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In re Estate of Thomas

Court of Appeals of Mississippi

August 20, 2013

In the Matter of the ESTATE OF Lorraine H. THOMAS, Deceased: Ernest Thomas, Jr. and Linda Thomas, Appellants
v.
Richard Glenn Thomas, Appellee.

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[Copyrighted Material Omitted]

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Barry Bridgforth, Kimberly Pine Turner, attorney for appellants.

Todd A. Coker, Flowood, attorney for appellee.

Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.

GRIFFIS, P.J.

¶ 1. This appeal contests the validity of the last will and testament of Lorraine H. Thomas. Richard Glenn Thomas was the proponent of the will and filed a petition to probate the will. Ernest Thomas Jr. and Linda Thomas were the contestants of the will. The chancellor dismissed the will contest filed by Ernest and Linda and declared the will to be valid. In this appeal, Ernest and Linda argue that the chancellor erred when she found both that the will was valid and that the will was not the product of undue influence.

FACTS

¶ 2. On January 15, 1997, at the age of seventy-three, Lorraine died as a result of injuries sustained from a car accident. She was survived by three adult children: Glenn, Ernest, and Linda.

¶ 3. Lorraine lived most of her life in Yazoo City, Mississippi, under the primary care of Ernest. In January 1993, Lorraine moved to Freeport, Florida. In Florida, Lorraine was under the primary care of Glenn, but she lived with various caretakers.

¶ 4. Lorraine suffered from chronic alcoholism, cirrhosis of the liver, irregular heartbeats, depression, seizures, and Graves Disease. Lorraine required care from Glenn and other caregivers, as she did with Ernest, to cook and clean for her, take her to doctor's appointments, and administer her medication.

¶ 5. On August 29, 1993, Lorraine purportedly executed her will. At the suggestion of Glenn, Lorraine consulted with Bea Roper to draft her will. Although Roper was a stranger to Lorraine, Glenn knew Roper and admitted they were friends through his work at Sears. Roper was not an attorney and was not paid to prepare the will. Glenn was present when Lorraine and Roper met to discuss the will, which took place in a large room where Glenn was on one side and Lorraine and Roper were on the other side.

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¶ 6. Roper drafted a will for Lorraine, which appears to be a form will. It contains several blanks that were to be filled in. For example, at the top of the will, it states " Last Will and Testament of ____________________." " Lorraine H. Thomas" is handwritten in the blank. At the trial, Glenn identified this as his handwriting. In original form, the second and third paragraphs read:

SECOND

I give, devise and bequeath all of my property, whether the same be real or personal, or mixed, of which I die seized or possessed, or to which I may be entitled at my death, and wheresoever the same may be situated, including, without limitation, all property acquired by me after the execution of this will to my children, ____________________ ____________________ ____________________ in equal shares, [to] share and share alike, provided they survive me, per stirpes. To my son ____________________ I give and devise one dollar ($1.00) in legal tender, this sum and no more, along with my love and prayers.

THIRD

I hereby nominate and appoint my son, ____________________, personal [r]epresentative of my estate, to serve without bond of any kind. Should he be unable or unwilling to serve [or] to continue to serve in that capacity, then I appoint ____________________ to serve without bond of any kind.

¶ 7. The will included handwritten names in each of these blanks. The handwriting was Glenn's, not Lorraine's. In the second paragraph, the names " Glenn Thomas" and " Linda Thomas" were written in the first two blanks. A line was drawn through the third blank. Thus, the will purports to leave all of Lorraine's property to Glenn and Linda. In the blank that disinherited her son, the name " Ernest Thomas Jr." was written in the blank. In the third paragraph, the name " Glenn Thomas" was written in the blank to appoint him the personal representative, and the name " Linda Thomas" was written to name her the successor representative. As a result, the purported will left Lorraine's estate to Glenn and Linda, to share equally, and disinherited Ernest. Lorraine did not initial either paragraph where these blanks were filled in by Glenn. Glenn testified that he wrote in the names as Lorraine requested.

¶ 8. Roper was not involved in the execution of the will. Instead, Glenn and his daughter drove Lorraine to City Drugs, a pharmacy in Niceville, Florida, where she executed the will. Glenn testified that they went to City Drugs because a sign in the window indicated that a notary public was available inside. Glenn accompanied Lorraine inside. There, Doug Livingston and Karen Evans signed the will as subscribing witnesses. Livingston and Evans also signed an affidavit that stated Lorraine was of sound and disposing mind at the time the will was executed. Glenn testified that the will was signed on a Sunday, August 29, 1993, but did not testify as to why the will was signed on a Sunday.

¶ 9. Although Glenn testified that Livingston was believed to be a notary public, a notary seal does not appear upon the will. Glenn testified that he paid Livingston a notary fee and that he believed that Livingston notarized the will. Glenn also testified that Livingston asked to see Lorraine's identification and reviewed the will before it was executed on the pharmacy counter at the back of the store.

