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In re The Last Will and Testament of Smith

Court of Appeals of Mississippi

September 2, 2014

IN THE MATTER OF THE LAST WILL AND TESTAMENT OF J.T. SMITH, DECEASED: JEANETTE W. BROWN AND EDWARD J. WILSON, JR., APPELLANTS/CROSS-APPELLEES
v.
VIRGINIA K. JONES, SUZETTE JONES MARLAR, ANNETTE STRINGER AND VIRGINIA ANN FINZEL, APPELLEES/CROSS-APPELLANTS

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[Copyrighted Material Omitted]

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COURT FROM WHICH APPEALED: ALCORN COUNTY CHANCERY COURT. DATE OF JUDGMENT: 06/06/2012. TRIAL JUDGE: HON. C. MICHAEL MALSKI. TRIAL COURT DISPOSITION: INVALIDATED INTER VIVOS GIFT AND UPHELD WILL.

FOR APPELLANTS: PHIL R. HINTON.

FOR APPELLEES: JOHN A. FERRELL.

BEFORE IRVING, P.J., MAXWELL AND JAMES, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR.

OPINION

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NATURE OF THE CASE: CIVIL - WILLS, TRUSTS, AND ESTATES

JAMES, J.:

[¶1] Jenanette Brown and Edward Wilson filed a complaint in the Chancery

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Court of Alcorn County against Virginia Jones, Suzette Jones Marlar, Annette Stringer, and Virginia Ann Finzel,[1] seeking to set aside the Last Will and Testament of J.T. Smith, which had been submitted to probate by Jones. The lawsuit also sought to set aside several inter vivos gifts given by Smith to Jones. Following a trial, the chancellor set aside the inter vivos gifts and upheld the will. Brown appeals raising the following issues: (1) whether a presumption of undue influence arose regarding the validity of the will and whether there was substantial evidence to support the validity of the will; and (2) whether the chancellor erred in failing to impose a constructive trust. Jones cross-appeals raising the following issue: whether the chancellor erred in finding that she failed to overcome the presumption of undue influence regarding the inter vivos gifts. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

[¶2] J.T. Smith suffered from various health issues that began in the mid-1980s. On December 28, 2004, Smith fell in his home and was transported to Magnolia Hospital in Corinth, Mississippi. After developing renal difficulties, Smith was transported to North Mississippi Medical Center in Tupelo, Mississippi, where he remained hospitalized until February 5, 2005. During this period, Virginia Jones, Smith's sister-in-law, began to visit Smith daily, both while he was hospitalized in Tupelo, and upon his return home.[2] Soon after, Jones began assisting Smith with personal and business matters; for instance, Jones applied for veteran's benefits on Smith's behalf, obtained a hospital bed for Smith's home, and arranged for twenty-four-hour-a-day in-home caregivers.

[¶3] During his hospitalization, Smith told Jones that he wanted her to be able to sign checks on his behalf; Jones then told Smith that he needed a power of attorney. Nevertheless, Jones went to AmSouth Bank, where Smith maintained a checking account, and obtained a checking-account-maintenance form. Jones completed the form, checking the " add owner name" box. Jones then brought the form to North Mississippi Medical Center, where Smith signed the form. Thereafter, Jones was co-owner of Smith's checking account, which contained a balance in excess of $529,000. Jones then engaged attorney Jimmy Fisher and had him prepare a power of attorney for Smith. Jones brought the power of attorney to the hospital in Tupelo, where Smith signed it on January 19, 2005. The power of attorney was notarized by Marsha Oliver, a hospital employee.

[¶4] In late March or early February 2005, Jones told Smith that AmSouth was taking advantage of him by not paying the maximum interest on his checking account. According to Jones, Smith told her to take care of the situation. On February 7, 2005, Jones moved $150,000 from Smith's AmSouth account to SouthBank, where she purchased three certificates of deposit (" CDs" ) for $50,000 each. All three CDs were purchased in Jones's and Smith's names and each named one of Jones's three daughters: Suzette Jones Marlar, Annette Jones Stringer, and Virginia Ann

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Finzel, respectively.[3] The following week, on February 14, 2005, Jones withdrew $100,000 from Smith's AmSouth account and deposited the funds into an account at CB& S Bank. Finally, on April 26, 2005, Jones withdrew $200,000 from Smith's AmSouth account and deposited the funds into four $50,000 CDs in SouthBank. Again, three of the CDs listed Jones and Smith as co-owners and listed one of Jones's three daughters. The fourth CD named Jones, Smith, and Jones's granddaughter, Sydney Mitchell; however, Mitchell's name was later removed.[4]

[¶5] On July 26, 2005, Smith executed his Last Will and Testament. The will was prepared by attorney James Porter Dean. Jones picked up the will at Dean's office and brought the will to Smith's home. Smith executed the will at approximately 5 p.m. The execution of the will was witnessed by two of Smith's caretakers and executed in Jones's presence. The will left all of Smith's property to his nieces and nephew, Suzette Jones Marlar, Annette Springer, Virginia Ann Finzel, Jeanette Brown, and Edward Wilson Jr. Sometime after executing the will, Smith signed an additional page styled " itemized listing attachment," which essentially left his entire estate to Jones. Jones testified that this additional page was signed by Smith in her presence. The document was not witnessed by anyone.

[¶6] Smith died on May 23, 2006, at the age of eighty-six. At the time of his death, Wilson and Brown, the children of Smith's sister, Audrie, were Smith's only living blood relatives. On June 1, 2006, Jones submitted Smith's will to probate in the Chancery Court of Alcorn County. A decree admitting the will to probate was entered and letters testamentary were issued. On October 2, 2007, Jones petitioned to close the estate and to be discharged as executor. That same day, Jones initiated publication of process for Brown and Wilson.

[¶7] On October 16, 2007, Brown filed a motion to construe the will and a motion to remove Jones as executor. By orders entered on December 18, 2007, the fourth page of Smith's will, the " Itemized Listing Attachment," was found to be non-testamentary in nature and declared null and void, and Jones was removed as executor and replaced with the chancery clerk.

[¶8] On June 18, 2008, Brown filed a motion for an accounting. After being granted leave to amend the motion, Brown amended it by filing a complaint against Jones and her daughters, Suzette Marlar, Annette Stringer, and Virginia Finzel. The complaint sought to set aside the CDs, or inter vivos gifts, alleging that the gifts, which totaled $484,039.79, were the product of undue influence. The complaint further sought to set aside Smith's will, alleging that it too was the product of undue influence on the part of Jones.

[¶9] A trial was held April 16-17, 2012. At the conclusion of the trial, the chancellor invalidated the inter vivos gifts, finding that a confidential relationship existed between Jones and Smith, which created a rebuttable presumption that the gifts were the product of undue influence which Jones had failed to rebut. The chancellor ordered that the funds be returned to the estate and distributed pursuant to the terms of the will. In addition, the chancellor ordered that $34,039.79, the balance of

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Smith's checking account at the time of his death, also be restored to the estate. The chancellor held that the will was valid, finding that Brown had failed to demonstrate that Jones had abused her confidential relationship with Smith in the procurement of the will.

[¶10] Brown filed a motion for relief from the judgment or alternative relief, requesting that the chancellor: award the estate a judgment against the defendants for $484,039.79 with interest to be set by the trial court, impose a constructive trust, and set aside the will and administer Smith's estate by intestate succession. On November 2, 2012, the chancellor entered an order denying Brown's motion for relief from the judgment. ...


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