DATE OF JUDGMENT: 02/20/2012
YALOBUSHA COUNTY CHANCERY COURT TRIAL, JUDGE: HON. PERCY L. LYNCHARD, JR.
TRIAL COURT ATTORNEYS: GOODLOE TANKERSLEY LEWIS AMANDA POVALL TAILYOUR GRADY F. TOLLISON, JR.REBECCA B. COWAN KRISTEN E. BOYDEN
ATTORNEYS FOR APPELLANT: GOODLOE TANKERSLEY LEWIS AMANDA POVALL TAILYOUR
ATTORNEYS FOR APPELLEE: GRADY F. TOLLISON, JR., REBECCA B. COWAN, TAYLOR H. WEBB
BEFORE WALLER, C.J., KITCHENS AND CHANDLER, JJ.
¶1. Bronwyn Benoist Parker and William Benoist are siblings who litigated the will of their father, Billy Dean "B.D." Benoist, in the Chancery Court of Yalobusha County. In 2010, B.D. executed a will which granted significantly more property to William–and consequently, less to Bronwyn–than did a previous will that B.D. had executed in 1998. Bronwyn alleged that William had unduly influenced their father, who was suffering from dementia and drug addiction, into making the new will, which included a forfeiture clause that revoked benefits to any named beneficiary who contested the will. Bronwyn lost the will contest and her benefits under the new will were revoked by the trial court. In this appeal, we must determine whether Mississippi law should recognize a good faith and probable cause exception to a forfeiture in terrorem clause in a will. We hold that it should, and that Bronwyn has sufficiently shown that her suit was brought in good faith and was founded upon probable cause. Accordingly, we reverse the decision of the chancery court that excluded Bronwyn from the will, and we render judgment in her favor to allow her to inherit in accordance with her father's 2010 will. We affirm the chancellor's decisions to permit William to pay attorneys with funds obtained from his father's estate and to permit William to continue as executor, and we affirm the chancery court's decision to deny attorney fees to the estate.
FACTS AND PROCEDURAL HISTORY
¶2. In 1998, B.D. Benoist entered into mutual reciprocal wills with his wife Mary Benoist ("the 1998 will"). The reciprocal wills provided that, in the event of either spouse's death, a credit shelter trust would be established to support the surviving spouse, with their children, Bronwyn and William, as the trustees. After the death of the surviving spouse, the two residual beneficiaries were to inherit equal shares of both the trust and the surviving spouse's estate. Mary died soon after executing her will, and the Mary G. Benoist Trust was set up to support B.D. As cotrustees, Bronwyn and William were to manage the credit shelter trust during B.D.'s lifetime, "pay all of the net income of the trust estate to or for the benefit of [B.D.], " and pay out of the principal of the trust any amounts that they deemed necessary for B.D.'s support, health, and maintenance. According to Bronwyn, at its highest valuation in December 1998, the balance of the trust was $462, 308. Starting in 2008, B.D. began withdrawing large sums of money from the trust totaling $244, 310.03. On May 31, 2011, after B.D. had died, the trust account had a balance of $84, 973.24.
¶3. In 2008, B.D.'s mind and memory began to deteriorate. William testified that it was due to his drinking and characterized his father's condition as "slight dementia." William testified that his father's mind suffered when he drank heavily, but would snap right back during periods of lucidity. During that time, B.D. also was taking Lortab for back pain. According to William, B.D. would take "a couple [of Lortabs] in the morning, a couple at night, and that pain medicine messed [his] mind up." William himself had been on disability since 2000 for cluster headaches, for which he took methadone. As a result of his condition, he generally stayed around the house and didn't do much. William either talked to or visited B.D. every day after Mary died. In 2009, William's wife filed for divorce. The divorce was very difficult for William financially, and B.D. supplied him substantial assistance.
