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In re Last Will and Testament of Dorothy True

Court of Appeals of Mississippi

May 23, 2017

IN THE MATTER OF THE LAST WILL AND TESTAMENT OF DOROTHY TRUE, DECEASED: PATRICIA ANN TRUE SCHMIDT AND MARY JUANITA TRUE HEGWOOD APPELLANTS
v.
JAMES T. "JIM" TRUE APPELLEE

          DATE OF JUDGMENT: 04/12/2016

         YALOBUSHA COUNTY CHANCERY COURT, SECOND JUDICIAL DISTRICT HON. VICKI B. DANIELS TRIAL JUDGE

          ATTORNEY FOR APPELLANTS: DARRIN JAY WESTFAUL

          ATTORNEY FOR APPELLEE: KIRKLAND CALDWELL WILLINGHAM

          BEFORE IRVING, P.J., FAIR AND WILSON, JJ.

          WILSON, J.

         ¶ l. Patricia Ann Schmidt (Ann) and Mary Hegwood appeal from a judgment denying their petition to contest the will of their mother, Dorothy True. The record shows that necessary parties to the will contest were not joined. Mississippi Code Annotated section 91-7-25 (Rev. 2013) provides that all persons interested in a will contest must be joined as parties. Our Supreme Court has made clear that this requirement is both mandatory and jurisdictional and that any judgment entered in the absence of such parties is void and must be set aside. Accordingly, we reverse and remand for joinder of all necessary parties and further proceedings consistent with this opinion.

         FACTS AND PROCEDURAL HISTORY

         ¶ 2. Dorothy, a resident of Yalobusha County, passed away on February 18, 2014, at the age of 100. Dorothy's husband preceded her in death. Dorothy was survived by four children: daughters Ann, who lives in Virginia, and Mary, who lives in Florida, and sons John True of Batesville and James "Jim" True of Water Valley.

         ¶ 3. On September 24, 2014, Jim filed a petition to probate an eight-page holographic will signed by Dorothy. The will is notarized on one page and signed by two neighbors as witnesses on another page. It names John and Jim as executors. However, John passed away on August 24, 2014. According to the petition, John was survived by "one heir, namely his son Jody True." The will contains a no-contest clause, bequests of money and personal property, and instructions for Dorothy's funeral. Bequests were made to all four then-living children and to Jim's son, Jamie. John and Jim were "to have $20, 000 each CDs for helping [Dorothy] when [she] couldn't do for [her]self." The pages of the document are numbered. However, it is unclear when the page numbers were added, and as the chancellor concluded, the numbers do not appear logical-i.e., the page numbered "1" does not seem to be the first page of the will, etc. Words have been scratched out and added in various places in the document.

         ¶ 4. On March 26, 2015, Ann and Mary filed a petition to contest and set aside the will. They asserted that the document did not satisfy the requirements of a valid holographic or non-holographic will. Among other issues, the petition noted that Dorothy's signature was on the first page of the document as it was numbered and filed, rather than at the end of the last page. The petition also stated that Dorothy was predeceased by another daughter, Frances Davis, who had two living daughters.

         ¶ 5. On April 12, 2016, a hearing was held on the petition to contest the will. Ann and Mary testified and acknowledged that most of the will was in their mother's handwriting; however, they expressed doubt as to certain words that were added where other words were scratched out. Ann also testified that she did not believe that the document's page numbers were in her mother's handwriting. Jim testified that his mother told him that her will was in her safe deposit box at the bank, and he found it there when she died. The two witnesses to the will-Carl and Minnie Mae Vick-testified that in 2006 they went to Dorothy's house and witnessed the will at her request. Jim was also present. Dorothy stated that the will was consistent with her wishes, and then they signed it. Carl and Minnie Mae could not recall whether the document had page numbers when they signed it. They testified that they believed that the document was in Dorothy's handwriting.

         ¶ 6. At the conclusion of the hearing, the chancellor ruled that the document was a valid holographic will. The chancellor found that the page numbers on the will were added by someone else after the fact and did not accurately reflect the true order of the pages. The chancellor ruled that the addition of page numbers by another person did not invalidate the will, and she re-ordered the pages in what she found to be their most logical order. As reordered, Dorothy's signature appeared on the final page of the will, with no material ...


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