Dunn v. Hart (In re Hitt)

• Decision Date: 03 May 2022
• Docket Number: 2020-CA-01229-COA
• Citation: 338 So.3d 681
• Parties: In the MATTER OF the ESTATE OF Anita Virginia Rish HITT, Deceased: Sheron Yancey Dunn, Appellant v. Charlotte Yancey HART, Yvonne Yancey Widmer, Donna Ann Hitt Brooks, and Robert Drew Hitt, Appellees
• Court: Mississippi Court of Appeals

338 So.3d 681

In the MATTER OF the ESTATE OF Anita Virginia Rish HITT, Deceased: Sheron Yancey Dunn, Appellant

v.Charlotte Yancey HART, Yvonne Yancey Widmer, Donna Ann Hitt Brooks, and Robert Drew Hitt, Appellees

NO. 2020-CA-01229-COA

Court of Appeals of Mississippi.

May 3, 2022

ATTORNEY FOR APPELLANT: WILLIAM PAUL STARKS II, Starkville

ATTORNEY FOR APPELLEES: CHRISTOPHER D. HEMPHILL, Columbus

EN BANC.

BARNES, C.J., FOR THE COURT:

¶1. Dr. Anita Virginia Rish Hitt (Ginger) died testate on April 12, 2017, and was survived by three natural children—Charlotte Hart, Sheron Dunn, and Yvonne Widmer—and two stepchildren—Robert Drew Hitt (Drew) and Donna Ann Hitt Brooks (Ann).¹ Charlotte filed a "Petition for Probate of Will and Other Relief" with the Lowndes County Chancery Court, seeking to admit a last will and testament signed by Ginger and dated November 1, 2006 (2006 Will).² Sheron subsequently filed a petition seeking to admit a last will and testament signed by Ginger on January 19, 2015 (2015 Will), which left her entire estate to Sheron. Charlotte, Yvonne, Drew, and Ann (the Appellees) contested the 2015 Will, arguing (1) undue influence, (2) fraud and misrepresentation, (3) the existence of a confidential relationship, and (4) Ginger's lack of mental capacity.

¶2. After a bench trial, the chancery court concluded that although Ginger had the mental capacity to execute the 2015 Will, Sheron failed to rebut the presumption of undue influence over Ginger. Therefore, the court dismissed the petition to probate the 2015 Will. Sheron appeals from that judgment. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶3. Ginger, a retired college professor, had three natural children—Sheron, Charlotte, and Yvonne—from her marriage to her deceased first husband. She also had three stepchildren from her second marriage to Dr. Ralph Hitt—Drew, Ann, and James. When Ralph died in 2011, Ginger owned two residences—a primary residence in Columbus, Mississippi, and a farmhouse in Chickasaw County. Not wanting to live alone, Ginger decided to reside with Sheron in Jackson, Tennessee, visiting Charlotte and Yvonne on occasion. Due to failing eyesight, Ginger became reliant on Sheron to drive her to appointments, and Sheron would frequently take Ginger to spend weekends at the farmhouse.

¶4. In January 2014, Ginger had major heart surgery, after which she "experienced postsurgical delirium

and confusion." She soon recuperated and was discharged to Sheron's care on February 9, 2014. A month later, a bank officer alerted Charlotte to suspicious banking activity with Ginger's Cadence Bank checking account; both Charlotte and Sheron were listed as co-owners on the account. After reviewing bank statements, Charlotte became concerned about several ATM withdrawals and purchases made in Florida, Tennessee, and Mississippi during Ginger's hospital stay and while Ginger had been visiting Charlotte in Ohio. The Appellees attempted to meet with Ginger and Sheron to discuss the banking issues but were unsuccessful; so upon advice from a bank representative, Charlotte withdrew $160,000 from the checking account (without notice to Ginger or Sheron), leaving approximately $20,000 in the account.

¶5. On April 10, 2014, Charlotte and Yvonne filed a petition for conservatorship with the chancery court and interpled the $160,000 in funds with the chancery clerk. Ginger retained the services of attorney Tim Hudson to defend the conservatorship action. The chancery court ordered a licensed neuropsychologist, Dr. Brian Thomas, to examine Ginger; the examination took place on August 30, 2014. After reviewing her medical history and results from prior neuropsychological examinations, Dr. Thomas reported that Ginger "appears to be demented and have very poor insight into her cognitive difficulties" and "does appear at heightened susceptibly to influence or deception by others." His report concluded that Ginger "would likely have great difficulty managing her finances due to difficulty keeping track of information about her finances and forgetfulness of information about her finances that she had previously learned."

