed (dissolved), and the person will transfer the assets of the estate to the person with whom the testator contracted. It does not violate the principle that the court will not make a will for the person.

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Imposing a constructive trust.

IV. Execution of Writing

Introduction: A will is only a party’s right by way of statute. It must be executed in accord with the statute or it simply is not a valid will.

Two requirements for the testator:o Age (must be 18)o Must be of sound and disposing mind

Sound and disposing mindo Two part test for sound mind : The testator must . . .

Understand what it means to make a will, Know who his beneficiaries are and his relation to them, and Be capable of determining to whom he wants his property to be distributed.

o Lucid intervals : Even if a person has been declared non compus mentus and has a guardian, it

does not invalidate a will. The law has found that these people sometimes have lucid intervals.

If a person is found to have a lucid interval, his alteration of the will at a later time when he’s not lucid will be invalid.

Execution of a nonholographic will - generally: To be validly executed, the following requirements must be satisfied . . .

o The testator must sign the will, or someone else must sign it for the testator in the presence of the testator and at his expressed direction;

o If the testator does not sign the will in the presence of the attesting witnesses, he must acknowledge his signature to them when they attest the will;

o The testator, expressly or constructively, must publish the will to the attesting witnesses, at least when he does not sign it in their presence;

o The testator, expressly or constructively, must ask the witnesses to attest the will;o The attesting witnesses must sign the will, and in the presence of the testator;o The attesting witnesses must be credible.

Execution of a nonholographic will - signed by testator: A nonholographic will is one which is not wholly written in the handwriting of the testator. To be validly executed the instrument must be signed by the testator or someone else signing his name at his express direction and in his presence.51

Execution of a nonholographic will - acknowledgement of signature when testator does not sign in presence of witnesses: Our law does not require the testator to sign the will in the presence of witnesses, but the witnesses do have to sign in the testator’s presence. However, the testator must tell them it is his signature when they attest the will.

Execution of a nonholographic will - publication: There must be publication (i.e. a communication by or attributable to the testator that this instrument is a will).

o Publication may be express and formal (e.g. “This is my will”). o Publication may be constructive (when someone speaks for the testator in his presence

and says that it is his will; or when the testator asks a person to write his will, dictates its terms, and signs it).

51 ? The signature does not have to be the testator’s full name (in fact, initials have been ruled to be enough to be an acceptable signature).

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o At least a constructive publication is required when the testator signs the will outside of the presence of the attesting witnesses.

o Tyson v. Utterback Prior to this case, there was no doubt that either formal or constructive

publication was required when the testator signed his will in the presence of the attesting witnesses.

The Tyson court held that formal publication is unnecessary where not required by statute and that when a writing is signed in the presence of the witnesses it is not necessary that they know it is a will.

Even so, the court in later cases has spoken of publication as though it were a requirement.

Execution of a nonholographic will - request of witnesses to sign will: A testator must request the witnesses, (either by words or acts) to sign his will.

o The request may be by construction, acts, or words.o A request by the testator’s agent or attorney is sufficient if it is done in the presence of

the testator and with his knowledge. This involves two requirements: A request for the witnesses to write their names on the paper; and A representation that the paper is a will (same as publication).

Execution of nonholographic will - attestation by two witnesses: The execution of a nonholographic will must be attested by two or more credible witnesses in the “conscious presence” of the testator.

o Attested : The witnesses actually have to put their signature on the document.52

o Conscious presence : If the testator could have changed his physical position and seen the signing of the will, that is enough to constitute conscious presence.

Execution of nonholographic will - credible witnesses: The witnesses to the will must be credible (i.e. they must be competent to testify).53

Execution of a nonholographic will - beneficiary as attesting witnesses o If a witness is a beneficiary to the will, then he will have to give up his gift (though the rest

of the will is going to remain valid). o This plan only applies if the beneficiary witness is needed to make up the required

number of attesting witnesses.

Attestation clauseo All that the law requires from the attesting witnesses is their signature. Therefore, a will

which has all of the terms and has the signature of the testator is valid. It has been the practice of lawyers for a very long time to include at the end an “attestation clause.”

o The Mississippi statute has been changed. Lawyers now include, at the end of the will, an affidavit. You can get an affidavit from the attesting witnesses at the time the will is executed, making their attestation a part of the will.54

o An affidavit is also critical because a will may be admitted to probate upon an affidavit of at least one of the attesting witnesses setting forth the facts that show that the will was validly executed, and that the testator was of sound and disposing mind.

Execution of holographic willo It must be written entirely in the handwriting of the testator. o Every single word does not have to be in the handwriting of the testator.

52 ? The presence of a party is not enough nor is one signature from a notary public (Bachelor). 53 ? Under the rules of evidence, almost everyone is competent to testify. 54 ? This protects the will in case you lose track of them and so you don’t have to go track people down to get an affidavit from them. It’s negligence not to do so.

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A printed caption or title will not invalidate it. Signatures of witnesses are not needed, but they will not invalidate it. Mere surplusage rule: If there are words in the will not in the handwriting of the

testator, it will not defeat the meaning of the will provided they are mere surplusage (the will has to mean the same thing with those words as it does without those words).

o A holographic will must be signed at the end (otherwise it is void). Anything that exists below the signature is not a part of the will.

Date: A will does not have to be dated though it is smart to put a date on the will, and there are situations where a dateless will is going to consequently been invalid.55

Multi-page willso If the will that is presented at the time of probate appears to be facially intact (the pages

are all the same age, the language flows from one page to the next), then the presumption is that it was the same will.56

o If a contestant wants to show that the pages are inconsistent, the burden is on that person to prove that.

o To diminish the possibility of such an allegation, some lawyers like to have the testator to initial each page (or even each witness).

Incorporation by referenceo A will can incorporate another writing which is not part of the will at the time that the will is

executed, and the other writing will be considered part of a will even though it was not physically part of the will.57

o In order to be incorporated by reference . . . The writing must be in existence at the time the will is executed; The writing must be satisfactorily identified in the will; and The language of the will must disclose a clear intent on the part of the testator to

incorporate it. o Exception : MS Supreme Court has held that a holographic will cannot incorporate a

nonholographic extraneous instrument (since the holographic will must be entirely in the handwriting of the testator).

Tactical wisdom in execution: o If a person comes to an attorney for an initial conference on a will, no one else should be

present. The older or more infirm the client is, the more important it is not to have anyone else there. It is in your client’s interest to protect the will on the grounds of undue influence.

o Never permit your client to take the will home with the promise that he’ll get it signed with two witnesses in his presence. It is part of your duty to conduct the execution of the will.

