1. Intestate Succession - Statutes That Specifically State Who Inherits When P Dies W/O a Will

INTRODUCTION

1. Intestate Succession - statutes that specifically state who inherits when P dies w/o a will 2. Wills - (w/few exceptions) will controls distribution of P’s property. 3. Administration of Estate - process by which persons get the property of P 4. Clear and Unambiguous Stmts - a cardinal rule of wills and estates is that extrinsic evidence will not be entertained to interpret/construe the meaning of a provision in a will when its language is clear and unambiguous. 5. Inheriting Land v. Personal Property (PP) a. Land - at the exact instant P dies, ownership/title passes to person entitled. b. PP - passes to personal representative (PR), he administers it to the heirs at law, but only after estate is administered i.e. after debts to creditors paid. c. Debts - must be paid from PP first. If more debt remains, then go to land. But only after PP is exhausted.

INTESTATE SUCCESSION - Chapter One

1. Property subject to laws of intestate succession (§1:1): a. Intestate estate - any property in which decedent owned an inheritable interest. b. Interest in a trust is subject to laws of intestate succession unless trust provides otherwise. 2. Joint tenancy with right of survivorship (JTRS) a. Upon death of 1 of 2 parties to JTRS, property goes to the survivor, NOT to the estate of the decedent. b. That is, when person forms a JTRS, they give up their inheritable interest, and the terms of the account are not part of the estate. c. Consequently, a subsequent judgment creditor (as in a wrongful death action against decedent’s estate) will have NO claim on such property. d. If an account clearly and unambiguously states that the account is a joint account with right of survivorship, then that will be conclusive as to intent i.e. Ct will NOT entertain an argument that decedent did not intend to form a JTRS), in other words . . . e. Parol Evidence may not impeach an express survivorship clause, “Cts are not permitted to infer an intent contrary to what’s in writing,” b/c what’s said in writing is more reliable than what’s said orally. Not absolute E, just the best E. f. The administration of proceeds from such an account cannot be modified even by a will executed by the decedent (same rule holds w/r to life insurance) g. Tenancy in common - decedent’s undivided interest IS controlled by the law of intestate succession 3. Challenging These Cases: a. Cannot - challenge P’s intent in making account. b. Can - challenge by claiming: fraud, undue influence, sound mind, etc. 4. Governing Law (§ 1:2): a. CL i. Real property - intestate succession governed by law of state where real property is located.

1 ii. Personal - intestate succession governed by law of state of where descendent domicile at time of his death. b. MS Rule - changed CL, all PP situated in MS will be governed by intestate succession law of MS, notwithstanding that decedent’s domicile may have been in another state. (§ 91-1-1). c. Put simply - ALL property LOCATED in MS, both real and personal, will be inherited pursuant to law of MS. Thus, MS Cts must make determination as to where property is located. d. Debts receivable by a nonresident decedent: if debts are related to a business conducted in MS, such debts will be “located” in MS, thus MS law of intestate succession will apply. i. Example - MS woman marries Italian. Owns money, notes, land situated in MS. Goes to Italy, leaves brother in charge of everything. 1. Land - obviously MS law controls 2. PP - although accounts (debts owed to her) are intangible property, ct holds woman’s intent was clearly to leave the accounts w/brother in MS, thus MS law controls. 5. Heirs at Law - Time of Determination (§ 1:3): a. Determined at the moment of decedent’s death. Fixed/vested at that time. b. Uniform Probate Code - MS and most jurisdiction don’t follow. c. Uniform Simultaneous Death Law (USDL): i. Where the title to property depends on the priority of death, and there’s no sufficient E that the persons died otherwise than simultaneously, property of the 2 decedents will be inherited as if BOTH had survived (X’s heirs get theirs AND Y’s heirs get theirs). ii. Burden on estate claiming share to prove by preponderance of the evidence that its decedent survived other decedent iii. USDL does NOT apply if will provides otherwise in event of simultaneous death (e.g., will could provide presumption that other person survives, etc.) 6. Heirs at law “in being” and posthumous heirs (§ 1:4): a. Heirs at law must be in (1) preferred class AND (2) “in being” at moment of decedent’s death b. “In being” means either: i. Alive at moment of decedent’s death OR ii. Posthumous Heir Rule: if a person is in the preferred class and has been conceived, they have the right to inherit (even though they have not been born) provided they are subsequently born alive. 7. Relatives by consanguinity (1:7): blood relatives, i.e., have common ancestors a. Lineals: i. Ancestors: in line above decedent (but for their birth, decedent wouldn’t of been born) ii. Descendants: in line below decedent (but for decedent’s birth, they wouldn’t of been born) b. Collaterals: brothers, sisters, aunts, uncles, cousins, etc. (have ancestors in common but their existence didn’t depend on Decedent’s existence).

2 8. Descent/Distribution of Land & PP in MS (4 consanguinity relative groups): a. Group I - to surviving spouse of decedent, children of decedent, and descendants of children who predeceased descendant (only “kids of kids” and on down inherit, not “spouses of kids” and not stepchildren i.e. no law of representation for them. i. Determining number of shares: 1. First question: was decedent survived by a spouse? (if so, allocate one share to surviving spouse) 2. Second question: did decedent have any children in being at time of death? (if so, allocate one share to each surviving child) 3. Third question: did decedent have any children who predeceased him or her but were survived by children of their own? (if so, allocate a share for each child who predeceased decedent) ii. Right of representation (1:5): descendants (children only) of predeceased child take their parent’s share divided equally among them 1. MS law follows right of representation completely 2. Majority - would probably divide estate on per capita basis among descendants of same class when all inheritors are in same class; MS follows a per stirpes distribution rather than per capita 3. Example 1 - X dies intestate. Husband already dead. Kids alive at that time are A & B. C & D are also kids, but predeceased X. a. C had E & F (who have right of representation). b. D had G (who also has right of representation). c. E, F, and G share what their parents would’ve taken. 4. Example 2 - X dies. Predeceased by A & B. A has C & D. B has E, F, G, & H. What proportions? a. MS - C & D split ½. E, F, G, & H split ½ - per stirpes b. Majority - would say each grandkid gets 1/6. - per capita b. Group II - if no one in Group I, then to father and mother of decedent, brothers and sisters of decedent, and descendants of brothers and sisters who predeceased decedent (i.e. right of representation here as well). i. One share of the decedent’s estate is allotted to each parent, brother, and sister in being when decedent dies, and to descendants of brothers/sisters. c. Group III - if no one in Groups I or II, then to grandparents, aunts, and uncles. NO right of representation to aunts and uncles who predeceased decedent i.e. cousins do not get share. The only collaterals who have right of representation are brothers and sisters who predeceased decedent. i. One share allotted for each grandparent, uncle, and aunt, per capita who are in being when decedent dies. No share allotted for U/A who predeceases decedent b/c right of representation is not given to cousins. d. Group IV: if no one in Groups I, II, or III, then in equal parts to next of kin of intestate in equal degree, computing by the rules of civil law (one degree for each step on civil law chart) i. Do NOT consider chart UNTIL you have determined that there is no one in Groups I, II, or III ii. If chart is used, you find all relatives to same degree (degree of nearest heir in being) and divide estate equally among all those people

3 iii. Example - if X is survived by 1st cousin and kids of 1st cousin, 1st cousin takes everything b/c of higher degree of kinship. 9. Half-bloods (1:7): a. Definition: only one ancestor in common (Full-bloods relatives come from a common pair (man and woman)). b. All half-bloods are collateral relatives; there is no such thing as a lineal half-blood c. Half-blood inherits just like a full-blood EXCEPT in following situations: i. First, half-blood will not inherit if decedent was survived by full-blood relative of same degree (i.e., full-blood relative(s) take to total exclusion of half-blood relative) ii. Second, half-blood will not inherit if decedent was survived by a relative whose inheritance position is equal to that of a full-blood relative to same degree (i.e. ½ brother won’t inherit if there’s a FB parent of decedent alive, or a descendant of a FB sibling alive) iii. Third, half-blood’s inheritance may be defeated by the right of representation (i.e. X had FB sister, A, and ½ sister, B. A predeceases X, but is herself survived by a child, C. C takes by right of representation that which A, his mother, would’ve taken . . . since A would’ve taken to the exclusion of B, her child C, by rep. takes to the exclusion of B). d. Meaning, Half-Bloods inherit like full-bloods when inheriting from parents and siblings 10. Wrongful death statute: a. Group I - Beneficiaries of W/D statute are same people who inherit by intestate succession (w/same right of representation in children and siblings who predeceased decedent) b. Group II - However, w/r to W/D beneficiaries only, there is NO distinction made b/t full-bloods and half-bloods of equal degree (this is a departure from law of intestate succession) c. If the half-blood has no brothers or sisters alive at the time of his death, the W/D benefits become assets of the decedent’s estate, but the descendants of those brothers/sisters will still be preferred by law. The only difference is, these descendants will only receive their inheritance after creditors are paid. 11. Adoptions (1:9): a. At CL there was no adoption. Meaning, all rights to inheritance by intestate succession for adoptions are statutory creations (§ 93-17-12). Thus, if no statute grants or takes away a right, it does not exist. b. When an adoption occurs, 4 questions are raised about intestate succession: i. What are the rights of adopted child to inherit from new/adoptive family? 1. Adopted child shall inherit from and through the adopting parents and from the other children of the adopting parents, occurs in 2 cases a. Grandparent dies: A.C. takes what dead parent would get b. Aunt/uncle dies: A.C. takes what predeceased parent would 2. The “through” language indicates that adopted children have the right of representation with regard to adopting parents

4 3. Adopted child does NOT have right to inherit from the many collateral relatives that a natural child of the adopting parents has ii. What are rights of members of adopt family to inherit from adopted child? 1. New parents/siblings inherit from adopted child just as if adopted child were a natural child 2. Collateral relatives (other than brothers and sisters) do NOT have the right to inherit from the adopted child, nor he from them. 3. Note then, that if A.C. dies w/o any Group I people, then there’s no one who can inherit through intestate succession iii. What are rights of natural family to inherit from adopted child? 1. All rights of inheritance are completely gone except as to a natural parent who is the spouse of the adopting parent (i.e., in half- adoption situation) a. Half Adoption - has no effect on inheritance rights of child and his natural parent when he’s adopted by his parent’s new spouse i.e. child is still connected through his natural parent to his natural family. 2. Rights of natural family are extinguished upon adoption (subject to half-adoption exception) iv. What are rights of adopted child to inherit from natural family? 1. Adopted child continues to inherit by intestate succession from natural family, both parents and all collateral relatives 2. Adopted child has right to share in W/D benefits stemming from death of natural family member 3. Statute did not address anything pertaining to this fourth question; MS S. Ct. construed statute strictly since it was in derogation of the common law c. In MS, adopted child somewhat gets short end of stick vis-à-vis new family; however, in MS (unlike in most other states), adopted children come out on top relative to inheriting from natural family; consequently, adopted children in MS have stronger argument to learn who their natural parents are than in other states given right of inheritance from natural family. d. Arguments For and Against MS Rule i. For 1. Prior to adoption, natural kid had full rights of inheritance from natural parent. 2. No statute specifically takes away their right to inherit from natural parent. 3. Therefore - still should get rights of inheritance. ii. Against 1. Statute doesn’t say they can’t inherit, but statutory construction is a “both ways” system. Thus, if the natural family/parents cannot inherit from the adopted child, then the adopted child shouldn’t be able to inherit from the natural parent. iii. Response 1. Statute and CL don’t match i.e. statute is in derogation of the CL.

5 2. Rule of Construction: statutes in derogation of CL are to be strictly construed. 3. “Against” wants to add something to the statute, but can’t do this. iv. Holding - adoptive kid may inherit from both natural and adoptive family. e. Wrongful death vis-à-vis adoption: i. Natural family CANNOT recover as beneficiary for death of adopted child ii. Adopted child CAN recover as beneficiary for death of natural parent iii. Adopting family CAN recover as beneficiary for death of adopted child 12. Illegitimate children §1:10 (§ 91-1-15): a. CL - NO right to inherit by intestate succession. b. Re mother: illegitimate DOES inherit from mother and mother’s kindred and vice versa c. Re father: illegitimate child DOES inherit from father and father’s kindred (and vice versa) IF: i. Natural parents married before child’s birth, even though marriage was later declared null and void or dissolved by a court OR ii. There’s an adjudication of paternity before the death of the intestate OR 1. Adjudication of paternity - suit to determine who, by name, are heirs of the decedent i.e. ill. must bring suit to establish he is in fact a blood relative of the decedent. 2. If an adjudication is done before decedent dies, and shows kid is natural child, that adjudication is conclusive. a. Cannot be re-adjudicated b. Does not matter that adjud. Was by default - w/o blood or DNA testing. c. Does not matter that person wanting readjud. Was not a party to the previous action. iii. There’s an adjudication of paternity after the death of the intestate AND 1. Adjudication of paternity must be based upon clear and convincing evidence in an heirship proceeding 2. Must file adjudication of paternity w/i the lesser of: a. W/i 1 year after the death of the intestate OR i. 1-year SOL is ‘self-executing’ and may NOT be tolled for any reason, including lack of notice b. W/i 90 days after the first publication of notice to creditors, whichever is less i. Leflore v. Coleman - X married w/1 legit kid. Divorce. X has 2 ill. w/2nd woman. X dies. ii. Atny draws Ct’s attention to 2 ill. kids existence. If didn’t reveal (but atny had known) constitutes a fraud on the court. iii. Over 90 days later, mom of ill. kid brings suit to show kid is natural of X. Barred by 90-day rule?

