WILLS & ESTATESWeems / Fall 2005

USE THIS AND Cross Ref with 4 to make outlineChapter 1: Intestate Succession

§ 1.1 Property subject to law of intestate succession

All property (real and personal) in which deceased person owned an inheritable interest in at time of death and which was not included in a will is controlled by intestate succession

Life insurance proceeds are distributed by intestate succession wheno Decedent dies with life insurance proceeds payable at death,o Decedent dies without a will, ando “Estate of Insured” is the beneficiary

Joint tenancy with right of survivorship property is not affected by intestate succession because the decedent does not own an inheritable interest in the property but rather the surviving joint tenant owns 100% inheritable interest

o Joint tenancy is presumed for bank accounts and certificates of deposit made in the name of two or more persons and payable to any one of such persons or the survivor

o Joint tenancy for the contents of a safety deposit box requires clear and unambiguous agreement to that affect (owner must purposely contract rights to those items)

Weaver v Mason: The law (in MS and other places as well) is clear that joint tenancy of an asset cannot be part of a single joint tenant’s estate --- the money goes to the surviving joint tenant with right of survivorship; thus, bank accounts held in joint tenancy cannot be touched by creditors seeking debt from only one of the joint tenants who died.

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.

§ 1.2 Governing law

CL Rule: o intestate succession of real property was governed by the law of the state or nation

where the land was locatedo intestate succession of personal property was governed by the law of the decedent’s

domicile MS Rule:

o Intestate succession of real and personal property located in the state is governed by the law of Mississippi (91-1-1: personal ppty located in MS will be governed by law

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of MS) (did away with ancillary administrations = where ppty would have to be taken back to other state)

Change in law has extinguished ancillary administrations in MSo An out of state resident has to open up an original administration in MS to get

property that is covered by MS law

Apply MS law (even though owner/creditor is out of state resident) to o Inheritance of money on deposit with a bank in MS o Inheritance of stock in a MS corporation o Recovery of debts owed by MS residents

§ 1.3 Heirs at law – Time of determination

MS Rule: Whoever is the inheritable class at the moment of death will inherit as long as they are “in being”

ADD INFO ABOUT SIMULTATNEOUS DEATH STAUTE (SEE POCKET PART OF WEEM’S BOOK)

§ 1.4 Heirs at law “in being” – Posthumous heirs

Harper v Archer: a person is “in being” i.e. “alive” from the moment of conception (for the purposes of inheritance).

For a child heir merely conceived at death of decedent, “in being” requireso Fetus to be born alive ando After such period a of fetal existence that its continuance in life might be reasonably

expected

Uniform Simultaneous Death Acto If a husband and wife both die in a car accident and it can be proved by

preponderance of the evidence that she lived one minute longer than he did, she will inherit everything he owned

o However, if it is not proved by preponderance of the evidence that she lived any amount of time longer than he did, then 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

§ 1.5 Heirs at law – Right of representation

Whenever a person’s parent would have taken an inheritance by intestate succession from a decedent’s estate had the parent been alive at the time of the decedent’s death, but the parent was in fact not alive at that time, the person and his or her brothers and sisters, if any, who

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are in being at the time of decedent’s death, will take in equal parts the inheritance their parent would have taken (had the parent been alive)

o MS law gives right of representation to: Descendents of the person who died and Descendents of the dead person’s siblings

So, where parent dies and has four children (A B C D), and C and D had predeceased the parent, E and F (C’s two children) will each get ½ of ¼ (the portion their parent C was entitled to) = therefore, each would get 1/8 (see Rodgers below for another example)

Dunaway v McEachern: right of representation does not go to a spouse of a deceased-intended beneficiary, only descendants of decedent. (did not cover)

Rodgers v Rodgers: unlike most jurisdictions where inheritors in the same class receive per capita inheritance, MS law uses per stirpes to distribute inheritance to heirs at law

Case Facts: Parent dies, A and B, two children, predeceased parent; A had two children (C and D) and B left four children (E F G H)

o Majority Rule (Per Capita) Each child would share equally in 1/6 portion

o MS Rule (Per Stirpes) C and D: would share equally in A’s ½ share (so each would get ¼) E F G H: would share in B’s ½ share (so each would get 1/8) (1/2

multiplied by ¼ = 1/8) Hypo

o A had two brothers named B and C who died earliero A now dies intestate

Majority Rule (Per Capita)o B’s two children and C’s three children each get 1/5 of A’s estate

Mississippi Rule (Per Stirpes)o B’s two children get 1/4 eacho C’s three children get 1/6 each

§ 1.6 Heirs at law – Relatives by Consanguinity If a person is related to someone else by blood, somewhere up the line, they had common

ancestors Two groups

o Lineals Ancestors = relatives on whose prior existence the decedent’s birth depended

Parents, grandparents, great-grandparents, etc. Descendants = relatives who would not have been born but for decedent

Children, grandchildren, great-grandchildren, etc.o Collaterals = relatives whose existence did not depend on the existence of decedent

Brothers, sisters, uncles, aunts, cousins, etc.

91-1-3 : only deals with lando 91-1-11 : says that personal ppty will inherited like land o Benficiary trust ppty is also inherited like land

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So, really all three are inherited the same

Four Inheritance Groups in MS (91-1-3)

o Group I = decedent’s children and the descendents of decedent’s children who died before the decedent died (i.e. predeceased decedent)

One share to surviving spouse (91-1-7 : surviving spouse will inherit just like they would if they were a child; they are given a child’s share)

One share to each surviving child One share to each child of a previously deceased child (per stirpes)

Nothing goes to surviving spouses of deceased children; only to children of deceased children

If child D had two children E and F (each would be entitled to 1/8) but E predeceased and left two children G and H (then G and H would share equally in their parent’s 1/8 portion = 1/16)

If anyone is in Group I, don’t worry about other groups (everything will go to anyone who may be in Group I)

If there is no one in Group I, go to group II and so on and so forth….o Group II = decedent’s father, mother, brothers, sisters, and descendants of previously

deceased brother or sister (i.e. nieces and nephews of deceased siblings) One share to each parent and sibling One share to each child of a previously deceased sibling (per stripes)

o Group III = decedent’s grandparents, uncles, and aunts (only blood relatives = nothing to aunts and uncles by marriage)

One share to each grandparent, uncle, and aunt No share to a previously deceased uncle or aunt

Right of representation does not extend to cousinso Group IV = decedent’s relatives of the highest degree as computed by the rule of

civil law Example: Child of your first cousin = a first cousin once removed; your child

and your cousin’s child are second cousins

o If no person exist in any of the four groups, the property of the deceased’s estate goes to the state of MS

§ 1.7 Half-bloods (91-1-5)

o Half-blood relationships can exist only among collaterals

o MS § 91-1-3o Half-bloods are given same group status as full bloodso However, if a full blood heir exists in the same group as the half-blood heir, then the

full blood heir inherits to the total exclusion of the half-bloodo Also, full blood children of full blood predeceased heirs inherit to the total exclusion

of the half-blood in same position (reason is right of representation)

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o Hume: So, whole blood brothers and sisters will inherit all if there are both whole and half blood siblings.

o Scott v. Terry: H1 and W have three children (A B C); W remarries H2 and have one child (D); Before A died, B and C died (B and C left children behind); A leaves no children or wife; so, A leaves a half blood sister and E F G and H (full-blood nieces and nephews)

o E F G H (full blood nieces and nephews) inherit to exclusion of D (half-blood sister) (through right of representation)

o Acock: where A is survived by father and two half-blood siblings = the father inherits to the exclusion to the half-blood siblings

o First cousin (half-blood) will take to exclusion of first cousin once removed (full-blood)

MS WRONGFUL DEATH STATUTE Wrongful death benefits will go to Group 1 (surviving spouses, children, and children of

dead children) If none, it will go to siblings (with no distinction b/t half and whole-blood)

o This is the only place where the wrongful death statute does not mirror the law of intestate succession

§ 1.8 Decedent’s Surviving Spouse

MS Intestate Lawo Spouse must survive the decedent to be considered in distribution of decedent’s estateo Surviving spouse shares equally with surviving children of decedento If decedent was not survived by any children or descendents of children, then

surviving spouse inherits the entire estateo Surviving spouse may be entitled to homestead rights and a living allowance which

does not count as part of his or her inheritance o Common law marriages were invalidated in MS in 1956

§ 1.9 Adoptions

Majority Rule: adoption is like divorce as far as the natural parents’ ability to inherit from the child given up for adoption.

MS Rule § 91-17-13 o Adopted child has right to inherit

o From and through right of representation the of adoptive parentso From the other children of the adoptive parents [just like full bloods]

However, half bloods cannot inherit from any other relativeso From and through natural family just like before adoption took place

o Adoptive family (parents and siblings) has right to inherito From and through adopted child just like child was their natural child

o Natural family’s right to inherit from child given up for adoption is totally extinguished

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o Note: If adoptive father and adoptive mother only adopt one child; both parents die and the child dies intestate = then no one will be able to inherit from the adoptive child

Half-adoptionso Occurs when a child is adopted by the new spouse of one of the natural parents

following divorce from the other natural parento No reason why this should cause any change at all in the rights of inheritance

between the child and the natural parent now remarried to new adopting parent Issue (decided by SCrt): what right does an adoptive child have to adopt from natural family

o Full right to adoption (so where boys were adopted by grandparents; father marries another woman and has child = when father dies boys get to inherit from father in addition to half-sister)

o Statutes in Derogation of common law are strictly construed = so SCrt could not add to statute to say something that it does not say (and the statue did not say anything about taking away an adoptive child’s right to inherit from natural family)

§ 1.10 Illegitimates

NEED TO CROSS CHECK THIS SECTION (DIDN’T PAY ATTENTION THIS DAY IN CLASS)

o Common Lawo illegitimate children could not inherit from anyone other than their spouses or

childreno purpose for the rule was the hope that it would discourage sexual intercourse

outside the bonds of marriage

o MS Lawo 1857 : MS law was changed to permit an illegitimate to inherit from his mother

and her kindred apparently recognizing that the rule was not going to achieve its goal

o 1981 : MS law was amended to also permit an illegitimate to inherit from his father and his father’s kindred provided

(1) there had to been an adjudication of paternity or legitimacy before the death of the intestate or(2) there has been an adjudication of paternity after the death of the

intestate (suit to determine heirship)

91-1-15o Section 2: illegitimate has right to inherit from mother(?)

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If illegitimate child dies, not married, and predeceased his natural father, the mother cannot inherit from natural father through the illegitimate child

THE legislature probably meant to say survived and not predeceased b/c the way it is does not make sense (B/c if he predeceased his natural father he WOULD NOT inherit anything from his father anyways - so there would be no way for the mother to inherit through the child)

If child inherits from father, he cannot even pass to mother through will the ppty inherited from his natural father

o Subsection 3: the right of illegitimate to inherit from his natural father and his kindred (this changed the law) (SEE STATUTE - I Think this info is found below - just check statute to make sure)

Subsection C (he went over this) - lawsuit adjudication Estate of Taylor

o man died intestate; after estate opened, adult woman appeared and contended decedent was her natural father; her mother was married to another man at the time claimant was born; strong presumption in law that husband was father; before DNA; chancellor held against her (in favor of presumption); put on a lot of evidence that decedent was her father; SCrt reversed saying that she did prove he was her natural father; court said in order for this to happen, evidence has to be almost to criminal burden (beyond reasonable doubt)

Whit v. Mitchello Wealthy woman died intestateo Never married and no childreno Had one sister o Brother had died 40 years earliero Man filed petition claiming he was illegitimate son of deceased brother

If he could prove = he was entitled to inherit (does not have to be for estate of the illegitimate parent)

Larsono Man died intestateo Survived by wifeo No childreno Claimant claims to be daughter of illegitimate child (born b/f decedent

was married)o Could inherit if could prove her mother was natural/illegitimate child

11-7-13: illegitimate child can share in wrongful death benefits BUT first must bring suit to establish hiership to prove relation

Illegitimate can bring suit to challenge will BUT only after bring suit to establish heirship which shows they would be entitled to inherit had the will be valid

o Suits to determine heirship [MS 91-1-27 and 91-7-29]

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Timing Must be instituted within 90 days of publication of notice to the

creditors OR Within one year of the date of death of the intestate

o Whichever is less (?? Check to make sure this is true: this shall run notwithstanding the

minority of the claimant) Standard

Illegitimate must prove his or her alleged relationship with decedent by clear and convincing evidence

o BOP becomes beyond reasonable doubt when claimant alleges he or she is natural, illegitimate child of a deceased man and the claimant’s mother was at the time of his or her birth married to another man --- in this situation, there is a very strong presumption that the mother’s husband at claimant’s birth was the natural father

Either the plaintiff or the defendant may make a motion for a DNA blood test pursuant to MS § 93-9-21

o Court has power to compel a party to submit a blood testo Court can only request a nonparty witness to submit a blood

test

o Illegitimate child may inherit as a legitimate child IF Natural father marries natural mother and acknowledges the child as his OR Natural parents participate in a marriage ceremony before child’s birth

Even if the subsequent marriage was declared null and void by court

o Natural parents and their kindred may inherit from the illegitimate BUT one natural parent and its kindred may not inherit through the

illegitimate any property the illegitimate inherited from the other natural parent

o The illegitimate child who dies unmarried and without issue cannot transfer, even by will, property inherited from his father or mother

o Natural father and his kindred cannot inherit from or through the illegitimate child UNLESS the father has

openly treated the child as his and neither refused nor neglected to support the child

BOP is on the father’s kindred to prove by preponderance of the evidence

o If no evidence on either of the two prongs, then claim of father’s kindred must fail

o Administrator: files petition to be appointed administrator of state Must publish notice to creditors

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Creditor must respond w/in 90 days o Law treats illegitimate as creditor

o Administrator’s obligation concerning illegitimates as trustee, must exercise reasonable diligence to determine illegitimates’

identity and location should disclose to court any actual knowledge of persons claiming to be

illegitimate heirs If administrator, with knowledge of an illegitimate heir claim,

represents to the court that another person is the sole heir of an estate, such representation may represent fraud on the court

required to provide actual notice to known or reasonably ascertainable illegitimate children who are potential heirs and whose claims will be barred by the running of the 90 day limitation

as protector of the assets of the estate, duty to contest claims of people who profess to be illegitimate heirs if such claims may be contested properly and in good faith

o Where there has been an adjudication of paternity prior to the death of the intestate that a certain child is the natural child of a certain man, the adjudication is FINAL and the issue of paternity may not be adjudicated again

Even if adjudication was by default, no blood or DNA tests were submitted, and the person seeking readjudication was not a party to original adjudication

§ 1.11 In-laws

In laws cannot inherit by intestate succession

§ 1.12 Nonresident Aliens

Generally, nonresident aliens may not acquire and hold MS land by intestate succession or by will, subject to several exceptions

o MS 89-1-23 Nonresident aliens shall not inherit land located in MS; BUT following

may: Residents of Syria or Lebanon Persons who were or are US citizens and became an alien by

reason of marriage Where a treaty between two countries permits the alien to own

land in MS under certain circumstances (treaties of US and nonresident alien’s country supercedes MS law)

Nonresident spouse of person who owns ppty in MS and dies = not allowed to inherit JUST KNOW THIS STATUTE SAYS NONRESIDENT ALIENS CANNOT HOLD

LAND = IF YOU HAVE THIS COME UP, THEN GO LOOK TO SEE EXCEPTIONS (DON’T THINK HE IS WORRIED ABOUT US KNOWING THE EXCEPTIONS)

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§ 1.13 Escheat

If there is no one to inherit the property, the property goes to the state. This rarely happens.

