Jocelyn Howard and Citi Trends, Inc. v. Lyshell Wilson. No. 2010-IA-01181-SCT.

Alleging negligence simply to circumvent the one-year statute of limitations of assault and battery will result in a dismissal. There is no such thing as a negligent battery.

In ruling that there is no such thing as a negligent battery, the Court further stated: “there can be no escape from the bar of the statute of limitations applicable to intentional torts by the mere refusal to style the cause brought in a recognized statutory category…

Daniel P. Dare, M.D. v. Sharon S. Stokes and Paul H. Stokes, No. 2010-CA-00023-SCT

Third parties may not intervene in divorce cases.  Except in the most unusual circumstances third parties are prohibited from intervening in divorce proceedings in the absence of a statute permitting such intervention.” The lone exception to the rule is when the second wife of a recently divorced man sought to intervene when the first wife sued to set aside the divorce. See Cohen v. Cohen, 748 So. 2d 91 (Miss. 1999), and it remains the lone exception.

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 The Mississippi Supreme Court said that if the 2001 will was properly attested and executed, the 1973 will was revoked upon execution of 2001 will.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

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.