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¶ 10. Lorraine signed the will in the blank just below the execution clause, which stated " IN WITNESS WHEREOF, I have hereunto set my hand and placed my initials in the margins of the preceding two pages, in the presence of two (2) witnesses, and declare this instrument to be my Last Will and Testament...." However, Lorraine's initials do not appear anywhere on the first two pages of the will. Glenn could not provide an explanation as to the absence of Lorraine's initials from the first two pages of the will.

¶ 11. While Lorraine lived in Florida, due to her poor physical health, Glenn was solely responsible for handling her finances and real estate interests. Glenn also made all of the medical decisions for Lorraine and provided her transportation.

¶ 12. In fact, on December 30, 1992, before she moved to Florida, Lorraine executed a power of attorney in favor of Glenn. On the authority of the power of attorney, Glenn closed all of Lorraine's Mississippi accounts with the exception of one account at the Bank of Yazoo City. Lorraine's social security checks were mailed to Glenn's residence in Florida and deposited into Glenn's personal checking account. Glenn used monthly income from Lorraine's rental property, which was directly deposited into her checking account at the Bank of Yazoo City. Glenn paid all of Lorraine's bills, signed all checks written on her account, and paid all of her debts. When Lorraine moved to Florida, she had significant debt. By the time she died, however, Glenn had paid all of her creditors and left a balance of $2,000 in account at the Bank of Yazoo City.

PROCEDURAL HISTORY

¶ 13. On February 19, 1997, after Lorraine's death, Glenn admitted her will to probate in the Circuit Court of Walton County, Florida. The will was admitted as part of a wrongful-death lawsuit that had been filed in connection with Lorraine's car accident. There was no further action or pleadings filed after the petition was filed and letters of administration were issued.

¶ 14. On July 25, 1997, Glenn filed a petition for probate of Lorraine's will and for letters testamentary in the Chancery Court of Yazoo County, Mississippi. On July 30, 1997, the chancellor entered an order that admitted the will to probate and granted letters testamentary. Beginning September 17, 1997, the notice to creditors was published in The Yazoo Herald for three consecutive weeks.

¶ 15. On November 6, 1997, Ernest and Linda filed a petition to contest the validity of the will, which included a claim of undue influence.

¶ 16. On December 18, 1997, Glenn filed a $16,000 claim against the estate. Glenn's claim did not include any supporting documentation or invoices to verify his claim.

¶ 17. On December 31, 1997, BankPlus filed a claim for $25,000 against the estate. BankPlus's claim was based on a promissory note and deed of trust that had been executed by Glenn and Lorraine. The loan proceeds were used as a down payment on a house in Florida for Glenn.

¶ 18. Ernest and Linda filed an objection to the payment of the probated claims. They alleged that the claims were untimely filed. The chancellor entered an order that acknowledged the voluntary withdrawal of BankPlus's claim and disallowed Glenn's claim.

¶ 19. On May 27, 1999, Ernest and Linda filed a motion to remove Glenn as the executor. Ernest and Linda cited Glenn's failure to file an annual accounting and inventory of the estate, and his attempt to lease real property of the estate without authorization from the court. Glenn then filed an annual accounting on July 29, 1999. Ernest and Linda amended

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their motion and alleged that Glenn spent estate funds without approval from the court in violation of his fiduciary duty owed to the estate. By order dated October 11, 1999, the chancellor denied the motion to remove Glenn as executor.

¶ 20. On October 21, 1999, Ernest and Linda filed another motion to remove Glenn as the executor. Ernest and Linda cited Glenn's failure once again to file an annual accounting and inventory, and his attempt to encumber real property of the estate without the court's authority. By order dated November 16, 1999, the chancellor removed Glenn as executor. By order dated August 11, 2000, Ernest was appointed as executor of the estate.

¶ 21. A hearing was held on October 26, 2010, and May 31, 2011. On October 14, 2011, the chancellor issued an " Opinion and Order on Will Contest," where she found Lorraine's will to be valid and dismissed the will contest action. It is from this judgment that Ernest and Linda now appeal.

STANDARD OF REVIEW

¶ 22. " A [c]hancellor's findings of fact will not be disturbed unless they are manifestly wrong or clearly erroneous, or unless the chancellor applied an erroneous legal standard." In re Estate of Grantham, 609 So.2d 1220, 1223 (Miss.1992) (citations omitted). Reversal is not warranted by this Court if the chancellor's findings are supported by substantial credible evidence. In re Estate of Grubbs, 753 So.2d 1043, 1046 (¶ 7) (Miss.2000) (citations omitted).

ANALYSIS

I. Whether the chancellor erred when she found the will was valid, pursuant to Mississippi Code Annotated section 91-5-1 .