§ 1.14 Advancements

Parent dies intestate = law says each child shall get equal share, BUT:o In situation where there have been inter vivos gifts o A child can file a petition and contend that inter vivos gifts were advancements

Advancements = gift parent intended it to be advancement of inheritance Must prove it by preponderance of evidence that parent intended it to be

part of child’s inheritance 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

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 --- then the estate can be split evenly based on its true value

o 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

Advancement = must be GIFT Hypo: Man dies intestate

o Survived by spouse and children A B Co Gave A land worth 40Ko Gave B cash to open business o Gave wife ring worth 10Ko Net estate at time of death = 360Ko How is estate divided assuming gifts to A and B were advancements?

First, surviving spouse takes ¼ share of net estate (90K) Advancements have nothing to do with surviving spouses No gifts to spouses can be advancements = only applies to children

40K and 20K is brought back into hotchpot = increases 270K to 330K Each child takes 1/3 of 330K

A = gets 110 minus 40K = for additional 70K B = gets 110 minus 20K = additional 90K C = gets the rest????

§ 1.15 Loss of Right to Inherit – Willfully Causing Death of Decedent

91-1-25 A person who willfully causes or procures the death of another will not inherit from the

decedento Same applies to insurance policies

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o MS Sup Court has indicated that it would hold the same in joint tenancy with right of survivorship

The property will be inherited as if the killer had predeceased the course of actiono So, the children of the killer may have the right of representation

Remember it must be willfully: some manslaughter killings are not willful according to statute

Remember the simultaneous death statute applies = if can’t decide who died first = presumed they both survived each other (what he owned will go to his heirs, what she owned would go to her heirs)

Same principle applies to wills???? (CHECK TO MAKE SURE THIS IS CORRECT)

§ 1.16 Loss of Right to Inherit – Spousal and Parental Misconduct

A spouse can, if there is misconduct which manifests a total abandonment of the marriage, forfeit the right to inherit

o Repeated acts of adultery are not sufficiento A bigamous “common law” marriage (even though common law marriage is no

longer recognized in MS) would constitute an act of abandonment

What constitutes common law marriage? Intent to be married Cohabitation Holding themselves out to community as being husband and wife

o So, today if a man leaves his wife and meets common law standard for marriage with another woman -- he is prohibited from inheritance by intestate succession from either woman

Estopped from wife Prevented from new woman b/c never married

Gastin v. Gastin: (NOT SURE HOW IMPORTANT THIS IS) Man died intestate Had child in 1925; living at woman at time; split Woman went away and married another man There was C/L marriage but no C/L divorce

o If they were married, they stayed married Trial court = they were not married and son was illegitimate Supreme Court = reversed and said they were married (C/L)

§ 1.17 Loss of Right to Inherit by Contract – Release of Expectancy

o A person can contract away his right to inheritance he has under this area of the law if:

o The parties are competent (21 years old and of sound mind)

o It is clear that the right of inheritance is being contracted away

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(most important)o The compensation is adequate for the contract

(adequate consideration)

o Marital contracts (pre-nuptial and post nuptial agreements)o Courts look especially hard at the contracts between husbands and wives o If it appears to be terribly one-sided, the court will label it unconscionable

Kirby v. Kent: Married in may 1934; split in July 1934 He filed for divorce Executed agreement where she agreed to accept 195 dollars as full release of

any and all liability in so far as alimony and ppty distribution b/c the two He died b/f it was finalized intestate She claimed to be heir at law She was technically is wife and stood to inherit his entire state Other heirs and laws went to court and said she contracted away her right to

inherit The terms were not clear (court concluded it was an alimony settlement that

had nothing to do with right to inherit by intestate succession)

o Children (and parents)o A child (adult) may contract away his right to inherit from his parento Such releases of expectancy, if valid, bind the releaser and his descendants

who could have claimed through him

§ 1.18 Loss of Right to Inherit – Assignment of Expectancy (this is the other type of K; the Ks above involve K b/t heir and decedent)

o Bayless v Alexander o Brother agreed to assume responsibility of taking care of Mother (out of her

mind) full time IF the sisters would assign their right to inherit from the mother when she died

The sisters agreed One of sister died BEFORE mother died (sister was survived by four

children)o An assignment is only good if the person who makes the assignment survives

the source (assignor must live longer than the source) Where dealing with assigning the right of a person of unsound mind,

always have a guardian appointedo Perhaps the guardian could have then made sure the ppty went

to the brother

o 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

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o If the decedent is competent to make a will, it supercedes any assignment, making an assignment worthless

§ 1.19 Disclaimer of Inheritance

o 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 Person could not refuse to accept inheritance from intestate succession

o The desire to refuse a gift comes up in two situationso A person does not want to pay the estate taxo 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 ( § 89-21-1 )o 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

Must also deliver a copy of disclaimer to the personal representative of the decedent’s estate

o The disclaimed interest devolves as if the disclaimant had predeceased the decedent

o Time limit: must be done w/in 90 days

§ 1.20 Intestate Succession – Exempt Property

o There is some property which the law cannot seize by process of execution (or attachment) in order to pay debts

o Some ppty the sheriff simply cannot take (85-3 in Code)o Homestead exemption

o MS law poses three questions in regard to exempt propertyo Who inherits it?

Exempt property is inherited as all other property of a decedent except in one situation

EXCEPT: When the surviving spouse owns a place of residence equal in value to the homestead of the decedent, and the decedent has no surviving children of the last marriage, but decedent does have children or grandchildren of a former marriage

o In this situation, surviving spouse shall not inherit interest in the homestead – it goes to decedent’s children and grandchildren

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o What limitations are there upon the size and value of the homestead? Homestead cannot exceed 160 acres If unpaid creditors are present, the value of the homestead is limited to

$75Ko Who has the right to use and possession of the homestead?

Where homestead is inherited by surviving spouse and their children and/or grandchildren, the surviving spouse has the right to exclusive use and possession of the homestead, as long as surviving spouse remains unmarried and occupies or uses it

A surviving spouse is also entitled to all rents and profits from the homestead property

Excess of 160 acres for homestead may be partitioned accordingly among surviving spouse and children

A married person may not validly convey or mortgage the homestead property unless the other spouse signs the conveyance or mortgage

If they both sign a mortgage and waive the homestead exemption, the homestead is subject to those creditors

If decedent is not survived by a spouse and/or descendants, the homestead property is subject to the claims of creditors just like the rest of decedent’s property

§ 1.21 Suits to Determine Heirship

o 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 suits to determine heirship because the family almost always believes they know who the heirs are

Chapter 2: Administration of Intestate Estate

Three Purposes of an Administrationo Provides a process whereby the property of the deceased person can be

accumulatedo Provides a procedure whereby the net estate will be distributed to those who

deserve ito Provides a method whereby creditors will be identified and paid (most

important)

§ 2.1 Appointment of Administrator – Jurisdiction and Venue

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

Jurisdiction

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o In MS, the chancery courts have jurisdiction over administration of estates o Statute which provides clerk of court can perform acts of Chancellor

Subject to later approval of chancellor i.e. sign orders admitting wills and appointing administrator, etc… Rationale: Chancellor serves several counties and would be

inconvenient to require lawyer to find Chancellor Venue

o Proper venue is in the county of the decedent’s residenceo If the decedent does not reside in MS, venue is proper

In the county where he died or In the county where some or all of his personal property is located

§ 2.2 Person Appointed AdministratorHe said he will not try to hit every point in this sections (but he is hitting the high points) The Process

o Petition Person goes to appropriate chancery court and files a petition asking

for a letter of administration to issue Letter of administration is a 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 the letter of administration?o First, the surviving spouse

If another comes forward and request letter of administration, spouse may remove such person within 30 days from death of decedent

o Next, the heirs (people who would inherit the property or part of it)

Court will choose the heir at law who is best calculated to manage the estate

o Otherwise, a bank or trust company can do it If no one comes forward within 30 days, the

court can grant letters of administration to any suitable person

Often this occurs if the family doesn’t want to do it themselves

A creditor can have someone appointed o Rationale: b/c you can’t sue dead person; you have to

open estate and sue the estate Otherwise: no one would open the estate and a

creditor would never be able to bring a lawsuit against the estate

It will not be the creditor himself = often will appoint the sheriff

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§ 2.3 Administrator’s Oath, Bond, and Duty

Oatho Prior to be granted letters of administration, administrator must take oath that

Decedent died without a will As administrator he or she will truly administer the goods, chattels,

and credits of the decedent He or she will pay debts as far as the assets allow and He or she will make perfect inventory and a just account of goods and

so on

Posting bondo 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 Purpose 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

Bond may be waived or reduced by chancellor if o the administrator is the sole heir or o if all heirs are competent and ask by sworn petition that

the bond be reduced and waived

Paying Debts o The only property that the personal representative is concerned with is

personal property – which is used to pay debts and expenses of the administration

The PR will have to deal with real property of the deceased person only when the personal property is not enough to pay all creditors

Dutyo Administrator’s acts must be of that which a reasonable, prudent, and

intelligent administrator would take Must act in good faith and employ such vigilance . . . as prudent

persons of discretion and intelligence employ in their own affairs Holds a fiduciary duty to all parties having an interest in the

estate

§ 2.4 Administrator’s Attorney

If the personal representative is not an attorney, he must get one.o The attorney is the attorney for the personal representative, not the estateo Although the PR 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

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It is preferable to have the court fix a reasonable fee first and then pay the fee allowed

Such fee is the personal obligation of the PR unless the fee is fixed by the chancellor

o If fixed by the chancellor, the administrator’s attorney fee is an administration expense and may be paid out of the assets of the estate

§ 2.5 Temporary Administrator

When it is necessary, someone may be needed to manage the estate until a regular administrator can be appointed

Temporary administrators do everything the same as a normal administrator and just turn the estate over when the actual administrator is appointed

Temporary administrators are entitled to fair compensation for their efforts

§ 2.6 Administrator Ad Litem

Administrator appointed usually for the sole purpose of pursuing a cause of action which had not been filed or was pending when decedent died

§ 2.7 County Administrator

Duty to administer the estates of decedents who died owning property in MS and for whom no administrator is appointed within 60 days of the decedent’s death

o Myth: this simply does not happen o Statute says there is one in every county appointed by chancellor o Don’t confuse this with the County Administrator by the Board of Supervisors

§ 2.8 Sheriff as Administrator

The administrator of last resorto Court must be shown

There are assets to administer and Creditors claims are valid, if they exist

§ 2.9 Removal of Administrator – Misconduct

Once properly appointed, an administrator may generally not be removed without proof of misconduct in the management of the estate

o However, before the administrator is removed, he must first be given notice

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o Failure to return inventory, payment of unprobated claims, failure to render annual accounts misappropriation of estate funds

§ 2.10 Removal of Administrator – Other Causes

If a person applies who has a claim to the office superior to that of the person who has been appointed, then the court may replace the administrator in that case

Also, if a will is found, the probate of the will and the granting of letters testamentary effectuate the removal of the administrator

§ 2.11 Resignation of Administrator

Administrator may resign, but he or she must make final settlement and satisfaction of the trust

§ 2.12 Administrator De Bonis Non

The successor which must be appointed when an administrator dies, resigns, or is removed for misconduct prior to the completion of the administration of the estate

Simply a substitute administrator

§ 2.13 The Estate to Be Administered

Personal property is to go into the possession of the administrator to be used to pay debts and expenses, with the remainder to be distributed to the heirs at law

Real property descends directly to, and title vests in, the heirs at law to enjoy until the contingency arises when it may be needed to pay debts

There is no deed from dead person to heir at law (so you will go to the courthouse and see a deed to John Jones in 1923 and then 50 years later you will see a deed from Sara Jones to X)

The administrator has nothing to do with real property o Exception: if personalty is not sufficient to pay creditors, the representative will

then have to take as much non-exempt as necessary and sell to pay creditors

§ 2.14 Inventory and Appraisement – When Appraiser Appointed

Upon the granting of letters of administration, unless otherwise ordered, at least three disinterested people shall be appointed appraisers (by Chancellor) and ordered to

o inventory and appraise the goods, chattels, and personal estate of the decedent (except for money and choses in action) and

o return written report to the court within 30 dayso Then, their duties end

Rationale: fear of family member that is appointed appraiser will hide assets to keep them away from creditors

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Problem: this is troublesome and expensiveo Solution: Chancellor has authority to waive these three appraisers (statute passed)

This is done in almost all cases today o If it is not done, then the personal rep has to make the inventory and appraisal o SEE INFO BELOW 2.15 & 2.16

The value placed by the appraisers on the various items is deemed to be prima facie correct, but the presumption may be shown to be incorrect

o If it is shown to be incorrect, the administrator is chargeable with the proven actual value rather than the appraised value

The administrator is charged with making an inventory of the decedent’s money which comes into his or her hands and of debts due the decedent that the administrator knows about

§ 2.15 Inventory and Appraisement – When Appraisers Not Appointed

Appraisers are usually NOT appointedo So, the administrator must include in his or her inventory of the money and debts

due the decedent a list of the rest of the decedent’s property which has come into the administrator’s hands

The administrator is also supposed to give the value of this property

The administrator’s complete inventory must be returned in 90 days

If, after the making of the original inventory, additional property comes into the hands of the administrator, an amended or additional inventory must be made within 30 days

There is not authority which says the chancellor may waive the actual inventory

§ 2.16 Inventory and Appraisement – Waiver Of

Due to the high costs, a chancellor may waive appointment of appraiserso However, a chancellor does not have the right to waive all inventories and

appraisals (personal representative must become appraiser) regarding intestate estates

§ 2.17 Setting Aside Exempt Personal Property

Some kinds of personal property are exempt from seizure under execution of attachmento This property is simply not part of the estate

Exempt items include Tangible personal property worth less than $10K A part of wages earned

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$50K life insurance policy on the life of a decedent payable to the administrator of the estate

The homestead in MS up to a value of $75Ko Where there are no unpaid creditors, the dollar limitation

on the homestead exemption is immaterial

§ 2.18 Support for One Year

Aka Widow’s allowance The personal representative must pay to the surviving spouse and dependent kids enough

money to enable them to live for one full year Very important historically when man owned everything and it took up to year to

administer the estate (the widow and children had to have something to live on for a year) b/c the exempt ppty might not be enough to live on

Statute amended to include right to husband (widow replaced by spouse in statute) Unresolved issue of whether husband is entitled even if he was not being supported by

wife This is NOT included as part of inheritance (it simply comes off top before inheritance is

calculated)

§ 2.19 Notice to Creditors

The executor or administrator must o 1. make reasonably diligent efforts to identify persons having claims against the

estate and o 2. mail to the persons identified a notice informing them that the failure to have

their claim probated and registered by the clerk of the court within 90 days from the first publication of the notice to creditors will bar their claim

3. Then, administrator must file an affidavit saying he or she has complied with the diligent efforts requirement

4. Then, the administrator must publish notice once a week for three consecutive weeks in “some newspaper in the county”(this used to be the ONLY requirement; SCrt said due process requires diligent efforts requirement above; MS provided 3rd step by statute)

o The creditor has 90 days from the first publication to respond However, if proper procedure is not done, the 90-day period will not run

against the creditor On the other hand, if proper procedure is followed and the 90-day period

runs, the creditor may not probate a claim against the estateo Newspaper will provide affidavit and copy of publication and then this is filed w/

the court as proof of publication If creditor is r’bly ascertainable, they must be sent letter EVEN if they do receive notice

through publication.