V. Revocation of a Will

Revocation

55 ? E.g. if a person has been of unsound mind for three years and it’s unclear when the will was executed, then it may not be valid because it’s the burden of the proponents of the will to prove its validity. A date would also be essential in the case of multiple wills. Finally, the date may be important in light of the fact that a will is construed in the light of circumstances surrounding the testator at the time of execution.56 ? Therefore, it is of no avail that a witness does not know how many pages were in the original.57 ? E.g. all jurisdictions recognize incorporation of a trust by reference.

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o Generally : The making of a will is like getting married (certain requirements must be met to make one, and certain requirements must be met to terminate one). Revoking (like divorce) is not valid without complying with legal requirements.

o Two categories of revocation : Express revocation: This includes revocation by a physical act and revocation by

subsequent writing. Express revocation requires two things: An intent to revoke and An act that complies with the revocation statute.

Implied revocation: This is a collection of leftovers from the common law, some of which are not actually revocations at all.

o Basic requirement : Any act of revocation requires that the testator have a sound and disposing mind (just as he must in order to make a will).

Express revocation: Two kinds of express revocation that are recognized by §91-5-3 and all other jurisdictions: 1) express revocation by physical act and 2) express revocation by subsequent writing.

Express revocation by physical act: A will may be revoked by destroying it, canceling it, or obliterating it. Intent is required and will be an inquiry, since the physical act type of revocation is ambiguous at its very nature.58

o Destruction means doing something to the paper rather than simply the words on the page.

o Cancellation means drawing over or across words.o Obliteration means erasing, drawing lines through signatures, or blotting out words.

Revocation by subsequent writing - express statement of revocation o Generally :

If a subsequent writing is going to revoke a prior will or part of it, the revocation instrument must be executed as a will is executed.

A will or any clause in the will may be revoked by a subsequent will, codicil, or declaration in writing.

The vast majority of these subsequent writings are accomplished by another will which contains a revocation clause.

o Effect of revocation clause : If the instrument does contain a revocation clause and it is validly executed, there are two cardinal principles that apply in MS . . .

The revocation clause is effective from the moment of its execution. This is not generally the case with wills, because a will normally is not

effective to do anything until the testator dies. But this is an exception in MS.59

A clear statement of revocation is conclusive as to intent. The law will not permit evidence to come in and say that although that is

what the revocation clause said, the testator did not really mean it.

Revocation by subsequent writing - totally inconsistent will o If there is no inconsistency between two testamentary instruments, they go together to

make a will and both are effective. o The valid execution of a subsequent will which is entirely inconsistent with a prior will

operates as a revocation of the prior will. o The court will give preference to the second will. Whatever property is left after the

execution of the second will is going to be executed in line with the first.

58 ? Signing is not required.59 ? This means that if the person tears up the revocation, it does not revive the first will. The first will is still dead.

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Conditional revocation - expresso A testator may provide in a validly executed revocation instrument that the testator wants

his will, or a clause of the will, to be revoked if some future event occurs. o If the event occurs, the will is revoked. If it doesn’t, the will stands.

Conditional revocation - implied dependent-relative revocationo Generally : Dependant relative revocation is a doctrine invented to permit a beneficiary to

take under the first will when the court finds that the revocation of the first will was done under a mistaken belief that the second will would be effective.60

o When not available : DRR is not available when . . . The second will contains an express revocation clause; or The second will is entirely inconsistent with the first will.

o When available : If there has been no express revocation by subsequent writing but the testator revoked by physical act, the court will entertain DRR.61

Implied revocation - generally: Although the revocation statute provides that a will or a clause of a will “shall not be revocable but by” physical act or subsequent writing, this is not the law. There are other ways, and they are referred to as implied revocations. There are four situations in which the court has said that a will has been impliedly revoked:

o Implied revocation by operation of law : In Mississippi, there is only one instance where implied revocation by operation of law is recognized . . .

If a person makes a will at a time when he or she has no children and the will does not provide for any children he or she might have, then the will is impliedly revoked if he or she has a child at the time of death or if, when a man dies, his wife is pregnant.

The will may regain its effectiveness if the child dies without being married, without having a child of his own, or before reaching 21 years.

These things do not impliedly revoke a will: Divorce Divorce accompanied by a property settlement (at least where the parties

continue to live together after the divorce) o Implied revocation by inter vivos conveyance of property : A testator who gives an inter

vivos gift to someone that had been promised to someone else in the will is deemed to have impliedly revoked at least part of the will.62

o Implied revocation by attempted inter vivos conveyance of property : Even if an inter vivos conveyance is not effective, the mere attempt to make the

gift impliedly revokes the will (unless, of course, the attempted conveyance was to the person who is named in the will).

The statute indicates that if a will disposes of the testator’s entire estate, the only way to impliedly revoke the will is through an attempted inter vivos conveyance of the entire estate.63

o Implied revocation by satisfaction : When a testator makes an inter vivos gift to a beneficiary that is equal to the amount the beneficiary would have gotten under the will with the intent to pay their inheritance ahead of time, this will operate as an implied revocation.

Revival of revoked will60 ? The doctrine makes the revocation conditional upon an event which did not happen so that there really was no revocation of the will.61 ? I.e. when a testator attempts to change his will by striking out one gift to a beneficiary and writing in a substitute gift without properly executing the substitute gift, DRR will be employed to effectuate the revocation.62 ? Actually, though, it isn’t a revocation at all. The will remains; the testator just doesn’t have the property to give the beneficiary named in the will.63 ? This kind of implied revocation only happens when the inter vivos conveyance was by deed or some other written instrument.

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o An instrument which has been revoked but which is still physically in existence may be legally revived as a will in two ways:

The testator may completely reexecute the will, complying with all statutory formalities required of the original execution; or

The testator may execute a codicil to the will declaring his intent to revive it.o Note that in Mississippi, a will which has been revoked by a subsequent will is not revived

by the revocation of the subsequent will. The earlier will was revoked the moment a subsequent will was executed, and unless the two previous requirements are met, the party simply dies intestate.

Contract not to revoke will - estoppelo A person can contract away his right to revoke a will.o Johnston v. Tomme

Facts : The testator told the lady that if she would come and take care of him, he would make a will leaving everything to her. He actually made a will that left everything to her. After she had taken care of him for a long time, he tried to revoke it and leave it all to someone else.

Holding : A person cannot undo a will when a person has made a contract with another to give them an inheritance.

Statute of Frauds : Does not come into play because the will itself is the memorandum needed under the SOF.

