As previously written upon by my colleague[1], probate is the process of proving a decedent’s Will to be his or her true Last Will and Testament. But, what happens when a decedent executed a Will when he or she lacked mental capacity? Or while under pressure from a certain beneficiary? Or the Will was not executed in accordance with statutory requirements? This article answers these questions as it discusses the process of contesting a Will in Mississippi.
Will Contests, Generally
A Will contest typically arises when an interested party challenges the validity of a Will that has been presented for probate. An “interested party” is any person whose direct pecuniary interests will be affected by the probate of the a Will,[2] which typically include the decedent’s heirs at law, beneficiaries under a prior will, and beneficiaries under the Will being contested.[3] All interested parties must be made parties to a Will contest.[4] The grounds for contesting a Will can vary, but common reasons include lack of testamentary capacity, undue influence, and improper execution of the Will under state law.
The timing for contesting a Will is critical. The statute of limitations for contesting a Will probated in common form[5] is two years from the date the Will is admitted to probate.[6] Note this two-year period does not apply to solemn form probate, as all interested persons must be made a party to the proceeding.[7] This period begins when the clerk accepts the Will for probate, not when the estate is closed. There are, however, exceptions for concealed fraud or if an interested party is a minor or of unsound mind.[8]
The Burden of Proof
The party seeking to probate the Will initially bears the burden of proving the Will’s validity. Properly admitting a Will to probate is prima facie evidence of the validity of the Will.[9] This is typically done by presenting the original Will for probate along with affidavits from the attesting witnesses, affirming that the Will was duly executed, and that the testator had testamentary capacity.[10] Once the proponent admits the Will to probate and establishes a prima facie case for the Will’s validity, the burden shifts to the contestant to overcome this presumption. However, the ultimate burden of proof remains with the proponent, who must prove by a preponderance of the evidence that the testator had the requisite capacity and that the Will was executed properly.[11]
Procedures for Contesting a Will
There are several ways to contest a Will. One method is filing a caveat with the chancery court clerk, which serves as a preemptive measure to contest a Will before it is admitted to probate.[12] Under this method, an interested party intending to contest a Will files a caveat containing the names of all interested parties with the clerk of the chancery court. This caveat serves as a formal objection to the probate of the Will and must name all interested parties who do not join with the contestant as defendants.[13] Once this objection is filed, no probate may be administered without notice to the objector. If a Will is admitted to probate, the proponent of such Will bears the burden of proving its validity in all respects,[14]and the proponent loses the benefit of both prima facie validity and the ability to prove the Will by affidavits of the subscribing witnesses.[15]
Another method of contesting a Will involves solemn form probate, where the proponent of the Will files a petition for solemn form probate, after which an interested party can file a contest, subject to the same burden of proof mentioned above.
The last form of a Will contest occurs post-probate when a Will has been admitted to probate in common form, and an interested party files a contest within the aforementioned two-year statute of limitations.[16]
Grounds for Contesting a Will
As previously mentioned, the most common bases for Will contests include lack of testamentary capacity of the testator, undue influence asserted upon the testator in execution of the Will, and failure to execute a Will in accordance with relevant state statute.
Grounds for Contesting a Will: Testamentary Capacity
Testamentary capacity refers to the mental state required of a testator when executing a Will. To have testamentary capacity, the testator must understand the nature of executing the Will, the disposition they are making, and the beneficiaries to whom they are making the disposition.[17]
The proponent of a Will typically meets his or her burden of proof of establishing the testator’s testamentary capacity by presenting the Will for probate along with affidavits from the attesting witnesses, affirming that the testator was of sound mind.[18] The burden to show otherwise then shifts to the contestant to provide evidence to the contrary. However, as previously mentioned, the ultimate burden of proof remains with the proponent to show by a preponderance of the evidence that the testator had capacity.
Grounds for Contesting a Will: Undue Influence
Undue influence is another significant ground for contesting a Will in Mississippi.[19] The legal framework for evaluating undue influence claims is well-established, focusing on the relationship between the testator and the influencer, the circumstances surrounding the Will’s execution, and the overall fairness of the Will’s provisions. To establish undue influence, Mississippi law requires showing that the influencer exerted such control over the testator that it overrode the testator’s free will, resulting in a Will that reflects the influencer’s desires rather than the testator’s true intentions.[20] The Mississippi Supreme Court has articulated that undue influence must be operating upon the testator at the time of the Will’s execution,[21] and it must be proven by clear and convincing evidence.[22]
A presumption of undue influence arises when (1) a confidential relationship exists between the testator and the beneficiary; (2) the beneficiary has a substantial benefit under the Will; and (3) the beneficiary was actively involved in the procurement or preparation of the Will.[23] A confidential relationship is broadly defined and includes relationships where one party has a special trust or confidence in another, such as those between a parent and child, attorney and client, or caregiver and patient.[24] It is important to note, however, that a presumption of undue influence does not arise between spouses.[25] Instead, anyone who contends that a testamentary or lifetime transfer to a spouse was the result of undue influence bears the burden, by clear and convincing evidence, of showing undue influence.[26]
