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 The Mississippi Supreme Court said that if the 2001 will was properly attested and executed, the 1973 will was revoked upon execution of 2001 will.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?