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IN THE MATTER OF THE WILL AND TESTAMENT OF EDWARD B. LAUNIUS: LINDA LAUNIUS GALLAGHER v. GLADYS WARDEN

FEBRUARY 18, 1987

IN THE MATTER OF THE WILL AND TESTAMENT OF EDWARD B. LAUNIUS: LINDA LAUNIUS GALLAGHER
v.
GLADYS WARDEN, THE UNIVERSITY OF MISSISSIPPI FOUNDATION, ADMINISTRATORS OF THE STEPHEN E. LAUNIUS SCHOLARSHIP FUND, MARTHA BROWN AND MARY LOUISE HOLMES



BEFORE WALKER, C.J., DAN LEE AND GRIFFIN, JJ.

GRIFFIN, JUSTICE, FOR THE COURT:

This appeal involves a will contest wherein the Chancellor granted defendants' motion for summary judgment alleging that there was no genuine issue of material fact as to the validity of the will, that the decedent had testamentary capacity and that there was no proof of undue influence placed upon him.

Plaintiff appeals and assigns as error:

 1. In granting Motions for Summary judgment of the Respondents', Gladys L. Warden; Stephen E. Launius Scholarship Fund, Administered by the University of Mississippi Foundation; Martha B. Brown; and Louise Holmes.

 The cause should have proceeded to trial in order for a jury to determine: (a) Whether duress has been practiced by one or more of the above named purported heirs; and whether the deceased was competent to make a Will and knew the objects of his bounty; and, (b) Whether the purported testament was a "Will or no Will."

 II.In rejecting the express terms of Rule 56 of the Mississippi Rules of Civil Procedure, with regard to the ten-day notice to the Contestant, prior to a hearing.

 We deem it unnecessary to address other assignments of error, as the remainder do not constitute reversible error nor are they pertinent to the Court's adjudication of the presence of undue influence or lack of testamentary capacity in a contest to will.

 The testator of the will in question, Edward B. Launius, was a geologist in the oil and gas business. Launius had been married and divorced twice, and his first

 wife bore him a daughter, Linda Launius Gallagher, (who is the contestant of Launius' will based on the grounds of duress and mental incompetency). Proponents admit her status as the natural daughter of the testator.

 Launius' second wife bore him two children: a single son who died of cancer in 1981, and a single daughter who committed suicide.

 Approximately two months before January 28, 1983, the date upon which Edward B. Launius executed his last will and testament, testator broached the subject of drafting a will with one Dale McKibben who would serve as his attorney. McKibben had known Launius some twenty years both personally and in a professional manner. Over the next two months, Launius sought McKibben's advice in the drafting of the will.

 On January 27, 1983, McKibben drafted a will as dictated by Launius, and presented the latter with a rough draft for his perusal and signature. The following day, Launius returned to the office to execute the will in final form, the only change having been made being the addition of the name "Rex Hewitt" as executor in a space which had been left blank.

 The will purported to leave 50% of Launius' estate to his sister, Gladys Warden, should she survive him, then 25% to the Stephen E. Launius Scholarship Fund, 5% to his maid Louise Holmes, and 20% to Mrs. Martha Brown of Natchez, Mississippi. The will then stipulated that should his sister not survive him, Launius left 50% of his estate to the Scholarship Fund, 10% to Holmes, and 40% to Brown. At the time of Launius' death, Gladys Warden was alive; hence, the first portion of the will apparently is in effect.

 In accordance with our law, the will was signed at the bottom by the testator, and attested to by two (2) or more "credible" witnesses in his presence. When the contest to will was filed, the subscribing witnesses filed affidavits which, in response to interrogatories propounded by the plaintiff, attested to the suitable testamentary capacity of Launius as well as the lack of any undue influence at the time of his making the will. McKibben's testimony concurs with their response.

 Launius died six months later on July 27, 1983. The will was admitted to probate in the Chancery Court of the First Judicial District of Hinds County on August 4, 1983. The complaint for will contest giving rise to

 this appeal was filed on January 20, 1984.

 Motions for summary judgment were filed by the proponents of the will at varying times (to be discussed infra in ...


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