§ 2.20 Claims Requiring Probate

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The claims which are required to be probated and registered by the clerk are contractual claims (i.e. sum certain claims)

o Specific money demands which are then due or will mature at some time in the future

Sums due on promissory notes Open accounts Alimony payments in default at decedent’s death Claims for services rendered General indebtedness Judgments or decrees

Tort claims do not have to be probated (indeed cannot be probated b/c jury has to tell how much is owed)

Also, no claim has to be probated unless it is a claim against the decedento Ex: Funeral expense is a claim against the estate, not the decedent

Alimony o 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

§ 2.21 Probating Claim

A claim is probated by the creditor who goes down to the chancery clerk’s office and presents two things

o Written evidence of the debt (ex: note, judgment, or itemized account or written statement)

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

Claimant’s affidavit should (what’s required in affidavit is found in statute)

Conform to the statute Contain written evidence Contain an itemized account Attach statement in writing

The clerk will mark them registered, probated, and allowed if they appear to be in order Substantial compliance with statute (with regard to affidavit)

§ 2.22 Amendment of Claim

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

Must have substantially complied with statutory requirements of probating b/f amendment is allowed

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§ 2.23 Failure to Probate

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

o However, if a claimant’s identity is known or is reasonably ascertainable, and the claimant is not mailed a notice by administrator informing the necessity to probate the claim, the 90-day limitation does not bar the claim

§ 2.24 Payment of Claims

The administrator has no authority to pay a claim until it has been properly probatedo 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

o 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

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

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

o One remedy if there is some uncertainty about certain claims, the personal rep can get permission from heirs at law to pay the claim

Then, the personal rep will not be liable for improperly paid claims to the heirs that gave permission

o In Townsend, personal rep and atty went over 3 probated claims with 4 of 7 heirs at law

The three probated claims had not been properly probated and should not have been paid

The four heirs who agreed to payment of claim could not recover anything from personal rep for improperly paid claims

o Ex: If the personal representative paid improperly probated claims, the personal representative will only be liable to the absent heirs

Personal rep must post bond in intestate estateo May be waived if personal rep is sole rep OR if all heir are competent and they

agreeo Must be in the amount of the entire estate o Purpose: have somebody else the heirs can look to beside the personal rep

This is not for the personal rep to be liable (they will be liable anyways)o Surety writes the bond: insurance company o If the bonding company ends up paying, they have the right to be indemnified by

personal rep who caused the loss

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§ 2.25 Payment of Claims Not Due

Claims of the kind that must be probated must be probated whether or not they are due and payable

o After 90 days from the grant of the letters of administration, the creditor must accept as payment in full of the debt an amount equal to what the debt would have been had it been payable on the day tender is made

Ex: decedent’s obligation to pay $750 per month to former wife is calculated for a commuted value of future and unmatured sums and all of it is paid from the estate

§ 2.26 Contest of Claims

A probated claim may be contested by the administrator, an heir, or a creditoro However, a creditor may only contest a probated claim if the claim would render

the estate insolvent 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 Regardless of who institutes the claim, the burden is on the claimant to prove the claim is

valido 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

§ 2.27 Secured Claims

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)

o The secured creditor can simply go get the property that the decedent used the bank’s money to buy

o If bank probates claim, sells the property and there is a deficiency, then the deficiency is a valid claim against the estate

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

§ 2.28 Claims for Services Rendered – Quantum Meruit

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

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

If there was an agreement for specific amount that a person was to be paid: that would be an oral contract and not a QM claim

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Quantum Meruit = no agreement on amount that was to be paid

First, party should probate the claim

P must prove that there was either express or implied agreement or contract that services would be paid for

o Number of cases where close relative rendered services = SCrt usually holds there is simply no understanding services would be paid for (gratuitous services)

o Given all circumstances, would the deceased person expect that person providing services expected to be paid for them

If there is agreement to pay, P must prove what services were actually performed (what you did, how much you did, when you did)

Then, claimant must present evidence as to what r’ble value of those services were: bring someone to stand w/ knowledge of value and what payment would be

If all this done, claimant can recover o SOL can imply, if there is evidence that services would be paid for by a specific

time, and they were not, and the SOL has run, then they will not be paido IF on the other hand, there was an agreement that they would be paid for after the

death, then they would be payable at that time EXAMPLE: Often occurs when older person realizes they need help, has

no family to help, but has property Young person has no particular career Agreement that young person will come and help and if they do,

they will leave everything to the young person in willo Often times, the will is never made = so young person will

have to file QM SCrt: nothing against law for a person to contract to make a will in a

person’s favor Parties must be competent Terms must be clear Must be consideration AND Has to be in writing (for this particular contract) (B/c in SOF)

o IF NOT IN WRITING = CAN MAKE CLAIM THROUGH THIS DOCTRINE OF QM

§ 2.29 Oral Contract to Pay for Services Rendered by Will

Williams v Mason : Allowed to file a claim for services rendered even if you cannot bring a claim for oral contract to make a will because there was no written contract and SOF principles bar evidence of the contract

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§2.30 Claims Against Estate – Statutes of Limitations

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

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

o 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

Rationale: death upsets process (with appointment of estate, etc…)

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

days of the date of first publication no matter what the SOL remaining may be

§ 2.31 Creditor’s Action to Compel Payment of Probated Claim

Even though a claim may have been properly probated by a creditor, it does not legally entitle him to the money

If the administrator fails to pay an alleged debt, the creditor will have to take judicial action to compel payment

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

o Reason is that administrators may not be sued for 90 days after taking office, and there is a four-year SOL for actions against administrators

§ 2.32 Taxes

Previous Tax Rule: 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

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 Application: If you inherit ¼ of the value of the estate, you are going to have to pay ¼ of the estate taxes

§ 2.33 Tort Claims Against Estate

Old Rule: At common law, tort actions permanently abated upon the death of either the injured person or the injuring person

Today’s Rule: Personal actions survive the decedent (with the exception of libel and slander and actions to recover punitive damages)

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o MS Court has defined a personal action as Suit to recover personal property Action for contractual damages (Powell) Injury to person or property

Reviving or bringing a claimo Tort claims cannot be probated and are not affected by the 90-day period --- they

are governed by the 4 year SOL Claim can be brought after the person dies???? (CHECK TO MAKE

SURE THIS IS CORRECT) If administration has already been closed, and THEN a person brings

claim and wins lawsuit, he, as a creditor, has a right to make the people who have received the money to bring it back b/c as a creditor he has first claim to it

o Other statutes of limitations applicable to claims against estates in general apply to tort claims as well (see § 2.30)

§ 2.34 Management of Estate

The administrator is a type of junior co-manager of the estate with the chancellor o Anything administrator does must be approved by chancelloro So Personal rep decides what needs to be done, but has to go to chancellor to get

the authority to do it The administrator must get authority from the chancellor before doing anything with the

estateo 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

Administrator must do what a r’bly prudent person would do under those circumstances:o Put in interest bearing accounto Get ppty insured

§ 2.35 Management of Estate – Growing Crops, Farms, and BusinessesDidn’t discuss next three sections in class

A growing agricultural crop is a personal asset that goes to the administrator for the payment of the decedent’s debts and expenses

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 15 months

If necessary to pay debts, the court may allow the administrator to cultivate or lease the farm from year to year

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 3 years

§ 2.36 Management of Estate – Sale of Personal Property

Perishable property and livestock may be sold for cash for any purpose without an order Ant item of personal property may be sold for cash without an order if:

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

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

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

§ 2.37 Management of 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

o A petition to sell such land must be filed with the court that granted the letters of administration

§ 2.38 Management of Estate – Mortgage or Lease of the 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

§ 2.39 Management of Estate – Cause of Action of Decedent

The personal representative may “revive” a COA or initiate a new COA (see § 2.30) All recovery for wrongful death goes to the beneficiaries of the estate, not subject to the

claims of creditors (except for the items listed in the wrongful death statute)o Ex: the part of the recovery allotted for medical expenses goes to pay off the

medical expenses; the funeral expenses go to pay the funeral expenses; car damage goes to the car

Need to Distinguish b/t Two Types of Tort Actions: o Tort Action for Injury - Where Wrongful Act Did Not Cause Death of Decedent

(i.e. survival action) Can only be brought by the personal rep (NOT by an heir at law) Whatever is recovered = asset of estate

o Wrongful Death Action i.e. wrongful acts Do cause the death (died from lung cancer caused by

cig) May be brought by personal rep OR heirs at law

Only one may be brought (first one to file = the lawsuit; others may join)

If recovery = only monies that will go to estate are ones that are for: medical expenses, funeral expenses, and ppty damage (to pay for those claims

Everything else = goes to the wrongful death beneficiaries o If not perfectly clear which type of action = proper route is to bring action with

two counts (for survival AND wrongful death)

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§ 2.40 Management of Estate – Compromise and Settlement of Claims

The chancellor may authorize an administrator to settle and compromise any claim belonging to an estate which cannot be readily collected

o Must have Chancellor approval to settle claim (whether estate is P or D) Chancery Rule 610: must put on proof at hearing before chancellor (to

prove settlement is fair) A new chancery rule was written to abate the problem of chancellors approving

settlements that were not fair to the beneficiarieso In petitions for authority to compromise claims for wrongful death or injury,

witnesses must be called to testify as to liability and injuries (basically, it is no longer a perfunctory matter)

§ 2.41 Suits By or Against Administrators (didn’t discuss in class)

An administrator may bring suit on matters that accrue to the decedent during the administration and may be sued as to such matters as well (after the 90-day period)

FOREIGN ADMINISTRATORS: o He just said they are allowed to come in and get ppty, etc… (see book for details;

pg. 74)

§ 2.42 Management of Estate – Prohibited Acts

Even if the chancellor approves it, an administrator is expressly prohibited from (Some acts that are just prohibited):

o Borrowing or using for his benefit any of the funds or property of the estateo Taking a position contrary to the heirs o Purchasing or acquiring funds or ppty of estate adverse to any creditor or

beneficiary (think this is what the second element is trying to say) (CHECK BOOK PG. 75)

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 MS

Executor de son torto A person who intermeddles with, alienates, or embezzles any of the money of

personal property of a deceased person before taking out letters of administration or letters testamentary

Such person is liable to creditors and others aggrieved by his actions and will be held to the same standard of trust as an administrator

§ 2.43 Insolvent Estates

Not necessarily where there are NO assets (insolvent just means when there are more debts than assets (so there might be substantial assets))

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When it becomes apparent that there is 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 (everything is sold for cash)

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

Thus, the chancellor compiles a list of claims found to be due and owing Preference claims are paid first (expenses of last illness, funeral, administration, and

attorney fees)o If there is not enough money to pay all these full amount, then they will be paid

on a pro rata basiso If there is any money left over after all preferred are paid in full, then the left over

money goes to any other creditors Only thing inherited = exempt ppty (and widow’s allowance that is paid even b/f

preferred claims)

§ 2.44 Annual Accounts

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 (i.e. any estate not closed w/in yaer)

o Otherwise, he will be held liable to creditors and others aggrieved by his actions and will be held to the same standard of trust as an administrator

Simply an asset/liability account: what is left to be paid out, what is left, and stubs of checks that have been paid out)

o No notice of it is required, but anyone can go look at it Purpose of this 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) Statutory Amendment = BOP 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 o Administrator has duty to do the accountingo Attorney has duty to see that administrator does accountingo Clerk has duty to notify the chancellor that accounting has been done

§ 2.45 Compelling Distribution or Final Settlement

If an heir is anxious to receive his inheritance, he has two possible remedieso 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 (i.e. make part of the administration)

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 (ex: debt), the early heir will pay it back

Chancellor can order administrator to make Partial settlement HE DESCRIBED THIS SECTION SORT OF DIFFERENTLY IN

CLASS = CHECK BOOK TO MAKE SURE EVERYTHING IS CORRECT)

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o Second, the heir may petition the court to order the administrator to make the final settlement and close the estate (i.e. make final payment)

Court should order the estate closed unless the administrator can show cause why it should not be

§ 2.46 Final Accounts

The petition on the final account is required to include the name and addresses of the people who the personal representative believes to be the heirs at law of the deceased person

o The SOL on reopening the estate only applies to those who were made parties to the closing of the estate

o A suit to determine heirship can help clear up any potential problemso When an heir shows up later, the court will ask if a reasonably prudent

administrator would have found the heir Service of process is given to all of the people named in the petition

o 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

o Heirs can sign (in front of notary publicy) that waives service and agrees with accounting of estate

o If there are any objections = a day in court will be set aside so the chancellor can take them up

After it is approved, the administrator writes himself and the attorney a check for the approved amount

§ 2.47 Administrator’s Attorneys Fees – General Services

At end of process, chancellor will be asked to set r’ble atty fee based on what all the lawyer had done and the time that it has taken (tell the client that you will accept that fee OR alternative method = you don’t have to do it this way = i.e. you can tell client that you will charge a specific fee, try to get chancellor to authorize that fee, but if Chancellor doesn’t authorize that much = still going to get that much and have to pay out of own pocket)

Administrator’s attorney’s reasonable fees for necessary services rendered in good faith are a legitimate expense of administration and may be paid out of the funds of the estate

The court decides on a reasonable fee in the exercise of its sound discretion, considering the time the attorney expended as well as the difficulty of the work, the skill required to do it, the responsibility involved, the amount involved, the promptness of services, and the size of the estate

The chancellor should not authorize any payment out of estate funds for attorney fees rendered either

o Before the appointment of the administrator ORo For the sole benefit of the administrator’s personal interest in the estate as against

the interest of other heirs Chancery Rule 612

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§ 2.48 Administrator’s Attorney Fees – Special Services

Occasionally it will be necessary for an administrator to pursue a claim which is customarily handled by the claimant’s attorney on a contingent fee basis

o Any such agreements between the administrator and his or her attorney should not be made without a prior detailed petition to the court and approval of the chancellor

§ 2.49 Administrator’s Commission and Expense

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

§ 2.50 Reopening the Estate

Interested people can reopen the estate for two years after it is closed as long as the issue on which the reopening is based was not brought up at the hearing of the final account

§ 2.51 Suits for Devastavit (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

