In a Desoto County estate matter, the Supreme Court ruled that the estate was not entitled to prejudgment interest for the beneficiary’s share of estate taxes due where there existed a legitimate disagreement or dispute among the parties’ regarding each one’s tax liability and where the Estate had previously over estimated the amount due from the beneficiaries and where no bad faith was shown and the damages were unliquidated.

The Supreme Court also upheld a judgment against the estate for 24-months back rent where the administrator locked the beneficiary out of two farm buildings in which he owned a life estate for two years following a judgment reforming of title in which the Court determined the beneficiary had a life estate in the property.

The administrator’s obligation to protect the estate property expired when it was determined that the beneficiary had a life estate in the property. The administrator then had a new obligation to relinquish the property to the beneficiary.

Dooley et al. v. Byrd and Independent Roofing Systems, Inc., No. 2009-CA-01830

A Rankin County Circuit Court wrongful death case brought by beneficiaries of Jonathan Wayne Dooley, a two-year-old child who died when the vehicle his mother was driving  struck the rear end of a flatbed trailer that was hanging out of a driveway onto Highway 468. The jury’s verdict was for the defendants. Family conflict existed between the heirs and several heirs were represented at trial by separate attorneys.

The Supreme Court held that all wrongful-death claims must be litigated in one suit and upheld the trial court’s granting of a beneficiary’s joinder motion, stating that Miss. Code Ann. 11-7-13 also mandated that outcome.

Each wrongful-death beneficiary has a right to participate fully in all aspect of a trial. Joining Plaintiff had a right to question all witnesses (trial court had limited questioning to the first Plaintiff to file). Trial court committed reversible error in denying joining Plaintiff’s right to question all the witnesses.

Court also gave a lengthy analysis of jury instructions with regard to warning devices for trucks and buses as contemplated by Section 63-7-71 after upholding the trial court’s denial of Plaintiff’s jury instruction that misstated the law.

The Court did find error in granting jury instructions that removed fact issues from the jury’s consideration.

Rebuild America, Inc. v. Tim A. Norris, No. 2009-CT-01191-SCT

A Hinds County Chancery Court case setting aside a tax sale for failure to effect personal service pursuant to Section 27-43-3, which requires notice of the tax sale in three forms, personal service by summons, mail at his usual address, and by publication in a newspaper in county which land is located. All three requirements must be met. Under some circumstances where the clerk and sheriff have complied with their duties the tax sale may be confirmed even though the owner never received actual notice of the tax sale, however the sheriff has not complied with his duties in this case when he did not effect personal service despite knowing the owner’s home address.

A resource like this is like having the chancellor on speed dial. Attorneys in Judge Primeaux’s district must visit this site every time they have a case before him. I sure would.

Do you want a Judge’s take on visitation in Mississippi? Read here. Thinking arguing the application of in loco parentis to overcome the natural parent presumption in favor of the grandparents? Think again. What’s the test for inter vivos gifts again? Here you go. He also offers sage insight into the hidden costs of divorce.

Great Blog.

- Jake Adams

Mississippi law clearly provides that when an executor violates his or her fiduciary duty to the estate, that executor should be removed. Likewise, where an executor has a conflict of interest with the estate, that executor should resign be removed.

“An executor may not take inconsistent positions which would be detrimental to the heirs on the one hand and beneficial to himself on the other. When an executor finds his own interest in conflict with those of the estate, the sanctity of the fiduciary relationship is invaded and he should immediately resign as executor.” See In the Matter of Chambers, 458 So.2d 691 (Miss. 1984), citing Ratliff v. Ratliff, 395 So.2d 956 (Miss. 1981).

In the Matter of Woodfield, 968 So.2d 421 (Miss. 2007), the Mississippi Supreme Court considered whether the withdrawal of a probated will containing such a revocation clause revived an earlier will. In this case, the executor initially sought to probate a will created by the testator in 2001. When a contest arose, the executor withdrew the 2001 will and sought to probate a will that had been signed by the testator in 1973. Importantly, the 2001 will had a clause revoking all prior wills. The executor argued that the withdrawal of the 2001 will revived the 1973 will. The Mississippi Supreme Court said that if the 2001 will was properly attested and executed, the 1973 will was revoked upon execution of 2001 will. Additionally, the Court cited case law from as far back as 1855, which stated, “a will duly executed according to the statutes, though prevented from taking effect in consequence of some matter dehors the will, as the incapacity of the person to whom the disposition is made to take, is a revocation of a former will.” Crosby v. Alton Ochsnew Medical Foundation, 276 So.2d 661, 669 (Miss. 1973) quoting Vining v. Hall, 40 Miss. 83, 107 (1866). See also Hairston v. Hairston, 30 Miss. 276 (1855).

Mississippi law is clear that property situated in Mississippi descends according to Mississippi law, regardless of where the decedent resided or was domiciled. This is true whether the property is real or personal, and whether the estate is testate or intestate.

See Mississippi Code Annotated, Section 91-1-1 (Rev. 2004); Estate of High v. Cobb et al. No. 2008-CA-00799-COA.

The Court of Appeals reversed a Chancery Court decision which held that where the testator was domiciled in another state, and the will was a lost will, the will could not be probated in Mississippi until it was first probated in the state of domicile.

The Court of Appeals emphasized that part of Section 91-7-33 which provides that the original “may be proven,” and aptly pointed out that the statute does not include mandatory language such as the word “must.”

Ademption is a good reason to regularly review your Will and other estate planning documents, in order to ensure your plan will still be effective at your death. I usually recommend clients review their estate planning documents at least once a year.

Mississippi native Steve McNair’s wife recently filed an inventory in his estate. According to the inventory, the estate’s estimated value is $19.6 million. I’m curious how much legal fees have been incurred by McNair’s failure to leave a Will. An inventory is often waived in a Will. Since McNair died intestate (without a will) his administrator, in this case his wife, was required to provide an inventory to the court. In an estate the size of McNair’s, this was probably costly, or at the very least time consuming.

Also in the news is the battle among Martin Luther King, Jr.’s heirs. I’ll bet Martin Luther King, Jr., one of the great men in our country’s history, never dreamed his family would fight over his estate one day. This is yet another example of the importance planning your estate. Who says probate isn’t interesting?