In re Last Will & Testament of Carter v. Moody
| Docket Number: | 2005-CA-01326-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 01-30-2007 Opinion Author: BARNES, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Wills & estates - Undue influence Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ISHEE AND ROBERTS, JJ. Non Participating Judge(s): CARLTON, J. Procedural History: Bench Trial Nature of the Case: CIVIL - WILLS, TRUSTS AND ESTATES |
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| Trial Court: |
Date of Trial Judgment: 06-09-2005 Appealed from: MARION COUNTY CHANCERY COURT Judge: Sebe Dale, Jr. Disposition: WILL CONTEST DENIED AND DISMISSED BY CHANCERY COURT Case Number: 2004-0093-P-D |
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| Party Name: | Attorney Name: | |||
| Appellant: | IN THE MATTER OF THE LAST WILL AND TESTAMENT OF GEORGE W. CARTER, DECEASED: LLOYD W. CARTER |
GARLAND D. UPTON |
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| Appellee: | RUTH MOODY, EXECUTRIX | WILLIAM C. CALLENDER |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Wills & estates - Undue influence |
| Summary of the Facts: | Lloyd Carter contested the probate of the last will and testament of George Carter, Lloyd’s father, contending that Carter lacked testamentary capacity at the time of execution because of senile dementia and advanced age and that the execution was a product of undue influence by Ruth Moody, the primary beneficiary under Carter’s will. The chancellor denied and dismissed Lloyd’s will contest. Lloyd appeals. |
| Summary of Opinion Analysis: | Lloyd argues that a presumption of undue influence arose by virtue of the confidential relationship between Ruth and Carter and that Ruth failed to rebut this presumption. Where a confidential relation exists between a testator and a beneficiary under his will, and the beneficiary has been actively concerned in some way with the preparation or execution of it, the law raises a presumption that the beneficiary has exercised undue influence over the testator, and casts upon the beneficiary the burden of disproving undue influence by clear and convincing evidence. The only evidence regarding the execution of the will at issue was the testimony of Ruth Moody, executrix and primary beneficiary under the will, and that of Delana Broom, an employee of the attorney who prepared the will and assisted Carter in its execution. Ruth’s testimony was that she was not aware that Carter was executing a will and that she was not present during the execution. Broom’s testimony fully corroborated the testimony of Ruth. The only circumstance surrounding the execution of Carter’s will that even hints of activity on Ruth’s part was the fact that Ruth paid the attorney for his services after the execution. This fact, however, loses any hint of suspicion in light of the fact that Ruth paid by a check drawn on Carter’s checking account and at the direction of Carter. Thus, the chancellor’s finding of no undue influence was clearly supported by substantial evidence. |
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