6 iv. Held - 90 limit presupposes an attempt by the administrator to look out for best interests of all heirs (fiduciary r’ship). If doesn’t, ill. not barred. v. RULE - Admin. MUST bring suit of heirship himself if he knows/should’ve known kids in community have potential valid claims of heirship. vi. Thus - MSSC has effectively written out the 90-day time period as a bar to paternity action. 3. Time period runs notwithstanding the minority of a child a. NOTE - ill. not seeking/obtaining proof of paternity during alleged father’s life, will NOT diminish/abate his claim. b. NOTE - Neither will his failure to have made a claim to a share of his father’s estate, although chancellor might consider this in deciding on the validity of the present claim d. The natural father of an illegitimate child and his kindred shall NOT inherit from or through the child UNLESS the father (1) has openly treated the child as his AND (2) has not refused or neglected to support the child. 1. Williams v. Farmer - affair, baby becomes quick in the womb. Baby dies in mother’s stomach in wreck. Mother wins wrongful death suit against motorist. 2. Father brings suit for ½ of mother’s benefits. 3. Mother - BOP on you to show you openly treated as own. 4. Father - kid not born! How could I treat as my own? 5. Held - father didn’t show interest (no $ given, no time spent). e. Becoming Legitimate - child born ill. Becomes legit if natural father marries natural mother, AND, acknowledges the child as his. f. Administration of Estate i. X can enter chancery ct and ask to open an estate for decedent, Y, and for a person to be appointed as the administrator(trix). ii. Administrator’s 1st action - publish notice to creditors. iii. Ill. must probate his claims w/i 90 days of 1st publication i.e. ill.’s claim is treated like a creditor’s. g. Anti-Bridge - In no case can death of illegitimate child be used as a vehicle to convey father’s property to mother or vice versa. Cannot even provide for this in a will. h. Strong presumption - that husband of woman was father of her child. Overcome w/proof BRD. i. Wrongful death: i. Ill. has full rights with regard to natural mother and vice versa ii. Ill. has full rights with regard to natural father and vice versa, but first, the heirship proceeding must be brought to establish he really is a child. j. Contesting a Will - ill. may if have standing - those adversely affected by administration of will. But first, heirship proceeding must be brought . . . 13. In-laws: no rights whatsoever 14. Nonresident aliens § 1:12

7 a. MS General Rule : NRA CANNOT inherit land b. Does NOT apply to resident aliens or PP c. Exceptions: i. Treaties of US w/other countries supersede MS law ii. Syrian/Lebanese exception iii. Marriage - U.S. citizens who become alien by marriage are excepted. 15. Escheat § 1:13: die w/o any heirs, land escheats to the State. 16. Advancements § 1:14: a. Inter vivos gift by parent to child, intended to count towards inheritance. b. Kid may file a petition contending that the inter vivos gifts were advancements. c. Three requirements: i. Completed inter vivos gift; cannot be a loan ii. From parent to child (gifts to spouse are exempt) iii. Intent was to make an advancement. If not proven, inheritance is done equally w/o regarding the previous gifts made to different kids. d. Once gift is deemed an advancement, child has choice: i. Depart w/gift, w/o receiving anything more from estate (no inheritance) OR ii. Hotchpot - bring the value of gift back into the estate (enlarge decedent’s estate) and share enlarged estate equally with siblings. 1. Note - only value is brought back into the estate, kid retains title to the gift itself. 2. Why not bring back - if value of advancement greater than kid’s share of the estate enlarged by the value of the gift, then decline. 3. Grandkids - take what dad had i.e. inheritance reduced by any advancements made from granddad to his dad. e. Payment of Debt - parent accepting pmnt from child of money owed, means “gift” was a loan, not an advancement. If it were an advancement, the parent wouldn’t make the child pay it back, but would simply say it’s coming out of your inheritance. f. Hypothetical - X has Wife (W) and Kids (A, B, C). During his life, X gave: A 100 acres worth $40K, B 20K for business, and W 10K ring. His estate at his death is worth 360K. If gifts were intended as advancements, what happens? i. W - gets 90K (¼ of estate free and clear b/c advancements don’t apply to spouses. Both the benefits and limits of the doctrine don’t apply). ii. Children’s estate now worth 270K, but A and B bring 40K and 20K back to Hotchpot. Estate now worth 330K. 1. A - gets 110K less the 40K value of the land = 70K 2. B - gets 110K less the 20K for his business = 90K 3. C - gets her full 100K. 17. Loss of Right to Inherit: a. Slayer Statute - Willfully Causing Death of Decedent §1:15 i. If willfully cause or procure decedent’s death, then cannot inherit. 1. Same principle applies to wills, life ins. proceeds, and probably joint tenancies with right of survivorship ii. Purpose

8 1. Discourage inheritance as a motive for killing 2. Punish inheritance as a motive for killing iii. CL - inheritance goes as if killer was never in being i.e. killer’s kids do not have the right of representation iv. Statute - as if killer predeceased victim i.e. right of rep allowed v. Manslaughter - guilty plea of mans. is only slight evidence of willfulness b/c some mans. statutes don’t have a willfulness element. vi. Simultaneous Death Act - same as above. b. Misconduct of Surviving Spouse § 1:16 i. Example - husband and wife. H dies w/o kids. Brothers/sisters of H want to stop W from inheriting b/c of multiple affairs. ii. Ask - can W lose her right to inherit by misconduct? Rule - not unless a statute says so. 1. Majority - no, it doesn’t matter that she cheated, the legislature hasn’t taken away her right to inherit b/c of her misconduct. 2. MSSC - she can lose her right by misconduct, if her misconduct: a. Evidences a complete abandonment of the marriage, AND b. Constitutes a bigamous marriage i.e. a CL marriage, must: i. Intend to be married ii. Hold themselves out as married in the community iii. Live together as H and W 3. Thus - MS rule: can lose right to inherit by proving the above conduct, however, adultery, even repeated adultery, isn’t enough. c. Misconduct of surviving parent § 1:16: i. Father and father’s kindred cannot inherit from estate of intestate illegitimate child UNLESS father (1) openly treated child as his own AND (2) never refused or neglected to support the child d. Contracting away of right to inherit: i. Three requirements for valid K: 1. Fair and adequate consideration 2. Competent parties 3. Clarity of terms - where the action is ii. Two types: 1. Release of expectancy § 1:17 - K b/t decedent and heir a. Right of representation lost b. Kirby v. Kent - pre/postnuptial agreements i. Couple divorce, she agrees to settlement. ii. He dies intestate before divorce final. iii. Ct takes terms LITERALLY - either you are a spouse or not! iv. Holding - she inherits b/c still his wife (irrelevant that she’s accepted the settlement). v. Weems - did settlement = release of expectancy? 1. Component and consideration, but 2. Terms not clear - only releasing her right to alimony.

9 2. Assignment of expectancy § 1:18 - K b/t heir and 3rd P, assigning (giving) 3rd P heir’s interest in estate a. Conveyance of Bare Hope - if expectancy does not materialize, the assignment fails and assignee gets nothing. i. Assignor predeceases the source, or ii. The source prevents assignor (and thus assignee) from inheriting by making a will. 18. Disclaimer of inheritance § 1:19: a. CL - could NOT refuse to accept inheritance by intestate succession (could disclaim devise or bequest in a will b/c gift in a will must be accepted) b. Modern (Uniform Disclaimer of Property Interest Act) - can refuse. c. Why Refuse i. Accepting money would increase heir’s taxes ii. Heir has large debts, accepting money means creditors will collect inheritance. 19. Inheritance of exempt property § 1:20: a. Exempt property - cannot be seized by execution or attachment (by creditors) i. Personal property - not to exceed $10,000 ii. Real property - homestead land b. Three things to know about homesteads i. Who Inherits - just like all other property under intestate laws, except: 1. If surviving spouse has a home valued equal to decedent’s homestead, and decedent has no surviving kids of that present marriage, but does have kids of a previous marriage, the spouse does NOT inherit…homestead goes to the surviving kids. ii. Limits on Size and Value 1. No creditors - homestead is 160 acres, no dollar limitation 2. Creditors - homestead is limited to $75,000 3. Value limitation ONLY a factor where there’s creditors who cannot be paid from other assets of estate 4. Protection from creditors only given to GROUP I people. Otherwise, creditors can sell house to collect debt. iii. Who has Right to Use/Possession - surviving spouse has right to exclusive use/possession as long as he remains unmarried and occupies or uses it. Cannot: 1. Partition w/o his consent, 2. Call him to account for the use or occupancy, or 3. Force him to buy the rights of his cotenants c. Rule re conveying/mortgaging of homestead: if a married person owns homestead, neither spouse can sell or mortgage homestead w/o consent of other spouse; if conveyance happens w/o consent of other spouse, sale will be effective ONLY w/regard to non-homestead portion of property. d. Example - X dies owning 900 acres. W and 3 kids. Land inherited as T. in Common (each have undivided ¼ interest). i. 160 acres set aside as homestead. Value is irrelevant b/c no creditors.

10 ii. Kids take ¼ undivided interest in remaining 740 acres. May partition the non-homestead portion of they wish. iii. Who owns the homestead - they ALL do i.e. W and 3 kids. Kids cannot partition homestead w/o W’s consent, even though they have ¾ ownership iv. Widow’s rights - exclusive use/possession + all rents and profits so long as she remains unmarried. 20. Suits to determine heirship § 1:21: a. Anyone interested in property of decedent may obtain a binding adjudication of the heirs at law of the decedent by bringing suit to determine heirship b. These suits are rare because in vast majority of situations, people believe they know who the heirs are, i.e., there is no need to determine heirs c. Upon closing the estate, administrator must file petition to close estate and distribute net estate; administrator is required to state name and address of heirs at law in petition; if no objections, chancellor will order personal representative to pay the net estate to heirs at law named in petition v. This is NOT an adjudication of heirship and will not protect personal representative if estate is paid to wrong people

ADMINISTRATION OF INTESTATE ESTATE - Chapter Two

1. Administration of the intestate estate: a. Purposes of administration: i. To gather and care for assets ii. To identify and pay creditors iii. To distribute net estate to heirs at law b. No one is legally required to have an administration of an intestate estate iv. Many intestate estates are never administered v. In some cases, estate may not need to be administered 2. Jurisdiction and venue: a. Jurisdiction: Chancery Court b. Venue: i. County of decedent’s residence when he died. ii. If no county of residence in MS, county where decedent died or where his/her personal property, or some of it, is located iii. If none of these apply, then county where decedent’s land is located iv. Administration brought in the wrong county is void 3. Person appointed as administrator: a. Surviving spouse has legal right to be administrator/rix if he/she wants to be b. If surviving spouse declines, next people in line are heirs at law c. If none of these people want to do it, court will appoint a stranger d. If nobody is appointed within 30 days, a creditor can petition for representative to be appointed i. Creditor can only pursue its claim against decedent, i.e., cannot pursue claim against heirs ii. Thus, creditor must have right to have estate opened 4. Administrator’s oath, bond, and duty:

11 a. Administrator must take oath that: a. The decedent died w/o a will, b. As administrator he will truly administer the goods, chattels, and credits of the decedent, c. He will pay debts as far as the assets allow, and d. He will make perfect inventory and a just account of the goods, and so on. b. Administrator must put up a performance bond if chancellor does not waive (chancellor can also reduce bond) i. Purpose of bond: to give people who have suffered loss from bad performance of administrator someone else to look to for recovery ii. Surety on bond is usually an insurance company 5. Administrator’s attorney: a. Administrator MUST retain a lawyer UNLESS administrator is a lawyer himself b. Administrator can get whoever they want; neither court nor heirs have to approve choice of attorney c. Attorney is the lawyer for the personal representative of the estate, NOT the estate itself d. Personal representative is required to pay the lawyer’s fee e. At the end of the proceeding, the court will decide what would be a reasonable fee for the lawyer for the work he has done; court will fix the fee and direct the personal representative to take the amount out of the assets of the estate and pay the lawyer f. However, if the personal representative has agreed to pay the lawyer a higher amount than court is willing to approve as reasonable, then difference must come from personal representative’s pocket g. Thus, most lawyers agree to accept as a fee whatever the chancellor approves 6. Appointment of personal representative (opening of estate): a. Begins with filing of petition in chancery court by person desiring to be administrator 7. Temporary administrator and administrator ad litem: a. Court can appoint a temporary administrator b. Court can appoint an administrator ad litem if the only purpose of estate is to defend a lawsuit 8. County administrator: a. County administrator’s duty is to administer the estates of decedents who died owning property in Mississippi and for whom no administrator is appointed within 60 days of the decedent’s death b. However, this is NOT ever done, i.e., the statute is never enforced c. Today, the “county administrator” is the person authorized to be appointed by Board of Supervisors to be executive officer of the county (full-time position); this position is very much alive but has nothing to do with administration of estates 9. Sheriff as administrator (a.k.a., administrator of last resort): a. Sheriff can be appointed administrator if no one else wants to be administrator b. This is done from time to time 10. Removal of administrator: a. If administrator does/fails to do something they should not have/should have done, chancellor has authority to remove that person as administrator

12 b. Sometimes administrator may want to be removed (may be ill or elderly, etc.); to get out of being administrator, administrator MUST get approval of the chancellor c. Same goes for attorney, i.e., attorney for personal representative of estate must get approval of chancellor to be dismissed 11. Administrator de bonis non (d.b.n.): a. Administrator d.b.n. is merely the person who succeeds a prior administrator who has been removed 12. The estate to be administered: a. At common law, title to real property went directly and immediately to heirs (upon death of intestate) while personalty went to administrator b. To the extent that real property is not exempt property, it is still subject to claims of creditors if personal property is insufficient to pay creditors c. That is, personal representative has nothing to do with real property unless and until personal property is used up in paying creditors 13. Inventory and appraisement: a. Upon granting of letters of administration, at least three disinterested people must be appointed as appraisers and ordered to inventory and appraise the decedent’s personal property and to return a written report to chancellor within 30 days b. Despite the necessity of this process, this process is expensive; consequently, for good cause shown, appraisers do NOT have to be appointed i. In the vast majority of cases, appointment of the three appraisers is waived by chancellor ii. Generally, the only time appraisers are appointed is when there is some suspicion that administrator is not sufficiently trustworthy c. Administrator in place of - If appraisers are NOT appointed, then the administrator is charged with making appraisal and inventory d. Total Waiver - for testate estates, Ct will honor the request in a will that appraisement and inventory be waived; but, chancellor does NOT have authority to waive appraisement and inventory in the administration of an intestate estate 14. Setting aside exempt personal property: a. If exempt property is inherited by any Group I people, it is NOT subject to claims of creditors and goes directly to heirs at law (i.e., appraisers or personal representative are supposed to turn over exempt property to heirs) b. Group I heirs get the exempt property even if the estate is insolvent c. If there are NO Group I heirs, the exempt property IS subject to claims of creditors and is treated just like any other property 15. Support for one year (a.k.a., “widow’s allowance”): a. PR must turn over enough and money and/or other provisions to last the widow and the decedent’s minor children (i.e. all dependents) for one year (i.e., in an amount sufficient to support them in the mode they have become accustomed to in their station in life) b. Widow’s allowance is now called “spouse’s allowance” as widowers are now entitled to the allowance as well as widows (i.e., no longer gender-specific) c. CANNOT pay allowance out of exempt PP. NO time limit for requesting/granting allowance so long as done before final accounting.