§ 2.52 Recovery of Decedent’s Personal Property Without Administration

Administration of estate is not requiredo The most important thing an administration does is put to rest claims against a

creditor SOL will keep running on a creditor’s claim after the death (even if there is no

administration): ppty decedent owned (except exempt ppty) remains liable for those claims as long as the SOL has not run

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

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

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

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

or Group II relatives

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§ 2.53 Gifts Inter Vivos

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

o Burden on Claimant to prove elements

§ 2.54 Gifts Causa Mortis(did not cover; Don’t need to know this)

Gifts made in contemplation of deatho Ambulatory and can be revoked at any time in the donor’s lifeo Such a gift is subject to claims of creditors if the other property of the decedent is

not sufficient to pay them Land cannot be conveyed by a GCM

§ 2.55 Ancillary Administration

MS does not allow ancillary administration for property in the state However, the administrator of the estate of a MS decedent should concern himself with

the recovery of personal property of the decedent located in other stateso This must be done pursuant to the law of the other states and may necessitate an

ancillary administration

§ 2.56 Joint Bank Accounts and Certificates of Deposit

Funds in bank accounts held by two or more people will become the property of the survivor(s) upon the death of a joint tenant

o Same rule generally applies to certificates of deposit Intent is the crucial question regarding CDs If intent is clear that CD was jointly held with right of survivorship, that

intent will be given effect Where terms of account are clear that it is a joint account with right of

survivorship is conclusive (and evidence to the contrary is not admissible) These accounts can still be challenged (Cannot be challenged on Intent)

but can be challenged on these grounds: Decedent did not have mental capacity to create account (i.e. they

were incompetent) Person who created account was unduly influenced Fraud

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Chapter 3: Wills

§ 3.1 Introduction

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, and they will try

to find some way to attack the will when they are left out of a will When a person says that someone died with a will, they mean that:

o There was a writingo And it was legally valid (which is not always the case)

Usually Titled “Last Will and Testament”o Last: not necessarily the last, b/c person can always make another will o Could be just titled: “will” and it would still be legally sufficient

§ 3.2 Wills – Nature and Purpose of Writing

The first step in the process of interpreting a will is determining whether the writing attempts to do what a will does

The purpose is to make a testamentary disposition (gift/transfer (i.e. disposition) that will only take place upon death (i.e. testamentary))

o If it does not do this, it is not a will regardless of what it is called o If it does do this, it is a will whatever it may be called

§ 3.3 Wills – Animus Testandi – Intent of Testator

The document must communicate that it is the intent of the testator that the instrument make testamentary dispositions (only has legal validity upon the death of the testator)

o So the words of the writing PLUS the intent must be illustrated in order to prove it is a will

o If the writing clearly makes a testamentary disposition (i.e. I hearby bequeath, give, etc…) = intent is usually presumed

Except: if you can prove fraudo On one extreme: you will have a writing that clearly indicates intento On the other extreme: you will have a writing that clearly does not have

testamentary dispositiono The hard cases: fall in between = ambiguous writing

Intent is key in these cases and ALL RELEVEANT EVIDENCE IS ADMISSIBLE IN THESE CASES, including declarations of testator (exempt from exclusion under hearsay rule (803(3))

§ 3.4 Ambulatory Nature of Will

The will must be ambulatory, which means that the person who made the will is free to modify or revoke it at any time

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o If a will is not ambulatory, it is not a will, because that is what sets a will apart from other documents

§ 3.5 Form or Title of Writing

A writing does not have to be in any particular form to be a willo Ex: a personal letter, a scrap of paper, or the back of a certificate of deposit may

be a will if the words written there are sufficient and were executed with the necessary intent

The writing does not have to be designated or entitled a will in order to be oneo However, as with the form, the title given to it by the maker may provide

evidence as to intent

§ 3.6 Will or Deed with Reservation of Life Estate (did not pay attention to the next several sections in class; cross check these with someone else’s notes OR the book)

o Many cases in MS have regarded whether a document was a will or a reservation of a deed with a life estate

o This occurs 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

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

o Regardless of what it is called, if a document makes a testamentary disposition, it is a willo 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

§3.7 Conditional Wills

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

Intention is to be collected from the language of the willo Declarations by the testator to the contrary of the condition in the will are not

admissible

§ 3.8 Nuncupative Wills (Oral Wills)

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An oral will may be a valid conveyance of personal property provided many conditions are satisfied, but an oral will cannot convey land

o The conditions (which can pretty much only be met by a Hollywood-type deathbed scene) are

The will must be made at the time of the testator’s last illness The testator must believe that he is dying The testator must actually be “dying” to the degree that he is unable to

make a written will The testator must intend for the spoken will to be his will (can’t intend for

spoken words to written down as his will) 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

§ 3.9 Attested Wills (non-holographic, typewritten)

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

§3.10 Holographic Wills

A holographic will is a will written entirely in the handwriting of the testatoro It must be signed at the bottomo It does not have to be witnessed by anyone (no attestation requirement)o A holographic will may revoke or modify an attested will

§ 3.11 Joint Wills

A joint will is a single document which contains the wills of two or more peopleo The declared intentions of each testator affects only his/her own property or

his/her own share in joint property An instrument which purports to be a joint will but which provides that it will be

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

§ 3.12 Mutual or Reciprocal Wills

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

o Ex: A and B make exactly same wills, but A uses B’s name and B uses A’s name

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A joint will may, but does not necessarily, contain such provisions

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 (Monroe v Holliman)

Other jurisdictions = the existence of a mutual will itself constitutes a contract

§ 3.13 Duplicate Wills

When two wills are simultaneously prepared and the testator and witnesses sign their names on both of them, there are duplicate wills

o The execution of a document is what makes it an original The problem is that you 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 revokedo Situation: lawyer prepares two copies; testator signs both; and witnesses sign both

(duplicate original wills) Both are original and neither is more original than the other Remember what makes it original = the signatures on the document

Either can be probated o If the will is signed and THEN copied = it is simply a copy of an original will that

cannot be probated

§ 3.14 Foreign Wills

A foreign will is the will of a person who was domiciled outside the state of Mississippi at the time of his death

o It does not matter where the will was executed Common Law {he just said know what it is, and the stuff below in red}

o When a person died without a will, the will had to be probated first in the state of domicile

o Since the law of the domicile controlled the inheritance of personalty, then the person could come to MS and get the property and take it back to the state of domicile

o However, no state was or is willing to give over its real property to the control of a foreign state

MS Lawo Controls the inheritance of personal and real property o A foreign will may be probated here prior to its probate anywhere else as long as

the testator owned real or personal ppty locted in this state, or it may be probated here after having been probated elsewhere

§ 3.15 Soldier’s and Sailor’s Wills

MS has a statute that says that any 18 year-old can execute a will if he is in the military or a soldier

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o At the time this statute was passed, one had to be 21 to make a will

§ 3.16 Codicils

The purpose of a codicil is to make some change to a previously executed will (even entirely revoking the will)

o Most often used to make relatively minor change, modification, or alteration in existing will

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

holographic will may have a non-holographic codicil A codicil must be signed, just as a will must be signed

o If you mark through text, you must at least put initials besides markthrough A codicil has the power to republish a will

o A signed codicil attached to an unsigned will can make the unsigned will valid with the codicil’s changes

The codicil governs because it was executed last Works to republish will = validates an otherwise invalid will if executed correctly

§ 3.17 Contracts to Make a Will

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

Contractual Complianceo If a document complies with the requirements for a contract (terms are clear and

certain, there is legally sufficient consideration), it is a valid contracto However, the MS Supreme Court has not appeared to want to enforce these

contracts unless they are written Must be in writing to comply with SOF

o In case of Breach (decedent died without a will): Two Possibilities:

Minority: Court will just make a will for the party Majority: Court will say person died intestate

o Amdministrator will be appointedo Beneficiary brings written contract in to prove Ko Court will:

Specifically impose K OR use Constructive Trust

Constructive Trust: equitable device that court can utilize to remedy a situation any time the title to ppty winds up in the hands of someone who in justice ought not to have it

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Minority Ruleo If a party never makes a will after contracting to do so, some courts just go ahead

and make a will for the party Majority Rule

o Most courts (including MS) either Specifically perform the contract as it should have been performed OR Impose a constructive trust

Constructive Trusto Equity device that is employed when a person owns property that he should not

haveo 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 Court will order constructive trust to be executed (dissolved) and the

person will transfer the assets of the estate to the person with whom the testator contracted

Revocation (HE DIDN’T GO OVER THIS; CROSS CHECK IN BOOK) o If a promisor made the will he contracted to make, but later revoked it, the court

may enforce the contract by Declaring will irrevocable and probating the will as originally written OR Imposing a constructive trust

Chapter 4: Execution of a Writing

§ 4:1 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 91-5-1: will must comply with this statute A lawyer must make certain to draft will that complies exactly b/c there will likely be

someone who will be unhappy with what the will does Two kinds of written wills:

o Attested Willso Holographic Wills

Following Capacity Rules deal with both types of wills

§ 4:2 Testamentary Capacity – Age

In order to make a will in MS, a person must be at least 18 years old at the time the will is executed

§ 4:3 Testamentary Capacity – Sound and Disposing Mind

Three Part Test for Sound Mind

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o The testator must Understand and appreciates the act of making 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

Not a stringent test; mind does not have to be as sharp as it ever was

Lucid Intervalso 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

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

§ 4:4 Execution of a Nonholographic Will

For a nonholographic will 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

Anything will do as long as the testator intended it to stand for their name 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 his willo The testator, expressly or constructively, must publish the will to the attesting

witnesses, at least when he does not sign it in their presenceo The testator, expressly or constructively, must ask the witnesses to attest the willo The attesting witnesses must sign the will, and in the presence of the testatoro The attesting witnesses must be credible

§ 4:5 Execution of a Nonholographic Will – Signed by the Testator

A nonholographic will is one which is not wholly written in the handwriting of the testator

o 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

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

§ 4:6 Execution of Nonholographic Will – Acknowledgment of Signature When Testator Does Not Sign in Presence of Witnesses

MS law does not require the testator to sign the will in the presence of witnesses, but the witnesses do have to sign the will in the testator’s presence

o However, the testator must tell the witnesses that it is his signature when they attest the will

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§ 4:7 Execution of a Nonholographic Will - Publication

Publication is required to validate the execution of a nonholographic will Publication is a communication by or attributable to the testator that this instrument is a

willo Publication may be express and formal

“this is my will”o Publication may be constructive

someone speaks for the testator in his presence and says it is his will or the testator asks a person to write his will, dictates its terms, and signs it

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

Tyson v Utterback (never rely on this, it stands alone)o 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

o 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

§ 4:8 Execution of Nonholographic Will – Request of Witnesses to Sign Will

A testator must request the witnesses, either by words or acts, to sign his willo The request may be by construction, action, or words

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

o 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)

§ 4:9 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 Bachelor : the presence of a party is not enough nor is one signature from

a notary publico Conscious Presence = if the testator could have changed his physical position and

seen the signing of the will

§ 4:10 Execution of a Nonholographic Will – Credible Witnesses

The witnesses to the will must be credible

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o Ex: they must be competent to testify However, under FRE, almost everyone is competent to testify Since a minor may testify, there appears to be no reason why he could not

be an attesting witness No MS cases on point for this

§ 4:11 Execution of Nonholographic Will – Beneficiary as Attesting Witness

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

o This was the case b/c of the dead man’s statute = Weems believes it should be repealed (but the statute that provides this has not been repealed despite the fact that the dead man’s statute has been repealed), but it has not = so DO NOT ALLOW any beneficiary to be one of the two attesting witnesses

If the beneficiary would take by intestate succession if there had not been a will, that person will get ………….???? (LOOK IN THE BOOK TO GET THIS INFO)

Rationale: they would have temptation to testify against the will if they stood to lose b/c of the will

§ 4:12 Execution of Holographic Will

A holographic will must be written entirely in the handwriting of the testator Every single word does not have to be in the handwriting of the testator

o A printed caption or title will not invalidate ito Signatures of witnesses are not needed, but they will not invalidate ito Mere Surplusage Rule: If there are words in the will that are not in the

handwriting of the testator, it will not defeat the meaning of the will provided they are mere surplusage (i.e. if they don’t add any meaning to the will = it will be the same will without the words)

Test: The will must mean the same thing with those words as it would without those words

A holographic will must be signed at the end of the document (void otherwise) (aka subscribed = signed at bottom)

o Anything below the signature is not a part of the will

§ 4:13 Attestation Clause

All that the law requires from the attesting witness is their signature Therefore, a will which has all of the terms and has the signature of the testator is valid

o However, it has been the practice of lawyers for a very long time to include at the end an “attestation clause”

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Today, the MS statute has been changed (91-1-7)o Lawyers now include an affidavit at the end of the will (not an attestation clause)

(form on page 242) It is negligence not to do so

o You can get an affidavit from the attesting witnesses at the time the will is executed, making their attestation a part of the will

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

§ 4:14 Affadavits of Witnesses – Self-Proved Wills

As examined later in the text, a will may be admitted to probate upon an affidavit of at least one of the attesting witnesses setting forth facts that the will was validly executed and that the testator was of sound and disposing mind (self-proved wills)

It appears that there is no good reason for not obtaining affidavits from the attesting witnesses at the time of execution of the will, and many good reasons for doing so

§ 4:15 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 be invalid

o Examples If a person has been of unsound mind for 3 years and it is unclear when

the will was executed, then it may not be valid because it is the burden of the proponents of the will to prove its validity

A date would be essential in the case of multiple wills A date may be important in light of the fact that a will is construed in light

of the circumstances surrounding the testator at the time of executiono Person trying to probate will has the burden to prove it is the later will (b/c the

later will is preferred) = this might be difficult if there is no date

§ 4:16 Multi-Page Wills

If the will that is presented at the time of probate appears to be facially intact (pages are same age, language flows from page to page), then the presumption is that it was the same will

o Thus, it is of no avail that the witness does not know how many pages were in the original

o Every page does not have to be signed If a contestant wants to show that the pages are inconsistent, the burden is on that person

to prove that To diminish the possibility of such an allegation, some lawyers like to have the testator to

initial each pageo Some even have witness initial each page

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o Neither of these are required

§ 4:17 Incorporation by Reference

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

o Ex: all jurisdictions recognize incorporation of a trust by reference In order to be incorporated by reference

o The writing must be in existence at the time the will is executed,o The writing must be satisfactorily identified in the will, and o The language of the will must disclose a clear intent on the part of the testator to

incorporate it Exception: MS Sup Ct 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

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

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

Never Draft a will for someone you have not talked to Never let the will be executed unless you are present Do all that you can to make sure the will is executed in your presence to make

sure it is valid When the will is executed, make sure the only ones in the room are you, the

testator/testatrix, and the witnesses. Do not allow a beneficiary to be in the room when it is executed

o Also don’t allow beneficiary to be in the room when you talk with the person about what they want to be in the will

Have some sort of conversation so the witnesses know the person is of sound and disposing mind