VI. Limitations on Testamentary Power

Dower and curtsyo Common law : Dower and curtsy were life estates that vested upon the death of one of

the spouses. When a person died who had property, his spouse was entitled to a life estate in some or all of the personal property. This life estate could not be taken away by the will.

o Mississippi law : In 1880, Mississippi abolished dower and curtsy and put in a system of will renunciation. Under the new system, a person does not have to leave something to his spouse in the will. Our renunciation scheme doesn’t ensure anything other than that the surviving spouse will not be left destitute.64

Mississippi renunciation statuteo Generally : The general idea of the plan is to make the will the only source of the surviving

spouse’s rights to the property disposed of by the will, but also to give the surviving spouse a right to . . .

Renounce the will when it makes an unsatisfactory provision for him or her; or To renounce it by law when it makes no provision for him or her at all.

o Rule : If the will makes no provision for the surviving spouse, the will is renounced by operation of law.65 This legal inheritance vests upon the death of the deceased spouse. If the will makes any provision for the surviving spouse (even $1), he will not be entitled to any additional inheritance unless he renounces the will.66

McBride v. Hanes: The right conferred by the statute vests in the other spouse immediately upon death, regardless of whether the spouse dies soon thereafter.

64 ? In fact, if the surviving spouse has enough of their own money, they won’t get anything from the will. Banks, 264 So. 2d 387 is the best case we have that explains how renunciation works.65 ? The surviving spouse is then entitled to that part of the deceased spouse’s estate he would have been entitled to had the will made a provision but had been renounced. 66 ? Note that the statement of renunciation must be filed within 90 days after the probate of the will. The 90 days starts running when the will is probated.

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Mullins estate v. Mullins estate: A personal representative of a now-dead surviving spouse who died after the first spouse died cannot file a renunciation statement on behalf of the now-dead surviving spouse.67

Determination of surviving spouse’s share of estateo Generally : The effect of the plan is to give the surviving spouse the right to have at least

as much property as he would have had if the spouse had no property of his own and if the deceased spouse had died intestate.68

o Important limitation : The renunciation system only applies to property that is devised or bequeathed in the will. The rest will go by intestate succession.

o Procedure for determination : Upon renunciation of the will, either by renunciation statement or by operation of law, the following procedure is used to determine what the surviving spouse is entitled to . . .

(1) Ascertain the value of the deceased spouse’s net estate; (2) Determine the surviving spouse’s fractional “legal share”; (3) Multiply (1) by (2) (4) Ascertain the value of the surviving spouse’s separate estate; and (5) Subtract (4) from (3). This procedure gives the dollar value of the part of the

decedent’s estate to which the surviving spouse is entitled.69

Ascertainment of decedent’s net estate: The net value of the deceased spouse’s estate is determined by ascertaining the value of the Mississippi property passing under the will minus the debts, expenses of administration, estate taxes, and funeral expenses.70

Surviving spouse’s legal share: This legal share is the fractional share of the decedent’s estate that the surviving spouse would have taken if the deceased spouse had died intestate, but it is not to exceed one half.

Ascertainment of the surviving spouse’s separate estateo The net value of the surviving spouse’s separate estate is ascertained by:

Totaling the value of all property owned by the surviving spouse at the death of his spouse;71 and

Deducting from it the debts of the surviving spouse.o The determination of whether funds are included in the surviving spouse’s separate

estate turns on whether: His or her rights began after the death of decedent (in which case they are not

included), or whether His or her rights were vested by contract before decedent’s death (in which case

they are included).

Determination of surviving spouse’s inheritanceo The surviving spouse automatically receives his or her legal share if:

67 ? However, where the surviving spouse is not legally competent, the guardian can file a renunciation statement.68 ? Note that the plan pertains only to the property disposed of in the will. In cases of partial intestacy, the surviving spouse takes whatever he would take by intestate succession unaffected by this plan.69 ? However, the surviving spouse is not required to take the inheritance in money.70 ? Out-of-state land cannot be factored into the deceased spouse’s estate, because Mississippi has no jurisdiction over the land of other states (neither should the estate taxes on that property be considered) (Banks). But all personal property will be included in the value of the deceased spouse’s estate.71 ? All real and personal property is taken into account regardless of where it is situated. Property owned in joint tenancy with right of survivorship with the deceased spouse is considered part of the separate estate (along with life insurance policies payable to the surviving spouse as named beneficiary upon the death of his spouse). Property inherited from the deceased spouse by intestate succession because the will did not dispose of all of the estate is not counted, nor are life insurance policies payable to the surviving spouse as an heir at law of the decedent.

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The surviving spouse has no separate estate at all, or The value of the separate estate is less than 1/5 of the value of his or her legal

share. o If the value of the separate estate equals or exceeds the legal share, then the surviving

spouse gets nothing in addition to what the will left him or her, and the attempted renunciation was a waste of time.

o If the separate estate is less than the legal share but more than 1/5 of it, the surviving spouse is entitled to the difference between the legal share and the separate estate

o If the surviving spouse wants a share of all property: (legal share - separate estate value)/net value of decedent’s estate = fractional, undivided interest

Renunciation distinguished from contest: If a person contests a will and the contest is successful, the will is no good. That must be distinguished from renunciation. When someone renounces a will, they are not saying that it’s no good.72

Flaw of renunciation statute (Stockett): There is one situation that can happen where the purposes of the statute are thwarted. The law of MS does not give the surviving spouse the right to set aside inter vivos transfers (e.g. joint bank accounts with the right of survivorship) which have reduced the size of the estate.

Contracts not to renounceo General rule : The right to renounce a will may be contracted away. However, there must

be consideration for such a contract, and it must be of enough significance that the agreement is not unconscionable.73

o Parol evidence : Parol evidence is admissible to show that there was no consideration for the contract not to renounce, even though the contract may have recited that there was other consideration.

Protection of surviving spouseo Intestate situation : There are two rights of spouses other than the right to inherit their

“child’s share” in an intestate succession: A year’s living allowance; and The right to exclusive use and possession of the homestead.

o Testate situation : In order for the spouse not to get the year’s allowance, there has to be a clear

statement in the will that what is given in the will is given in lieu of the year’s living allowance. This provision of the will is going to stand unless the surviving spouse renounces the will.

If the surviving spouse renounces the will it seems clear that he or she will be entitled to a year’s allowance (recall that the one year allowance has no effect on the spouse’s fractional share).

Protection of surviving spouse - homestead o The owner of a homestead may dispose of it in his will as he pleases, just like he can

with the rest of the property. o If the owner did not leave any ownership interest to his spouse, then the surviving spouse

will have no interest unless the will is renounced. o If a surviving spouse does renounce, he or she will take an intestate share.

