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Stover v. Davis

Court of Appeals of Mississippi

May 8, 2018


          DATE OF JUDGMENT: 10/13/2016




         EN BANC

          GREENLEE, J.

         ¶1. This appeal arises out of a will contest. Marquan Stover, who is the great-nephew of the testator, Tamora Robinson, filed a motion to contest the second codicil to Robinson's last will and testament, alleging that it was the product of undue influence. After a hearing, the chancellor found no undue influence and dismissed Stover's motion.

         ¶2. Aggrieved, Stover appeals, arguing: (1) a presumption of undue influence arose, and therefore, the chancellor erred by not shifting the burden of proof; and (2) the chancellor's decision was not supported by substantial credible evidence.


         ¶3. Robinson passed away during October 2013. She was survived by her brother, Sylvester Griffin, her sister, Elaine Davis, and her great-nephew, Stover. Among those who predeceased her were her husband, Ernest Robinson, her sister, Clyda Myers, and her nephew, Richard Robinson. Testator Robinson never had any children. Prior to her death, Robinson executed three testamentary instruments drafted by her attorney, Jack Moss:[1] a last will and testament, signed on June 14, 1993; a codicil, signed on October 12, 2000; and a second codicil, signed on May 20, 2013. The second codicil is the subject of the instant appeal.

         ¶4. The second codicil made two changes to Robinson's will and first codicil. First, it changed the disposition of real property originally devised to Robinson's nephew, Richard. Richard predeceased Robinson; therefore, the codicil made a new devise of the property to Davis. Second, it nominated Davis as executor, since the original nominee, Myers, had also predeceased Robinson under the circumstances.

         ¶5. On October 28, 2013, the chancellor admitted Robinson's will and two codicils to probate and issued letters testamentary to Davis. On November 7, 2013, Stover, one of the devisees of the will, filed a motion to contest Robinson's second codicil, alleging it was made under undue influence. In his motion, Stover argued that Robinson was of weak health at the time she signed the second codicil, and that Davis, who served as Robinson's conservator, exercised undue influence through her confidential relationship with Robinson.

         ¶6. On October 3, 2016, the chancellor heard Stover's motion to contest Robinson's second codicil. During the hearing, the chancellor heard testimony from Stover, Davis, and Moss.

         ¶7. Stover testified that the second codicil was contrary to Robinson's expressed desire that the property at issue remain with a Robinson relative.[2] In support of his claim that Robinson was unduly influenced, Stover testified that at the time Robinson executed the second codicil in 2013, she suffered from dementia and psychosis, and was recovering from a stroke she had experienced early that year. Stover stated that Robinson's health had been declining ever since her stroke, and that she required assistance to eat, bathe, and comb her hair. He described Robinson as forgetful and inappropriate. According to Stover, Robinson could not recall what date or year it was, and frequently yelled to the nursing home staff, "Can I l[ie] down?" when she was lying down already.

         ¶8. Davis testified that Robinson was diagnosed with the beginning stages of dementia in March 2006. However, Davis said that she did not observe any signs that Robinson's dementia progressed to the point that Robinson did not know what she was doing. Davis stated that Robinson always recognized her, and asked how long she would be visiting and with whom she was staying. Davis said that when Robinson yelled to the nursing staff to lay her down, she would often be in her recliner, but wanted to be in bed. During other instances, Robinson would say, "I want to l[ie] down, " despite already being in bed. Davis said that on those occasions, she would remind Robinson she was already in bed, and Robinson would respond, "Oh, okay."

         ¶9. Davis further testified that a conservatorship was established for Robinson in 2006, after Stover leased a car in Robinson's name, [3] and several credit cards were taken out in her name. At that time, Robinson resided in the Compere Nursing Home. Davis testified that to prevent any future occurrences from happening without Robinson's permission, Myers was appointed as Robinson's conservator. After Myers's death in October 2012, Davis replaced her as conservator.

         ¶10. Following Myers's death, Davis had the opportunity to discuss with Robinson what her intentions were regarding her estate. Davis said that she asked Robinson whom she wanted as her executor, and Robinson asked "Why can't you and Sherry[4] do it[?]" Davis responded, "Okay." Then, Davis reminded Robinson that Richard had passed too. Robinson said, "Oh, my goodness" and stated, "Well, then I need to change my will." Davis told Robinson, "Well, whenever you want to do it[, ] let me know." When Davis asked Robinson about what she wanted to do about the property left to Richard, Robinson said she wanted to leave the property to Davis. Davis asked, "Are you sure?" and Robinson said, "Yes."

         ¶11. Davis said that Robinson talked to her about her will several times. However, on one occasion, Davis reminded Robinson about her intention to change her will, and Robinson did not remember that she wanted to change it. Davis then told Robinson that she was going to call Moss to see if he was available to provide legal services. She proceeded to call Moss from her cell phone while she and Robinson were together.

         ¶12. Moss testified that he received Davis's call, and asked to speak with Robinson. He said that Robinson recognized whom he was, and that he and Robinson spoke briefly about what she wanted to do with her will. Moss told Robinson that he wanted to meet with her rather than draft any changes over the phone. He then had a conference with Robinson in her room at the Compere Nursing Home, where he had the opportunity to speak with her alone. Moss testified that during the conference, he went through some general questions with Robinson to make sure she knew what she was doing and understood the changes she wanted to make to her will.

         ¶13. Moss prepared the second codicil at his office and returned to the nursing home. He testified that he read over the codicil with Robinson and that she signed the codicil in the presence of two witnesses.[5] Moss testified that from his observation, Robinson's state of mind was good at the time she executed the second codicil. He stated that Robinson was physically weaker than she had been during his prior visits over the years, but that she was able to sit up in bed and write.

         ¶14. At the conclusion of the hearing, the chancellor found that Davis had made a prima facie case as to the validity of Robinson's will and two codicils. Further, the chancellor found that Stover had failed to meet his burden of persuasion, and the second codicil was not made under undue influence. However, the chancellor did not make a specific finding as to whether Robinson and Davis were in a confidential relationship, which is a necessary factor to determine whether a presumption of undue influence arose. On October 13, 2016, the chancellor entered a judgment dismissing Stover's motion to contest. Stover timely appeals, raising the following issues: (1) whether the chancellor erred by applying the wrong burden of proof; and (2) whether the chancellor's decision was supported by substantial credible evidence.


         ¶15. This Court will not disturb a chancellor's findings of fact "unless they are manifestly wrong or clearly erroneous, or unless the chancellor applied an erroneous legal standard." Dent v. Roberts (In re Estate of Grantham), 609 So.2d 1220, 1223 (Miss. 1992). Reversal is not warranted if the chancellor's findings are supported by substantial credible evidence. Jacks v. Woods (In re Estate of Grubbs), 753 So.2d 1043, 1046 (¶7) (Miss. 2000). "[W]here a chancellor does not make explicit findings, this Court on appeal will assume that all disputed issues were resolved in favor of the appellees. This is so even in cases where the chancellor's findings 'left much to be desired.'" Ross ...

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