Chapter 5: Revocation of a Will

§ 5:1 Introduction

The making of a will is like getting married o Certain requirements must be met to make one, and certain requirements must be

met to terminate oneo Revoking (like divorce) is not valid without complying with legal requirements

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Two Categories of Revocation (recognized by MS law)o Express Revocation - (91-5-3) includes revocation by a physical act and

revocation by a subsequent writing 2 Requirements

An intent to revoke and An act that complies with the revocation statute

o Implied Revocation – a collection of leftovers from the common law, some of which are not actually revocations at all

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)

§ 5:2 Revocation by Physical Act

A will may be physically revoked by destroying it, canceling it, or obliterating ito Must have intento Will be an inquiry

Signing is not required Destruction = doing something to the paper rather than doing something simply to the

words on the page Cancellation = drawing over or across words Obliteration = erasing, drawing lines through signatures, or blotting out words

In Re Will of Palmer: Left everything to wife, but she died first Found will after he died Some parts of his will were obliterated, other parts were cancellation Issue: whether the paragraphs/sentences that were obliterated/cancelled have been

revoked by physical act o Court ultimately concluded that at least those sections of the will have been

revoked by physical act

§ 5:3 Revocation by Subsequent Writing – Express Statement of Revocation

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 of writing

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

Effect of Revocation Clause

o If the instrument does not contain a revocation clause and it is validly executed, there are two cardinal principles that apply in MS

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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 dieso Ex: if a person tears up a revocation, it does not revive the

first will A clear statement of revocation is conclusive as to intent

The law will NOT permit extrinsic evidence to come in and say that although that is what the revocation clause said, the testator did not really mean it

§ 5:4 Revocation by Subsequent Writing – Totally Inconsistent Will

If there is no inconsistency between two testamentary instruments, they go together to make a will and both are effective

The valid execution of a subsequent will which is entirely inconsistent with a prior will operates as a revocation of the prior will

The court will give preference to the second willo Whatever property is left after the execution of the second will is going to be

executed in line with the first will

§ 5:5 Revocation by Subsequent Writing – Partially Inconsistent Will

If two wills are only partially inconsistent, and if the latter is a codicil of the former, they will be construed as one instrument with the codicil revoking the provision of the will only to the precise extent expressed or necessarily implied

If the wills are only partially consistent and if the latter is not a codicil of the former, the general rule is that both instruments are regarded as wills of the testator, and construed as one will

§ 5:6 Conditional Revocation – Express

A testator may provide in a validly executed revocation instrument that the testator wants his will, or clause of the will, to be revoked if some future event occurs

o If the event occurs, the will is revoked o If the event doesn’t occur, the will stands

§ 5:7 Conditional Revocation – Implied Dependent-Relative Revocation

Dependent 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

o The doctrine makes the revocation conditional upon an event which did not happen so that there really was no revocation of the will

DRR is not available when o The second will contains an express revocation clause or

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o The second will is entirely inconsistent with the first will

DRR is availableo If there has been no express revocation by subsequent writing but the testator

revoked by physical act, the court will entertain DRR DRR allows the atty for the party whose gift has been revoked to talk about the testator’s

intent BUT the court will not necessarily agree with what the party says the intent is

§ 5:8 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

4 situations where the court has said that a will has been impliedly revoked

o See Sections Below for 4 situations

§ 5:9 Implied Revocation by Operation of Law In MS, there is only one instance where implied revocation by operation

of law (because of changed family circumstances) 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

o if he or she has a child at the time of death or o if, when a man dies, his wife is pregnanto (he didn’t cover in class, he said just read it, never been a

case where this was an issue) (REREAD AND MAKE SURE THIS SECTION IS CORRECT) (the only situation where this comes up in MS is in this case that involves the birth of a child)

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

A will cannot be impliedly revoked by o Divorceo Divorce accompanied by a property settlement

At least where the parties continue to live together after the divorce

It turns on whether it was the intent on the decedent for the ppty settlement to be in lieu of or as settlement of what was left to the surviving spouse in the will (THIS MIGHT NEED TO GO DOWN IN SECTION 5:12; READ THE BOOK TO BE SURE)

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§ 5:10 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

Actually, though, it isn’t revocation at allo The will remains and the testator just doesn’t have the

property to give the beneficiary named in the will

§ 5:11 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

This kind of implied revocation only happens when the inter vivos conveyance was by deed or some other written instrument

§ 5:12 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

§ 5:13 Revival of a Revoked Will

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

o The testator may completely re-execute the will, complying with all statutory formalities required of the original execution OR

o The testator may execute a codicil to the will declaring his intent to revive it

Note: In MS, 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

So where one has makes one will, and then makes another, and then tears up the second will, the first will is not revived

Ramsey v. Robinson (p. 141 fn 1) Woman had will two wills which were entirely inconsistent (one left ppty to two people;

second left all to husband) She redated first will when she got ill (put new/current date on it that would mean it was

valid after second will) Question of whether first will that was redated was valid

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o Court: simply redating will does not constitute re-execution of a will If she had signed her named to it (b/c it was holographic) then that would

have been a republication/revival of the earlier will But she did not do this

§ 5:14 Contract Not to Revoke Will – Estopped

A person can contract away his right to revoke a will SOF = must be in writing Mutual Reciprocal Wills:

o MS Court: mutual reciprocal wills are not contracts which deny the survivor the right to change their will after the other spouse dies (i.e. husband and wife both have wills that leave everything to each other, but if other spouse has died leaving everything to a church; husband died, everything went to wife, then she wrote another will leaving nothing to the church; church argued she could not revoke will b/c it amounted to contract; court held: no contractual nature of the first will so that wife could make subsequent will if she wished)

Court: if survivor is not going to be able to change her mind, there must be some proof of a contract which provides for such

Johnston v Tomme 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 (no contract in writing BUT he did

make the will leaving 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 elseo Court held

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

Chapter 6: Limitations on Testamentary Power

§ 6:1 Introduction

The power of a person in this state and nation to direct in a validly executed will how his or her property is to be disposed of upon the person’s death is very broad

o It is a power conferred by statuteo The legislature can put restrictions on it and has done so

§ 6:2 Protection of Surviving Spouse – Generally

Common Law

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o Dower (left to wife) and curtsy (left to husband) were life estates that vested upon the death of one of the spouses

o When a person died who had property, his spouse was entitled to a life estate in some or all of the personal property

o This life estate could not be taken away by the will When the surviving spouse died, the ppty would go back to decedent’s

estate to be inherited by the will and/or intestate

MS Lawo In 1880, MS abolished dower and curtsy and put in a system of will renunciationo Under the new system, a person does not have to leave something to his spouse in

the willo Our renunciation scheme doesn’t ensure anything other than that the surviving

spouse will not be left destitute In fact, if the surviving spouse has enough of their own money, they will

not get anything from the will See Banks case

§ 6:3 Surviving Spouse’s Renunciation of Will

MS Renunciation Statute o 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 (i.e. NOTHING) for the surviving spouse, the will is renounced by operation of law

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 (intestate share)

o If the will leaves anything to the surviving spouse, that will be all they will get except a year’s allowance and use of homestead UNLESS they renounce the will

McBride v Hanes o The right conferred by the statute vests in the other spouse immediately upon

death, regardless of whether the spouse dies soon thereafter (if surviving spouse only survives for three weeks, it does not matter, it becomes part of the surviving spouse’s estate at that point)

Mullins Estate v Mullins Estate o 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 b/c it is a personal right

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However, where the surviving spouse is not legally competent, the guardian can file a renunciation statement

§ 6:4 Determination of Surviving Spouse’s Share of Estate

The effect of the plan is to give the surviving spouse the right to have at least as much property as she would have had if the spouse had no property of her own and if the deceased spouse had died intestate (but not to exceed one half?? CHECK THIS IN BOOK TO MAKE SURE CORRECT)

o The plan pertains only to the property disposed of in the willo In cases of partial intestacy, the surviving spouse takes whatever she would take

by intestate succession unaffected by this plan

Limited to the willo The renunciation system only applies to property that is devised or bequeathed in

the willo The rest will go by intestate succession

Procedure for Determinationo 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

Ascertain the value of the deceased spouse’s net estate Not including land located in states other than MS (our court

simply has no authority to determine who owns property in another state)

Determine the surviving spouse’s fractional “legal share” Multiply 1 by 2 Ascertain the value of the surviving spouse’s separate estate AND

So if the surviving spouse’s net estate is more than their legal share, this has been a waste of time

If the separate estate is 1/5 or less of their legal share, they get the entire legal share

If the surviving spouse’s separate estate is b/t 1/5 and the amount of the legal share = they get the difference

Subtract 4 from 3 This procedure gives the dollar value of the part of the decedent’s

estate to which the surviving spouse is entitledo However, the surviving spouse is not required to take the

inheritance in moneyo Example: spouse’s net estate is 800K; survived by husband and daughter; so

number three total would be 400K (800 * ½); surviving spouse’s net estate is 200K; then surviving spouse (husband) would get 200K (400-200); if suriviving spouse’s sep estate would have been 80K = he would have gotten all 400K (1/5 rule)

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§ 6:5 Ascertainment of Decedent’s Net Estate

Value of the MS property passing under the will - debts

- expenses of administration- estate taxes

- funeral expenses = Decedent’s Net Estate

Out-of-state land cannot be factored into the deceased spouse’s estate, because MS has no jurisdiction over the land of other states (Banks - neither should the estate taxes on that property be considered)

But, ALL personal property will be included in the value of the deceased spouse’s estate

§ 6:6 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

§ 6:7 Ascertainment of the Surviving Spouse’s Separate Estate

Value of all property owned by the surviving spouse at death of spouse (all=everywhere)(including JTWROS AND life insurance proceeds where surviving spouse is named beneficiary)

except property inherited from deceased spouse through intestate successionexcept life ins. policies payable to surviving spouse as heir at law of decedent

- debts of the surviving spouse = Net Value of Surviving Spouse’s Separate Estate

Original value of property owned by surviving spouse also includes Property owned in joint tenancy w/ right of survivorship Life insurance policies payable to the surviving spouse as named

beneficiary upon the death of the spouse 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)

§ 6:8 Determination of Surviving Spouse’s Inheritance

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The surviving spouse automatically receives his or her legal share ifo The surviving spouse has no separate estate at all ORo The value of the separate estate is less than 1/5 of the value of his or her legal

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

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

If the separate estate is less than the legal share but more than 1/5 of it, thenLegal Share

- Separate Estate = Surviving Spouse’s Inheritance

If the surviving spouse wants a share of all property, thenLegal share

- Separate Estate ÷

Net Value of Decedent’s Estate = Fractional, Undivided Interest for Surviving Spouse (in everything the deceased spouse owned) (check this to make sure) (this is especially attractive where the homestead is involved)

§ 6:9 Renunciation Distinguished from Contest

If a person contests a will and the contest is successful, the will is no good (validity) When someone renounces a will, they are not saying that it is no good (fairness)

o In renouncing, one says “If the will is good, then I renounce it”

Contest: most a surviving spouse can get is all of the estate Renunciation: most a surviving spouse can get is ½ of the estate

Stockett flaw 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 which have reduced the size of the estateo Ex: creating joint bank accounts with right of survivorship

between you(decedent) and a person other than your spouse (son, daughter, brother, etc)

This is a way to give your estate away and get away with it

§ 6:10 Contracts Not to Renounce

The right to renounce a will may be contracted away

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o However, there must be consideration for such a contract, and it must be of enough significance that the agreement is not unconscionable

MS Sup Court has indicated that it will look more closely at such agreements between spouses

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

Must also be clear and must have sound and disposing mind

§ 6:11 Protection of Surviving Spouse

Intestate Situationo There are two rights of spouses other than the right to inherit their “child’s share”

in an intestate succession One year’s living allowance and The right to exclusive use and possession of the homestead

Testate Situationo 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 (didn’t seem like he said this in class; CROSS CHECK WITH BOOK)

This provision of the will is going to stand unless the surviving spouse renounces the will

o If the surviving spouse renounces the will, it seems clear that he or she will be entitled to one year’s allowance (recall that the one year allowance has no effect on the spouse’s fractional share) (would not count has his or her estate)

§ 6:12 Protection of Surviving Spouse – Homestead

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

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

If a surviving spouse does renounce, he or she will take an intestate share Stockett: The surviving spouse is entitled to exclusive use and possession of the

homestead provided after the death of the deceased spouse who owned the homestead he/she (the surviving spouse) has some ownership interest in the homestead property

o You can get interest in homestead by deed, devise, or by intestate succession (either way, you will have exclusive use and possession)

o This explains why some would rather take portion of all ppty deceased spouse owned in lieu of money settlement so they gain ownership interest in homestead and get right to exclusive use and possession

In later case in dicta, SCrt seems to suggest spouse will have right to exclusive use and possession of homestead even though he or she has no ownership interest in the ppty at all

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§ 6:13 Protection of Testator’s Children

Two protections for children of decedento Implied Revocation by Operation of Law (Section 5:9)

Only applies where a man/woman makes will at a time where he has no children (has no children and not pregnant)

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

Will is void provided the child EITHER:o Gets marriedo Reaches the age of 21 ORo Has a child of his/her own

If child dies before any of these things occur, then the will will be valid

Example: Mary makes will when she has no children leaving everything to her sister; later she has a child and never changes her will; she dies (husband pre-deceased her); the will is not valid and sister will not get anything provided the child gets married, reaches the age of 21, or the child himself or herself has a child (if any one of these three things happen = the will is void and the children will receive their portion)

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 (aka pretermitted child) (last sentence of 91-5-3 and all of 91-5-5)

Unprovided for by settlement AND Neither provided for nor disinherited, but only pretermittedly

(inadvertently) omitted from the will Majority Rule

o Whether or not the child is pretermittent is answered by the intent of the testator

MS Rule o To determine if pretermitted in MS, we base intent upon what the will

did for the children who were alive to determine what the after born children should have gotten

MO Rule (some jurisdictions follow this rule) o 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 (not mentioned in the will whether they were born before or after the will = these jurisdictions believe child is pretermitted if they are not mentioned no matter what)

o No evidence to rebut this presumption will be allowed

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o If you don’t want your kids to have a part in the estate, you must leave them something like $5 or specifically disinherit them

Otherwise, the child will be entitled to his intestate share

§6:14 Mortmain – Restrictions on Devises and Bequests to Proscribe Institutions

Bequests and devises to proscribed institutions made by decedents who died prior to March 10, 1993 will be subject to the mortmain law in effect at the time of decedent’s death

Mortmain statute: will of man or woman who was married and left to an institution, then it had to be made 90 prior to death and limited it to the amount that could be given

Otherwise, MS no longer has a mortmain law

§ 6:15 Joint Tenancy with Right of Survivorship

Joint tenancy with right of survivorship is not part of the decedent’s estate, but rather passes to the survivor upon the decedent’s death

Joint tenancy cannot be destroyed by the will of a joint tenant

Chapter 7: Probate of Will

§ 7:1 Introduction

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

o You cannot probate a photocopy of a will

Robertson v Burtono In a lawsuit over property, a party wanted to put in a non-probated willo The chancellor let it ino The Sup Court held that it is inadmissible evidence because it has no legal

validilty

The Administration of the Testate Estateo The process of probating a will is also the process of beginning the administration

of the estate 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

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If the person appointed by the chancellor 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), 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

