This article is likely the final in my series on the probate and estate administration processes in Mississippi and discusses several of the potential complications one might encounter in the probate process. As mentioned in my previous article on the general probate process in Mississippi, the term “probate” technically only refers to the process of proving a will as valid, with the main objective being to obtain an order declaring a will to be the valid will of a decedent.[1] But what if the original will cannot be found? Or the decedent was not a resident of Mississippi, but they owned property here? Issues such as these come up all the time and are the type of wrinkles both practitioners and laymen should be aware of.
Holographic Wills
When discussing wills, we generally refer to a traditional will that is prepared by a lawyer, who ensures that the statutory requirements for execution of such will are met, including that the execution of the will is attested to by at least two credible witnesses.[2] These types of wills are referred to as attested wills, but an attested will is not the only type of valid will in Mississippi. Mississippi is one of the few states that still recognizes holographic wills, which are wills written entirely in the handwriting of the testator.[3] Holographic wills have the major benefit of being exempt from the attestation requirement referenced above for an attested will, but still have to meet the other statutory requirements for a validly executed will.[4] Holographic wills are typically written by laymen with little or no input from lawyers and therefore are often drafted with less precision than attested wills such that the provisions may be difficult to understand, and such wills also may leave out helpful terms such as waiver of bond, the right to sell property without court approval, and other items. Additionally, most laymen are not aware of the statutory requirements for a valid will, and therefore, even the simple requirements for the execution of a holographic will may not be met. Beyond being wholly written in the testator’s handwriting, the most important of these requirements is that the testator sign the will at the end, as a holographic will without the testator’s signature is void, even if there is no doubt that the testator wrote it.[5]
As with an attested will, the party attempting to probate a holographic will must prove that the will was duly executed and that the decedent had testamentary capacity to execute the will.[6] For a holographic will, proof of due execution requires showing that the will was wholly written in the testator’s handwriting and signed by the decedent at the end of the will.[7] Proof of testamentary capacity is the same for a holographic will as an attested will and requires a showing that the decedent was of sound and disposing mind and had obtained the statutorily required age at the time the will was executed.[8] Proof must come from admissible evidence, which is generally testimony of competent witnesses who have personal knowledge of relevant facts.[9] However, since holographic wills are typically executed by testators while they are alone, proving capacity and valid execution is often more difficult than for attested wills. Proof of capacity may be made by anyone with personal knowledge of the testator’s mental condition and age at or near the time of the will’s execution.[10] Proof of valid execution may be made by persons familiar with the decedent’s handwriting or by handwriting experts.[11]
Lost or Destroyed Wills
Ideally, the original will of every decedent would be kept in a place that is safe, but readily accessible by the executor when the time comes. While that is not always the case, Mississippi law does provide those wishing to probate a will which they cannot physically produce with a method for doing so. To successfully probate a lost will, the proponent must prove by clear and convincing evidence each of the following elements[12]:
- that a will was validly executed by the testator
- that the testator had testamentary capacity at the time the will was executed
- that the will has been lost or destroyed
- the contents of the will
- that the will was not destroyed by the testator with the intent to revoke
The standards for proving valid execution and testamentary capacity are essentially the same as when an original will is probated. Evidence that a thorough search of the testator’s papers and belongings, and of all other places where the will might reasonably have been placed, without finding a will is typically sufficient to prove that the will has been lost or destroyed.[13] The easiest way to prove the contents of the will is with a signed copy, a very good reason for making and keeping a copy.[14] Proof may also be made by the testimony of someone who read the will and remembers what it provided.[15]
The final element can be surprisingly thorny, since Mississippi law provides that when the original will can be traced to the testator’s possession but cannot be located at his death, the testator is presumed to have destroyed the will with the intent to revoke it.[16] The amount of evidence necessary to rebut this presumption depends on the character of the custody that the testator had over the will as well as the testator’s property and family relations.[17] Where the will makes a careful and detailed disposition of the testator’s property and nothing happens to make it probable that he wishes to revoke it, the presumption raised by the disappearance of the will may be rebutted by slight evidence, such as when it can be shown that persons whose interest it was to defeat the will had access to it.[18]
Additionally, when available, having the attorney who drafted the will sign an affidavit can assist with proving many of the elements, although it might not rise to the level of clear and convincing evidence on its own. For instance, where a client only had a copy of the will, I was able to obtain an affidavit from the drafting attorney stating that the copy my client was attempting to probate was a full and accurate copy of the will the testator executed at the attorney’s office, and that to the best of the attorney’s knowledge, the testator did not execute another will or express any desire to revoke the will. This affidavit, coupled with the fact that the sole beneficiary under the will was the decedent’s revocable trust, was sufficient to probate the will.