13 d. Widow’s own property - the amount of the widow’s own property is not considered in figuring the allowance amount. 16. Claims of creditors: a. After exempt property and widow’s allowance have been distributed, creditors have first claim on property of the estate b. Rules pertaining to creditors’ claims are identical whether estate is intestate or testate c. Procedure for disposition of creditors’ claims: i. Personal representative must do three things before publishing notice to creditors: vi. Make a diligent inquiry to identify decedent’s creditors vii. Mail all identified creditors notice by first-class mail of the necessity to probate and register their claim; notice mailed is same as notice ultimately published in newspaper viii. Make an affidavit that they have done the first two ii. THEN, personal representative must publish notice in the newspaper: 1. Must be published once a week for three weeks 2. Must state that Cs must have their claims probated and registered by Ct clerk w/i 90 days from first publication of notice in newspaper and that failure to do so will forever bar creditor’s claim 3. If a diligent search would have uncovered a given claimant’s existence, that person should have been sent a letter; moreover, if due diligence would have disclosed existence of such a claimant, the failure to mail notice to claimant will NOT bar claimant’s claim; if claimant would not have been ascertainable by diligent inquiry, failure to send a letter will not matter (i.e., claim will be barred 90 days following first publication of notice in newspaper) iii. General rule regarding probating of claims: claims requiring probate are contractual, liquidated claims 1. Tort claims are not probated because they are uncertain 2. Examples of claims requiring probate: sums due on promissory notes, open accounts, claims for services rendered, etc. iv. How must claims be probated: 1. To probate claim, claimant must present to Ct clerk the following: a. Written evidence of the claim (e.g., copy of note, copy of judgment, copy of IOU, copy of open account, etc.), if no written evidence exists, claimant must write out a statement explaining and nature of claim and the amount b. Affidavit: must set out under oath that claim is true and correct (must use exact statutory language) 2. Clerk of court will then stamp claim as “probated, registered, and allowed”; at this point, the claim is deemed probated 3. Claimant may amend claim prior to expiration of 90-day period. After 90 days, w/i Ct’s discretion to allow. 4. If claim is not probated in substantial compliance with the statute when the 90-day period runs, estate should not pay the claim; failure to timely and properly probate bars the claim

14 v. Before paying the claim: personal representative must consult with lawyer regarding three things (but first determine if estate is solvent) 1. Was claim probated timely? 2. Was claim probated properly? 3. Is claim really due and owing (i.e., has it already been paid)? vi. Authorization of payments by heirs: if PR pays a claim that should not have been paid, they will be personally liable to heirs UNLESS heirs authorized the pmnt (i.e. heirs cannot authorize a pmnt and then sue b/c of it); however, PR will remain liable to heirs who have NOT authorized the pmnt 17. Notice to creditors: a. If decedent received Medicaid payments after the age of 55, the Medicaid division must be noticed as an identified creditor (i.e., mailed letter) b. Medicaid will not necessarily probate a claim and the claim may be waived under certain conditions 18. Ex parte petitions: when personal representative files ex parte petition asking chancellor to order payment of probated claims to creditors, this does NOT constitute an adjudication of whether claims were properly probated; that is, an ex parte petition is NOT binding on non-parties 19. Payment of claims not due - § 2:25 a. Probatable claims must be probated whether or not they are due and payable at that time i.e. claims for future pmnts owed by decedent must be probated as well as claims due and payable b. Future pmnt not yet remitted will be reduced to present value and paid to claimant as a lump sum in today’s dollars, allowing for interest. c. Purpose - allows decedent’s estate to know what financial obligations decedent is allegedly still responsible for paying. If future pmnts were not probated, estate would never know about them. 20. Contest of claims - § 2:26 a. Probated claims may be contested by either the a. Administrator - files petition w/Chancery Ct. that he won’t pay, or b. Claimant may petition Chancery Ct to order administrator to pay claim b. Process a. A hearing date is set, b. In either situation, the BOP is on the claimant to show by a preponderance of the evidence that the claim is valid, due, and owing. c. Chancellor (not jury) hears the evidence and decides the hearing. c. The clerk’s stamping the claim as “probated” is not an adjudication of the matter. 21. Secured claims - § 2:27 a. Secured creditor does NOT lose its security interest by failing to probate claim w/i 90 days of first publication to creditors b. However, secured creditor DOES lose its ability to claim any deficiency (and have it paid from other assets of the estate) unless claim was timely probated c. Example - bank loans X money to buy a car, and takes SI in car. X dies, but still owes 15K at his death. Two choices . . . a. Bank can probate its claim first. Then, seize the car, sell it, and if there’s still debt left to be paid, that debt is now a valid claim against the estate.

15 b. Or, the bank can seize and sell the car according to its security interest (w/o probating). Problem, the bank is out its remaining debt i.e. it has no claim against the estate b/c it didn’t probate. 22. Services Rendered - Quantum Meruit claims § 2:28 a. Not paid for work done - “a present claim for service rendered - quantum meruit.” b. Contract - entitled to the agreed sum for the number of periods work was performed . . . to that point. Not a true quantum meruit claim. c. Quantum meruit claim - no agreement about amount of pmnt prior to decedent’s death i.e. may have agreed to pay at death of decedent, but no amount specified. d. BOP on claimant to prove: i. He’s probated the claim (must be done first), ii. Express/implied agreement that services would be paid for 1. Close R’ship - relative doing work, issue of whether there’s an agreement i.e. could be viewed as gratuitous service 2. Really means - given the circumstances, did the deceased reasonably believe the person doing the work expected pmnt? iii. Certain specific services were performed, iv. The reasonable value of services rendered e. Statute of Frauds - precludes specific performance of an oral K to make a will i.e. will must be in writing f. Statute of Frauds + Statute of Limitations - there’s always an assumption that services must be completed before pmnt is given. Thus, services completed more than 3 yrs before decedent’s death are barred…unless there’s an agreement that pmnt will occur after death, then it’s ok. g. Rule - claimant who made oral K w/decedent to inherit from will cannot be awarded specific performance; however, claimant IS entitled to quantum meruit recovery i.e. can recover reasonable value of services rendered. a. Williams v. Mason i. Old person realizes he needs help with day-to-day living. Agreement that old person gets help, and young person has a will made in their name, leaving them EVERYTHING. ii. Agreement made, but not the will. iii. Claimant’s atny files “counter-claim” (really a probate claim), 70 days after publication, asking Ct for specific performance on the will. iv. MSSC - Holds there’s nothing illegal about K to make a Will, but 1. It must be writing b/c of the Statute of Frauds. 2. She doesn’t get specific performance, but she does get quantum meruit for her services rendered. 23. Actions to compel Pmnt - creditor must bring action w/i 4 yrs. and 90 days of the qualification of administrator, even though claim is not duly probated. 24. Statute of limitations - § 2:30 a. Effect of debtor’s death on SOL: i. If SOL on creditor’s claim expired prior to debtor’s death, the debtor’s death after claim expired is irrelevant, and the claim still cannot be brought.

16 ii. Debtor death has no effect on SOL EXCEPT when debtor’s death occurs in the last year of the SOL period: if death occurs in the last year of SOL period, then SOL will be extended so that it expires one year from date of decedent’s death b. Effect of appointment of administrator on SOL: a. Administrator cannot be sued for 90 days after appointment. b. The 90-day dead period doesn’t count towards the running of the SOL i.e. it extends SOL by 90 days. c. Effect on 90-day notice to creditors: death has no effect, claimant is still required to probate his claim w/i 90 days of the notice to creditors. 25. Taxes - § 2:32 a. Prior to 1995, estate taxes were paid out of personal property first to the extent possible; in situations where decedent died w/a will, people who inherited the personal property shouldered the entire estate tax burden, while people who inherited land did not have to pay any estate taxes, consequently b. MS adopted the Uniform Estate Tax Apportionment Act, which apportions tax liability pro rata among all heirs according to the proportion of the interest that each person inherits i.e. a child who inherits ¼ of the estate will pay ¼ of estate taxes 26. Tort claims against estate - § 2:33 a. CL - tort actions abated when potential P or D died b. Modern Survival statutes allow two things . . . i. Allow for suits by/against decedent brought after death 1. Only personal actions survive (breach of K, personal injury, recovery of personal property) a. Actions for defamation are not personal actions and do not survive b. Actions for invasion of privacy do not survive (in some jurisdictions) ii. Also, allows for revival of suits by or against decedent which were brought prior to death; all P has to do is file petition to have action revived in name of personal representative c. Action must be a personal action for survival action to survive. Do not have to probabte. iii. One thing is clear: “trespass” does NOT mean a negligence cause of action d. Powell v. Buchanan a. B killed, P harmed. During admin of B’s estate, P doesn’t come forward w/any personal action. 1 yr later, P claims a personal injury from the wreck. b. Wants an admin appoint so he can bring suit. c. CL - his suit would be barred. Survival statutes - P can have admin appointed. e. Rule - the fact that the estate is closed does not prevent a person from bringing a valid personal action. If the person wins the action, he takes the form of a creditor and has first claim to the decedent’s estate. Those who received property from the estate must bring it back for the judgment creditor to take. 27. Management of the estate - § 2:34 a. Duty - PR has duty to do what a reasonable, prudent person would do in the management of the estate. i. PR must protect assets, insure them, may want to continue a going business to bring more money upon sale, etc.

17 b. Co-manager - PR is a co-manager w/the Chancery Ct b/c most actions done by the PR require the Chancery Ct’s approval. Essentially the model is: i. PR decides to do something, and ii. Chancery Ct. must give authority to PR to do so. c. Acts PR can petition chancellor to order him/her to do (all governed by statute): i. Growing crops, leasing farms, and continuing to run businesses ii. Sale of personal property iii. Sale of land: complicated statutory procedure iv. Mortgage or lease of land d. Presumption is that if administrator wants to do something, he/she will need to go to chancellor and get the authority to do it 28. Causes of action of the decedent - § 2:39 a. COA possessed by decedent at death are assets b. PR has obligation to pursue COA decedent may have had against another person c. Must be personal action for survival statute to apply d. Statute of limitations: same SOL rules apply as to claims against the estate i.e. if decedent’s death occurs in last year of SOL, its 1 yr from date of death e. Punitive damages: cannot be recovered against estate; however, can be recovered by the estate against a live defendant f. Wrongful death actions - injury did cause decedent’s death i. PR OR one or more statutory beneficiaries can bring against defendant/estate of deceased defendant ii. Regardless of who brings COA, all money will go to beneficiaries except for: i. Amount recovered for property damages goes to repair damages ii. Funeral expenses iii. Medical expenses iii. All other damages recovered in W/D action goes to W/D beneficiaries and are NOT subject to claims of creditors iv. If there are no W/D beneficiaries, damages recovered go to administrator subject to debts and general distribution v. Causation: W/D action cannot be maintained unless D’s wrongful conduct caused the decedent’s death; if D’s conduct was not the actual cause of decedent’s death, then proper action to be brought is an action under survival statute rather than W/D statute. i. NOTE - cancer is NOT W/D action . . . it’s a survival action. vi. If multiple W/D beneficiaries and/or administrator file the same lawsuit in different Cts, w/different lawyers, etc., the rule is the following: i. If and when one beneficiary files W/D suit, that beneficiary must give notice to the other W/D beneficiaries ii. Noticed W/D beneficiaries can hire atny; however, they cannot file a second lawsuit iii. If matter goes to trial, each atny will have opportunity to participate in trying the case iv. If case is successful, each atny will be paid according to the contractual terms worked out with their individual clients g. Survival actions - decedent died from other causes

18 i. ONLY the PR of estate can bring a survival action ii. All money recovered is property of the estate, and subject to claims of creditors iii. Note - bring BOTH counts (W/D & Survival action for P.I.) at the same time. a. Avoids having the case thrown out b/c only filed one count. 29. Compromise and settlement of claims - § 2:40 a. PR may settle claims, only if he has authority from the chancery court. b. Must have hearing and prove settlement is fair. Weems says harder than normal settlement. Essentially requires a mini-trial regarding settlement 30. Suits by or against administrators - § 2:42 a. PR can bring suit/be sued on matters accruing during administration, but not until 90 days after the grant of letters. Gives PR time to examine/become familiar w/estate’s condition. b. If PR dies, resigns, or is removed after suit is already begun, it may continue against his successor. c. All heirs and creditors may defend any action brought against the PR of the estate. d. Coadministration - one may sue the other to compel proper administration 31. Prohibited acts - § 2:42 a. Remember, the chancery court normally gives authority to PR’s acts. b. However, there are certain things the chancellor cannot allow . . . i. PR Borrowing/using funds/property of the estate, ii. Purchasing/acquiring any interest in funds/property of the estate, or iii. Loaning funds to anyone in PR’s family. c. PR cannot sell notes, bills, bonds, or stocks. Such sales are VOID w/o exception. d. Executor de son tort - some states do not appoint PR, so any person who wrongfully helps himself to decedent’s estate may be sued by the rightful heir. 32. Insolvent estates - § 2:43 a. Insolvent estate = may have assets, but has more debts b. An insolvent estate is NOT a no-asset estate c. Once it becomes apparent to the PR that estate is insolvent, the Chancellor declares the estate insolvent: i. All claims must be identified ii. PR is ordered to sell all assets iii. All claims of creditors are taken up one-by-one on a set date in chancery ct. iv. A list of legitimate claims is set. v. Preferred claims (funeral expenses, last illness, PR’s expenses/commission, and PR’s atny fees) will FIRST be paid in full if possible, and all other claims are paid pro-rata. If it is not possible to pay preferred claims in full, then all claims are paid pro-rata. 33. Annual accounts - § 2:44 a. PR and PR’s atny must, for any estate that cannot be closed w/i one year, file an annual report. Must be filed every year. b. Annual Report shows the estate’s assets and liabilities, what’s been paid out, and what the balance of the estate currently is. c. No notice to creditors is required. They can go get it from the place where filed. d. Importance - prevents plundering and protects inheritance.

19 a. Chancery clerks must make lists of estates open more than 1 yr b/c the chancellor wants to know. b. Purpose - long periods of time where estate not closed and assets just dwindle b/c estate not taken care of and heirs get nothing. e. PR and attorney can be removed if they fail to provide annual accounts 34. Compelling distribution/final settlement - § 2:45 a. Heir can get lawyer to file a petition asking chancellor to force PR to at least make a partial distribution of the inheritance to that heir, or b. May order PR to close the estate and pay the inheritance in full. c. Reason to keep open - could sell estate/property for more money if wait a while (market shift, demand will rise, etc) d. If good cause is shown, chancellor will ask PR to at least make a partial distribution. 35. Final accounts - § 2:46 a. When all steps are completed for administering the estate, PR’s atny files a petition showing what’s been done, asks chancellor to close estate, that PR be allowed to pay heirs, and end his PR duties. a. PR must include names and addresses of heirs at law b. The heirs must be served w/process, unless they allow for . . . c. Waiver and Answer - X waives need to receive service of process, saying he agrees w/what’s been done, and signs and swears it by an affidavit. b. If there are no objections, the chancellor closes the estate. He then sets: a. Money PR gets from the estate b. Fee atny may get, and c. Remainder to be paid to the heirs. c. Party who should have received notice and did not will NOT be barred from reopening estate to contest distribution d. PR can be held liable for negligence for failing to make a diligent inquiry into existence of heirs at law e. Absent a diligent inquiry, the only thing PR can do to avoid liability is to bring a suit to determine heirship, i.e., to get a judicial adjudication of heirship (which a final order closing estate is NOT) f. NOTE: heir must sue surety in order to recover against surety (cannot merely sue personal representative) 36. Attorneys’ fees - § 2:47 a. PR must have an atny, but he may choose him. b. PR is personally liable for fees in excess of amount chancellor decides is reasonable c. Usually - atny tells PR fee arrangement is . . . at end of process, chancellor will be asked to set a “reasonable atny fee” (chancellor will investigate amount of work done), and PR/client must accept the fee. He can take that fee out of the decedent’s estate. Or can choose d. Alternate - atny charges PR by the hr. At closing of estate, chancellor will be asked to approve that fee and authorize pmnt for hrs worked. Chancellor can reduce fee if he wants. Risks getting less. e. Chancellor’s authority to authorize/limit the fee is NOT unlimited a. MSSC can reverse the award for “abuse of discretion.” b. Old system - awarded PR and atny a %,

