Adams & Edens, P.A. | Mississippi Probation Litigation Law Blog » Mississippi Supreme Court

Executors: Fiduciary Duty and Conflict of Interest

admin — Fri, 07 May 2010 21:46:57 +0000

Executors owe a fiduciary duty to the estate they are administering. The Mississippi Supreme Court defines the obligations and duties of an executor to (1) reduce to possession the personal assets of the testator; (2) to pay the testator’s debts; (3) to pay legacies; and (4) to distribute the surplus to the parties entitled thereto. See Yeates v. Box, 198 Miss. 602, 22 So.2d 411 (1945).

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).

Revocation of Prior Wills

admin — Wed, 24 Mar 2010 15:12:39 +0000

It’s not uncommon to execute more than one will in your lifetime. In fact, estate planners recommend you have your will and estate plan reviewed on a periodic basis in order to ensure your estate will be distributed effectively and in a way that makes sense. After all, circumstances change. When a new will is executed, prior wills are revoked. Even though this is true, it is good practice to destroy prior wills to avoid possible confusion later.

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 The Mississippi Supreme Court said that if the 2001 will was properly attested and executed, the 1973 will was revoked upon execution of 2001 will.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

admin — Fri, 23 Oct 2009 22:04:16 +0000

A Will cannot bequeath property that the Testator does not possess. For example, if a Father decides to leave a house to his daughter by specific bequest in his Will, but then sells the house to someone else prior to his death, the bequest of the house to his daughter as contained in the Will is of no effect. This is what is known as Ademption by Extinction. See Welch v. Welch, 113 So. 197 (1927); Estate of Matthews, 791 So.2d 213, 218 (2001); Reddit v. Redditt, 820 So.2d 782 (Miss.Ct.App. 2002).

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.