IN THE MATTER OF THE LAST WILL AND TESTAMENT OF MARY SAUNDERS WALLER: BRENDA GORDON AND CRAIG GORDON
SHERRY WALL, ADMINISTRATRIX C.T.A. OF THE ESTATE OF MARY SAUNDERS
OF JUDGMENT: 11/08/2017
LAFAYETTE COUNTY CHANCERY COURT, HON. GLENN ALDERSON JUDGE.
COURT ATTORNEYS: TARA BETH SCRUGGS MICHAEL N. WATTS GEOFFREY
FELIX CALDERARO RONALD W. LEWIS.
ATTORNEYS FOR APPELLANTS: ROBERT QUENTIN WHITWELL, JR. DEREK
ATTORNEYS FOR APPELLEE: MICHAEL N. WATTS R. BRADLEY BEST
GEOFFREY FELIX CALDERARO.
RANDOLPH, C.J., ISHEE AND GRIFFIS, JJ.
The Lafayette County Chancery Court set aside an inter
vivos gift of about forty acres fronting Highway 6 near
Oxford. The grantor was Mary Saunders Waller, a
ninety-year-old woman who was hard of hearing and legally
blind; the grantees were Waller's daughter and
son-in-law, Brenda and Craig Gordon. The Gordons lived near
Waller and had been her caretakers for many years. A
conservator was appointed shortly before Waller's death,
and she filed a petition in the probate action to set aside
the deed to the Gordons. The Gordons admitted to a
confidential relationship with Waller, and the chancellor
found they were unable to rebut the attending presumption of
undue influence. On appeal, the Gordons contend the chancery
court erred by excluding the testimony of Waller's
attorney and physicians because of ex parte contact by the
With regard to the physicians, the Gordons failed to make an
offer of proof. Since this Court has no way to know what the
physicians would have said had they testified, we cannot find
any error in the exclusion of their testimony. See
M.R.E. 103. The trial court should not have excluded the
attorney's testimony, because the ex parte contact rule
does not apply to attorneys; but the Gordons conceded the
point at trial. We cannot find an abuse of discretion in
denying the Gordons' motion for a new trial based on
arguments that could have, and should have, been raised at
We affirm the chancery court's judgment.
Mary Saunders Waller and her husband originally owned about
160 acres of land in Lafayette County, west of Oxford. The
Wallers had four daughters, one of whom was Brenda Gordon.
Over the years, Waller had sold or given away numerous small
parcels to various family members, mostly so they could build
houses. The Gordons bought a house on family land that had
been deeded to one of Brenda's sisters; the Gordons
bought the house and the land from the sister. By the time of
the events at issue, Waller had about 136 acres left. The
Gordons would later contend the 39.25 acres deeded to Brenda
Gordon was intended to be her one-fourth share of the
original Waller family land.
At the time the deed was executed, Waller was ninety years of
age. She lived by herself but required assistance with some
day-to-day activities, including bathing. Brenda Gordon would
usually help Waller bathe. Waller was legally blind and could
not drive. She was also hard of hearing; even the Gordons
acknowledge that one would have to "[speak] into her
left ear and talk slowly" to be understood. And Waller
had had three hip replacements and had difficulty walking.
Brenda Gordon and one of her sisters had a joint (but not
several) power of attorney for Waller.
For their part, the Gordons testified that Waller was
mentally sound and knew what she was doing. On the other
hand, Joyce Webb, one of Waller's other daughters,
testified that Waller's "mental state had started