20 c. Now - look at amount of work done. f. Size of Estate - mistakes in administration of large estates can result in more liability. Cts consider this in determining reasonable fees. g. Non-Trial Atny a. PR’s atny may not have trial experience. So he may hire a litigator who works on a contingent fee basis on Torts the estate possesses. b. MUST get authorization from chancellor BEFORE he begins work. Asking afterwards risks the chancellor’s discretion to reduce the fee. 37. Administrator’s commission - § 2:49 a. Leg work, not brain work. Figure is based on amount of work done. b. Where atny and PR are same person . . . compensated for both, but at different rates a. Atny fees - for legal work done b. Administrator’s commission - for non legal work. 38. Reopening the estate - § 2:50 a. Even though heirs are given notice of filing of final petition/account, the heirs may STILL petition to reopen estate within two years of closing of estate and complain about the way something was handled 39. § 2:51 - if the PR is negligent/commits an intentional wrong, he is liable out of his own pocket for his misconduct. 40. Sheperd v. Townsend - example of exception to 2-year SOL a. X dies w/will, but it says, “all estate to my heirs at law.” b. PR appointed, told by all that next-of-kin are 3 1st cousins. c. Closes estate. Cousins sign waiver and answer. Chancellor discharges PR. d. Ct order - PR directed to pay net estate to cousins. Over 2 yrs later - Y comes forward, says he’s next of kin. He is correct. Files suit against surety, PR, and cousins. e. Defenses i. Too late to reopen estate - MSSC…doesn’t bind him b/c he had no notice of the closing. If had notice, he would be barred. ii. Chancery ordered me to pay, so I’m protected by this binding Ct order - MSSC…that’s an ex parte order (1 sided order), chancery was simply following your (PR) recommendations. You did not adjudicate the matter, if that’s what you wanted, you should’ve brought suit to establish heirship. f. Held - man has right to inheritance. g. Remedy - cousins must pay back to uncle what they got. i. PR - not a surety for his conduct (can’t sue him just b/c he made mistake) ii. He’s held to a negligence standard - would R.P.P.R. have discovered the man’s presence? iii. Ct said she was negligent, and… 1. Man gets money from Suretyship 2. Surety can get indemnification from PR 3. PR can sue the cousins for the amount they received. 41. Summary of Administration of Estate’s Purposes a. Procedure for creditors to identify and have their claims orderly adjudicated. b. Provides a PR i.e. a person w/legal authority to collect decedent’s property

21 i. People holding decedent’s property should only turn it over to PR. Otherwise, that person may be liable to estate later. c. Provides person (PR) to take care of decedent’s personal P. until heirs get it. d. Provides for process to close the estate and distribute land to heirs. 42. What if there’s no Administration? a. Creditors claims remain viable until the SOL runs on their claims. b. Decedent’s property remains liable for creditors claims (heirs themselves aren’t liable) c. Accumulated Assets - may not have property in other peoples hand needing to be gathered, b/c the decedent may not have had any assets. d. Taking care of property - heirs themselves can do this. 43. Note - property goes to heirs at law with or w/o an administration. But if no admin takes place, then property remains liable to creditors claims, until their SOL runs. a. Thus, a client does not have to “go to court” i.e. administer an estate. b. Heirs knowing decedent had no debts, then have no need to admin the estate. c. Weems - most of the time, administering the estate is a good idea. 44. Inter vivos gifts - § 2:53 b. Property which decedent effectively gave away prior to his death is NOT part of decedent’s estate and does NOT pass by intestate succession or by decedent’s will c. Not valid gift, then still part of estate. d. BOP on claimant to show it was a valid gift: a. A donor competent to make a gift b. A voluntary act on the part of the donor with intention to make a gift c. A complete gift with nothing left to be done d. Property delivered by the donor and accepted by the donee, and e. The gift is irrevocable. 45. Ancillary Administration - § 2:55 a. MS does not recognize . . . all administrations are primary b. B/c all property situated in MS will be inherited according to MS law. c. No need for another administration to come in and take property out of state. 46. Joint accounts - § 2:56 e. Joint account = joint tenancy with right of survivorship. f. If docs which create the account clearly and unambiguously identify the account as being owned in JT with right of survivorship, those docs are conclusive on the matter of intent, and evidence to the contrary is inadmissible to try and suggest the will in invalid because the decedent lacked the intent to create the JT. g. Only way to attack a JT with right of survivorship is to show one of the following: vi. Fraud vii. Mental capacity viii. Undue influence - most often used.

WILLS - Chapter Three

1. Introduction - 3:1 a. Will may have two meanings:

22 i. Writing which has the purpose of a will - “does what will is supposed to do” OR ii. May mean not only a writing which has the purpose of a will but ALSO a writing which is legally effective to accomplish that purpose - “Ct will actually enforce the writing.” b. Last will and testament: i. Last - doesn’t mean testator can’t make another will. ii. Testament - a testamentary disposition of personal property 1. CL - giving land was by “will,” giving personal P. was “testament.” 2. Today - this word adds no legal validity 2. Purpose - to be a will, writing must seek to make a testamentary disposition i.e. a transfer/gift that will only take place at the testator’s death. “The writing itself must be a vehicle for transmitting title of the property.” a. If a writing does this, it is in fact a will, regardless of its name. 3. Requirements - for a writing to constitute a will (NOT a valid will, just a will): a. Two major requirements: i. For a writing to constitute a will, it must arguably make a testamentary disposition AND ii. Will must have been executed by testator with the intent (animus testandi) that the instrument should operate as a will b. Three Basic situations: i. Clear and unambiguous TD - intent presumed. 1. Writing STILL must be made w/intent to be a will a. Intent is called the “animus testandi” b. Intent can be lacking if person was defrauded, etc. ii. Writing does not even arguably make a TD: 1. Simply not a will. Regardless of claimant proving intent…w/o TD…no will. iii. Writing is on ambiguous/middle ground. Arguably makes TD but does not clearly and unambiguously do so: 1. In this case, the intent of the person becomes paramount 2. ALL relevant evidence is admissible to determine person’s intent, including stmts of the testator (which normally would be hearsay). 4. Ambulatory nature of will - § 3:4 a. Will must be ambulatory - instrument can be unilaterally revoked by the maker at any time prior to his death, as long as he has sound mind. Also, instrument has no force/effect until T’s death. b. If writing is not ambulatory, it CANNOT be a will. It’s most likely a contract or something else. 5. Form or title of writing - § 3:5 a. Will is least governed by form: personal letter, scrap of paper, back of certificate of deposit. b. Key issue - does writing make a testamentary disposition i.e. it’s not the form or what you call it…it’s what the writing does that counts. c. Writing making TD is will regardless of title/form. Writing NOT making TD is NOT a will.

23 i. NOTE - fact that the paper is not titled as a “Will,” or is title as something else, like a “Deed,” does not prevent it’s being found to be a will. 6. Will or Deed with Reservation of Life Estate - § 3:6 a. Best explained by an example. Woman w/one child dies. b. Definition - woman conveys land to child. Child owns and takes title now, but woman reserves right to remain on and use land unquestionably until her death. i. Note - if writing says, “this has no effect until my death,” then it’s in fact a will, not a conveyance of a deed with reservation of life estate. ii. However - if writing conveys present interest to the son and leaves woman only a life estate, it is not a will. c. Presumption - i. If looks, sounds, smells like a dead - treated as one. ii. If unquestionably written as a will - only then will it be treated as one. iii. I.e. - if writing is in words and form of a deed, it will be construed as a deed w/a reservation of a life estate and NOT a will; however, if the same writing states in language that is affirmative and clear that it has no legal effect until grantor’s death, construed as will. d. Doubts - will be resolved in favor of treating instrument as a deed. 7. Conditional wills - § 3:7 a. Conditional will is a will drawn to take effect ONLY on the happening of a specified contingency, which is a condition precedent to the operation of the will b. Will is ONLY valid if the condition is satisfied. c. If don’t want to make a conditional will, don’t put anything in there that could be interpreted as such. 8. Nuncupative wills - § 3:8 a. Oral will. Extremely rare. b. Cannot convey land. Only personal property, and then only if the many statutory requirements are complied with e.g. person must think they are dying, must be dying, must intend to make will, etc. c. Hollywood death bed situation - must be made at time of last illness, so that decedent had no time to right it down. 9. Attested wills - § 3:8 a. A will that MUST be witnessed by 2 people. 2 people must sign. b. Not written entirely in handwriting of testator (usually typed) 10. Holographic wills - § 3:10 a. Written entirely in handwriting of testator. Must be signed by testator. b. Do not require witnesses. c. Equally valid to an attested will i.e. both have the same legal effect. 11. Joint wills - § 3:11 a. Single doc which constitutes the separate wills of two or more persons (usually husband and wife) b. Must be attested to - 2 Ws who sign i.e. holographic wills cannot be joint wills. c. Must be executed by each person; its legal effect is separate and distinct i.e. used to probate A’s wishes when he dies, and later B’s separate wishes when she dies. 12. Mutual or reciprocal wills - § 3:12

24 a. Two wills made b/c of agreement b/t 2 or more persons to dispose of their property to either each other or to third persons. b. Mirror images of each other. Where H uses W’s name in his will, W uses H’s. c. Mutual wills contained in the same instrument is a joint mutual will. But mutual wills do NOT have to be in the same instrument. d. Only thing extraordinary about mutual or reciprocal wills - issue of whether survivor can change/revoke his/her will 13. Duplicate wills - § 3:13 a. Duplicate wills - testator sign and Ws attest both copies b. What makes will an original is the signatures of the people required to execute the will, NOT how the words of the will came to be on the page c. As long as both copies are actually signed, they are both originals and either can be probated. Neither duplicate is more original than the other. d. Most authorities do not recommend executing duplicate wills because if one will cannot be found, the presumption is that the testator destroyed the will with the intent to revoke it; therefore, if duplicates exist and one cannot be found, it may be difficult to have the other one probated e. Best practice: have only one will executed i.e. signed by testator and attested by witnesses. Then make copies of that will; these copies will NOT be duplicates and cannot be probated as originals. Also, no presumption attaches to the fact that the copy cannot be found. Can be used later though to probate a lost will. 14. Foreign will - § 3:14 a. Definition - will of a person who was not domiciled in MS at the time of his death, regardless of where the will was executed i.e. even if the will was executed in MS. b. CL - must probate will 1st in state of domicile. c. Modern - statute no longer requires this. Can probate 1st in MS, or can probate in foreign state first. Either way, the probate in MS is original, not ancillary. d. Can be contested just like an original will executed in state. e. Foreign will is not effective as a conveyance of property located in MS until it has been probated here. 15. Codicils - § 3:16 a. A testamentary instrument executed w/all legal requirements of a will. b. Proper use - testator already made will, but wants to make relatively minor changes. Instead of changing entire will, execute codicil to amend single portion. c. Operationally - may be holographic or nonholographic, and therefore subject to requirements of an attested will). Either way, codicil MUST be executed subject to same requirements as the will to be effective. d. Holographic will can be changed with attested codicil and vice versa e. Codicils may make big or small changes to will and can even revoke the will. 16. Contracts to make wills - § 3:17 a. If K is in writing and has the three requirements for contract’s validity (fair and adequate consideration, capacity, clarity of terms), then Ct will enforce the K. b. K to make a will does NOT have to comply w/statutes regulating execution of a valid will i.e. K does NOT have to be executed as a will must be executed [counterintuitive]

25 c. Oral K - Ct will not order specific performance; however, promisee can recover quantum meruit for reasonable value of services rendered d. Written K but no will actually made - if decedent dies intestate and person sues estate to prove that decedent K-ed w/that person to make a will, then as remedy Ct may: i. Specifically perform the K i.e. make the will the promisor should’ve made, OR ii. Order a constructive trust created in that person’s favor 1. Constructive trust - equitable device used by chancery Ct to take title of legal title of property away from a person who by justice ought not to have it, and gives it to the deserving party (caregiver). 2. Under constructive trust, heirs will be constructive trustees but will be required to convey the property to the promisee (who is the beneficiary of the trust) e. If decedent DID make a will but later revoked it, court may either: i. declare the will irrevocable, thereby holding the revocation void and probating the contract will, OR ii. impose a constructive trust

EXECUTION OF WRITING - Chapter Four

1. Introduction - § 4:1 a. A writing may make a testamentary disposition, but unless the writing is properly executed, it is not a will. b. It does not matter the testator’s intent or desire to make a will, or how testamentary and depository the writing may be. The writing is NOT a legally effective will if not properly executed. c. MS recognizes two types of written wills: i. Attested ii. Holographic 2. Two Requirements for a Valid Will - §§ 4:2 & 4:3 a. Testamentary capacity - testator must have testamentary capacity -- two elements: 1. Age - must be at least 18 2. Sound and disposing mind - T must’ve been of sound and disposing mind at the moment the will was executed a. Three-part test for sound and disposing mind, T must: i. Understand and appreciate the nature of the act of making a will. ii. Understand the beneficiaries of his bounty and their relation to him, and iii. Be capable of determining how he wants to make disposition of his property, b. MSSC is reluctant to take away a person’s right to make will. c. Conservator - fact that one was appointed to protect testator’s assets does not necessarily mean he did not have testamentary capacity at the time the will was executed. And, the mere fact

26 that a conservator was appointed for the testator is not even admissible evidence in a will contest. d. Guardianships - even a person under a guardianship (a mentally incompetent person) is NOT per se precluded from making a will; burden will be on claimant to prove that insane person made will during a lucid interval. e. Insanity - insanity does NOT even raise a presumption that it continued to the day the will was made. b. Instrument complying with statute (MCA § 91-5-1): i. Execution of Nonholographic (typed) Will - § 4:4 a. Definition - a will not wholly written in T’s handwriting. Six things are needed to be a valid nonholographic will: 1. Testator’s Signing - T must sign will, or someone else must sign it for him, in his presence, and at his expressed direction AND a. Full name NOT required. Any mark will do, as long as intended to stand for T’s name: nickname, initials, “mark,” fictitious name even. T can have pen in hand, and another person hold paper and make motions in the air. 2. Acknowledging - if T does not sign the will in the presence of the attesting witnesses, he must acknowledge his signature to them when they attest the will AND a. Best practice - always have T sign the instrument in the presence of the Ws (even though this is not required) b. Acceptable: a. T’s stmt to W that instrument was her will = saying she signed it. b. T presents instrument as will, has it read by W aloud in T’s presence, including T’s signature = ok. c. Unacceptable - even if W learns from other W that T signed instrument, will is not validly executed. 3. Publishing - T, expressly or constructively, must publish the will to AWs, at least when he does not sign it in their presence AND a. Publication = communication by, or attributable to, the T to the Ws that the subject writing is a will. b. Benefits: i. Alerts Ws that being asked to sign a will. This may cause Ws to pay close attention to T’s mental capacity. ii. Shows T’s clear intent (animus testandi) c. Ws knowledge - don’t need to know will’s provisions (wills are privates docs), BUT MUST KNOW DOC IS A WILL!!! d. Formal publication has never been required in MS; however, Cts have required constructive publication - something must let Ws know that instrument they are signing is a will. 4. Request - T, expressly or constructively, must ask Ws to attest the will AND a. T’s request must:

27 i. Ask AWs to write their names on the paper, AND ii. Represent to AWs that the paper is a will. 5. Witnesses Attestation - AWs must sign the will in the presence of the T (different from T not having to sign in Ws presence) a. Statute requires that at least 2 Ws must sign the will as AWs, regardless of how many people actually witnessed the execution of the will (a notarized will w/no other signatures is NOT a valid will) b. Ws must sign will in T’s conscious presence - T does not have to see w/his own eyeballs, but had he turned his body, he would have been able to. c. Ws signatures do NOT have to be simultaneous, but they MUST both sign in conscious presence of T (even if 2nd W signs at later time) 6. Credible - AWs must be credible. NOTE on Malpractice - atny who botches will can be sued by intended beneficiaries of will (this is an exception to privity of contract requirement which usually governs attorney malpractice liability)

“There no longer appears to be any reason why a beneficiary cannot be a credible attesting W to the will b/c the Dead Man’s Statute has been repealed.” Thus, credibility and beneficiaries as attesting Ws are no longer significant issues . . .

