Farr v. Wirick
| Docket Number: | 2010-CA-01438-COA Linked Case(s): 2010-CA-01438-COA |
|
| Court of Appeals: |
Opinion Link Opinion Date: 02-21-2012 Opinion Author: Irving, P.J. Holding: Affirmed |
|
| Additional Case Information: |
Topic: Wills & estates - Nonholographic will - Valid execution - Section 91-5-1 - Exclusion of affidavits - M.R.C.P. 56(c) Judge(s) Concurring: Lee, C.J., Griffis, P.J., Barnes, Ishee, Roberts, Carlton, Maxwell and Russell, JJ. Non Participating Judge(s): Fair, J. Procedural History: Summary Judgment Nature of the Case: CIVIL - WILLS, TRUSTS AND ESTATES |
|
| Trial Court: |
Date of Trial Judgment: 07-19-2010 Appealed from: Chickasaw County Chancery Court Judge: Kenneth M. Burns Disposition: GRANTED MOTION FOR SUMMARY JUDGMENT Case Number: CV2010-100006-B |
|
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | In The Matter of The Estate of Samuel A. Farr, Deceased: Samuel A. Farr |
JOHN P. FOX
MARK N. HALBERT |
|
|
| Appellee: | Nancy Wirick | STEPHEN T. BAILEY | ||
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 - Nonholographic will - Valid execution - Section 91-5-1 - Exclusion of affidavits - M.R.C.P. 56(c) |
| Summary of the Facts: | Nancy Wirick, who is the daughter of the testator, Samuel A. Farr, filed a petition to contest Farr’s last will and testament and accompanying codicil, alleging that they were void because they were not attested to by at least two witnesses. Additionally, Wirick sought a determination of Farr’s heirs. After the chancery court found that Wirick is Farr’s sole heir, Wirick filed a motion for summary judgment, seeking a determination that the will and codicil were invalid. The chancery court granted Wirick’s motion. Farr’s estate appeals. |
| Summary of Opinion Analysis: | Farr’s estate argues that the chancery court erred in granting summary judgment in favor of Wirick and in finding that the will and codicil were invalid because they had not been properly executed. Under section 91-5-1, valid execution of a nonholographic will or codicil requires the signatures of at least two witnesses. Farr’s estate argues that the notary public served as the second witness. In this case, the attestation clause in both the will and the codicil contains two signature lines, which are labeled “Witnesses.” However, only one witness signed the attestation clause of the will, and only one witness signed the attestation clause of the codicil. At the hearing on the motion for summary judgment, Farr’s estate attempted to enter a “Certificate of Subscribing Witness” into evidence. However, the court properly excluded affidavits from evidence under M.R.C.P. 56(c), because the affidavits were not presented until the day of the hearing. Because only one witness affixed his signature to the attestation clause of the will and of the codicil, neither document was validly executed. As such, the chancery court did not err in granting summary judgment in favor of Wirick. Wirick properly published a summons for Farr’s unknown heirs, and no one responded. Therefore, based on evidence presented, the chancery court did not err in finding that Wirick is Farr’s sole heir. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
