Estate of Wallace v. Mohamed


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Docket Number: 2008-CA-01334-COA
Linked Case(s): 2008-CA-01334-COA ; 2008-CT-01334-SCT ; 2008-CT-01334-SCT

Court of Appeals: Opinion Link
Opinion Date: 03-02-2010
Opinion Author: Irving, J.
Holding: Reversed, rendered and remanded

Additional Case Information: Topic: Wills & estates - Standing to intervene - Removal as administrator of estate
Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Griffis, Barnes, Ishee, Roberts and Maxwell, JJ.
Non Participating Judge(s): Carlton, J.
Procedural History: Bench Trial
Nature of the Case: CIVIL - WILLS, TRUSTS, AND ESTATES

Trial Court: Date of Trial Judgment: 06-23-2008
Appealed from: LOWNDES COUNTY CHANCERY COURT
Judge: Kenneth M. Burns
Disposition: ALLOWED INTERVENTION BY DR. EMAD H. MOHAMED AND REMOVED LOUIS M. WALLACE AS ADMINISTRATOR OF THE ESTATE
Case Number: 2005-0178

Note: Due to a military leave of absence, Hon. Virginia C. Carlton did not participate in this hand down.

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: ESTATE OF CYNTHIA GILKEY WALLACE, DECEASED, BY LOUIS M. WALLACE




SHIRLEY C. BYERS



 
  • Appellant #1 Brief

  • Appellee: EMAD H. MOHAMED, M.D., BRISTOL-MYERS SQUIBB CO. AND SANOFI-SYNTHELABO, INC. L. CARL HAGWOOD, DIANE V. PRADAT  

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    Topic: Wills & estates - Standing to intervene - Removal as administrator of estate

    Summary of the Facts: After Louis Wallace, as administrator of Cynthia Gilkey Wallace’s estate, filed a wrongful-death lawsuit against Dr. Emad Mohamed, Dr. Mohamed intervened in the estate-administration suit in the Lowndes County Chancery Court. Evidence was presented which suggested that Wallace may not have been Gilkey’s legitimate spouse, due to Gilkey’s prior marriage to Keith Magee. The chancery court removed Wallace as administrator and appointed the chancery court clerk in his place. Wallace appeals.

    Summary of Opinion Analysis: Issue 1: Standing Wallace argues that Dr. Mohamed was without standing to intervene in the administration of the estate. Dr. Mohamed has no reason to intervene other than a desire to avoid the cost of defending an action filed by the wrong party. Therefore, he lacked standing to intervene in the administration of Gilkey’s estate. Issue 2: Removal as administrator of estate The court’s order removing Wallace as administrator did not find that Wallace had committed a fraud upon the court. There was no specific reason given as to why Wallace was inadequate to serve as administrator, and the order implied that the chancery court was attempting to appoint a disinterested third party as administrator. However, Wallace should not have been removed as the administrator. This is so because the evidence is wholly inadequate to show that Wallace was not Gilkey’s legal husband at the time of her death. A subsequent marriage raises the presumption that the former marriage has been terminated by divorce or death of the prior spouse. The practical course of proof in such a case would be to show where each party to the prior marriage had resided up to the time of the second marriage, and then to procure from the clerk of the proper court in each county a certificate of search showing that no divorce or annulment had been granted by the court of which he is clerk. Here, there has been no procurement of certificates from the clerks in each of the counties where Gilkey lived showing that no divorce or annulment had been granted. Given the statutory order of preference, Wallace is preferred to serve over the chancery court clerk because he is the natural father of one of Gilkey’s heirs. As to Gilkey’s other heir, she joined in the petition requesting that Wallace be appointed as the administrator of Gilkey’s estate.


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