1. Credibility - attesting Ws must be credible a. Credible - competent to testify under the rules of evidence. b. Reasoning - when will is probated, want Ws to testify to support the will. Makes no sense to have Ws attest a will who cannot testify. 2. Beneficiary as Attesting Witness - § 4:11 a. CL - if 1 of the 2 Ws was a beneficiary, the will was void b/c Dead Man’s Statute prevented the beneficiary from testifying to uphold the will. i. I.e. beneficiary is not credible, the will was attested by only 1 credible W, thus the will was not validly executed. Thus, all Bs lost gift they would get in the will. b. Dead man statutes - if W was a beneficiary to will, then incompetent to T against decedent about his own claim. c. Modern - if 1 W is a beneficiary, he must forfeit his expected gift in the will, and the “thing” making him incredible as a W is now gone i.e. the gift to that one beneficiary is VOID, but the rest of the will is VALID. i. Best practice - don’t allow beneficiaries to be attesting Ws ii. Attorney can be an attesting W, even if named in will as atny iii. Children can be attesting Ws since MRE does not preclude children from being competent Ws iv. Spouses - yes d. Exception - if BW would have been entitled to a share of the estate if the will were not established i.e. through intestate succession, then the BW will receive such share up to the value of the gift made to him in the will.

28 i. Only applies - if BW is needed to make up the required number of attesting Ws. ii. Example - 2 credible attesting Ws, not counting BW. The will is valid w/o BW. BW can get his full gift under the will b/c the will can otherwise be proven. 3. Attestation clause - § 4:13 a. Practically - reading attestation clause aloud by atny to Ws in T’s presence, seems to satisfy publication and request for Ws to sign. b. NO requirement for attesting Ws to sign any statement; only must sign the will. c. However, atnys usually have Ws sign an attestation clause - a typed clause provided that W is signing a signed, published, and declared will in presence of T on a certain date at T’s request i.e. attestation clause contains language substantiating statutory requirements. d. Modern - have Ws sign affidavits not attestation clauses. 1. Affidavits of witnesses -- self-proved wills: a. A will may be admitted to probate upon an affidavit of at least one attesting witness setting forth facts that show (1) that the will was validly executed and (2) that the testator was of sound and disposing mind b. Affidavits may now be signed at the time the will is executed and annexed to the will or included as part of the will; such will are referred to as “self-proved” wills c. Affidavits have taken the place of attestation clauses d. Best practice: NEVER draft a will without including this affidavit in it 2. Holographic wills: a. Two requirements for valid execution of a holographic will: ii. Will must be entirely in handwriting of testator AND 1. Small wiggle room here: “mere surplusage” rule -- if there are words on the will which are NOT in handwriting of testator, the will can still qualify as a holographic will IF such words have absolutely no effect upon the meaning of the will a. Very narrow “exception”: do not take too far iii. Will must be subscribed by testator 1. “Subscribed” = signed at the bottom, i.e., at the end of the writing 2. Anything written below the testator’s signature cannot count as part of the will 3. If post-script follows signature, testator must sign, initial, etc. the post- script for it to be considered by court 4. Handwritten changes to holographic wills can qualify has holographic codicils; however, to be valid, such changes must be subscribed (i.e., signed or initialed) 3. Multi-page wills: b. If will appears to be intact, then the burden of proof will be on party claiming it is not intact to prove that c. Best practice: although not legally required, it is the practice of some lawyers to have the testator, and perhaps the witnesses as well, sign or initial each page 4. Incorporation by reference: d. MS and most other juris. permit a will to incorporate by reference another doc, usually a trust which has already been established and to which the will is leaving property e. In order to incorporate by reference:

29 a. The writing must be in existence when the will is executed, b. The writing must be satisfactorily identified in the will, and c. The language of the will must disclose a clear intent on the part of T to incorporate it. f. Mississippi law will not permit a holographic will to incorporate by reference a nonholographic writing (old case which may not be upheld) 5. Recommended way to conduct execution of non-holographic will: g. Consult with client to determine what client wants to do in will h. If at all possible, do NOT have any one else present during this consultation; reason for this is to guard against a charge of undue influence (especially if client is elderly) i. After drafting will, conference again with client and review will line by line to make sure client is satisfied j. Once client approves will, call in two people to attest will k. Have some conversation between testator and witnesses so that witnesses can swear in affidavit that testator was of sound and disposing mind l. Next, ask testator if he has read over his will and if it is exactly like he wants it; this takes care of publication requirement m. Next, ask testator if they would like for the two witnesses to attest the will (NOTE: there should ONLY be four people in the room at this point: testator, two witnesses and attorney) n. Next, read affidavit to attesting witnesses; if attesting witness has any problem with affidavit, deal with it then (not likely to have any problems) o. Next, ask notary public to come into office p. Once attesting witnesses are in presence of notary, have witnesses sign affidavits and have notary notarize the affidavits; at this point, the will has been executed q. Make copy of executed will and keep in your file r. Give original to testator OR keep original will for testator if he so desires s. If testator wants to execute will at home, volunteer to come out to his house and do it; you need to be present when will is executed to make sure all requirements are satisfied

REVOCATION OF WILL - Chapter Five

Two categories of revocation - express and implied

EXPRESS/DIRECT REVOCATION - 2 requirements 1. T must have T. Capacity - sound mind w/intent to revoke AND a. Key Issue - intent to revoke. B/c the physical act is usually equivocal, the T’s intent when he performed the act is crucial. 2. Act substantially complying w/the statute (physical act or subsequent writing)

Two types of express revocation. Revocation by . . .

1. PHYSICAL ACT - § 5:2 OR a. T must do some physical act that is consistent w/an intent to revoke. The exact nature/extent of the physical act is not important as long as it’s a token of an intent to revoke, and can reasonably be said to constitute 1 of these 3 types of physical acts:

30 i. Cancellation - drawing lines over or across words ii. Obliterate - erasing, drawing lines across signatures, or blotting out words iii. Destroy - doing something to the paper rather than the words. Burning or tearing into small pieces. b. Presumptions - only overcome by “clear & convincing” evidence. i. If will is found in T’s custody after his death in a such a state of destruction, obliteration, or cancellation as represents a sufficient act of revocation under statute, then there is a presumption absent contrary evidence that act was (1) performed by T (2) with intent to revoke ii. When will was last known to be in T’s possession and upon his death cannot be found, then there is a presumption that T destroyed will w/intent to revoke c. Note - Holographic codicils must be subscribed by T to be valid d. Extrinsic Evidence - freely admissible. Including declarations of T. 2. SUBSEQUENT WRITING - 3 types i. Express stmt of revocation (revocation clause), ii. Totally inconsistent will, and iii. Partially inconsistent will. a. Express stmt of revocation - will may be revoked by subsequent will, codicil, or declaration in writing, IF the revocation instrument is validly executed as a will must be executed. Otherwise, the revocation instrument has no effect on the will at all. iv. Meaning - if nonholographic, its execution must comply w/all requirements for the execution of a nonholographic will. Same for a holographic will. b. Revocation instrument does NOT have to be the same type of instrument as the original will i.e. attested will can be revoked by holographic instrument and vice versa. c. Revocation Clauses - most writings which revoke prior wills do so by R.C. contained in subsequent wills. v. Best practice - put the following clause in the preamble to any will, “hereby revoking all other wills and testaments heretofore made by me” d. Two fundamental rules regarding revocation clauses: vi. R.C. are effective to revoke prior wills as soon as the instrument which contains the clause is validly executed (contrary to rule that wills are ambulatory and not effective until T dies) 1. Most important consequence - revocation of the subsequent writing does not revive the will it revoked. vii. R.C. is conclusive as to intent if it’s a clear and unequivocal stmt of revocation i.e. no extrinsic evidence allowed to show intent. e. Declaration in Writing - stmt of revocation does not have to be in a subsequent will. May simply be a “declaration in writing which has no purpose other than to revoke the writer’s will. But still must be executed as will even though it is not making disposition of property. f. If subsequent will does NOT contain a revocation clause: viii. Execution of a totally inconsistent will, totally revokes any prior wills even absent revocation clause i.e. treat 2nd will as impliedly containing a R.C. ix. Execution of a partially inconsistent means priority is given to latest will, then to the older will where it is not inconsistent i.e. construed as one will.

31 CONDITIONAL REVOCATIONS 1. Express conditional revocation - § 5:6 a. Functions just like express conditional will b. Will is revoked if future event occurs; if event does not occur, will is not revoked. 2. Implied conditional revocation - § 5:7 (best explained by an example a. T makes minor changes to will. Uses 2nd will that has R.C. Dies 60 days later. b. B cannot take under 2nd will b/c of 90-day death statute. Cannot take under 1st b/c revoked. What to do? c. Dependant-Relative Revocation - if condition that makes 2nd will valid never happens, then the 1st will is not revoked. Despite there being a R.C. in the 2nd will. The doctrine allows a B to take under the 1st will when the Ct. finds the revocation of 1st will was done under a mistaken belief that 2nd will would be effective. i. Cannot revive revoked will, when revocation was by clear R.C. in 2nd will, or by a totally inconsistent 2nd will, b/c intent is clear. ii. Can be used when revocation is by a physical act. d. Weems - DRR allows a party to bring up the T’s intent. It does not mean Ct will automatically find T only meant to make 2nd will effective if 1st will was not effective. Just means Ct will entertain out side evidence on the issue of intent. e. Rex’s Explanation i. T makes one will, then makes 2nd will revoking 1st will, but 2nd will is not valid AND in both wills, T has left property to the same beneficiary ii. Majority - ct looks to T’s intent and will find T intended to leave the property to the B. Thus, a majority of juris. will allow B to take property under first will (on grounds that T intended revocation of first will to be conditional on validity of second will) iii. Mississippi - a clear and unambiguous R.C. in a subsequent will is conclusive as to intent; therefore, MS Ct will NOT look to T’s intent in this situation 1. MS - Ct will NOT apply dependent-relative revocation where 2nd will contained a revocation clause (b/c clear and unambiguous R.C. is conclusive as to T’s intent and R.C. is effective immediately upon execution of will) 2. MS - Ct MAY apply dependent-relative revocation where 1st will was revoked by physical act. Permits Ct to consider T’s intent (all relevant evidence is admissible to do so) 3. MS - dependent-relative revocation may ALSO be applied when T has intended to substitute a 2nd gift to B for a 1st gift and the substitution was not validly executed; Ct may apply dependent-relative revocation to prevent the revocation by physical act of the 1st gift if it is found that T intended for the revocation to be conditioned on the effectiveness of the substituted gift (again, this permits Ct to consider all relevant evidence as to T’s intent) f. In Re Estate of Lials i. T’s will gives niece 100 acres. Gives boy 40 acres. Certificate of deposit goes to A & B.

32 ii. When will found, it had been changed by hand. Now says niece gets 140 acres. And boy shares C.D. with A & B. iii. Boy argument - argues DRR. T’s clear intent is to take away land from boy only if he gets money from C.D. iv. Held - he’s correct b/c revocation was by physical act, and Ct will then look to T’s intent. IMPLIED REVOCATIONS  Ademption - w/d of a gift by acts having nothing directly to do w/the will itself.  four situations where implied revocations recognized. Ct holds revoked though nothing done to will (physical act/written revocation) . . . 1. Change in family circumstances - a.k.a. “by operation of law” a. If man/woman makes a will at a time when he or she has no children and if will does not provide for any children he/she may later have, then will shall be of NO effect if he/she has a child at time of his/her death OR if, when a man dies, his wife is pregnant b. Will may regain its effectiveness if child dies w/o having been married, w/o having issue capable of inheriting, AND before reaching age of 21 years (will is void if child marries, has a child capable of inheriting, or reaches age of 21) c. Divorce of testator - where T gets married and has a will leaving property to spouse, then upon divorce in Mississippi, T must change will (NO implied revocation here); divorce does NOT effectuate an implied revocation in MS 2. Inter vivos conveyance of property: a. Gift of property is sold before it passes to B in a will. T thus has no gift to give . . . referred to as a revocation by extinction. b. Leaving property to someone in will has NO effect on T’s ability to sell or give property away prior to his death. c. If property is not owned by T at time of his death, this constitutes an ademption - a w/d of a gift. Some Cts refer to this as an implied revocation, don’t think of it this way. The will remains. That provision of it simply fails b/c a will can’t give a piece of property which the T does not own. d. Example - T makes will leaving property X to B. Afterward, T sells X or gives it away. B does not now get X b/c T does not own X when he dies. 3. Attempted inter vivos conveyance of property: a. T attempts to sell/give property away prior to death, but conveyance is for some reason ineffective b. If the inter vivos conveyance was to someone other than the B in the will, then the gift to B is impliedly revoked and he does not take the property (if gift is to B it is not revoked b/c there is no inconsistency). c. This kind of implied revocation ONLY operates when inter vivos conveyance is by deed or some other written instrument 4. Implied revocation by satisfaction: a. T makes bequest of money to B in will. Later, T makes an inter vivos gift to B of the same sum intending it to be in lieu of bequest and w/o revoking/amending his will b. B here will NOT get the gift named in the will, as this gift has already been satisfied by the inter vivos gift made in lieu of it. 1. Revival of revoked will - also called “republishing the will”

33 a. A revoked will that is still physically in existence may be legally revived as a will in 2 ways: i. T may completely re-execute will (complying with all statutory formalities) OR 1. Simply re-dating an earlier will does NOT effectuate a revival of that will 2. Intent here is not enough. There must be an act of execution that complies with the statute ii. T may execute a codicil to the will declaring his intent to revive it b. Mississippi - a will which has been revoked by a subsequent will is NOT revived by the revocation of the subsequent will (because revocation clause in subsequent will is effective immediately upon execution) c. Effect of Dependent-Relative Revocation - some say DRR essentially revives a revoked will. However, a better explanation is that DRR makes a revocation conditional upon an event that did not happen. So really there’s no revocation. 2. Contract not to revoke a will: a. T’s right to revoke will may be K-ed away if three requirements for K are met (fair and adequate consideration, competent parties, clarity of terms) b. K must be in writing c. Problems can arise with regard to mutual/reciprocal wills where there is no written K b/t parties not to revoke/change will i. Mississippi - the execution of the mutual will alone will NOT prevent the survivor from revoking the will in the absence of a contract i.e. mutual wills are NOT a K w/i themselves. Must have additional evidence of a written K apart from the mutual/reciprocal will. ii. When A offers to make a will leaving his property to B if B will take care of A, and B agrees, and A makes the will, and B takes care of A, then A may NOT revoke the will and leave his or her property to someone else.

