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In re Will of Bowling

Court of Appeals of Mississippi

September 9, 2014

IN THE MATTER OF THE LAST WILL AND TESTAMENT OF HERMAN BOWLING, DECEASED: PAULA B. HICKS, APPELLANT
v.
MARK S. BOWLING, APPELLEE

DATE OF JUDGMENT: 04/16/2013.

COURT FROM WHICH APPEALED: PONTOTOC COUNTY CHANCERY COURT. TRIAL JUDGE: HON. C. MICHAEL MALSKI. TRIAL COURT DISPOSITION: INVOLUNTARILY DISMISSED APPELLANT'S CLAIMS.

FOR APPELLANT: JOE M. DAVIS.

FOR APPELLEE: MARK NOLAN HALBERT.

BEFORE IRVING, P.J., MAXWELL AND JAMES, JJ. LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, FAIR AND JAMES, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

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

Page 908

MAXWELL, J.

¶1. When a case is tried without a jury, the judge may dismiss a plaintiff's claim if the evidence, viewed fairly, did not obligate the judge to find for the plaintiff. Here, Paula Hicks tried her will contest without a jury. And when she finished presenting her evidence, the chancellor dismissed her claim that her brother unduly influenced their father's will.

¶2. After review of this dismissal, we find the chancellor was right that evidence of a confidential relationship between Paula's brother and father was not enough by itself to raise a presumption of undue influence over the will. Paula also had to show either attendant suspicious circumstances or that her brother was somehow involved in making his father's will. And

Page 909

Paula showed neither. So we find the will contest was properly dismissed.

¶3. While Paula is correct that a mere confidential relationship is enough to raise a presumption of undue influence over inter vivos property transfers between her brother and father, this particular distinction makes no difference for Paula on these facts. Because Paula's father's will left his entire estate to her brother, once the chancellor dismissed her will contest, her request that her brother return certain property to the estate became moot. We thus affirm the dismissal of this claim as well.

Background Facts and Procedural History

I. Will Formation

¶4. Paula and her brother, Mark Steve Bowling (Steve), are the only two children of Herman Bowling. When Herman met with attorney Greg Pirkle in April 2010 to draft his will, the ink was still drying on the lawsuit settlement between his two children over their grandmother's estate.

A. Paula's Lawsuit

¶5. Paula and Steve's grandmother had died in 2005, leaving everything to her two grandchildren. But before she died, Steve had used his power of attorney to transfer significant amounts of cash to himself and his wife. What would have been an estate worth more than half a million dollars had only $140,000.

¶6. In 2007, Paula sued Steve to set aside the money transfers. Three years later, on the day of trial, the siblings announced a settlement. Paula got everything she had asked for--her attorney's fees, expert-witness fees, and an amount to equal what she would have inherited if Steve had never transferred any funds.

B. Herman's Will

¶7. Herman had been deposed as a potential witness in Paula's suit. While waiting for his deposition, he had what the chancellor described as a " spontaneous meeting in the [law firm's] waiting room" with Pirkle. While Pirkle had, years before, drafted articles of incorporation for Steve's limited liability company, Pirkle was not handling the litigation between Steve and Paula. When Herman learned that Pirkle specialized in estate planning, Herman told Pirkle he wanted to make a will.

¶8. Herman's first appointment with Pirkle was two days after his children settled their dispute over their grandmother's estate. A neighbor drove Herman to Pirkle's office. In his deposition weeks earlier, Herman had testified that he handed over to Steve $171,000 in cash, " so when I get disabled where I can't go or nothing he'll have something to pay my bills with." And when asked what would happen to that money when he died, Herman testified that his children would halve whatever was left.

¶9. But in Pirkle's office that day, Herman proposed a different idea for his money. He told Pirkle he wanted to disinherit Paula and leave everything to Steve. Herman explained to Pirkle that he was mad at how Paula had handled her dispute with her brother--not only suing him but then refusing to settle for less money. Herman thought Steve had taken good care of his grandmother and had only received from her what he was due. So Herman decided ...


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