§ 7:2 Jurisdiction and Venue

The Chancery Court has jurisdiction

Proper venue iso 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, ANDo Third, in the county where the testator died or where some of the personal

property disposed of by the will is located

§ 7:3 People Who May Probate Will

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

§ 7:4 Institution of Probate Proceedings

The objective of the probate process is to obtain an order or decree from a proper court or judicial officer that the writing in question is a decedent’s valid will

SEE BOOK ON THIS SECTION

Two Ways to Probate

§ 7:5 Parties to Probate Proceeding – Common Form Probate

Common Form Probate (vast majority of probated wills) of an attested will??o Summary, expeditious procedure because

Petition is filed by someone who wants to probate along with will no one is made a party to the proceeding except the people who sign the

petition no one is given any legal notice of the filing of the petition either (ex

parte)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 (sample in chapter 10) for the clerk to sign which will admit the will to probate

Chancery clerk’s office where the man was domiciled

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Clerk signs order admitting the will to probate o Chancellor will go through and approve the acts of the

clerk every month or so (but it will be binding on the date the clerk signed - and this will start the two year SOL)

Also takes affidavit of at least one attesting will (which hopefully is attached as part of the will and filled out when will was executed)

If there is no affidavit attached, the lawyer will have to find at least one of the attesting witnesses and prepare and execute an affidavit

o Binding Effect This CFP process order is not binding on anyone except the people who

have signed the petition 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 b/c not given any notice

They have two years to come in and challenge the validity of will

o 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

o CFB of Holographic will: Take will, atty prepares order, affidavit of two uninterested parties that say

they are familiar with decedent’s handwriting (CHECK THIS IN BOOK)o Hearsay (with both types of will): no problem with affidavit b/c at the time they

are admitted, there is no contest so hearsay is not a problem

§ 7:6 Parties to Probate Proceeding – Solemn Form Probate

Solemn Form Probateo No statute says you can’t do a CFP and then a SFP unless, of course, a caveat had

been filed Benefit of doing both: if will contest arises after it has been CFP = it is a

tactical advantage o The only practical differences between a CFP and SFP are:

The petition includes the names and addresses of anyone who has standing to contest the will (petition has names of all interested parties who may want to contest the will and they are served with process in order to give them legal notice)

To be a person with a right to contest a will, you must be able to show that you have a pecuniary interest that will be adversely affected if the will is discovered to be valid

Those people are served with notice of the proceedings

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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 proceeds to be probated

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

o One of two things will happen: Either they will decide to contest the will OR They will not contest the will (b/c they have no desire or there is no basis

for a contest)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

§ 7:7 Proponent’s Prima Facie Case for Validity of 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 thato The testator had a testamentary capacity AND

Over 18 Sound and disposing mind at time will was executed

o The will was duly executed (complied will all statutory requirements) 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 (in presence of witnesses) It was published It was signed by two witnesses in the presence of the testator and The testator asked them to sign his will

The witnesses are usually the only people who can testify to this (along with the lawyer and the decedent)

o If there is no contest of will, testimony can be in the form of an affidavit 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

o However, the law says that we don’t have to have live testimonyo 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

§ 7:8 Proof of Prima Facie Case

Attested Will

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o Proof of due execution and testamentary capacity must be made by the testimony of at least one of the subscribing witnesses if

Such witness is alive Such witness is competent to testify AND Such witness can be produced to make this proof

If this cannot be done, other alternative exist (7:10) Holographic Will

o Proof that a testator had testamentary capacity may be made by anyone with personal knowledge of the testator’s mental condition and age at or near the time of the will’s execution

o Proof of due execution may be made by persons familiar with the decedent’s handwriting or by handwriting experts

§ 7:9 Proof of Will by Affidavit

The affidavits of attesting witnesses may be used to prove testamentary capacity and due execution as long as the will is not being contested

The affidavits of two disinterested persons familiar with the testator’s testamentary capacity and his handwriting may be used as well

§7:10 Proof of Attested Will Without Testimony of Subscribing Witnesses

I.e. when cannot find attesting witnesses or they will not sign an affidavit (this would only be an issue if an affidavit was not attached at the time the will was done = DON’T DO THIS)

o i.e. witness might not sign b/c they don’t have memory When attesting witnesses neither can or will provide the necessary proof (and the

proponent has demonstrated to the court that this is the case = statute requires that you try to get the testimony from witnesses), the proponent can make out his PFC by

o Finding testimony from other people who have personal knowledge and can testify to testamentary capacity and due execution of the will OR

Problem: due execution = only people who can testify is someone who has personal knowledge (i.e. people who are there); problem is that the only people who are there is the two witnesses, the dead guy, and the lawyer = the lawyer can testify but still might not be available

o The proponent may prove that the signatures on the will genuinely belong to the testator and witnesses (do this if cannot get other testimony)

If proponent can do either of these = prima facie case of validity (which can still be defeated)

SOL for Contesto Anyone on whom the will is not binding has two years to come in and contest the

will

§ 7:11 Order of Validity

When the clerk signs the order, that is as good as the chancellor signing the order

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The will is then recorded Although it is rare, orders can be revoked if the chancellor discovers that the orders are

invalid

§ 7:12 Preventing Common Form Probate - Caveat

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

An opponent of the will may prevent CFP and deny the proponent the advantage by filing a caveat (objection) to probate of a will in the court where the will is filed

o 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

Essentially a race to the courthouse = if proponent gets there first = CFP; if contestant gets there first and files the caveat = it can only be probated in solemn form

§ 7:13 Probate of Nuncupative WillsSaid nothing about this in class (had nothing to add)

May not be probated for 14 days following the death of the decedent May not be probated until the decedent’s widow and next of kin, if residents of MS, have

been summoned to contest the will if they desire

If probate within 6 months of testator’s speaking words, then no writing requirement If probate after 6 months of testator’s speaking words, then writing required

§ 7:14 Probate of Will of Soldier or Sailor Made During WarSaid nothing about this in class (had nothing to add)

Special allowance made, so requirements areo May be probated by chancery court in county

where testator lived when he or she entered the armed forces OR where testator owned land OR

o May be probated on affidavit of any reliable person sufficient to satisfy the chancellor that

the testator is dead, the will was signed by the testator as his or her will, the affidavit or testimony of the subscribing witnesses cannot reasonably

be obtained, AND there is good reason for the will to be probated

§ 7:15 Probate of Lost or Destroyed Will

A lost or destroyed will should be probated if there is any way to do so The proponent must establish the following

o That the testator did validly execute the will

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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 may be made by at least one of the subscribing witnesses if he can be produced

If he cannot be produced, proof of due execution may be made by secondary evidence

o That the testator at the time had a testamentary capacity This can be made by subscribing witnesses or by others with personal

knowledge of the testator at or near the time of executiono That the will has been lost or destroyed

Proof must be shown that there has been a thorough/diligent search of the testator’s papers and belongings and no will has been found

o What the will provided, AND 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 proof

o That the will was not destroyed by the testator with the intent to revoke (must overcome the presumption)

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

o But that inference can be overcome by evidence to the contrary

Part of a lost or destroyed will may even be probated (i.e. if witness only remembers what one provision in the will said = but the rest would go through intestate succession)

o Furthermore, a revocation clause that is remembered from a lost or destroyed will also operates to revoke prior wills

§ 7:16 Probate of Foreign Wills

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)

Common Law o See Chapter 3

MS Lawo No will, foreign or otherwise, is effective as a conveyance of real or personal

property located in MS until it has been probated in MS and found to be valid under MS law

o The foreign will may be probated in one of two ways In MS prior to probate elsewhere – just like a domestic will First in another state or nation and then an authenticated copy of the will

may be probated in MS

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Estate of High 19 So. 3d 1282

§ 7:17 Duty to Probate a Will

It is a felony to destroy or hide a will o However, it is not against the law not to probate a willo Many wills are not probated each year, but most of the time, someone will probate

the will

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

o However, a will which establishes a trust has to be probated

§ 7:18 Estoppel to Probate

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

§ 7:19 Statute of Limitations

MS has no statute of limitations on the probate of a will MS law is to the effect that the general statute of limitations does not apply

o However, innocent purchasers for value of property will be protected

§ 7:20 Prior Probate of Earlier Will

If an earlier will is probated and then a later will is later found, the later will cannot be probated after two years b/c it is in effect a will contest and a will contest must take place within two years after the probate of a will (Weems thinks this is wrong b/c they are not really contesting the earlier will, they are simply saying they have a later will)

Fields: One cannot 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)

This creates an unfair result because the party is not contesting the will, they are simply probating the decedent’s actual will

Chapter 8: Will Contests

§ 8:1 Introduction

Contests are brought to determine whether this is the valid will and last testament of the decedent or not (proponent vs. contestant) (single issue in case: is this writing the valid last writing of the testator or not)

Most wills are not contested becauseo No one wants to contest ito No one has the standing to contest it, or

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o There are no grounds to contest it If either side wants it, they are entitled to a fact-finding jury whose decision is

binding

§ 8:2 Persons Who May Contest a Will

Interested party may contest the will Interested party: The party must have, at the time of the probate of the will, a direct

pecuniary interest which will be detrimentally affected if this will is probated or held to be the valid will

o 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 earlier will are

greater than their gifts under a later will These parties do not have to establish the validity of the earlier will

before they can contest the later will The simply have to allege that there is an earlier, valid will

o Persons who cannot contest a will Administrators of allegedly intestate estates and executors under earlier

wills Creditors An alleged illegitimate child 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

Spouse of person who would be heir does not have direct pecuniary interest

§ 8:3 Instituting Will Contest

A will contest may arise in three wayso In response to a will probated in solemn formo A person may file a caveat before the will is presented for common form probateo 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 (about 90% of will contests)

§ 8:4 Indispensable Parties

All interested parties (all beneficiaries and/or contestants = everybody who has a right to contest the will + ever body who is beneficiary in the will) 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 They must be served with process

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Moore: Two of the beneficiaries under the will were not in court; the contestants won; but judgment did not stand b/c this is jurisdictional issue and cannot be waived. 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

§ 8:5 Issues in Will Contest

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 (sub-issues)

o the decedent’s testamentary capacity, o the due execution of the writing, o the undue influence of another person, o etc

The specific sub issues that are applicable to contest will become clear in discovery/complaint

Gennao the heirs at law brought a will contest alleging that the decedent’s husband had

caused her to drink herself to death (they wanted to show how bad of a guy the husband was)

o whether or not he caused her to drink herself to death had nothing to do with the validity of the will (the purpose of the will contest)

o 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

o Thus, other issues (i.e. whether caused death) are not proper issues for the will contest (that can be tried later)

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

§ 8:6 Trial of Will Contest – Jury

o The role of the jury is the same, and its verdict is final and binding, as is that of a jury in a civil case in the circuit court

o If no party requests a jury, the case will be tried to the court, and the court’s findings of fact are as binding as those of a jury would be

§ 8:7 Trial of Will Contest – Procedure

o § 91-7-29o In a will contest, the proponent has the affirmative of the issue

Ex: the proponent is like the plaintiff in a civil lawsuit b/c goes first with the evidence must make out a prima facie case has right to make opening statement first

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has right to open and close the closing argumentso Prima Facie Case

o Required prima facie case in a will contest (same as common form probate) Proof of testamentary capacity Proof of due execution The proponent does not have to offer evidence which goes to negative

undue influence (he only has to show the top two requirements)

§ 8:8 Trial of Will Contest – Proponent’s Prima Facie Case

o Proponent (P) presents evidence first (P’s Case in Chief)o Required to present evidence to support every essential element of the case

If they fail to do so = D will make motion for directed verdict Judge may permit to Reopen case in chief and recall wit to support

point that you forgot to make in the first place o Power of Common Form Probate

o If at the time the contest has been brought, the will has already been admitted to common form, the proponent can make out his prima facie case by proving that the will in question has already been probated in common form

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 prima facie case

After judge asks you what evidence to put on you will say: “Your honor, at this time we would like to admit into evidence

certified copies of the following documents: petition asking this will to be admitted to probate, certified copy of will, cert copy of affidavit of attesting wit, certified copy of order admitting will to probate in common form.”

Proponent can then rest his case (b/c this is sufficient to make prima facie case)

o Proponent may call other wit and NOT rest if they wish = but never do b/c they will get opportunity to call them later (any trial lawyer would rather have other side to put on their side first = b/c never know how wit will hold up on direct/cross)

o People get mad b/c affidavits are being used as evidence in contest of will (but SCrt has said that the legislature simply allows it = normally affidavits are not allowed into evidence in contest)

A motion for a directed verdict will clearly be denied Burden shifts to D to come forward with evidence to contest will Burden of proof always stays with proponent though If contestant presents evidence to support some propositions (i.e.

undue influence) but does not present evidence for others (i.e. sound and disposing mind) only those issues that contestant

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presented evidence on will be part of case (proponent will move for directed verdict on those issues not addressed by contestant)

NOT SURE I NEED ALL OF THIS BELOW OR ABOVE B/C IT MAY BE COVERED BELOW IN OUTLINE

Then, ball back in P’s court o Principle In Other Civil Lawsuits: must call ALL witnesses

on case in chief and CANNOT save them for rebuttal If P does do this = D will object and it will be

sustained (sandbagging) Same principle applies to closing argument

o BUT = b/c this is will contest and CFP is allowed to make prima facie case proving CFP = the P can call live witnesses that were not called earlier (ordinarily in other civil cases = the proponent would not be able to save these live witnesses to testify after contestant’s case in chief)

o 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

§ 8:9 Trial of Will Contest – Contestant’s Burden to Go Forward With Evidence

o The contestant must bring in evidence that the will was not valid o This does not mean that the BOP shifts to the contestanto It means that the burden of putting on evidence which makes a jury issue now

belongs to the contestant (as opposed to a burden which overcomes the proponent’s case)

I.e. in sound and disposing mind = contestant has to put on enough evidence which is a jury issue not that it overcomes the P’s case (the court language is not explicitly clear on this)

§ 8:10 Trial of Will Contest – Further Evidence by Proponent

o If the proponent has made his prima facie case by putting into evidence the documents, rested, and then the contestants put on their proof (which makes jury issues) and rests, then the proponents can call any witnesses they may want to call without limitation

§ 8:11 Trial of Will Contest – Burden of Proof

o The proponent of the will has the BOP with all the issueso 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 proofo MS treats them much like affirmative defenses by

o Not requiring the proponent to present evidence on the matter to make a prima facie case,

o Requiring the contestant to present evidence to support the matter, and

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o Permitting the proponent to present evidence on the matter after the contestant has rested

3 Primary Grounds for Contesting a Willo Lack of testamentary capacity (Lack of Sound/Disposing Mind)o Undue execution (Will not duly executed)o Undue influence (Most Common)