LIMITATIONS ON TESTAMENTARY POWER - Chapter Six

1. Protection of surviving spouse (SS): a. CL - it was not right for person with property to die and leave spouse destitute -- developed two concepts to deal with this problem: i. Dower - right of widow to certain property of deceased husband (life estate) ii. Curtesy - right of widower to certain property of deceased wife (life estate) iii. Bottom Line - SS gets at least a life estate in some property. But once that SS dies, the life estate ends, and the property reverts back to the estate of the original testator. b. Will renunciation - statutory scheme replacing CL principles of dower and curtesy (which have been abolished in MS). i. Why Replace - T should be able to bequeath his property to who ever he wishes, but he still cannot leave his spouse destitute. However, the CL does not take into account the situation where the SS is rich or richer than the dead spouse. Such a spouse does NOT need protection.

34 c. Partial Intestacy - SS takes whatever she’d take intestate unaffected by this plan, and what SS takes intestate doesn’t affect what she takes upon renunciation of the will. i. Example - T’s will only disposed of property X, leaving to nephews, w/rest of her property, Y, going by intestate succession to husband and sole heir, husband entitled to all of Y and 1/2 of X. 2. Renunciation of will by surviving spouse: a. Only affects property which is devised or bequeathed in the will b. Property which is distributed by intestate succession falls outside of this system of renunciation i.e. renunciation of will has no effect whatsoever on property which is inherited by intestate succession c. Two situations re requirements to begin renunciation process: i. First scenario - will makes NO provision for SS AT ALL. Renunciation is then by operation of law i.e. SS does not have to do anything to trigger it. 1. Gets - part of estate would’ve been entitled to had the will made a provision but had been revoked. 2. Renunciation by operation of law occurs automatically as soon as the will is probated 3. However, rights vest in SS upon death of deceased spouse i.e. if SS dies before inheritance has been paid, it becomes asset of his/her estate ii. Second scenario - will makes SOME provision for SS i.e. anything at all of monetary value. SS must then file a “renunciation statement.” Not filing implies SS is content to take what the will gives her. 1. Renunciation stmt must be filed w/i 90 days of probate of will. Failure to do so constitutes SS’s acceptance of whatever was left to him/her in will 2. Right to renounce the will is a personal right of the SS. It may NOT be exercised by personal rep of estate, even though 90-day period had not expired when SS died a. Exception - where SS is not mentally competent, guardian can file renunciation stmt. Guardian appointed after 90-days, Ct’s discretion to allow her to file. 3. Meaning - if SS is left something in will, but dies before filing renunciation stmt, her estate is stuck w/what will gave her. 3. Determination of what surviving spouse is entitled to via renunciation - essentially figuring the size of SS’s estate to see if it is too big for her to get some of decedent’s property a. Five-step process to determine what SS gets via renunciation: i. STEP 1 - determine value of deceased spouse’s net estate: 1. W/regard to land, only MS land is included in assets of deceased spouse’s estate a. This is b/c SS does not have to take money i.e. he/she can insist on receiving undivided interest in deceased spouse’s property b. MS Cts only have jurisdiction over MS property, and MS Cts cannot tell SS he/she owns an undivided interest in foreign land 2. W/regard to Personal P, PP in other states probably would be included in deceased spouse’s estate

35 3. Debt and taxes must then be deducted from assets to arrive at net estate of deceased spouse ii. STEP 2 - determine SS’s fractional “legal share”: 1. Legal share = that part of deceased spouse’s net estate that SS would take by intestate succession, not to exceed one-half 2. NOTE - other one-half will go according to will iii. STEP 3 - Multiply (1) by (2) to determine legal share iv. STEP 4 - determine the value of SS’s separate net estate 1. Land located in other states IS included in SS’s estate 2. Add in PP and deduct debt/taxes to arrive at SS’s net estate 3. Include - property owned by J.T. w/R of S, and life ins. policy in SS’s favor payable on decedent’s death. 4. Not Included - property inherited by intestate b/c the will didn’t dispose of all of the estate, and life ins. proceeds payable to SS as heir at law. 5. Key Factor - including/not including funds in SS’s separate estate turns on whether her rights began after spouse’s death, or were vested before by K. 6. One-fifth Rule applies here: a. If value of SS’s net estate is less than 1/5 of dollar value of SS’s legal share, then SS is entitled to full value of legal share b. If value of SS’s net estate is equal to or more than dollar value of SS’s legal share, then SS is not entitled to ANY of the legal share, and must take what the will gives her. c. If value of SS’s net estate (step 4) is less than legal share (step 3) but more than 1/5 of legal share, then SS is entitled to difference b/t the two, thus move on to step five. v. STEP 5 - Subtract (4) from (3). Only needed of 3rd situation occurs. b. Rather than taking dollar value of legal share, SS can opt to take an undivided fractional share of every piece of property (real/PP) in deceased spouse’s estate. i. NOTE - SS wanting to take advantage of the Homestead Act should use this option. If take cash value of STEP 5, SS will not get the “exclusive use/possession” benefit the Homestead Act would offer. ii. Fractional share = numerator is STEP 5. Denominator is STEP 1. 4. Renunciation vs. contest of will a. Renunciation - does not void will, except those provisions in favor of SS. b. Contest of will - if successful, has effect of voiding the will entirely. i. If SS wins will contest, this is better than renouncing will since SS would get the entire estate under a successful will contest (if no children). ii. SS’s separate estate is not considered in determining her intestate share, following a successful will contest, but it may be greatly reduced/eliminated if will is renounced. c. However, if no grounds for contest, the only course is to renounce the will d. Procedural problem here: i. Renunciation must occur w/i 90 days of probate ii. Contest must occur w/i two years of common form probate.

36 iii. Best practice - file renunciation w/i 90 days and THEN file contest iv. Don’t have to choose - can contest the will and then renounce it if she loses the contest. 5. Contracts not to renounce: a. Right to renounce can be K away b. Example - prenuptial agreement can contain such provision 6. Protection of surviving spouse -- year’s allowance: a. SS of an intestate decedent is entitled to one year’s allowance b. Where deceased spouse dies testate: i. If will is renounced by SS, chancellor has discretion to grant year’s allowance (it would seem right here would be absolute) ii. If will is not renounced (either b/c SS does not elect to renounce or his/her estate is too large to renounce), then SS takes under the will, and SS will be entitled to year’s allowance UNLESS testator made it clear in will that what he was leaving spouse was to be in lieu of year’s allowance 7. Protection of surviving spouse -- homestead: a. If spouse dies intestate - SS only inherits a fractional portion of homestead if there are children. However, spouse is entitled to exclusive use/possession of homestead as long as he/she remains unmarried b. If spouse dies testate - SS does have right to exclusive use/possession of homestead as long as she has any ownership interest in it, whether by deed, devise, or descent i. Dicta - SS will have exclusive right to use/possession in homestead whether she had any ownership interest in it or not ii. Homestead would still be subject to claims of creditors above $75,000 c. NOTE - Ct CANNOT void inter vivos conveyances by deceased spouse even though such conveyances effectively strip assets of estate and leave SS destitute d. Reason why advantageous to renounce - renouncing will and taking interest in all property gives SS benefit of homestead use/possession 8. Protection of testator’s children -- no right to renounce. Parent not obligated to leave kid anything. Two protections: a. Implied revocation by operation of law (change in family circumstances): see supra. Applies only when T makes will at time when does not have kids. i. Effect of revocation here is that will is void and parent dies intestate ii. Thus, children will each take child’s share of estate b. Pretermitted children - will not voided. i. To apply, T had to have had at least one child at time will was executed, and subsequently, T had another child which was not provided for in T’s will ii. After-born children will be protected provided they are deemed to be pretermitted - inadvertently omitted from will iii. If child is pretermitted, he will be entitled to his intestate share of the estate iv. For child to be deemed pretermitted: 1. Missouri rule - if will does not mention children, then presume pretermitted, and they get intestate share i.e. will must either (1) expressly state that children are disinherited OR (2) leave children something, otherwise they’ll be deemed pretermitted. No evidence is admitted to prove contrary intent of T.

37 2. Massachusetts rule - (MS too) Ct focuses on T’s intent as to whether he intended to disinherit child a. All relevant evidence is admissible b. Focus particularly on what T did for the children that she had at time will was executed i. If T did not leave other children anything, after-born child is NOT pretermitted but is disinherited ii. If T did leave other children something, after-born child is deemed pretermitted and will get intestate share 9. Mortmain Statute: a. Puts conditions on gifts in wills to “proscribed institutions” b. Repealed in Mississippi 10. Joint tenancy with right of survivorship: a. Will CANNOT override joint tenancy with right of survivorship b. Money in such an account will not go to estate regardless of will’s provision c. Same applies with regard to life insurance beneficiaries, i.e., will cannot change

PROBATE OF WILL - Chapter Seven

1. Purpose of Probate - to obtain a judicial order or decree from ct w/juris that the writing is a decedent’s valid will. Order not given till necessary proof offered by proponent of the will. a. A will has NO legal validity AT ALL until it is probated. Just a piece of paper. b. Once such an order is executed, will has been “probated,” or “admitted to probate” c. MS - the order probating the will also begins the administration of testate estate i.e. some person will be appointed executor/ix if named in the will OR administrator/ix c.t.a. if not named in will i. “c.t.a.” = “with the will annexed” ii. Under specific circumstances, will can be probated as a muniment of title only 2. Jurisdiction and venue: a. Jurisdiction - Chancery Court b. Venue - cannot transfer from improper to a proper venue. Must completely reapply. i. In county of testator’s residence ii. In Co. where land devised by will is located (different order from intestate) iii. In Co. where T died or where some of the PP disposed of in the will is located 3. People who may probate will - any interested person may probate will i.e. anyone w/direct, legitimate interest, including executor and devisees and legatees under will. 4. Institution of probate proceedings: a. Probate proceedings are begun w/a filing of petition by person w/interest in the estate in a chancery ct of the appropriate county. Petition will: i. Set out pertinent facts, and ii. Pray for an order adjudicating the validity of the will, and iii. Pray for appointment of someone to execute the will. b. Filing of petition and will is referred to as “propounding” the will for probate 5. Probating the will - 2 types of probate procedures (fundamental difference b/t them is the parties involved, and therefore bound by, the probate): a. Common form probate:

38 i. No one is given legal notice that petition has been filed ii. Only parties to the proceeding are those who signed the petition i.e. common form probate is an ex parte proceeding, and the order is not binding on anyone not a party to the proceeding b/c they did not have notice iii. Vast majority of wills probated in MS are probated in common form iv. A non-party to proceedings may contest a common form probate of a will anytime w/i 2 years of the date the will is probated. v. Reasons common form probate is more prevalent: 1. Wills are infrequently contested 2. May be better not to give notice and stir up trouble 3. If will is admitted to probate in common form, and a will contest thereafter arises (w/i two-year period), proponents of will have a tactical advantage in the will contest vi. What Proponent needs to take to chancery clerk’s office: 1. Will 2. Affidavits from at least 1 AW 3. Petition 4. Order on the petition - prepared doc, admitting the will to probate in common form, which the Ct/clerk signs. 5. Proof (see infra): a. In lieu of presenting live testimony to clerk, proponent can present the testimony in the form of an affidavit; thus, you can take the affidavit to Ct house instead of the witnesses b. Proponent can only use the affidavits in lieu of the Ws if there has been no contest at that point (very unlikely to have contest yet since no notice has been given to anybody) c. Affidavits admissible here b/c there is nobody whose right to cross-examine W is denied (normally inadmissible as hearsay) d. Affidavits may be used in this situation for both attested and holographic wills (remember - w/attested wills, affidavits of attesting Ws should be obtained at time will is executed)

vii. Clerk (or deputy clerk) takes papers, files petition/other docs, and signs prepared order. At that point, the will has been admitted to probate in common form 1. Clerks are authorized by statute to probate wills 2. Clerk’s power is contingent upon subsequent ratification by chancellor. Ratification will relate back to date clerk probated will. b. Solemn form probate: i. Petition is same as common form petition w/one exception, in solemn form probate petition, all the names of the people who would have standing to contest the will must be listed in the petition. 1. Who has standing to contest will: a. Heirs at law, who would take by intestate succession and would thus be harmed if will were probated b. Beneficiaries of an earlier will which current will revoked

39 ii. Service of process must be issued to all potential contestants iii. Solemn form probate produces a binding judgment on all served w/process. iv. When to use solemn form probate: 1. When will contest is virtually certainty - go ahead and get binding adjudication of will’s validity instead of waiting 2 yrs for common form probate to be final. 2. When children are involved - best practice may be to probate will first in common form, then file to probate in solemn form (to get benefit of tactical advantage accompanying common form probate) 6. Proponent’s prima facie case for validity of will: a. Allegations in pleadings/petitions are NOT proof b. Proof requires testimony of W(es) w/PK, that must establish 2 things: 1. That will was duly executed a. If attested will - proof of all six statutory elements b. If holographic will - proof that (1) will is entirely in T’s handwriting and (2) will is subscribed by T (requires Ws w/PK of T’s handwriting) 2. That T had testamentary capacity a. Age - over 18 b. Sound and disposing mind at time will was executed ii. In summary, proof requires proof of (1) due execution and (2) testamentary capacity, by Ws with personal knowledge iii. Additionally, if will is an attested will - no one can testify until AFTER at least one of the attesting Ws have testified (if possible) 1. If P has tried but cannot produce testimony/affidavit of either AW (if Ws are dead, have lapse of memory, etc.), then P has two options: a. First, if there’s someone else besides AWs w/PK of what happened at execution of will, that person may testify (usually atny) b. Second, if first option fails, then proponent can make out prima facie case by proving the genuineness of the signatures of T and the two Ws. 2. If proponent is unable to use these last options . . . the will cannot be probated. 7. Order of validity: a. May be executed by chancery clerk or by chancellor b. Chancellor must later ratify if executed by clerk c. Date relates back to execution by clerk. Begins 2-year SOL for contest actions. d. Photostatic copy of will is made and placed in Will Book 8. Preventing common form probate -- caveat: a. In will contest, proponent will have tactical advantage if will has been probated in common form b/c proof of that probate makes the proponent’s prima facie case (BOP is on proponent) b. An opponent of the will may prevent common form probate and thereby deny proponent this advantage by filing a caveat i.e. an objection to the probate of the will c. Caveat must be filed w/chancery clerk of county where will is probated

40 d. Caveat must be filed before will is probated i.e. before the order admitting the will is executed i.e. race to ct house w/proponent seeking to probate will in common form. e. If caveat is timely filed, the will cannot be probated in common form. f. If caveat not filed until after clerk has executed the order is too late, even though the chancellor has not yet approved the clerk’s action. 9. Probate of nuncupative wills - Governed by statute 10. Probate of will of soldier or sailor made during war - Governed by statute 11. Probate of lost or destroyed will: a. Will may be lost, destroyed, or hidden so well by testator that no one can find it b. Mere copy of will cannot be probated; only original or duplicate can be probated c. Probating a lost will - prove 5 elements by clear and convincing E: i. T did validly execute a will ii. T, at that time, had valid testamentary capacity iii. That the will has been lost or destroyed i.e. cannot be found 1. Proponent must present E that there’s been a diligent search and inquiry as to whereabouts of will (every nook of house, all accounts held by T, looked all over town, etc.) iv. Contents of will i.e. what it provides 1. Furnish a copy of will OR 2. Present testimony of person who read and remembers will OR 3. Present testimony of person to whom T made stmts as to contents of will (hearsay exception permits this) v. That the will was NOT destroyed by T w/the intent to revoke it. 1. Must overcome presumption that T destroyed will w/intent to revoke a. Will last w/T - hard to overcome b. Contestant had access to will - only need slight evidence c. Will not last w/T - no such presumption . d. Satisfy these requirements = ct will probate the lost will e. Where one of the AWs testifies against the validity of the will, this will NOT preclude probate of the will provided at least one AW testifies as to will’s validity; this will be a question of fact for the jury. f. Where AW only has partial memory as to contents of will, ct will still probate will in accordance with AW’s memory (the rest will go by intestate succession) 12. NOTE - State of MS has standing to contest a will where no heirs of law exist (as per escheat power). 13. Probate of foreign will - see Estate of High, 19 So.3d 1282 a. Foreign will = will of a person not domiciled in MS at time of death . . . regardless of where will was executed, where T lived when will was executed, etc. b. CL i. Intestate succession - PP controlled by law of state of domicile. Land controlled by law of state where land located. ii. Testate - PP must first be probated in state of domicile. Land must be probated in state where land located (mirror of intestate succession). c. MS statutory law - MS law controls both real and PP located in MS. 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.