¶ 23. Ernest and Linda argue that Lorraine's will was not valid, under Mississippi Code Annotated section 91-5-1 (Rev.2004), because the will required that Lorraine affix her initials in the margins of the first two pages of the four-page will. They argue that, since Lorraine's initials do not appear on the first two pages, the will is not valid.

¶ 24. Section 91-5-1 provides:

Every person eighteen (18) years of age or older, being of sound and disposing mind, shall have power, by last will and testament, or codicil in writing, to devise all the estate, right, title and interest in possession, reversion, or remainder, which he or she hath, or at the time of his or her death shall have, of, in, or to lands, tenements, hereditaments, or annuities, or rents charged upon or issuing out of them, or goods and chattels, and personal estate of any description whatever, provided such last will and testament, or codicil, be signed by the testator or testatrix, or by some other person in his or her presence and by his or her express direction. Moreover, if not wholly written and subscribed by himself or herself, it shall be attested by two (2) or more credible witnesses in the presence of the testator or testatrix.

¶ 25. Ernest and Linda argue that the will established the requirements for Lorraine's proper execution of the will, where it states:

IN WITNESS WHEREOF, I have hereunto set my hand and placed my initials in the margins of the preceding two pages, in the presence of two (2) witnesses, and declare this instrument to be my Last Will and Testament on this the 29th day of August, 1993.

This provision clearly states that Lorraine signed the will and " placed my initials in the margins of the preceding two pages."

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Despite this language, Lorraine's initials do not appear on the first two pages of the will.

¶ 26. Glenn admitted that the first two pages of the will did not contain Lorraine's initials or her handwriting. In fact, the first two pages only contained Glenn's handwriting. While Glenn testified that he completed the will based on Lorraine's instructions, there was no testimony from a disinterested third party or any evidence to corroborate his assertion. After Lorraine executed the will, Glenn took possession of the will and placed it in his safe-deposit box. Lorraine did not have access to that safe-deposit box.

¶ 27. Ernest and Linda argue that Lorraine's signature did not comply with the statutory formalities and the express terms of the will. They also contend that it can be inferred from the evidence that the only explanation for the absence of Lorraine's initials from the first two pages of the will was that those pages were not the first two pages attached to the will when Lorraine signed it.

¶ 28. In In re Estate of Taylor, 755 So.2d 1284, 1287 (¶ 12) (Miss.Ct.App.2000) (citations omitted), this Court held:

It is well settled law in Mississippi that in a will contest the proponents of the will have the burden of persuasion on all issues requisite to the validity of a will, e.g., due execution and testamentary capacity. Showing that the will was properly probated makes out the proponent's prima facie case. At this point, the burden of production shifts to the contestants. The contestants must present evidence to support their contention that the will is not valid. If the contestants present no evidence, the proponent's prima facie case stands, and the will will be found to be valid. Furthermore, the contestants may raise other issues, such as undue influence, but like the other grounds for invalidity, if the contestants do not present evidence to support the contention, the will may not be found invalid.

¶ 29. Ernest and Linda argue that the evidence presented at trial by Glenn failed to meet his burden to establish the validity of the signatures on the will. They argue that what constitutes a sufficient signature to a will depends largely on the circumstances of each particular case. Here, the will itself specified the places where the signature, and marginal initials, should have been affixed to evidence Lorraine's intent.

As a general rule of law, courts tend to sustain a testamentary document as having been legally executed if it is possible to do so consistent with statutory requirements. Ordinarily, substantial compliance with statutory formalities in the execution of a will is sufficient, in the absence of a suggestion of fraud, deception, undue influence or mental incapacity.

In re Estate of Giles, 228 So.2d 594, 596 (Miss.1969) (citation omitted).

¶ 30. For a non-holographic will to be validly executed, it must " be signed by the ... testatrix.... Moreover, if not wholly written and subscribed by ... herself, it shall be attested by two (2) or more credible witnesses in the presence of the ... testatrix." Miss.Code Ann. § 91-5-1. There was evidence that Lorraine's will was signed by her and was attested by two credible witnesses in their presence. Thus, there is evidence to support the chancellor's decision that the will was properly executed, under Mississippi Code Annotated section 91-5-1.

¶ 31. The argument that Lorraine's signature did not comply with the express terms of the will is a logical argument. The will clearly says that Lorraine " set my

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hand and placed my initials in the margins of the preceding two pages." The will shows where she " set [her] hand" but does not show where she placed her initials on the first two pages. We recognize that the fact that the execution clause in the will states that it must also be initialed is important and may be sufficient to invalidate the will. However, Ernest and Linda have not cited any authority that requires this result.

¶ 32. Because there was evidence that Lorraine actually signed the will in the presence of two attesting witnesses, the chancellor did not err in finding the will to be validly executed. Accordingly, we find no merit to this issue.

II. Whether the chancellor erred in failing to find that the Last Will and Testament of Lorraine H. Thomas was the ...


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