72 ? A surviving spouse can contest a will just like anyone else can (e.g. a surviving second spouse who doesn’t get anything but her step-kids get everything). Then the spouse can say, “If the will is good, then I renounce it.”73 ? The Mississippi Supreme Court has indicated that it will look more closely at such agreements between spouses.

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Protection of testator’s children: There are two protections for children of the decedent . . . o Implied revocation by operation of law (discussed above) : If the testator makes a will at a

time when he has no child, but then later on he dies and he does have kids or his wife is pregnant, that will is void and the child or children will take by intestate succession.

o Children born after children included in will : If the testator has a child and he has more children after the will is made, the

post-will kids will receive an intestate share of the will as long as they were: Unprovided for by settlement; and Neither provided for nor disinherited, but only pretermittedly

(inadvertently) omitted from the will. Mass rule : Whether or not the child is pretermittent is answered by the intent of

the testator. MS rule : In Mississippi, we base intent upon what the will did for the children who

were alive to determine what the after born children should have gotten.74

VII. Probate of a Will

Purpose of probating a will: The purpose of probating a will is to obtain an order or decree declaring that a certain instrument is the valid last will and testament of a deceased person. Until this order has been obtained, the will is nothing more than a piece of paper with writing on it.75

Robertson v. Burton: In a lawsuit over property, a party wanted to put in a non-probated will. The chancellor let it in. The Supreme Court held that that was inadmissible evidence, because it has no legal validity.

The administration of the testate estateo The process of probating a will is also the process of beginning the administration of the

estate.o In an intestate situation, the process is begun by the appointment of a personal

representative. In probate, if the person appointed by the chancellor was nominated in the will, then that person is going to be appointed as an executor. If the person appointed is not the person named in the will (because no one was named), then that person is called an administrator c.t.a.

o There is a situation where (in very small estates) where, if land is devised by a will, it must be probated by a document of title only with the necessity of an administration of the estate.

Jurisdiction: The chancery court has jurisdiction. Proper venue is:o First, in the county in which the testator had a fixed place of residence;o Second, in the county where land devised by the will is located, and;o Third, in the county where the testator died or where some of the personal property

disposed of by the will is located.

Who may probate: Any interested party with a direct, legitimate interest may probate the will.

Parties to probate proceeding - common form probate

74 ? Missouri’s nonsensical rule is that if a will does not mention the testator’s children - whether or not they are alive at the time of the will - then the testator apparently forgot that he had kids at the time. No evidence to rebut this presumption will be allowed. In Missouri, if you don’t want your kids to have a part in this estate, you must leave them something like $5 or specifically disinherit them. Otherwise, the child will be entitled to his intestate share.75 ? Note that you cannot probate a photocopy of a will.

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o Two ways to probate : A will can be probated in one of two ways: common form probate and solemn form probate.76

o CFP generally: CFP is a summary, expeditious procedure because no one is made a party to the proceeding except the people who sign the petition.77

o Process : When this procedure is used, the petitioner’s attorney (and you must have an attorney) takes the petition and the will to the courthouse and prepares an order for the clerk to sign which will admit the will to probate.

o Binding effect : This CFP process is not binding on anyone except the people who have signed the petition.78

o Why CFP is preferred : In most situations, there is no one who wants to contest the will or no one who

has grounds for contest. If someone does contest within two years, the fact that it has already been

probated in common form establishes the prima facie case simply by proving that it was probated in common form.79

Parties to probate proceeding - solemn form probate80

o The only practical differences between CFP and SFP is that: The petition includes the names and addresses of anyone who has standing to

contest the will;81 Those people are served with notice of the proceedings.82

And if they contest, the PFC for a SFP must be done as a part of the trial, rather than in an ex parte proceeding (like you can do with CFP).

o Two groups of people have a direct pecuniary interest in the will (or in its defeat): Heirs at law who are getting nothing under the will or less than they would get by

intestate succession. Beneficiaries under an earlier will.

Prima facie case for validity of the will: The proponent of the will must offer proof that this writing is the last will and testament of the deceased person. Proof must be furnished that:

o The testator had testamentary capacity (that they are over 18 and that they had sound and disposing mind at the time the will was executed); and

o The will was duly executed. If the will is holographic, then they will have to prove that the handwriting and

signature belonged to the decedent. In nonholographic will, you must show that it was signed by the testator,

published, and signed by two witnesses in the presence of the testator, and that the testator asked them to sign his will (subject of course to any weird scenario from Tyson).83

76 ? The vast, vast majority of wills are probated in common form.77 ? No one is given any legal notice of the filing of the petition either (ex parte).78 ? If there are people out there who would be heirs at law and might want to contest the will, the probating of the will in common form is not binding on them.79 ? Keep in mind, however, that the propounding party still has to make the PFC for the will for the chancellor. It’s easy to do though, because it’s in an ex parte proceeding. The advantage is that if someone decides to challenge the will in the two years after the probate, the PFC that was established in that ex parte proceeding will be enough to establish the PFC at the trial. 80 ? No statute says you can’t do a CFP and then a SFP (unless, of course, a caveat had been filed).81 ? To be a person with a right to contest a will, you must be able to show that you have a direct pecuniary interest that will be adversely affected if the will is discovered to be valid.82 ? If one or more of the people who get the summons object to the probate, then there must be a will contest. If none of them decide to come in and probate the will, then there will be no will contest, and the will will proceed to be probated.

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Proof of will by affidavito The affidavits of attesting witnesses may be used to prove testamentary capacity and due

execution as long as the will is not being contested. o The affidavits of two disinterested persons familiar with the testator’s testamentary

capacity and his handwriting may be used as well.

Proof of attested will without testimony of subscribing witnesses: When attesting witnesses neither can or will provide the necessary proof (and the proponent has demonstrated to the court that this is the case) the proponent can make out his PFC by . . .

o The proponent must find testimony from other people who have personal knowledge and can testify to testamentary capacity and due execution of the will; or

o The proponent may prove that the signatures on the will genuinely belong to the testator and witnesses.

o Contest SOL : Anyone on whom the will is not binding has two years to come in and contest the will.

Order of validityo When the clerk signs the order, that’s as good as the chancellor signing the order. The

will is then recorded.o Although it’s rare, orders can be revoked if the chancellor discovers that the orders are

invalid.

Preventing common form probate - caveato A probate in a will contest has a tactical advantage if the will has been probated in

common form, because proof of that probate makes the proponent’s PFC in a will contest.

o An opponent of the will may prevent CFP and deny the proponent the advantage by filing a caveat (objection) to probate of a will.84

Probate of lost or destroyed willo Required proof : A lost or destroyed will should be probated if there is any way to do it.

