Vickery v. Vickery
Docket Number: | 2008-CA-02156-COA Linked Case(s): 2008-CA-02156-COA ; 2008-CT-02156-SCT |
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Court of Appeals: |
Opinion Link Opinion Date: 02-09-2010 Opinion Author: Myers, P.J. Holding: Affirmed |
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Additional Case Information: |
Topic: Wills & estates - Doctrine of accord and satisfaction - Estoppel Judge(s) Concurring: King, C.J., Lee, P.J., Irving, Griffis, Barnes, Roberts, Carlton and Maxwell, JJ. Non Participating Judge(s): Ishee, J. Procedural History: Bench Trial Nature of the Case: CIVIL - WILLS, TRUSTS, AND ESTATES |
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Trial Court: |
Date of Trial Judgment: 12-16-2008 Appealed from: Harrison County Chancery Court Judge: Sanford R. Steckler Disposition: CHANCERY COURT ENTERED AN ORDER THAT TESTATOR LACKED TESTAMENTARY CAPACITY AND HER WILL WAS A PRODUCT OF UNDUE INFLUENCE, THEREBY HOLDING WILL FOR NAUGHT Case Number: 05-02526 (3) |
Party Name: | Attorney Name: | Brief(s) Available: | ||
Appellant: | IN THE MATTER OF THE ESTATE OF HELEN
G. VICKERY, DECEASED: GLENDY BURKE
“VICK” VICKERY |
PAUL M. NEWTON, JR. |
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Appellee: | GEORGE W. VICKERY, JR. | CHESTER D. NICHOLSON |
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. |
Topic: | Wills & estates - Doctrine of accord and satisfaction - Estoppel |
Summary of the Facts: | Glendy Vickery and George Vickery are the sons of the late Dr. George Vickery, Sr., who died in the late 1970s. Helen, the deceased testator, was Dr. Vickery’s second wife and the stepmother of the two brothers, Glendy and George. The contested will had been executed by Helen on October 22, 2004, and it was petitioned for probate by Glendy on December 11, 2005, following Helen’s death on November 22, 2005. Helen’s previous will was executed on August 16, 2000, and it is currently before the chancery court. According to George, although the 2000 will “more or less” divided the estate equally between the two brothers, the 2004 will only provided a bequest to him for $30,000. After Helen’s burial, Glendy showed George the 2004 will, which, up until that point, George did not realize existed. Glendy then handed George a check for $30,000 from a checking account that Glendy allegedly had maintained with Helen. Located at the bottom left hand corner on the face of the check were the handwritten words “per HCV Will.” George accepted the check, crossed out the notation, and initialed his mark. According to George, he did so because he intended to contest the 2004 will. He thereafter negotiated the check on the basis that he knew that the $30,000 would be due to him regardless of which will was ultimately accepted. The letters testamentary was issued on December 13, 2005, and George filed an objection to the petition to probate on January 6, 2006, raising a question of testamentary capacity. The case eventually was set for trial. A jury unanimously found that on October 22, 2004, Helen lacked testamentary capacity to make a will. They also found that Helen was in a confidential relationship with Glendy; thus, Helen was subject to the undue influence of Glendy at the time she executed the will. Prior to trial, Glendy had filed two motions for summary judgment. The first asserted the affirmative defense of accord and satisfaction. The chancery court denied the motion on the basis that Glendy had waived the defense by not bringing it for consideration in a timely manner. In Glendy’s second motion for summary judgment, he raised the affirmative defense of estoppel. The chancery court denied that motion based on a finding that Glendy had waived the defense by not raising it until almost three years after the beginning of this action. Glendy appeals. |
Summary of Opinion Analysis: | Issue 1: Doctrine of accord and satisfaction Glendy cites no authority that has approved the doctrine of accord and satisfaction in a will contest. Typically, the doctrine has long been understood to apply in matters where a debtor and creditor relationship exists. Four basic conditions must be satisfied in order to succeed on the claim: (1) something of value is offered in full satisfaction of the demand; (2) this act is accompanied by acts or declarations which amount to a condition that if the thing offered is accepted, it is accepted in satisfaction; (3) the party offered the thing of value is bound to understand that if the thing offered is accepted, it is accepted in satisfaction of the total debt; and (4) the party actually does accept the item. This case fails to pass the first condition. As the facts demonstrate, at the time Glendy offered George the $30,000 check there was no demand by George that Glendy do so. When George was presented with the 2004 will, probate proceedings had yet to begin. Glendy, at this stage, was merely the custodian of Helen’s will, and his obligation to George only extended to producing the will and having it probated. There is also no error with the chancery court’s finding that Glendy’s participation in the litigation process, coupled with his failure to timely pursue this affirmative defense, constituted a waiver. Issue 2: Estoppel The chancery court denied Glendy’s motion for summary judgment, which had claimed the affirmative defense of estoppel, based on a finding that Glendy did not raise the defense in a timely manner. Glendy did not raise the defense until October 8, 2008, when he filed a motion to amend his initial answer and affirmative defenses–three months after his first summary judgment motion was denied. Thus, the chancery court did not abuse its discretion in holding that Glendy had waived his claim to this defense as well. |
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