§ 8:12 Grounds for Contest – Lack of Testamentary Capacity

o The parties must meet the 3-part test, and demonstrate whether or not the testator at the time the will was executed (moment will was executed) had the mental capacity to understand and appreciate:

o The nature of the act of executing a willo The natural objects of the testator’s gift (bounty) and their relation to him o And whether the testator was capable of reasoning and planning how he desired to

give his property

o The attesting witnesses can testify about this because they had a duty to pay attention to the soundness of the testator’s mind

o Lee v. Lee: man put under conservatorship (less extreme type of guardianship) o Soon after he executed Deed and Willo Deed held to be invalid (b/c statute does not allow deeds to be made under

conservatorship)o Will = three part test applies to determine if had sound/disposing mind = statute

does not say conservatorship cannot make will Law even allows person under guardianship (i.e. insane) to make will as

long as had a lucid momento Another Case

o Man had paranoia schizophrenia but passed three part testo Any person with personal knowledge can testify to state of mind

o CoA = people who haven’t seen several months cannot testify o Lay witness can testify as well

o Should be required to state objective facts o Expert witness = anyone with special knowledge to testify on person’s mental condition

is allowed o Edwards:

o Man had serious mental problems (several years of treatment)o Three doctors had treatedo Leaves will and wife contested on sound and disposing mindo Contestant called three doctors and all said he had serious mental problems that

got worse over timeo None had seen him in last several weeks (earlier saw him 3 months before will)o Proponent called lay wit who saw the man at the time will was executed and he

had mental capacity

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o Chancellor = persuaded by expert and held no testamentary capacityo SCrt = reversed and held evidence was overwhelming did have sound and

disposing mind b/c wit who testified at time will was made was more important

o Declarations of the testator are admissibleo Ex: testator may have said, “I am Napoleon”

o Practice Point: give witnesses legal definition of terms (i.e. doctor had not been given legal definition of “sound and disposing mind”; should have been asked: Dr. did he have enough mental capacity to understand the act of making will, object of bounty, and whether capable of reasoning and planning how he wished to give ppty” NOT “did he have sound and disposing mind”

Undue Executiono If holographic will: only one issue: is testator’s handwriting and signature?o 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 testatoro Handwriting experts may also be used (compared with exemplars = conceded

examples of testator’s handwriting)o OR jury can be given exemplars and make the comparison themselves

o Due execution of a nonholographic will requires meeting five criteria (see §4:5 and 4:10)o Attesting witnesses should be use to support the will

o If 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 If one of the subscribing witnesses testifies against the will, it will simply

be a jury question as to whom to believe

Undue Influence (often used to attack a number of inter vivos transfers) 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

o If it can be demonstrated that the person felt compelled to do it, then this doctrine comes in

§ 8:13 Grounds for Contest – Holographic Will Not Duly Executed

o Holographic will must be entirelyo Handwritten by the testator ANDo Subscribed by the testator

§ 8:14 Grounds for Contest – Attested Will Not Duly Executed

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o Due execution of an attested will requires the followingo The signature of the testator or someone for the testator at his or her request and

in his or her presence;o Publication of the will, at least where the testator did not sign the will in the

presence of the witnesses; (NOW = witnesses must know what they are signing is a will)

o A request that the witnesses sign the will;o The signatures of the attesting witnesses in the conscious presence of the testator;

ANDo Acknowledgment of the signature by the testator if he or she did not sign the will

in the presence of the witnesses

§ 8:15 Subscribing Witnesses Testimony Unavailable

o A proponent is supposed to prove testamentary capacity and due execution of an attested will by which the testimony of at least one of the subscribing witnesses

o If this testimony cannot be presented, then the proponent may resort to other methods of proof

If both subscribing witnesses are dead, incompetent, or cannot be found, then testimony obviously cannot be presented and the proponent

should be able to proceed with other proof If the subscribing witnesses can be physically produced, but cannot

(because of memory f-ailure) or will not (for any reason) supply the necessary testimony,

then the proponent may likewise proceed with other proof If the subscribing witnesses are beyond the jurisdiction of the court,

it is unclear whether the proponent must obtain the witnesses’ deposition before resorting to other methods of proof

If attesting witnesses are present in court but cannot supply the necessary testimony because of memory failure,

then the attestation clause or affidavit executed at the time of the execution would appear to qualify as a recorded recollection and to be admissible as proof of the matters contained therein

§ 8:16 Hostile Subscribing Witnesses

o If evidence has been presented from which it may be found that the testator did have testamentary capacity and that the will was duly executed, then the will may be found to be valid even though attesting witnesses testify to the contrary (testimony is viewed with suspicion)

o Warren: lost will, lady had man come in and write will for her, he did that, left everything to her step-son, original was kept and copy was sent to bank

o One of subscribing witnesses testified that he did not witness the will = it does not automatically defeat the will = it is up to the trier of fact to decide whose testimony to accept

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o Griffith: Man made a will, will left most of ppty to brother, two sons got something (but not much)

o Executed at banko Niece called two witnesses o Will signed by testator o Atty who drafted will was not there o Contained affidavit o Two sons contest will o Three people testify (two wit and notary public)o Evidence: will itself, petition to probated in common form, and two affidavits of

witnesses Witnesses testified that they never read attestation clause, affidavit, and

was never told it was a will (just thought it was some sort of document = power of atty)

Due Execution: publication which involves statement to witness from testator that document is a will

Vast majority of cases require this publication (but one case says they do not have to know)

o Court expressly overruled Tyson (which said not necessary for wit to know it is a will) = NOW THERE MUST BE PUBLICATION AND WITNESSES MUST KNOW THE DOCUMENT THEY ARE SIGNING IS A WILL

o Testimony from attesting witness attacking the validity of the will = is to be viewed we great suspicion BUT it may still be considered

o SCrt = it was an issue of fact for the chancellor and there was no abuse of discretion when chancellor found that the will was not duly executed

o Documents are admissible to impeach testimony but NOT to prove the truth of matter asserted

o Primary beneficiary could have testified but did not (he was there and Dead mans statute not in effect)

§ 8:17 Undue Influence – Traditional Doctrine

o Influence which just amounts to suggestions or proposals, while they may have some influence, do not qualify for undue influence (begging is not undue influence)

o Undue influence = influence that destroys the testator’s free agency o Burden is first on the proponent = to prove prima facie case of validity (i.e. due execution

and testamentary capacity)o First evidence of undue influence will come from contestant

o Will usually be in the form of circumstantial evidence to show undue influence

o Contestant would put forth evidence and in most cases would center around four categories

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o The evidence falls into four categorieso The reasonableness of the will (from stand point of testator = what would you

expect them to do) Does the will do what a person would have expected the testator to have

done? Gives inference of undue influence

o Mental capacity of the testator If the capacity is bad enough, the will is void

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

o Ex: because of drug addiction, age, or illnesso 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

o 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 Summaryo 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

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

o Traditional doctrine is still there, but most find it easier to travel under confidential relationship doctrine

o But when a contestant could not show a confidential relationship they can fall back on the traditional doctrine (but nobody ever does anymore)

§ 8:18 Undue Influence – Confidential Relationship Doctrine (Croft)

First, Proponent will make a prima facie case by proving:o Duly executedo Sound and disposing mind

Usually done by introducing record where will was probated in common form Then, contestant must prove testator and beneficiary was in confidential relations

o This does NOT mean fiduciary relationshipo Confidential relationship = any type of relationship where trust is imposed in

beneficiary (social, family, etc…) & must prove beneficiary had involvement in getting will made

o Any activity in getting will made will be sufficient

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Suspicious circumstances (LOOK UP IN BOOK) Factors to consider whether contestant has made out a case for undue influence (pg. 203)

(7 factors) Special rule for husband/wife: of course they have a confidential relationship & usually

have some involvement in getting will made o Court requires more to be shown: undue methods (we don’t really know what

this) No inference in adult child/parent relationship (CHECK TO MAKE SURE THIS IS

CORRECT) o B/c it is presumed parent is dominant in relationship

If the contestant can show that there was:o 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

A fiduciary duty is not enough to pass the confidential relationship prongo The beneficiary has some hand in getting the will made; then a presumption of

undue influence will arise Like the first prong, not much to prove this – all you have to do is drive

someone to a lawyer’s office, and that is evidence that you had a hand in it The court has said that suspicious circumstances can take the place of

activity in getting the will made In one case, a relationship alone was a “suspicious circumstance”

o Both elements must be shown w/ clear and convincing evidence When they rest, proponent will make motion for direct verdict (implying

evidence is not clear and convincing there is confidential relationship or activity in making will)

If chancellor believe proponent HAS made out case, then presumption is raised = beneficiary did unduly influence and will invalid

Then the proponent must show three things by clear and convincing evidenceo The beneficiary’s utmost good faith (in dealing with testator)

Pg. 205: four factors courts consider in deciding if good faitho Fullest deliberation by testator (full knowledge of his/her….SEE BOOK)

Botton 205: four factors to decide if this part meto Testator exhibited Independent consent and action

Look in book for elements for this and other things Proponent will try to show decedent was a strong willed person This looks a lot like trying to determine if there was undue influence

which is weird as a prong for determining if there is undue influence If minds could differ = chancellor will let it go to jury Court: a proponent cannot overcome presumption of undue influence with simply his or

her own testimony OR the testimony of other interested parties o But there has been a case where court held that just this happened (proponent

proved with his own testimony) Jury should be presented with special verdict: “do you find that the testator had sound

and disposing mind” “do you find that the will was the product of undue influence” INSTEAD of “is the will valid or not”

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Look up pg. 203 factors that prove confidential relationship In most cases, the person will contest on undue influence and lack of testamentary

capacity b/c they related (easier to unduly influence someone with a weak mind) Some believe this just goes to show that the deck is stacked against the proponent of the

willo Be aware as lawyer: this is really an issue especially if you are dealing with an

elderly client Do everything you can to NOT give any ammunition to anyone who

contests the will When you talk to someone in the first conference for a will = DON’T have

anyone else in the room if you can avoid it When the will is executed = don’t have anyone there (especially the

beneficiary) Some of last year’s cases:

3 So.3d 804 18 So.3d 310

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

o With regard to deeds, you don’t even have to show activity in getting the deed made (ex: second part of contestant’s case does not have to be shown)

Summary of Traditional and Confidential Relationship Doctrines Traditional Doctrine

o Reasonableness of willo Testator’s mental capacityo Beneficiary’s activity in getting the will madeo Relationship between the testator and the alleged undue influencer

Confidential Relationshipo If contestant can show

“confidential relationship” between B and T, AND B’s activity in getting the will made

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

§ 8:19 Fraud

Ground for contest, but hardly every see it A person making a will may be the victim of fraud in two ways

o Fraud in the execution He may be deceived as to the contents of the will Testator of testatrix was defrauded in what the will said

They thought it gave Blackacre to one person but it gave it to someone else

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And this occurred b/c of someones’s fraud o Fraud in the inducement

He may be deceived as to certain facts that affect how he disposes of his property

They were told some stuff that wasn’t true: one brother says the other brother is out in CA and he is a drug addict (and b/c of this, they make will and leaves this out despite it is not the truth)

Must be proven with clear and convincing evidence (much harder to prove than undue influence but covers the same type of actions)

Elements of fraud (he didn’t mention this) o Misrepresentation of facts,o Knowledge of the falseness of the misrepresentation, ANDo Reliance by the testator on the misrepresentation

§ 8:20 Mistake

A person making a will may be the victim of mistake in two wayso Mistake in the execution

He may be mistaken as to the contents of his will A mistakenly executed will is denied probate, but the court can do

nothing when a provision is mistakenly omitted If will contains mistake, court will try to fix it

o Mistake in the inducement He may be mistaken as to certain facts that affect how the testator decides

to dispose of his property This is not grounds for contesting a will where the testator knew

and approved of its contents Banks: wife said she not leaving to husband b/c he had more

money than she dido But husband did NOT have more money than her (and

presumably if she had known the truth = she WOULD have left more to him)

o This is not a grounds for contest o Rule: A mistake in the inducement where the testator was

mistaken in what thye thought in the execution = not a grounds for contest

o BUT: there is a middle ground (see Vick below) o Vick : A will might be set aside on the grounds of mistake in the inducement

Where the mistake was caused by a beneficiary (even if not fraud = i.e. beneficiary really doesn’t know the truth (daughters who thought they were not in their fathers will so got mother to get land for them), AND

The misrepresentation actually influenced the testator to make a will he otherwise would not have made

So in this narrow circumstance = mistake is treated as fraud and it will be set aside

Exception

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o If a situation comes up where a will says that a person leaves someone out of a 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

Ex: “Because my son died in the Gulf War, I do not leave him anything” --- but it turns out he was just MIA

§ 8:21 Contest of a Foreign Will

Foreign will = will of person who was not domiciled in MS If the decedent owned real or personal property located in MS, 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 MS upon an authenticated copy (b/c they won’t let you bring the original will here = it will be left in that state)

Whichever way the will is probated = it can be contested here In order to dispose of ppty in MS = must be probated in MS

When the will is first probated in another state and then brought to MS for probate on an authenticated copy, there exists in the other state a judgment that the will is valid

o The effect of this judgment on a person’s right to contest a will in MS is that the judgment of the other state is conclusive if that court had jurisdiction over the parties and the subject matter (it is conclusive to the ppty that the foreign court had jurisdiction over)

Ex: Woodville

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 valid conveyance of personal property located in MS

o However, one case held that a person who contested a will out of state and lost could not again contest the will in MS where the only MS 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

§ 8:22 Loss of Right to Contest a Will

The right to contest a will may be contracted awayo Before a party can be deemed to have validly contracted away his right to contest

a will, the court must ask (same requirements as other Ks) Were the parties competent? Was there fair and adequate consideration? Were the terms clear?

Estoppel o You may estop yourself from contesting a will by accepting a gift in it

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

in the validity of the will OR We will let you contest the will, but you will have to give the gift

back (MS) (CHECK THIS IN BOOK)o If you have signed a petition asking for a will to be probated, then the courts will

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

effected, interested party from contesting a will (Woodville)

§ 8:23 Forfeiture of Legacy for Unsuccessful Contest

When a will has a provision that any contestant (beneficiary) of the will is going to lose their gift, courts have taken two positions (if they contest or aid/assist someone who is contesting)

o Two views Nationally if contestant is unsuccessful and will is upheld: Some: If the will is upheld, the court will carry out that clause Others (probably majority): 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 So, if they had reasonable grounds to contest, even if they were not

successful, they will not have to forfeit their gift in the will MS SCrt has never decided this question so not sure which view they

follow

§ 8:24 Rules of Evidence in Will Contests

Basically the same as any other matters A couple of situations where rules are applied differently:

Affidavits are normally not admissible into evidence in court, BUT they are when the will has been probated in common form

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

o 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

Rule: contains exception to hearsay rule with regard to any statements made by testator with regard to his/her will

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

are admissible

Chapter 9: Administration of Testate Estate

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§ 9:1 Appointment of Executor or Administrator c.t.a.