The proponent must establish the following: That the testator did validly execute the will;85

That the testator at the time had testamentary capacity;86

That the will has been lost or destroyed;87

What the will provided;88 and

83 ? The witnesses are usually the only people who can testify to this (along with the lawyer and the decedent). Theoretically, anyone who was there could testify, but we have a statute which says that no one may be called to prove the due execution of a nonholographic will until the attesting witnesses have been accounted for. However, the law says that we don’t have to have live testimony. If there is no contest of the will at the time, an affidavit is sufficient to provide proof of the due execution of the will as long as everything that must have happened in order for the will to be validly executed is testified to in the affidavit.84 ? A caveat filed after the clerk has executed the order is too late, even though the chancellor has not yet approved the clerk’s action.85 ? Proof of a validly-executed holographic will may be made by anyone familiar with the testator’s handwriting who saw the will and can testify that it was entirely written by the testator. Due execution of an attested will must be made by at least one of the subscribing witnesses if he can be produced. If not, proof of due execution may be made by secondary evidence. 86 ? This can be made by subscribing witnesses or by others with personal knowledge of the testator at or near the time of execution.87 ? Proof must be shown that there has been a thorough search of the testator’s papers and belongings and no will has been found. 88 ? The best way to make this proof of the contents is with a copy of the will. Proof may also be made by the testimony of someone who read the will and remembers what it said. Declarations of the testator may also serve as

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That the will was not destroyed by the testator with the intent to revoke.89

o Part of a lost or destroyed will may even be probated. Furthermore, a revocation clause that is remembered from a lost or destroyed will also operates to revoke prior wills.

Probate of foreign willso Generally : A foreign will is a will of a person who was not domiciled in MS at the time of

his death (regardless of where the will was made or executed). o Common law and MS procedures for foreign will :

Chapter three dealt with the difference in the Mississippi and common law approach to probate of a foreign will.

Suffice it to say that no will, foreign or otherwise, is effective as a conveyance of real or personal property located in Mississippi until is has been probated in Mississippi and found to be valid under our law.

The foreign will may be probated in one of two ways: The will may be probated in Mississippi prior to probate elsewhere, just

like a domestic will; or The will may be probated first in another state or nation and then an

authenticated copy of the will may be probated in Mississippi.90

Duty to probateo Generally : It is a felony to destroy or hide a will. However, it is not against the law not to

probate a will. Many wills are not probated each year, but most of the time, someone will probate the will.

o Parker : If all the interested parties who could be affected by the will decide that they do not want to probate the will then the will won’t be probated.91

Estoppel to probate: A person who wrongfully and fraudulently conceals the existence of a will in order to take advantage of beneficiaries will not be permitted to probate the will later.

Statute of limitations: MS has no statute of limitations on the probate of a will, and our law is to the effect that the general statute of limitations does not apply. However, innocent purchasers for value of property will be protected.

Prior probate of earlier will (Fields): You can’t probate a subsequent will two years after a prior will has been admitted to probate (because our court interprets that to be a will contest).92

VIII. Will Contests

Introduction o Generally : Contests are brought to determine whether this is the valid will and last

testament of the decedent or not.o Reason wills are not contested : Most wills are not contested because . . .

No one wants to contest it, No one has the standing to contest it, or There are no grounds to contest it.

proof. 89 ? If the will was last known to be in the possession of the testator, there is a presumption that the testator destroyed the will with intent to revoke. However, if a contestant of the will had access to it, the presumption can be defeated with slight evidence. But that inference can be overcome by evidence to the contrary. 90 ? The effect of this is to take care of the need for formal proof of the due execution of the will since it has already been proven under the laws of other state. 91 ? However, a will which establishes a trust has to be probated.92 ? This creates an unfair result because the party is not contesting the will, they are simply probating the decedent’s actual will.

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o Right to jury : If either side wants it, they are entitled to a fact-finding jury whose decision is binding.

Persons who may contest a willo Generally : The party must have, at the time of the probate of the will, a direct pecuniary

interest which will be detrimentally affected.o Who that includes :

Heirs at law who would receive more of the estate by intestate succession than they would under the will.

Beneficiaries under an earlier will whose gifts under that will are greater than their gifts under a later will.93

o Who cannot contest a will :94

Administrators of allegedly intestate estates and executors under earlier wills Creditors An alleged NMC may not contest the will of his alleged natural father unless he

has established his right as heir at law of the father in a suit to determine heirship.

Instituting will contest: A will contest may arise in three ways . . . o In response to a will probated in solemn form.o A person may file a caveat before the will is presented for common form probate.o The most frequently used way in which a will may be contested is for an interested

person to file a contest within two years of the probate of the will in common form.

Indispensable partieso All interested parties (all beneficiaries and/or contestants) must be made parties to a

contest of a will; otherwise, another party could come in and contest the will after the first will contest (resulting in the will being valid for some and invalid for others).

o Moore: Regardless of whether or not the issue was brought up in the lower court, if all of the indispensable parties (all beneficiaries and contestants) to a will contest are not present, the chancery court simply does not have jurisdiction over the matter.

Issues in will contesto Issues : While “will or no will” is the ultimate issue, the real issues will center around the

more specific requirements for the validity of the will (the decedent’s testamentary capacity, the due execution of the writing, the undue influence of another person, etc.).95

o MSJ : Issues raised may be eliminated by a motion for summary judgment where there is no genuine issue of material fact.

Trial of will contest - procedureo §91-7-29 : In a will contest, the proponent has the affirmative of the issue; i.e. the

proponent is like the plaintiff in a civil lawsuit (he gets to go first with the evidence, he must make out a PFC, etc.).

o PFC : Required PFC in a will contest (same things required for common form probate): Proof of testamentary capacity Proof of due execution

93 ? Note that these parties do not have to establish the validity of the earlier will before they can contest the later will. They simply have to allege that there is an earlier, valid will. 94 ? Note that some wills simply cannot be contested. If a person dies with a surviving spouse and no descendents, the will would not legally be to anyone’s detriment.95 ? Note Genna, where the heirs at law brought a will contest alleging that the decedent’s husband had caused her to drink herself to death. Whether or not he caused her to drink herself to death had nothing to do with the validity of the will (the purpose of a will contest). The heirs could bring a suit later on after the will was held to be valid which would decide whether he had caused her to drink herself to death.

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The proponent does not have to offer evidence which goes to negative undue influence (he only has to show the top two requirements)

o Power of CFP : If at the time the contest has been brought, the will has already been admitted to

common form, the proponent can make out his PFC by proving that will in question has already been probated in common form.96

If there was a solemn form probate (or a caveat was filed) then the proponent will have to bring in affidavits and/or put on witnesses to prove his case.