41 d. Foreign will may be probated in either of 2 ways: i. First in MS prior to probate elsewhere (like a domestic will) OR ii. First in another state, then an authenticated copy may be probated in MS e. Will may be contested regardless of which method of probate proponent chooses 14. Duty to probate will: a. No one has a legal duty to probate a will, but encouraged. b. It’s a crime to conceal or destroy a will, and Ct. will compel anyone having a will to produce it for probate. c. If all the beneficiaries are competent and do consent (and all of the gifts are outright i.e. no trusts, etc.), beneficiaries may agree not to probate a will but to administer the estate as if the decedent died intestate i. Argument Against this - compact exists b/t “the law” and T, and the law should carry out his wishes. ii. Response - gifts (including testamentary gifts) must first be accepted, and the beneficiary has the right not to accept the gift. 15. Estoppel to probate - a person who wrongfully and fraudulently conceals the existence of a will in order to take advantage of beneficiaries will NOT be permitted to probate will later. 16. Statute of Limitations: a. There is NO statute of limitations on probate of will in Mississippi b. However, a person can estop themselves from being able to probate will (see supra) c. W/long delays before probate, assumption is that property is inherited by intestate succession. Subsequent good faith purchasers for value are protected from later probate. 17. Prior probate of earlier will: a. If will has been probated in common form and two-year period for contesting will has expired, NO other will of the T may be probated b. Policy - probate of a later will would amount to a contest of the will already probated, and a contest of that will cannot be instituted more than two years from date will was admitted to common form probate.

WILL CONTESTS - Chapter Eight

1. Will contests -- introduction: a. Parties are called “proponents” (will is valid) and “contestants” (will is invalid) b. Ultimate issue in case is “devisavit vel non” i.e. “will or no will” 2. Persons who may contest will: a. Only “interested persons” have standing to contest will: i. Interested person - person who has a direct pecuniary interest in the estate of the deceased person, which would be detrimentally affected by the probate of the will. ii. Generally limited to two groups: 1. Heirs at law - who’d take intestate if will were deemed invalid a. Re illegitimate child - must first bring suit to determine heirship before he/she can contest will 2. Beneficiaries under a prior will - whose gift under old will would be greater than what they are getting under this will.

42 a. PR - (administrators/executors) does NOT have a direct pecuniary interest in estate in MS b. Creditor - cannot contest will b/c his interest not harmed by probate of the will. Still gets paid. b. Some wills cannot be contested i.e. a will leaving everything to SS when there are no children and no prior will 3. Instituting will contest: a. MS - will contests can arise in 1 of 3 ways: i. By solemn form probate - all parties w/standing must be noticed. Result is binding on all parties joined. ii. By caveat (before a will in common form presented for probate) - forces will to be probated in solemn form (race to Ct house) iii. By filing a complaint - must be filed w/i 2 years of common form probate 4. Indispensable parties: a. ALL interested parties MUST be made parties to the will contest, whether advantageously or adversely affected by will i. ALL heirs at law of deceased person must be summoned (SOP) ii. ALL beneficiaries of prior will must be summoned (SOP) iii. ALL beneficiaries of contested will must be summoned (SOP) b. This requirement is jurisdictional - Ct has no power to proceed w/will contest if ANY interested parties are not before the Ct. If Ct does proceed, the decree is invalid and is not binding on anyone, even those who participated in the contest. c. If all parties are not joined, proper motion is motion to dismiss for nonjoinder; however, right to appeal on basis of nonjoinder is NOT waived by failure to plead nonjoinder at trial level 5. Issues in will contest: a. Ultimate issue is “will or no will,” which will be determined by sub-issues (e.g. whether T had sound and disposing mind, whether T was unduly influenced, whether will is in T’s handwriting, etc.) b. MRCP apply in will contests to the extent they are not in conflict w/statutes i.e. discovery, request for docs, etc. c. What will means is a different question from whether will is valid; thus, the issue of what will means will NOT be part of the will contest; will contest will be restricted to issues relating to will’s validity. 6. Trial of will contest -- jury: a. Will contests are exception to general rule prohibiting juries (other than advisory juries) in chancery ct. b. Jury verdicts in will contests are NOT advisory i.e. given same effect as in circuit Ct c. Either side can demand jury in will contest, if both do not want, there will be none. 7. Trial of will contest -- procedure: a. Proponent has the ultimate burden of proof i.e. proponents occupy position plaintiffs occupy in usual civil lawsuit, contestants occupy defendant’s spot. b. Proponent presents evidence first, and, in doing so, must establish their prima facie case before resting. Failure to show prima facia case = directed verdict for contestants. 8. Trial of will contest -- proponent’s prima facie case:

43 a. Proponents must prove two things: i. Testamentary capacity AND ii. Due execution b. If the will has already been admitted to probate in common form: i. P has already presented proof of the 2 elements. Thus, P can make prima facie case simply by proving that will has been admitted to probate in common form. ii. If already probated in common form, P begins case-in-chief by offering into evidence certified copies of (1) petition (2) will (3) affidavits and (4) order 1. “Your honor, at this time, we’d like to offer ___ into evidence.” iii. At this point, proponent will rest. P does not have to rest, but everybody does b/c no party wants to expose his Ws to cross-examination until he has to. 1. “Your honor, at this time, the proponent rests.” iv. Problematic issue relative to use of affidavits when will is being contested. But Cts have deferred to legislature, which has said that prima facie case can be made by proving will was admitted to probate in common form. c. If will has not been admitted to probate in common form: i. P must make his prima facie case as if he were probating the will in common form, except that he cannot use affidavits. 9. Trial of will contest -- contestant’s burden to go forward with evidence: a. Contestants will move for directed verdict, but this will be overruled b. C now has a “burden to come forward with evidence” to support the contested issues in the case c. If Cs fail to offer any E on a given contested issue, then that issue is “out of the case” d. Key point - BOP is ALWAYS on the P i.e. it does NOT shift to the C. i. C must come forward w/enough E so that a reasonable person could conclude that they are correct ii. I.e. they do not have to overcome P’s E, must merely create a jury issue. 10. Trial of will contest -- further evidence by proponent: a. Once Cs rest, ball is back in Ps’ court b. At this point, Ps are allowed to call live case-in-chief witnesses to support their side of the case (P cannot do this in normal civil case, only calls rebuttal Ws) 11. Trial of will contest -- burden of proof: a. Jury must find for proponents on each contested issue for will to be upheld b. In MS, jury is usually asked to return special verdicts as to each contested issue. 12. Three most prevalent grounds for will contest: a. Lack of testamentary capacity b. Lack of due execution c. Undue influence 13. Grounds for contest -- lack of testamentary capacity: a. Issue - whether T had sound and disposing mind (age almost never an issue). b. 3-part test for “sound and disposing mind.” T’s ability at the time of the execution… i. To understand and appreciate the nature and effect of act of making a will ii. To understand beneficiaries of his bounty and their relation to him iii. To determine how he wants to dispose of his property

44 c. When Ws are called to testify as to T’s testamentary capacity, atny must lay the foundation that Ws understands the legal meaning of that term (this applies any time you are using legal terms with W on stand) d. ONLY time that counts in determining T’s sound/disposing mind is the time of execution of the will (precise time . . . that very hour is all that matters!) e. Testimony of attesting Ws (or other Ws present at will’s execution) is given greater weight than testimony of Ws who were not present at time of will’s execution. f. Lay opinion testimony as to T’s state of mind are admissible. g. Stmts of T are admissible (not hearsay b/c not offered prove truth of matter asserted) h. MSSC - very reluctant to take away T’s capacity: i. Guardianships (where T has basically lost his mind) alone aren’t enough E. ii. Paranoid schizophrenia alone is not enough. 14. Grounds for contest -- holographic will not duly executed: a. Issue - whether handwriting is actually T’s handwriting. b. MRE permits authentication of handwriting in 3 ways: i. Lay witness familiar w/T’s handwriting (provided familiarity wasn’t acquired for purpose of litigation) may give opinion as to handwriting’s authenticity. ii. Handwriting expert may compare handwriting to stipulated or authenticated exemplars of T’s handwriting. iii. Trier of fact may compare handwriting to stipulated/authenticated exemplars. 15. Grounds for contest -- attested will not duly executed: a. Due execution - must prove that statutory requirements have been met. b. Remember - if will was admitted to probate in common form, prima facie case is already made and proponent will rest. c. Problem w/contesting will on this ground is, its hard to find Ws who can testify as to lack of due execution (since the only Ws to will’s execution will normally be atny, attesting Ws, and perhaps notary). Only option is to depose AWs and hope that some problems can be ascertained that way, testimony of AWs against the will is seen as very suspect . . . whether to believe them is a matter of fact for the chancellor, does he think they’re credible? i. Cs can call AWs as adverse Ws (conduct examination w/leading Qs) ii. Remember - publication is necessary in ALL situations iii. Remember - Ws must always KNOW the doc they are signing is a will 16. Grounds for contest -- undue influence: a. Two doctrines of undue influence in Mississippi: i. Traditional doctrine ii. Confidential relationship doctrine b. Traditional undue influence doctrine: i. “Undue influence” under traditional doctrine means that someone, usually a beneficiary but not always, has so influenced the T by threats, force of personality, etc., as to destroy T’s free agency. ii. Asking T to leave you something is NOT enough, nor is begging. iii. Undue influence is almost NEVER subject to proof by direct E. Will almost always needs proof by circumstantial E - E of fact from which underlying fact can be inferred.

45 iv. 4 categories of circumstantial E typically offered to prove traditional undue influence (contestant will prove/proponent will refute): 1. Reasonableness of the will - E showing that will is unreasonable from standpoint of what T would have wanted. a. Example - E that T didn’t like one of the beneficiaries in will 2. T’s mental capacity - E that, even if T’s mind was good enough to pass “sound and disposing mind” test for testamentary capacity, it still was sufficiently weak to make T vulnerable to undue influence (“pliant mind”). Most used type of circumstantial E. a. Example - T who is elderly at time of will’s execution 3. Activity in the making of the will - E showing that alleged undue influencer had something to do with getting the will made a. Example - can range from calling atny’s office to make an appointment, to physically taking T to office, to going into atny’s office, to being there when T consults w/atny, to being there when will was executed, to actually telling the lawyer what to put in the will, to taking will after execution. 4. R’ship b/t T and alleged undue influencer - E that alleged undue influencer had a dominant influence over T, that T was dependent on alleged undue influencer, etc. v. If jury trial, both sides move for directed verdict. Judge asks - could reasonable minds conclude that T’s free agency was destroyed? 1. If yes - judge will give it to jury. 2. If no - judge grants directed verdict for proponent. 17. Recent MSSC case: a. If mother and father of illegitimate child sign voluntary acknowledgement of paternity (duly signed and notarized), the effect of the execution of this stmt is that parents will be treated as married when the child was born. b. Execution of this voluntary acknowledgement of paternity in effect makes the child legitimate and provides an additional way for illegitimate child to inherit from father and father’s kindred by intestate succession. 18. Undue influence -- confidential relationship doctrine: a. Will probated in common form by Ps > party w/standing files contest w/i 2 yrs > Ps prove probate of will in common form and rest > burden of proceeding now on C to come forward w/E of undue influence. Will usually challenged on both T. Capacity and undo influence b/c T. Capacity is part of showing undo influence. b. To make claim of confidential r’ship U.I., Cs must come forward w/E of 2 things: i. That T and alleged undue influencer were in a confidential r’ship AND 1. A fiduciary relationship is not required a. Note - fiduciary/legal r’ship is required to prove a confidential r’ship under traditional doctrine. 2. Obligation can be moral or social, does not have to be legal. Can exist any time T reposed trust and confidence in alleged undue influencer or depended on them for anything 3. 7 Factors - Finding Confidential R’ship - whether one person . . . a. Needs taking care of by others

46 b. Maintains a close r’ship w/another c. Is provided transportation and their medical care by another d. Maintains joint accounts w/another e. Is physically or mentally weak f. Is advanced in age or has poor health g. Whether there exists a power of atny b/t the 2 people. ii. That beneficiary had something to do w/getting the will made (not hard, any activity helping T get will made suffices). c. If Cs can prove both of these things, a presumption of undue influence arises i. Note - this doctrine picks 2 of the 4 circumstantial E categories of traditional undue influence and creates a presumption from 2 of them. ii. It is usually the case that Cs can easily establish proof to trigger this presumption. Thus, in most will contest cases involving wills of elderly people, Cs will be able to trigger this presumption. iii. If Cs cannot prove confidential r’ship undue influence, Cs can fall back on traditional undue influence doctrine. d. Once presumption arises, ball is back in Ps’ Ct. To rebut presumption of confidential r’ship undue influence, Ps must prove 3 things by clear and convincing E: 1. That beneficiary acted out of good faith in dealing with T AND a. Factors of Good Faith: i. Who sought the preparation of the will, ii. Where the will was executed and who was present, iii. Atny’s fee and who paid it, and iv. Secrecy or openness of the execution of the will. 2. That T had full knowledge and deliberation in the execution AND a. Factors of Knowledge/Deliberation i. Awareness of his total assets and their general value, ii. Understanding of the persons who would be his natural heirs under laws of natural decent or a prior will, and legal effect new will would have on that, iii. Understanding of whether non-relative beneficiaries would be included or excluded, iv. Knowledge of who controlled his finances and the method used, and v. Dependence on, and susceptibility to the influence of, the person who controlled his finances. 3. That T exhibited independent consent and action (no factors) a. Circular Reasoning - this 3rd prong seems the same as asking, “was T unduly influenced?” e. Final question - has P overcome presumption of undue influence by “clear and convincing E?” i. NOTE - P cannot overcome presumption w/E that consists of his own testimony or testimony of other people w/an interest or bias in the outcome. Need nonbiased E. f. Spousal exception - in order for spouse to be found to have unduly influenced spouse under this doctrine, they must be found to have used “undue methods.”