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 his will

If the person has been named in the will, the court will appoint that person (assuming that the person wants to do it) = Executor/Executrix

o The person has 40 days from the death of the testator to decide whether he or she wants to do it

o 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/trix c.t.a. (with the will annexed)

Use same procedure as intestate succession

Effect of probateo The probate of a will replaces the law of intestate successiono The administration is begun by the probate of the will and by the court

appointment of someone to be the executor

§ 9:2 Oath and Bond

The letters testamentary will not issue to the executor until he has taken an oath (required to sign an oath that will administer estate well)

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) UNLESS someone comes in and says there is a good reason why there should be a bond

o Testator, in the will, can relieve executor from duty to pay bondo If will does not waive bond = it will be required

Amount of bond = depends on what the will gives executor the power over The premium for the bond must be paid by the estate (i.e. b/c it is treated as expense of

the estate)o This is why the bond is usually waived

§ 9:3 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

If the will does not say anything except simply things like who ppty should go to, then the executor is pretty much obliged to do what an administrator in an intestate estate would do

Some matters cannot be controlled by the willo Executor must publish notice to creditors even if will directs executor not too Creditors properly presenting claims must be paid regardless of what the will sayso A surviving spouse is entitled to his or her renunciation rights although the will

provides that the surviving spouse is to get nothing Executor is not an insurer and is not responsible for errors of judgment

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Executor/Administrator cta’s duty is basically a negligence standardo Obligation to do what a reasonable prudent person in those circumstances would

have done

§ 9:4 Inventory, Appraisement, and Accounts

Appraisement, inventory, and accountings may be waived, saving the estate some moneyo The vast majority of wills will waive bond, appraisement, and inventoryo i.e. remember that three appraisers are supposed to do this BUT they can waive ito If the three appraisal by three are waived, the executor must make these appraisals

& must make annual accounts There is no statute that says you can waive inventory, appraisement, and

accountings = but there are hundreds of cases where SCrt has pointed out that these things have not been done without every saying it is illegal to waive them = so they can be waived just like a bond can be waived

o Note that the personal representative is required to make annual accounts if the estate is kept open more than one year

o Rationale: they are a lot of money and are a lot of trouble

Harper: 491 So.2d 189 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 (basically a negligence standard)

Take Away: when charge of maladministration/misconduct = court will require an accounting even though the will waived the accounting

Maladministration = when personal rep does stuff that costs the estate money In deciding what powers the executor has, look to the will (if it gives broad powers,

most actions by him/her will not be actionable)

Unlike bond, there is no statute which says that you can waive inventory and appraisals However, there are many cases saying one can waive inventory and appraisals and no

cases saying one cannot

§ 9:5 Payment of Testator’s Debts

This is substantially the same as payment of an intestate debt (the administrator is required to make a reasonable inquiry/search to find and use due diligence in determining the payment of debts)

o Once he knows who the creditors are, the executor must write a letter and inform them all

o Then, he must file an affidavit saying that it has been doneo Finally, the executor must publish a notice to creditors in the newspaper

Rare exceptiono Generally: executor does not pay debts until they have been properly probated

UNLESS they have provision that waives probate

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o 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)

Otherwise, just like intestate where administrator is not entitled to pay claims that have not been timely and properly probated

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

o Testator may specify the property that he or she wishes sold to pay the debts or the fund from which the testator wishes them paid

If the testator does so, his or her executor must follow the testator’s directions even though different property would have been used had there been no directions

Estate taxes shall be paid on a pro rata basis MS 27-10-7o If tax is 40%, then everyone who inherits from the estate pays 40% of what they

inherit

§ 9:6 Homestead Rights

o 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

o Owned an interest in the homestead property along with the deceased spouseo Was left an interest in the deceased spouse’s will ORo Obtained an interest by renouncing the will of the deceased spouse and taking an

intestate share

o Remaining questiono 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 or she 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

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

o Weems doubts this outcome if this situation actually comes before the court (if entirely owned by someone else, no way to get part of it)

o Homestead: Claims of creditors: it is exempt up to 75K provided (in the will) it is left to some Group 1 persons (spouse and/or children)

§ 9:7 Interpretation and Construction of Will

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In these construction cases = the will has already been found to be a valid will = just a question about what it means (how to construe it) When there arises a question about what a provision in a will means or about what the

testator intended to be done, the court which admitted the will to probate may be asked by any interested person to interpret or construe the will

o The Chancellor decides (no right to jury in construction case)o Goal = determine intent of testator o Basic Scenario: one person will contend that testator intended X; the other person

will say that the testator intended Y Must be able to point to some language in the will as an attempt or

expression in will that testator intended X (or Y) If you cannot do this = the court will not allow any extrinsic/parole

evidence And will not construe the will Stovall v. Stovall

Some authorities make a distinctiono Interpretation = process of discovering the meaning or intention of the testator

from permissible datao Construction = process of assigning meaning to the instrument when the testator’s

intention cannot be fully ascertained by interpretation MS Rule = interpretation and construction are synonymous

Black letter rules and noteso In a construction case, the court tries to harmonize the provisions in the will and

find the dominant intent of the testator (no jury) 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

§ 9:8 Evidence of Intent – The Will First, Court will look at the four corners of the will

o The court will be advised of the circumstances surrounding the testator at the time the will was made (to construe)

A court must consider the entire instrument, giving due consideration and weight to every word

o If there are codicils, the will and the codicils should be considered togethero Omitted words may be supplied where they are clearly implied or when necessary

to effectuate the testator’s expressed intent The will must be read in the light of the circumstances surrounding the testator at the time

the will was written

Then the court will determine if the intent is clear, if so = court will say what intent is

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o If Chancellor is not clear about what testator would have wanted = Chancellor will declare will to be ambiguous (extremely important = once determined ambiguous = door is open to extrinsic/parole evidence)

After a thorough examination of the will, the court may conclude that the intent of the testator is clear and proceed to state what the intent was without considering any other evidence or applying any rules of construction

§ 9:9 Ambiguity

There are two kinds of ambiguityo Patent ambiguity : a will may be ambiguous on its face

This rarely happens, but when it does it almost always is in the case of a holographic will, because lay people typically are not accustomed to expressing themselves well

Any intelligent person reading will would say, after reading the will, “it’s just not clear what he wants here”

Defect in drafting of will (article 5 inconsistent with article 2) Term is ambiguous (Woodfield)

o Testator left homestead ppty Wife = referred to all ppty as homestead (farm) Others = homestead should be restricted by legal

definition (160 acres/75K) Chancellor held ambiguous = opened up to extrinsic

evidence = agreed with wife after testimonyo Latent ambiguity : a will may be perfectly clear on its face, but when one

(executor) tries to carry out the will, it cannot be done Granberry: where man left 40% to son (to be given as bank stock) 40% to

daughter and 20% wife; when died; executor could not give son the bank stock and still give daughter and wife their shares (b/c the bank stock soared in value and the rest of the ppty in estate went down in value)

o You can find cases that violate principle that there must be ambiguity (think granddaughter name)

Granberry :o Wealthy man who owned 52% of bank stock = wanted his son to own all 52%o Also said Son and Daughter to each get 40% and wife 20%

When he dies, b/c of change of circumstances = executors cannot give him all of the stock and also give the daughter 40% of estate (she will get like 20% if they give all stock to son)

o Executor went to Chancellor (either/or situation)o Question: what is dominant intent?

Latent Ambiguity = extrinsic evidence includes that dominant intent for bank to stay in control of family

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§ 9:10 Extrinsic or Parol Evidence

Extrinsic evidence is not admissible unless and until the court finds that the will is ambiguous

o However, there must be at least two exceptions1) the court is to read the entire will in the light of the circumstances surrounding the testator at the time the will was written

Shown only by someone’s testimony Seems that this kind of extrinsic or parol evidence would have to

be admissible in all will construction cases o EXCEPT those where the court found that no conceivable

set of circumstances could affect the meaning of the will2) a latent ambiguity involves a will which is clear and unambiguous on its face, but which proves to be ambiguous when applied to external facts

Seems to be impossible to show the court that there was such an ambiguity without proof of these extrinsic facts by parol evidence

§ 9:11 Rules of Construction

The court also must take into mind rules of constructiono 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

Ex: 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”

o Judge must first read, try to find intent, and consider rules of construction to come up with a conclusion

This area of law probably depends less on precedent than any area

§ 9:12 Construction of Will - Identification of Beneficiary

o The designation of a beneficiary will be sufficient as long as the name and description used will, when applied to the facts and circumstances, identify the person the testator intended (full or legal name not required to be used in will)

o If the provisions of a will are found to apply equally to two or more persons, declarations of the testator are admissible

o If, after that, the court is still unclear – then the court will hold the gift void for uncertainty

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§ 9:13 Construction of Will - Identification of Property

o 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

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

o Some relief from this rule has been provided in the rule that the erroneous part of the description (Ex: 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

§ 9:14 Lapse of Gifts

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

o Anti-lapse statute (exception) If the beneficiary is a descendant (child, grandchild, etc.) of the testator and

the beneficiary is survived by a descendent who survives the testator, the gift will go to the original beneficiary’s descendants

CL = it was like gift was never made; but this rule has been changed to varying degrees in most jurisdictions

o Anti-lapse statute (Virginia) = if beneficiary dies first = it goes to that beneficiary’s heirs at law

Others restrict this to just if beneficiary is siblings, etc… MS has narrowest anti-lapse = if beneficiary is descendant (child, grandchild)

AND if the beneficiary was survived by descendants of his/her own = the gift will go to those children or descendants as if person had died intestate

Some will makes provisions that say: I live ppty to X, and if she does not survive me = it goes to Y (where there would be no problem)

So, What happens to the gift that lapses?

o Gift falls into residuary clause of will (most wills contain = says that all rest in residue of estate goes to so and so)

o If no residuary clause = goes to heirs at law (just like intestate succession)

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 at law if there is not

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If the lapsed gift was the residuary estate (Ex: the deceased beneficiary had been given the entire residuary estate), it goes by intestate succession

If a will says, “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 (some states would let other two share in 1/3)

Residuary Estate = the part of the decedent’s estate remaining after payment of all debts, expenses, statutory claims, taxes, and testamentary gifts (special, general, and demonstrative) have been made

§ 9:15 Class of Gifts

When, in a will, there is a provision which says that the testator leaves real or personal property to a group of people (Ex: 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?

Two Basic Situations (depends on intent of testator = did he mean for it to be class gift)

o 1) If group is specified and no one is named = virtually always a class gift

2) 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)

o He made gift to grandchildren and he named them (had 5 at time will was made)

When he died = son had another child (only way new child to get gift is if it is a class gift = pretermitted heir rule does not apply b/c this is not will of PARENT is gift of grandparent)

o Presumption can be overcome, question is intent of testator, nothing to show he would not want 6th grandchild to not get gift

When individuals are named, there’s a construction presumption that the will was intended for those people

o The construction presumption can be overcome if the individuals are part of the same larger group

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 (time when right to receive gift vests = moment of testator’s death)

Example: leaves 500 to every rotary club members = those who are members at time will get gift; those who were members at time, but are not at time of death = will get nothing

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For lapsed gifts = leaves 50K to wife and remainder after she dies to brothers and sisters = determined by which siblings are alive when wife dies NOT when testator dies

Anti-lapse 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

Example : will that leaves to children in class gift (A B C D E); one of grandchildren dies (C) before testator = so there is only four grandchildren at time of death; four will content that it should go to just them 4; the children of C will argue that anti-lapse statute applies and it should go to them; GENERAL RULE = it does apply to group gifts AND C’s children would recover even though C was not alive at time of distribution

§ 9:16 Classification of Testamentary Dispositions of Personalty

Issue : What property will be used by the executor to pay the debts, expenses, and taxes of the estate?

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

Personalty : There are four types of personaltyo Specific bequests = a gift in a will of a particular piece of personal property

identifiable from all others (I give to so and so my 12 gauge shotgun)o General bequest = 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 Ex: “a hundred head of cattle” I give to so and so $1000 (not any particular 1000 just 1000)

o Demonstrative bequests = this is a money gift charged on a specific fund and directed to be paid out of that fund

If the specific fund is insufficient, it becomes a general bequest Ex: “I leave $10K payable out of my IBM stock” I give X 10K out of my savings What if savings does not exist or does is not sufficient (savings)?

o Even though not money in savings = it will be paid out of other funds of estate

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

Devises (Realty) (THIS GOES BELOW) o No Demonstrativeo Specific: I give my 200 acre farmo General: person who owned 1000 acres and gives to so and so 100 acres (but

doesn’t say which 100 acres)o Residuary: I leave the rest of my land to so and so

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o There is no such thing as a demonstrative deviseo Otherwise, the classifications are the same

Main Reason These Are Important In Law = important with regard to question of abatement (see below)

§ 9:17 Classification of Testamentary Dispositions of Realty

o A testamentary disposition of land or an interest in land is called a deviseo A devise is specific when a particular parcel of land is given, such as “my home at

100 Church Street”o A devise is residuary when it passes pursuant to a gift of “all of the rest and

residue of my estate”o Several kinds of devises are general, such as “100 acres of land” and “all of my

land”

§ 9:18 Abatement

o 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 (Debts and Expenses of Administration; widows allowance is not subject to claims of creditors)

o Abatement is necessary in the absence of specific directions in the will where the court will undertake to construe the will to try to determine the testator’s intent as to which property should be used

o If the intent is not clear, the court will fall back on this system

o Order of abatement o Property which the testator intended/designated in will to use for expenses (intent

controls)o Property not disposed of in the will at all (personalty first, realty second)o Personalty

Residuary first General personalty Specific and demonstrative personalty

o Realty Residuary General Specific

o W/in each group = the debts are apportioned pro rata

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)

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o Example: if estate taxes amount to 20% of estate = each person will have to come up with 20% of their own gift (whether personalty or realty)

§ 9:19 Exoneration

o This deals with how a particular debt is to be handled when the debt constitutes a lien on a specific piece of property

o Ex: a testator gives a car to someone, and the car was financed ($2K is left to pay on the car) – this usually comes up in real property with mortgages on them

o It all comes down to the testator’s intent, which will be carried out if it can be ascertainedo 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 so the beneficiary takes the gift free of the encumbrance

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

o If will says: I leave to X my interest in Company Y (owned half of company Y at time of making will and owned all at time of death) = X gets all interest (i.e. whole company)

o General Rule: gifts of realty/land (secured by lien) should be exonerated provided those debts were personal obligations of testator/trix

o SO in above example, the debts of the company Y SHOULD NOT be exonerate if they were not the personal debts of testator

§ 9:20 Ademption

Ademption = prevents a beneficiary from getting a gift which the testator had left to the beneficiary in his or her willTalked about this before when discussed implied revocation

o Two Kinds of Ademptiono Ademption by Extinction

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

The same rule applies if the property is either lost or destroyed

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

o Will left Packard automobile; he traded cars for Buick; wife argued he left car (not just Packard); residual heirs argued no specific = court agreed with residual

Some jurisdictions would try to construe as general and give wife car

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Other jurisdictions would even require executor to go out and buy wife Packard

SOME JURISDICTIONS: 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

o This usually comes up in the case of stock that has been willed

o Ademption by Satisfaction 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

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

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