Trial of will contest - contestant’s burden to go forward with evidence: The contestant must bring in evidence that the will was not valid. This does not mean that the burden of proof shifts to the contestant; it means that the burden of putting on evidence which makes a jury issue now belongs to him (as opposed to a burden which overcomes the proponent’s case).

Trial of will contest - further evidence by proponent: If the proponent has made his PFC by putting into evidence the documents, rested, and then the contestants put on their proof (which makes jury issues) and rest, in a will contest, the proponents can then call any witnesses they may want to call without limitation.

Trial of will contest - burden of proofo The proponent of the will has the burden of proof with all the issues. o Most jurisdictions take the position that matters such as undue influence and fraud are

affirmative defenses as to which the contestants have the burden of proof. Mississippi treats them much like affirmative defenses by:

Not requiring the proponent to present evidence on the matter to make a PFC; Requiring the contestant to present evidence to support the matter; and Permitting the proponent to present evidence on the matter after the contestant

has rested.

Grounds for contest - lack of testamentary capacityo Three grounds of contest :

Lack of testamentary capacity Undue execution Undue influence

o Lack of testamentary capacity The parties must meet the three-part test, and demonstrate whether or not the

testator at the time the will was executed had the mental capacity to understand and appreciate . . .

The nature of the act of executing a will; The natural objects of the testator’s gift and their relation to him; And whether the testator was capable of reasoning and planning how the

he desired to give his property. The attesting witnesses can testify about this, because they had a duty to pay

attention to the soundness of the testator’s mind. Declarations of the testator are admissible (e.g. the testator may have said, “I am

Napoleon.”).

Undue executiono A layperson can testify in the case of a holographic will as to handwriting as long as they

have pre-trial familiarity with the handwriting of the testator. Handwriting experts may also be used.

o Due execution of a nonholographic will requires meeting five criteria (see §§4:5 to 4:10).

96 ? The proponent must bring evidence from the clerk (papers which show that the probate in common form was properly done), and that will make out the proponent’s PFC. He can then rest his case. A motion for a directed verdict will clearly be denied.

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o Attesting witnesses should be used to support the will. If the attesting witnesses are unavailable, the proponents may:

Make the proof with the testimony of other people who have personal knowledge of what transcribed at the execution of the will; or

Prove that the signatures of the testator and the two witnesses are genuine. o If one of the subscribing witnesses testifies against the will, it will simply be a jury

question as to whom to believe.

Undue influence97

o If a person with sound mind goes through the formalities of execution required by our law and executes a will and lives out their days and never revokes that will, the law accepts that will as valid.

o However, a will which is the product of someone else’s influence is not a valid will. If it can be demonstrated that the person felt compelled to do it, then this doctrine comes in.

Two doctrines of undue influenceo The traditional doctrineo Confidential relationship doctrine

The traditional doctrineo Generally : Influence which just amounts to suggestions or proposals, while they may

have some influence, do not qualify for undue influence. They must destroy the testator’s free agency with their influence.

o The evidence falls into four categories : The reasonableness of the will : Does the will do what a person would have

expected the testator to have done? Mental capacity of the testator : If the capacity is bad enough, the will is void.98 Activity in the making of the will : The court will look at whether the alleged undue

influencer had anything to do with getting the will made. Relationship between the testator and the alleged undue influencer : The undue

influencer must be in a dominant position in the relationship; a merely persuasive influence is probably not enough to show undue influence.

o Summary : After all of this is considered, you must ask if reasonable minds would conclude, based on the evidence of the influence presented, that the testator’s free agency was utterly destroyed.99

Undue influence - Confidential Relationship Doctrine (Croft)o If the contestant can show that there was:

A confidential relationship between the beneficiary and the testator, and There must be a relationship in which the testator “imposes trust and

confidence” in that person.100 A fiduciary duty is not enough to pass the confidential relationship prong.

The beneficiary has some hand in getting the will made; then a presumption of undue influence will arise.101

97 ? This is often used to attack a number of inter vivos transfers, so you need to understand this doctrine in respect to a lot of areas of the law.98 ? However, a person’s mind doesn’t have to be perfectly good for them to have testamentary capacity. The contestants will try to demonstrate that the person’s mind was not very good (e.g. because of drug addiction, age, or illness).99 ? The jury will be told that they must find upon a preponderance of the evidence that the will was not a product of undue influence.100 ? The court says that gives the person a somewhat superior position. But this is not hard to find. 101 ? Like the first prong, this does not take much to be proven (all you have to do is drive someone to a lawyer’s office, and that’s evidence that you had a hand in it).

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The court has said that “suspicious circumstances” can take the place of activity in getting the will made.102

o Then the proponent must show three things by clear and convincing evidence: The beneficiary’s utmost good faith Fullest deliberation by testator Independent consent and action

o This doctrine can be used to attack wills, deeds, creation of joint bank accounts, or any other type of inter vivos conveyance.103

Summary of traditional and confidential relationship doctrineso Traditional Doctrine :

Reasonableness of will T’s mental capacity B’s activity in getting will made Relationship between the testator and the alleged undue influencer

o Confidential Relationship : If contest ran show . . .

“Confidential relationship” between B and T, and B’s activity in getting will made

Then, proponent must show, by clear and convincing evidence B’s utmost good faith Fullest deliberation by T Independent consent and action

Fraud: A person making a will may be the victim of fraud in two ways . . . 104

o Fraud in the execution : He may be deceived as to the contents of the will.o Fraud in the inducement : He may be deceived as to certain facts that affect how he

disposes of his property.

Mistake: A person making a will may be the victim of mistake in two ways . . . o Mistake in the execution : He may be mistaken as to the contents of his will.105

o Mistake in the inducement : He may be mistaken as to certain facts that affect how the testator decides to dispose of his property.106

Vick: A will might be set aside on the grounds of mistake in the inducement . . . Where the mistake was caused by a beneficiary, and The misrepresentation actually influenced the testator to make a will he

otherwise would not have madeo Exception : If a situation comes up where a will says that a person leaves someone out of

will with a reason for why he left the person out, and it turns out that the reason isn’t true, that mistake will invalidate the provision.107

Contest of a foreign will

102 ? In one case, a relationship alone was a “suspicious circumstance.”103 ? With regard to deeds, you don’t even have to show activity in getting the deed made (i.e. the second part of the contestant’s case does not have to be shown).104 ? Note that the elements of fraud are 1) misrepresentation of facts, 2) knowledge of the falseness of the misrepresentation, and 3) reliance by the testator on the misrepresentation. 105 ? A mistakenly executed will will be denied probate, but the court can do nothing when a provision is mistakenly omitted.106 ? This is not grounds for contesting a will where the testator knew and approved of its contents. 107 ? I.e. “Because my son died in the Gulf War, I do not leave him anything,“ but it turns out he was just MIA.