¶4. In 2009, B.D. began seeing Dr. Cooper McIntosh, an internist in Oxford, Mississippi. He complained of falling and dizziness. The doctor listed the numerous drugs that B.D. was taking, and stated in a report that B.D. had "significant dementia." B.D. went to Dr. McIntosh several times that year, at times appearing confused. At one point, William called on B.D.'s behalf requesting Lortab, but when B.D. was examined, he did not appear to be in pain. At trial, Dr. McIntosh testified that he "never saw [B.D.] where I would say he was incompetent over, what, almost two years, a year and a half." In June of 2009, B.D. was diagnosed with mild dementia at a V.A. hospital in Jackson. Eventually, Bronwyn became so concerned about her father's increased drinking, depression, and dementia that she wanted to get a power of attorney over him. Bronwyn also became concerned about significant withdrawals that were made from B.D.'s trust account and his private Merrill Lynch account, which were sent directly to William. Near the end of his life, B.D. also conveyed a large portion of his real estate to William.
¶5. In 2010, B.D. executed a new will ("the 2010 will"), granting more property to William than he would have received under his father's 1998 will. When B.D. died less than a year later, William submitted the 2010 will for probate. Bronwyn, until that point unaware of the new will, entered the 1998 will for probate. She also filed a complaint requesting that the court remove William as a cotrustee of the Mary G. Benoist Trust and order him to make a full and accurate accounting of the trust, void any benefits William had received due to his undue influence upon B.D., and grant any legal and equitable relief to Bronwyn to which she was entitled. Over Bronwyn's objection, the chancery court permitted William, as executor of B.D.'s estate under the 2010 will, to take assets worth $20, 000 from the estate to pay a retainer fee to the Tollison law firm to defend against some of Bronwyn's claims. This was done despite Bronwyn's removing B.D.'s estate as a party from the action against the Mary G. Benoist Trust. The chancery court also declined to remove William as the executor of the estate and appoint a temporary executor.
¶6. The matters were consolidated, and a jury trial ensued in the Chancery Court of Yalobusha County. Bronwyn argued that William had exerted undue influence over B.D. by convincing B.D. to give several inter vivos gifts of thousands of dollars and real estate to William. She also alleged that William was behind the drafting and execution of B.D.'s 2010 will, which granted William substantially more assets than he would have received under the 1998 will. She contended that William had hidden a document which granted both William and Bronwyn B.D.'s power of attorney, and instead turned B.D. against Bronwyn's husband Walt by convincing him that Walt wanted to use some of B.D.'s property for a commercial development. William argued that Walt and Bronwyn were collaborating against B.D., and that they were going to use Bronwyn's inheritance under the 1998 will in a way which was contrary to B.D.'s wishes. He stated that his father's gifts to him all were aboveboard and simply were the gifts a loving father would give to a son who was having a tough time. Several witnesses were called, including Dr. McIntosh, to testify about B.D.'s mental state and his late-in-life alcoholism and prescription drug problems. Other relevant facts will be included in this opinion as necessary.
¶7. After a jury trial in the Chancery Court of Yalobusha County, nine jurors found that the 2010 will was valid and enforceable. The jury unanimously found that there existed a confidential relationship between William and B.D., but it did not find that William had exerted undue influence over B.D. Further, the 2010 will included a forfeiture provision which stated that any beneficiary of the will who instigated a will contest, "regardless of whether or not such proceedings [we]re instituted in good faith and with probable cause, " would have his or her benefits under the will revoked. The chancellor found the provision enforceable and held that Bronwyn was no longer a beneficiary of the will. However, he held that the part of the provision which mandated that unsuccessful challengers must pay attorney fees was unenforceable, as it permitted the testator to dispose of property that was not his. Bronwyn appealed, raising the following issues:
1. The lower court erred when it failed to recognize a good faith and probable cause exception as adopted by most jurisdictions, the Uniform Probate Code, and the Restatement to the forfeiture clause in the 2010 will.
2. The lower court erred in ruling that Benoist, as Executor of the Estate, pay a retainer of $20, 000 to the Tollison Law Firm when Benoist and Parker–the only parties in interest–were voluntarily before the court and had joined issue before the court as to the probate of the 2010 will.
3. The lower court erred in failing to remove Benoist as the Executor of the Estate and appoint a temporary administrator during ...