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In re Estate of Kaye

Court of Appeals of Mississippi

October 2, 2018

IN THE MATTER OF THE ESTATE OF JOHN M. KAYE, DECEASED:
v.
PATRICIA M. KAYE APPELLEE JOHN MORGAN KAYE JR., EXECUTOR APPELLANT

          DATE OF JUDGMENT: 04/20/2017

          COURT FROM WHICH APPEALED: LOWNDES COUNTY CHANCERY COURT HON. H. J. DAVIDSON JR. TRIAL JUDGE

          ATTORNEY FOR APPELLANT: DEWITT T. HICKS JR.

          ATTORNEY FOR APPELLEE: HAL H. H. MCCLANAHAN III.

          BEFORE LEE, C.J., WILSON AND WESTBROOKS, JJ.

          WESTBROOKS, J.

         ¶1. John Morgan Kaye Jr. (John), as executor of the Estate of John M. Kaye (Jack), deceased, filed a petition to recover assets and for other relief against Patricia M. Kaye (Pat), Jack's wife, in the Lowndes County Chancery Court. Although neither the will nor Pat's power of attorney was contested, John claimed that Pat's inheritance should be rendered void because a confidential relationship existed between Jack and Pat. The chancellor found that no confidential relationship or fiduciary duty existed between Jack and Pat nor was there any undue influence exerted by Pat over Jack. John appeals. Finding no error, we affirm.

         FACTS

         ¶2. Jack and Pat married in 1987 and remained married until Jack's death on January 20, 2012. Both Jack and Pat had children from previous marriages. Jack had two sons, John and William Samuel Kaye, as well as a daughter, Louise Harlan Kaye.

         ¶3. In early 2006, Jack fell backward down fourteen steps at his home. After his fall, in August 2006, Jack created a will. Instead of using Hunter Gholson, his long-term attorney, Jack switched his services to Hal H. H. McClanahan, Pat's attorney, because she believed Gholson's fees were too high. In his uncontested will, Jack left John, John's three sons, and Pat each one-fifth of his estate. Jack also devised Pat their marital home with all furnishings. In his will, Jack stated that he did not split the estate with William or Louise because William is independently wealthy and Louise, who is mentally handicapped, has a trust. On the same day Jack created the will, he executed a Power of Attorney appointing Pat as his attorney in fact.

         ¶4. In February 2007, Jack fell again and broke his hip. After this fall, Jack was placed in Trinity Place for rehabilitation. After an incident with the staff, Jack returned home. During this time, Jack was regularly treated by his physician, Dr. Frank Dailey. Dr. Dailey treated Jack from 2006 until his retirement in 2008.

         ¶5. In 2008, Jack created a joint account with Pat that included rights of survivorship. In 2009, Jack authorized UBS to transfer all assets from his solo account to the joint account. This authorization gave Pat the right to make decisions and jointly access the funds. Because Jack did not execute the document at the UBS office, he had the form notarized by Marilyn Reaves at a Regions Bank and sent back to UBS. Reaves testified that Jack alone came into the bank and signed the forms. Furthermore, she stated that she did not recall anyone accompanying Jack to the bank.

         ¶6. After Jack's death in 2012, his will was admitted to probate, and it was discovered that minimal funds remained in the UBS account. John brought an action against Pat claiming wrongful conversion. While John decided not to contest the will or the Power of Attorney, he requested the chancery court deny her assignment from the will: her fifth of the estate and the marital home. ...


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