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o If the decedent owned real or personal property located in Mississippi, the decedent’s will may be probated here prior to its probate anywhere else, or it may be probated first in the decedent’s domicile and then probated in Mississippi upon an authenticated copy.

o When the will is first probated in another state and then brought to Mississippi for probate on an authenticated copy, there exists in the other state a judgment that the will is valid. The effect of this judgment on a person’s right to contest a will in Mississippi is that the judgment of the other state is conclusive if that court had jurisdiction over the parties and the subject matter.108

o Under §91-1-1, the judgment of a foreign state is no more conclusive as to personal property than as to land and cannot preclude a contest of the will as a valid conveyance of personal property located in Mississippi.109

Loss of right to contest willo Generally : The right to contest a will may be contracted away. o Prerequisites : Before a party can be deemed to have validly contracted away his right to

contest a will, the court must ask . . . Were the parties competent? Was there fair and accurate representation? Were the terms clear?

o Estoppel : You may estop yourself from contesting a will by accepting a gift in it. Courts say

one of two things: You have, by accepting a gift from the will, expressed your belief in the

validity of the will. We will let you contest the will, but you will have to give the gift back

(Mississippi). If you have signed a petition asking for a will to be probated, then many courts

will accept your judicial position and will not allow you to change your mind on it. Fraud or misrepresentation on the part of another party will not estop an affected

interested party from contesting a will (Woodville).

Forfeiture of legacy for unsuccessful contest: When a will has a provision that any contestant of the will is going to lose their gift, courts have taken two positions . . .

o If the will is upheld, the court will carry out that clause. o Other courts hold that they are not willing to prevent people from litigating legitimate

issues. However, if they contest the will and they do not have grounds (probable cause), they will forfeit their portion of the inheritance.

Evidence rules in will contestso Affidavits are normally not admissible into evidence in court, but they are when the will

has been probated in common form.

108 ? E.g. Woodville: The testator lived in New Orleans with his wife where he died. His will did not leave anything to his wife. She was really worried about getting a nice beach home this guy had on the Coast. The will was probated in Louisiana, because the wife signed the petition for it to be signed in Louisiana. She was told by the lawyers for the beneficiary that this would not have any effect on her right to own the beach home (they were trying to take advantage of her). Those beneficiaries took the will to Harrison County and probated it in common form. Then she realized what happened to her. She wanted to contest the will.

The people trying to defraud her said that she could not contest the will because to permit her to contest the will in Mississippi violated the Constitution of the United States (Full Faith and Credit Clause, i.e. Louisiana said this was a valid will so she cannot contest that in Mississippi). The court held that because Louisiana did not have subject matter jurisdiction over land located in Mississippi, the FF & C argument was moot. 109 ? However, one case held that a person who contested a will out of state and lost could not again contest the will in Mississippi where the only Mississippi property affected by the will was personal property. Weems questions the staying power of this decision in light of the fact that neither party in that case brought up §91-1-1.

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o Statements made by the testator, like all other out-of-court statements, are hearsay when they are offered to prove the truth of the matter asserted. However, two exceptions eviscerate this rule . . .

State of mind exception (Rule 803 (3)): Statements of the testator are simply not subject to the hearsay rule.110

Privilege (Article V of the Rules of Evidence) : Statements made to an attorney in the context of drafting a will are admissible.

IX. Administration of Testate Estate

Appointment of executor or administrator c.t.a.: o The law gives a testator the right to designate in his will the person(s) he wants to be in

charge of the administration of his estate and carrying out of his will. o If the person has been named in the will, the court will appoint that person (assuming that

the person wants to do it). If the will doesn’t name anyone or the named person doesn’t want to or can’t do it, the court will choose an administrator c.t.a.

Effect of probate: The probate of a will replaces the law of intestate succession. The administration is begun by the probate of the will and by the court appointment of someone to be the executor.

Oath and bond: o The letters testamentary will not issue to the executor until he has taken an oath. o If the testator has not relieved the executor of the duty to pay bond, the amount of a bond

in a testate estate must be an amount equal to the full value of the estate (at least the part that has been entrusted to the care of the executor).

o The premium for the bond must be paid by the estate.111 Executor’s rights and duties - generally: The executor must follow the provisions of the will,

but he must administer the estate in line with the law of intestate succession if the provisions of the will are unclear.

Inventory, appraisement, and accounts: Appraisement, inventory, and accountings may be waived, saving the estate some money.112

Harper: When others rightfully assert standing based on maladministration, the personal representative must be able to show, after an accounting, that he did what a reasonably prudent businessman would have done in regard to the will.113

Payment of testator’s debtso This is substantially the same as payment of an intestate debt (the administrator is

required to make a reasonable inquiry and use due diligence in determining the payment of debts).114

110 ? Bottom line: statements of the testator simply are not subject to the hearsay rule.111 ? This is why the bond is usually waived.112 ? The vast majority of wills will waive bond, appraisement, and inventory. Note that the personal representative is required to make annual accounts if the estate is kept open more than one year.113 ? Otherwise, the executor will have to pay the damages out of his own pocket.114 ? Once he knows who the creditors are, the executor must write a letter and inform them all. Then he must file an affidavit saying that it has been done. Finally, the executor must publish a notice to creditors in the newspaper.

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o Rare exception: If the will says, “I want my executor to pay my debts just as speedily as is possible,” the executor must pay those debts if they have been probated (unless the will has a provision waiving the probate requirement).115

o If a will goes so far as to say exactly what the testator wanted paid, then the law says that the creditor has effectively become a beneficiary.

Homestead rightso If a wife or husband owns the house in which they live with their spouse, they have the

right to leave the homestead to whomever they wish. o The surviving spouse has the right to exclusive use and possession of the homestead as

long as he or she remains unmarried if he or she: Owned an interest in the homestead property along with the deceased spouse; Was left an interest in the deceased spouse’s will; or Obtained an interest by renouncing the will of the deceased spouse and taking

an intestate share. o Remaining question: Does the surviving spouse have the right to exclusive use and

possession of the homestead if he or she has no ownership interest in it? Even though he has no ownership interest, dicta in two cases says that he or she

still has the right to exclusive use of the homestead unless he or she gets married.116

Interpretation and construction of willso Black letter rules and notes :

In a construction case, the court tries to harmonize the provisions in the will and find the dominant intent of the testator.

If, after looking at the will, the court still feels that the meaning is not clear, then the court will declare the will to be ambiguous. Then the court must use extrinsic (parol) evidence to determine the dominant intent of the testator.