Foreign Wills
The will of a person who was not domiciled in the state of Mississippi at the time of his or her death is considered a foreign will for Mississippi purposes. Mississippi has departed from the common-law rules for foreign wills and intestate succession, which generally provide that personal property is governed by the law of the decedent’s domicile and real property by where the land is located. Regardless, a foreign will is not effective to convey personal or real property located in Mississippi until it has been probated here.[19]
A foreign will may be probated in Mississippi prior to its probate anywhere else as long as the testator owned real or personal property located in this state.[20] Alternatively, the will may be probated in another state first, then an authenticated copy of the will can be probated in Mississippi, which avoids having to provide formal proof of the due execution of the will since it has been proved according to the laws of another state.[21] With either option, the Mississippi probate is not ancillary, but original, and the will may be contested just as if it was an original will executed in this state.[22]
If the will disposes of real property located in Mississippi, proper venue would be any county where the real property is located.[23] Prior to 2020, Miss. Code Ann. § 9-7-1 provided that where the will does not dispose of Mississippi real property, proper venue would be either the county where the testator died or a county where personal property that is disposed of by the will is located.[24] For a summary of many of the more important changes to Mississippi probate law that occurred in 2020, see Charles Allen’s article.[25] Under current law, it is unclear what venue would be proper if the will does not dispose of real property located in Mississippi.
Conclusion
The average person knows very little about the probate and estate administration processes. Often, they hear horror stories from friends or relatives about how complicated and expensive the processes are. While this is often true, it certainly is not always the case. The more informed practitioners and laypeople are regarding some of the potential complications and how they are handled in the probate process, the better they can plan for them and understand what additional actions might need to be taken. As is typically the case, many of these issues can be avoided entirely with proper planning and documentation.
[1] Devin Mills, “Mississippi Probate Review” (August 17, 2022), https://esapllc.com/2022-ms-probate-review/.
[2] Miss. Code Ann. § 91-5-1.
[3] Id.
[4] Id.
[5] McKellar’s Estate v. Brown, 404 So. 2d 550 (Miss. 1981).
[6] Miss. Code Ann. § 91-5-1.
[7] Id.
[8] Id.
[9] M.R.E. 602.
[10] In re Prine’s Estate, 208 So. 2d 187 (Miss. 1968).
[11] M.R.E. 901(b)(2) &(3).
[12] Warren v. Sidney’s Estate, 183 Miss. 669, 676, 184 So. 806, 807 (1938) & In re Estate of High, 19 So. 3d 1282 (Miss. Ct. App. 2009).
[13] Id.
[14] Id.
[15] Veazey v. Turnipseed, 219 Miss. 559, 69 So. 2d 379 (1954).
[16] In re Estate of High, 19 So. 3d 1282 (Miss. Ct. App. 2009).
[17] Id.
[18]Adams v. Davis, 233 Miss. 228, 238, 102 So. 2d 190, 194 (1958).
[19] Belt v. Adams, 125 Miss. 387, 87 So. 666 (1921).
[20] Miss. Code Ann. § 91-7-33 and In re Estate of High, 19 So. 3d 1282 (Miss. Ct. App. 2009).
[21] Miss. Code Ann. § 91-7-33.
[22] Id.
[23] Miss. Code Ann. § 9-7-1.
[24] Id.
[25] Charles Allen, “Mississippi Adopts Much Needed Updates to Estate, Trust, and Probate Laws” (June 30, 2020), https://esapllc.com/ms-sb2850-sb2851/.