47 g. Other uses of this doctrine - confidential r’ship undue influence has also been used to set aside deeds, gifts, joint checking/savings accounts, CDs, and powers of atny i. Same analysis used as in wills cases. EXCEPT w/inter vivos transactions, C does NOT have to prove that alleged undue influencer participated in some way in making the conveyance (as they would in wills cases) 19. Fraud - 2 types: a. Fraud in the execution - T defrauded as to what the will said. i. Example - led to believe doc. he’s signing is something other than a will b. Fraud in the inducement - T knows what will says, but made will b/c things told to him were untrue i. Example - misled/deceived as to pertinent facts which he based his decision on of how to dispose of his property. c. Will can be set aside for both types of fraud d. Burden on contestant here (notwithstanding technical requirement that BOP is on P) to prove fraud by clear and convincing E must prove: i. Misrep was made, ii. Scienter - misrep was made with the intent to deceive, and iii. Reliance - T relied on the misrep in making his will. 20. Mistake - 2 types: a. Mistake in the execution - T’s mistake about contents of will or whether doc was will at all. Yes, will can be set aside. i. Where instrument was executed by mistake, it will be denied probate ii. However, Ct can do nothing when a provision is omitted by mistake b. Mistake in the inducement - T’s mistake about certain facts that affect how he decides to dispose of his property. i. No, will CANNOT be attacked or set aside for mistake in the inducement c. Innocent misrep by beneficiary: i. If T was mistaken as to an extrinsic fact (mistake in the inducement) where the mistake was caused by a beneficiary’s misrep, even if the beneficiary believed that the misrep was true, Ct may set aside will. Middle Ground. ii. Here, C must show that the misrep actually influenced T to make a will he would not otherwise have made i.e. that but for the misrep, the will would have been entirely different. 21. Contest of foreign will: a. Foreign will = will of T who was domiciled outside of Mississippi at time of death b. No will is a valid conveyance of MS land until it is probated in MS i. Full faith and credit clause only applies if Ct has juris over parties and subject matter (PJ and SMJ) ii. Thus, MS Cts are NOT precluded from hearing contest of foreign will even though that will was probated in another state. iii. This is true whether property is real or personal (given MS’s enactment of statute re personal property) 22. Loss of right to contest will: a. Person can K away right to contest will (3 K requirements) b. Person can be estopped from contesting will:

48 i. B will estop himself from contesting a will if he has accepted a benefit or gift made to him in the will. ii. However, B may still be able to contest will if he first gives up the benefit/gift taken under will. iii. Conduct caused by fraud/misrep will NOT estop person from contesting will. 23. Forfeiture of legacy for unsuccessful contest: a. Forfeiture clause - will may contain a provision stating that if any B of will contests or assists in contesting will, then their gift under will is revoked b. If B contests will and wins - forfeiture clause is struck down w/the rest of the will and contestant takes as heir at law or through another will. c. However, what if B contests will and loses: i. View 1 - forfeiture clause is upheld and B is denied gift under will ii. View 2 - B will NOT forfeit gift(s) under will provided he had a good faith reason/probable cause to contest the will. iii. There is no case on point in Mississippi. 24. Rules of Evidence in wills cases: a. Declarations of testator: i. If not offered to prove truth of matter asserted, declarations of T are NOT hearsay and are admissible. ii. Even if declarations are admitted to prove truth of matter asserted, MRE state of mind hearsay exception will render declarations admissible. b. Privileges: i. Atny/C communications are privileged . . . atny cannot testify about them. ii. Privilege survives C after his death. iii. However - where 2 groups both claim inheritance from the same person, the privilege is lifted and atny must testify if asked. Cannot assert privilege.

ADMINISTRATION OF TESTATE ESTATE - Chapter Nine

1. Appointment of executor or administrator c.t.a.: a. Probate of will also triggers administration of testate estate b. Petition to admit will to probate will also ask Ct to appoint PR to admin. testate estate c. Will nominated PR - executor/executrix. Ct appoints this person if such person desires to be appointed. d. Will did not nominate PR - Ct appoints administrator/administratrix c.t.a. - “with the will annexed” 2. Oath and bond: a. Executor must sign oath b. With regard to bond, presumption is that executor will post bond c. Amount of bond will be set at amount of property that will be placed in the hands of executor (which may be less than total value of estate), depending on what the Will gives PR authority over. d. Bond will be required UNLESS the will waives bond i.e. T can provide in will that executor will not be required to post bond. Waiving bond saves the estate money since premiums will have to be paid out of estate’s assets. 3. Executor’s rights and duties -- generally:

49 a. Executor has those rights (1) conferred by law and (2) given to him in the will b. If executor wants to do something which neither the law nor the will confers gives him the right to do, then the executor does NOT have the right to do it. Executor’s authority to act unilaterally depends upon the will. c. Duty of executor - duty to do what a reasonable, prudent, intelligent person would do in the mgmt of his/her own affairs, executor is NOT an insurer of estate’s property 4. Inventory, appraisement, and accounts: a. Intestate - Statute requires PR of intestate estate to have inventory and appraisement and to file annual and final accounts. i. Chancellor may waive appointment of three appraisers to appraise ii. But, cannot waive appraisement/inventory or accounts completely (PR will have to do it). b. Testate - no statute expressly allows for waiver of inventory/appraisement and accounts by will. However, most Cts honor will’s request that inventory/appraisement and accounts be waived. c. All this being true, the chancellor STILL has power to order executor to make an account when there’s an allegation of wrongdoing, notwithstanding will’s waiver of accounting d. Harper v. Harper i. Man’s will leaves ½ to wife, ½ to 4 kids in marital trust w/wife as trustee. ii. No bond, accounting, or appraisals required (according to the will). iii. W begins administration, swops some of the estate’s land for brother-in-law’s. iv. Kids sue W. Ask for an accounting of how she’s administering. 1. W - argues accounting is waived in the will! v. Held - Ct will require accounting. Waiver in will regards, “ordinary course of administration.” This is a charge of wrong-doing/negligence. Different. 5. Payment of testator’s debts: a. Same procedure as in intestate administration (diligent inquiry, written notice, affidavit, publication in newspaper). ONLY difference is that if the will so provides, the PR can pay creditors’ claims even if they have NOT been probated (whereas in intestate, PR cannot pay a claim unless properly and timely probated). In practice, stilled viewed as improper to pay unless probated! 6. Homestead rights: a. SS will have right to exclusive use/possession of homestead during period of widowhood/widowerhood IF: i. SS had ownership interest in homestead prior to decedent’s death (deed) OR ii. SS acquires ownership interest in homestead via will (devise) OR iii. SS acquires ownership interest via renunciation of will (descent) b. Homestead exemption - 160 acre up to $75,000 is exempt from claims of Cs if devised to any Group I people in case of testate estate (or if Group I heirs exist in intestate estate) 7. Interpretation and construction of will: a. Will construction cases arise after will is found to be valid last will and testament of T. Construction question CANNOT be merged w/will contest action, where issue is devisavit vel non b. Typical case - 1 party alleges T intended X to be done, 2 party alleges T intended Y.

50 c. No jury in a will construction case. Chancellor is trier of fact. d. Process: i. For Ct to hold that X was T’s intention, must be language in the will which can arguably be construed as T’s intent to do X. Unless there is some language in the will supporting X, Ct will NOT take up the issue i.e. hear testimony or consider other extrinsic evidence, etc. ii. If such language DOES exist, chancellor will first consider the entire will i.e. “four corners of the will” to ascertain T’s intent. iii. If Ct CANNOT determine T’s intent from entire will, it will declare that the will is “ambiguous” -- two kinds of ambiguity: 1. Patent ambiguities - ambiguity apparent from face of will i.e. internal contradictions in will. 2. Latent ambiguities - writing becomes ambiguous due to facts extraneous to will. iv. If Ct declares will is ambiguous, it will permit extrinsic evidence (Ct is reluctant to do this b/c it undercuts written will) e. Rules of construction - realistically, judges apply these after the fact to support whatever they have decided to do, good to find a few that support your position and raise w/chancellor f. Precedent Value - precedent means very little in will construction cases since all wills are different and unique. g. Best practice - argue case on the facts (“no will has a brother, at least not a twin”) 8. Construction of will -- identification of beneficiary: a. Ambiguity w/regard to names occurs when there are two people w/same name b. Usually, Ct admits extrinsic evidence to resolve ambiguity (may be patent or latent) 9. Construction of will -- identification of property: a. Ambiguity may result from descriptions of property, real or personal b. Ct will permit extrinsic evidence to resolve ambiguity 10. General rule re will construction - Ct will NOT undertake to construe a will UNLESS the will is ambiguous 11. Lapse of gifts: a. If T leaves property to B and B predeceases T, what happens to gift to B? b. Basically a question of intent of T: i. If will indicated what T wanted to happen in case B predeceased him, then gift will go according to will. ii. If will stated that gift was conditional on B surviving T, then the condition was not satisfied, and the gift will not go to B. iii. If will is ambiguous as to disposition to B, then rules of lapse of gifts apply: 1. CL - if B predeceased T and will did not show intent of T, then gift lapsed i.e. was revoked (as if it were never made at all). 2. MS - anti-lapse statute only narrowly changes CL. a. Rule - ONLY gifts that don’t lapse are gifts where B was a child or descendant of T, and was himself survived by descendants. In this one situation, gift will go to B’s descendants as if B died intestate (i.e. B’s will cannot affect disposition of this property)

51 b. Right of Rep. ONLY applies in intestate estate situations c. If anti-lapse statute doesn’t apply, gift lapses according to CL. c. What happens to lapsed gift: i. If gift was a specific or general bequest or devise, then the gift falls into the residuary clause and goes to whomever the residuary beneficiar(ies) is/are 1. Res. Clause - “all the rest of my estate I give to ___.” ii. If there is no residuary clause in will, the lapsed gift goes to T’s heirs at law. iii. If B was the residuary beneficiary, the gift will go by intestate succession. iv. If B is given a part of the residuary: 1. One view - other residuary Bs split B’s portion. 2. MS - lapsed gift will go to T’s heirs at law. 12. Class gifts: a. Gift to group of people e.g. “brothers and sisters,” “nieces and nephews,” “grandchildren,” etc. b. When is group a class: i. If none of the individuals in the group are named, Ct will construe gift as a class gift. ii. If gift names the members of a specific group, then Ct must determine whether gift is a class gift or a gift to the named individuals -- must determine T’s intent: 1. If Ct concludes T was group minded, Ct will construe as a class gift 2. If not, Ct will construe gift as gift to individuals. c. When is membership in class to be ascertained: i. When gift is an outright gift, membership in class is ascertained at the moment of T’s death. ii. When gift is a remainder interest (i.e. trust leaving lift estate to wife, then remainder to “brothers and sisters”) membership in class is ascertained at time of distribution i.e. at the termination of the life estate. 1. However, if juris. has a rule stating that remainder interest vests upon death of T, then class would be ascertained at that time. d. Does anti-lapse statute apply to class gifts: i. Most jurisdictions hold that anti-lapse statute DOES apply to class gifts. ii. MS - no case on point. iii. Example - a will leaves to grandkids A, B, C, D, and E. This is a class gift. Prior to T’s death, C dies but is survived by his own kids. At T’s death, there’s 4 grandkids. Class gift rule would not allow C’s kids to take his share. But anti-lapse statute could give C’s kids what C would take. Majority say yes, C’s kids would take C’s share.

13. Four types of personal gifts: a. Specific personal - “I give X my shotgun.” b. General personal - “I give X $1000.00.” Not particular money, just money. c. Demonstrative legacy - “I give X $10,000.00 out of my savings account.” i. What if account is too small, or no longer exists? ii. If gift held to be demonstrative legacy, then gift is paid from other assets of estate. Note, if it were simply a specific person

52 d. Residual gift - “I give X what ever personal property is left.” 14. Three types of reality gifts: a. Specific reality - “I give X my home at 214 Elm Street.” b. General reality - “I give X 100 acres of land,” out of a 10,000 acre farm he has, without specifying which 100 acres. c. Residual gift - “I give X whatever land is left.”

15. Abatement: a. Involves determining what property of estate PR must use to pay debts of the estate i.e. which gifts in the will abate? b. Rules pertaining to abatement: i. Intent of testator controls: 1. If T designates certain property to pay certain debts/expenses, PR must comply with T’s wishes. 2. In the absence of specific directions in the will, ct will undertake to construe the will to try to determine T’s intent as to which property should be used (using general principles of will construction). ii. In absence of intent to contrary, following rules will apply: 1. Property designated by T to be used to pay expenses will be used first. 2. PP passing by intestate succession will be used next (if any) i.e. property not passing under the will, then realty passing by intestate succession (if any). 3. Residuary personalty will be used next, followed by general personalty, then by specific and demonstrative personalty. 4. If all of above is not enough, then use residuary realty, followed by general realty, and lastly specific realty. iii. Uniform State Tax Apportionment Act requires all beneficiaries to pay pro rata share of estate tax 16. Exoneration: a. Involves paying off secured debt of T. b. Question is whether B is to take his gift subject to an existing lien or whether lien is to be paid off out of other assets of estate (so that B will take property free and clear). c. Real property encumbered by lien or D/T - barring any contrary intention of T, gift of real property will be exonerated i.e. liens will be paid off by other assets, provided the debts/liens were personal obligations of T. i. Example - if the gift of real property was a business, and the debt was the business’s generally, not T’s personally, then lien/debt is not exonerated. d. Personal property encumbered by lien - same rule applies. e. Creditor does not get to decide whether or not claim is exonerated. 17. Ademption: a. Two types of ademption: i. Ademption by extinction (a.k.a. implied revocation by inter vivos conveyance) - if T disposes of property in will by inter vivos conveyance, the gift of the property has been adeemed i.e. withdrawn

53 1. CL & MS - if the specific devise/bequest was not in the estate at time of T’s death, B will NOT get the gift or any other gift as replacement (if property replacing the specific gift is in the estate at the time of T’s death, it goes according to residuary clause). a. Meaning - if car 1 is given away by gift though originally bequeathed to B, but car 2 is in the will, B does not get car 2. ii. Ademption by satisfaction (a.k.a. implied revocation by satisfaction) - if before T’s death, T gives B a sum of money, it will be a question of T’s intent as to whether T intended sum of money to be in satisfaction of the bequest.