There are two kinds of ambiguity: Patent ambiguity : A will may be ambiguous on its face.117

Latent ambiguity : A will may be perfectly clear on its face, but when one tries to carry out the will, it cannot be done.

The court must also take into mind rules of construction.118

Construction of a will - identification of beneficiary: If the provisions of a will are found to apply equally to two or more persons, declarations of the testator are admissible. If, after that, the court is still unclear, it will hold the gift void for uncertainty.

Construction of will - identification of propertyo When a will is ambiguous with regard to the property which the testator is devising, the

court will try to determine the dominant intent of the testator.

115 ? If they haven’t been probated, the executor will be personally liable for the payment of those debts.116 ? Since one spouse cannot sell or convey away the property without the other spouse’s consent, it only makes sense to carry this principle past the death of one spouse.117 ? This rarely happens, but when it does it almost always is in the case of a holographic will, because laypeople typically are not accustomed to expressing themselves well.118 ? Weems thinks that the way that the rules of construction really work is the judges decide how they think the case should come out and then find rules of construction to support their conclusion. Therefore, the first part of your argument is to try to convince the court that your position really was the dominant intent of the testator, and after making that case, you throw in some rules of construction that the court can cite if they want to rule on your side (e.g. the intent of the testator controls, testator’s will must be gathered from the entire text of the will, a will must be construed in light of the circumstances surrounding the testator at the time the will was executed). Note that trying to use case law on all fours is almost always a fruitless exercise in this context, because “no will has a twin brother.”

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o However, where real property has been devised by definite description, the rule has been that parol evidence is not admissible to contradict or vary a mistaken description and the only way to correct a mistake is by looking to another part of the will.119

Lapse of giftso When a beneficiary under a will dies before the testator and the testator does not enact a

codicil to deal with the change in circumstances, the effect of this “lapse” is that the gift will be treated just as though the testator had revoked the gift.

Anti-lapse statute (exception): If the beneficiary is a descendant (child, grandchild, etc.) of the testator and the beneficiary is survived by a descendant who survives the testator, the gift will go to the original beneficiary’s descendants.

o When a gift of personalty or real property lapses, it goes to the residuary beneficiary if there is one and to the testator’s heirs of law if there is not.

o If the lapsed gift was the residuary estate (e.g. the deceased beneficiary had been given the entire residuary estate), it goes by intestate succession.

o If a will says that I leave the rest of my estate to my three sisters and one of them dies before the others, the lapsed third will go by intestate succession.

Class giftso When, in a will, there is a provision which says that the testator leaves real or personal

property to a group of people (e.g. nieces and nephews, $100 for all members of the Vicksburg Rotary Club), those are considered to be class gifts.

o Two questions come up: Is it a class gift or a gift to individuals? Even when members of a class are

named individually, the gift will be held to be a class gift where the testator was group-minded (Cain).120

When is the membership in the class ascertained? The beneficiaries will be the people who are in being and members of the class at the time of distribution.

o Anti-lapse : These statutes apply to class gifts.

Branton v. Buckley: When a testator leaves a life estate with the remainder vesting in a class, a remainder interest vests in the beneficiary immediately upon the death of the testator, even if remainder does not actually transfer until after the death of the beneficiary.

Classification of testamentary dispositions of personaltyo Issue : What property will be used by the executor to pay the debts, expenses, and taxes

of the estate?o Purpose : If there’s no way for the court to determine the intent of the testator, then the

court will resort to a classification of gifts system. o Personalty : There are four types of personalty . . .

Specific bequests: A gift in a will of a particular piece of personal property identifiable from all others.

General bequests: A gift of a certain amount of personal property out of the estate but not distinguishable from any other piece of property in the estate.121

119 ? Some relief from this rule has been provided in the rule that the erroneous part of the description (e.g. I give the Northeastern half of my land to Joe) can be eliminated, and if the part remaining is sufficient to identify the property, the gift will be upheld.120 ? When individuals are named, there’s a construction presumption that the will was intended for those people. The construction presumption can be overcome if the individuals are part of the same larger group.121 ? E.g. a hundred head of cattle.

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Demonstrative bequests: This is a money gift charged on a specific fund and directed to be paid out of that fund.122 If the specific fund is insufficient, it becomes a general bequest.

Residuary: This happens when personal property is given through a clause which gives the remainder of any unwilled property to a certain party.

o Devises : There is no such thing as a demonstrative devise. Otherwise, the classifications are the same.

o Uniform Estate Tax Apportionment Act : Provides that federal and state estate taxes must be apportioned among all persons interested in the estate in the proportion that the value of the interest of each person bears to the total value of the estate (unless the decedent has a will and it provides otherwise).

Abatemento Generally : The law of abatement concerns how the executor determines which property

to use to pay these expenses and in what order property is to be used. o When abatement is necessary : In the absence of specific directions in the will, the court

will undertake to construe the will to try to determine the testator’s intent as to which property should be used. If the intent is not clear, the court will fall back on this system.

o Order of abatement : Property which the testator intended in will to use for expenses Property not disposed of in the will at all (personalty first, realty second) Personalty

Residuary first General personalty Specific and demonstrative personalty

Realty Residuary General Specific

Exoneration: This deals with how a particular debt is to be handled when the debt constitutes a lien on a specific piece of property.123 It all comes down to the testator’s intent, which will be carried out if it can be ascertained.

o Issue : Should the estate be required to pay off the debt? o Rule : If there is no intent to the contrary, specific gifts of personalty and gifts of real

property are to be exonerated out of the personal estate. o Secured creditors : A secured creditor of an estate can stand on the security without

having to probate it and an heir retains the right to have his gift exonerated, so the executor is under the duty to pay such a claim.

Ademptiono Two kinds of ademption :

When the testator in his lifetime disposes of a piece of property the testator has specifically devised or bequeathed in the will.124

Effect: The gift fails since the testator didn’t own the property when he died.

Ademption by extinction: If the gift can be construed to be general, the court will try very hard not to classify it as specific so that the beneficiary will get the gift.125

122 ? E.g. “I leave $10,000 payable out of my IBM stock.”123 ? E.g. a testator gives a car to someone, and the car was financed ($2000 is left to pay on the car). This usually comes up in real property with mortgages on them.124 ? The same rule applies if the property is either lost or destroyed. 125 ? This usually comes up in the case of stock that has been willed.

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When the testator, by payment or gift in his lifetime, confers on a legatee the benefit which the testator had prepared to give by will under a general demonstrative legacy (ademption by satisfaction).

Effect: The legatee does not receive the gift in the will. There can’t be an ademption by satisfaction by an event that occurred

before the will is made.

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