Properly admitting a Will to probate creates a prima facie case for the Will’s validity and raises a presumption that the testator was not subject to undue influence.[27] Contestants of the Will must set forth sufficient evidence to raise issues sufficient to show that proponents failed to prove the execution of the Will was free from undue influence. Once the issue of undue influence is sufficiently raised by contestants, the burden shifts to the proponent, who must prove by clear and convincing evidence the testator was not subject to undue influence,[28] and that the Will was the testator’s free and voluntary act. This can be achieved by showing (1) the testator had advice from a competent and disinterested attorney; (2) the testator was aware of the nature and extent of their property and the natural objects of their bounty; and (3) the testator received independent advice and was not under duress or coercion.[29]
Grounds for Contesting a Will: Statutory Compliance
Wills are also often challenged on the grounds that the statutory requirements for the proper execution of a valid Will were not met. Specifically, a nonholographic Will in Mississippi must be executed by the testator and attested to by two or more witnesses in the presence of the testator.[30] The witnesses must have visible evidence that the Will they sign is the document presented by the testator as his or her Last Will and Testament,[31] and the witnesses must see that the Will was executed by the testator and that he or she had capacity to execute the Will.[32] Additionally, the testator must be cognizant that the witnesses are signing his or her Will.[33]
Failure to meet these formalities can render the Will facially invalid. The Mississippi Supreme Court has found that state statutes governing the proper execution of a Will must be strictly complied with, stating, “No matter how earnestly one may desire and intend to make a Will, a paper, although fully intended by the writer to be a Will, is ineffective and invalid unless its execution meets statutory requirements.”[34] The statutory requirements of a Will’s execution, and the Court’s position that requires strict adherence thereto, are in place for good reason, specifically to avoid many of the issues that give rise to Will contests in the first place. For example, having two witnesses present during execution prevents the fraudulent substitution of a different writing,[35] and the witnesses will have the opportunity to observe the testator and satisfy themselves that he or she was of sound and disposing mind and thus had the requisite capacity to execute his or her Will.[36]
Conclusion
Contesting a Will in Mississippi involves navigating procedural requirements and an understanding of both statutory and case law regarding the requirements for a valid Will. Estate planners should be conscious of their clients’ testamentary capacity, the logistical requirements when preparing Wills for execution by clients, and other factors to mitigate the chance that such Wills may later be challenged upon the testator’s death. Similarly, lawyers handling Will contests must be meticulous in ensuring that all interested parties are properly notified and that all procedural steps are followed to protect their client’s interests and uphold the validity (or invalidity) of the contested Will.
[1] https://esapllc.com/2022-ms-probate-review/; https://esapllc.com/ms-estate-admin-2022/
[2] Hoskins v. Holmes County Community Hospital, 135 Miss. 89, 101, 99 So. 570, 573 (1924).
[3] Id.
[4] Miss. Code Ann. § 91-7-25.
[5] On the differences between common and solemn form probate, see Devin Mills’ article: https://esapllc.com/2022-ms-probate-review/
[6] Miss. Code Ann. § 91-7-23.
[7] Id.
[8] Id.
[9] Miss. Code Ann. § 91-7-27.
[10] In re Estate of Kelly, 951 So.2d 543, 548 (Miss. 2007).
[11] Estate of McCorkle v. Beeson, 27 So. 3d 1180, 1184 (Miss. Ct. App. 2009).
[12] Miss. Code Ann. § 91-7-21.
[13] Id.
[14] In re Est. of Pigg, 877 So.2d 406, 409 (Miss. Ct. App. 2003).
[15] Miss. Code Ann. § 91-7-9 only permits affidavits of subscribing witnesses to prove a Will when “there is not contest about it.
[16] Miss. Code Ann. § 91-7-23.
[17] Fortenberry v. Herrington, 188 Miss. 735, 747, 196 So. 232, 236 (1940); Cowart v. Cowart, 211 Miss. 459, 462, 51 So.3d 775, 776 (1951); In re Estate of Laughter, 23 So.3d 1055 (Miss. 2009).
[18] Miss. Code Ann. § 91-7-7.
[19] Also noteworthy, lifetime transfers can also be contested for undue influence. In Mississippi, where a confidential relationship exists between a donor and donee, it is presumptively void and the burden rests on the donee to produce clear and convincing evidence that the gift is free from the taint of undue influence. Madden v. Rhodes, 626 So.2d 608 (Miss. 1993); Croft v. Alder, 237 Miss. 713, 115 So.2d 683 (1959).
[20] Sanders v. Sanders, 126 Miss. 610, 627, 89 So. 261, 264 (1921).
[21] See Woodville v. Piazzati, 119 Miss. 442, 81 So. 127 (1919).
[22] In re Estate of Smith, 722 So.2d 606, 611 (Miss. 1998).
[23] Holmes, at 680.
[24] Id.
[25] Genna v. Harrington, 254 So. 2d 525, 529 (Miss. 1971); Ard v. Ard, 438 So. 2d 1356 (Miss. 1983); In re Estate of Chapman, 966 So. 2d 1262 (Miss. Ct. App. 2007).
[26] Estate of Langston v. Williams, 57 So. 3d 618 (Miss. 2011).
[27] Moore v. Parks, 122 Miss. 301, 84 So. 230 (1920).
[28] See Cheatham v. Burnside, 222 Miss. 872, 878, 77 So.2d 719, 720 (1955); O’Bannon v. Henrich, 191 Miss. 815, 821, 4 So. 2d 208, 209 (1941)
[29] Madden v. Rhodes, 626 So.2d 608, 618 (Miss. 1993).
[30] Miss. Code Ann. § 91-5-1.
[31] Tyson v. Utterback, 154 Miss. 381, 392, 122 So. 496, 499, 63 A.L.R. 1188 (1929).
[32] Hensley v. Harris, 870 So. 2d 1227 (Miss. Ct. App. 2003).
[33] Matter of Jefferson’s Will, 349 So. 2d 1032, 1034 (Miss. 1977).
[34] Wilson v. Polite, 218 So.2d 843 (Miss. 1969).
[35] Waton v. Pipes, 32 Miss. 451, 467, 1856 WL 4030 (1856); Matter of Jefferson’s Will, 349 So.2d 1032, 1035 (Miss. 1977).
[36] Id. at 1036.