¶6. On January 12, 2015, "in order to avoid further expense and prevent further erosion of the family relationship," an agreed order for a partial conservatorship over Ginger's finances was entered, appointing the chancery clerk as the conservator. Ginger was still allowed complete discretion over her Cadence Bank checking account, into which her monthly retirements benefits were deposited and from which monthly expenses were deducted.

¶7. After Ginger died testate in April 2017, Charlotte filed a petition to probate Ginger's 2006 Will. On May 9, 2017, Sheron filed a petition to probate the 2015 Will, which had been executed a week after the conservatorship settlement and which left Ginger's entire estate to Sheron.

¶8. Contesting Sheron's petition, the Appellees asserted that Ginger did not have the mental capacity to execute the will and that the will "was procured by undue influence, fraud and misrepresentations by Sheron[.]" The Appellees claimed that Sheron had "secluded" Ginger from them since the conservatorship, "block[ing] cell phone communication, prohibit[ing] phone calls and visits, and threaten[ing] criminal charges if family tried to visit or call[.]" A bench trial was held on February 12-13, 2020. The parties stipulated that the 2015 Will was validly executed³ and that a confidential relationship existed between Ginger and Sheron.

¶9. Hudson, Ginger's attorney, testified that Ginger had met with him several times and was "mad" about the conservatorship. He stated that Ginger had agreed to the conservatorship because "she was tired of going through all of this and wanted this over with." Hudson "never made any decision or carried out anything at the direction of Sheron Dunn." Although he admitted that Sheron "was usually present" during the conservatorship discussions, "she was never present" during the meetings regarding the 2015 Will. Hudson further testified, "At no time that I dealt with [Ginger] did I ever believe that she was of unsound mind. Whether she was influenced or not; not in my presence, but I wanted to go over that and stress that with her."

¶10. Prior to the execution of the 2015 Will, Hudson interviewed Ginger; this interview was videotaped by his daughter and associate, Collen Hudson. This video was entered into evidence. In the video, Hudson asked Ginger several questions to determine her capacity. She acknowledged that she had "hospital-induced delirium

" following her heart surgery and that doctors had diagnosed her with "early on-set dementia," but she did not agree that she needed a conservatorship. She only agreed to the conservatorship because she "wanted this over with." Although Ginger acknowledged that Sheron had driven her to the attorney's office, she insisted that Sheron was not present during her meetings with Hudson regarding the 2015 Will; nor had Sheron pressured or coerced her to change her will. Ginger reasoned that Charlotte and Yvonne had already received their part of the estate since she had to pay their attorney's fees in the conservatorship proceeding. Ginger confirmed that she wanted Sheron to act as her executor and that Hudson and Collen were the only persons in the room besides herself.

¶11. Hudson had sent two letters to the Appellees’ attorney, which were entered into evidence. The first letter, dated June 23, 2015, stated in part, "It is my understanding from my client that she does not want any contact with the daughters who filed the lawsuit. It appears this matter is now adversely impacting [Ginger's] health.... [Ginger] has asked that I contact her daughters through you and inquire if they would be agreeable to dissolving the conservatorship." Hudson sent a second letter two weeks later, advising the Appellees that Ginger considered their calls "to be harassment and she has stated she will file criminal charges if they continue.... [Ginger] will advise them when she is ready to speak with them."

¶12. Deposition testimony (from September 2018) by Ginger's treating physician, Dr. Kelly Wallace-Wilding, was entered into evidence. Dr. Wallace-Wilding testified that she began treating Ginger in December 2013. She conducted a "mini mental status exam" of Ginger in April 2014, and Ginger "scored a thirty out of thirty." Ginger also passed another mental mini-status examination in September 2014. At Ginger's request, Dr. Wallace-Wilding arranged for Dr. Michael Anton, a neuropsychologist, to perform an independent evaluation. Dr. Anton conducted two evaluations: one in February 2014 and one in September 2014.⁴ In the September evaluation, Dr. Anton's "overall impression [was] one of progressive dementia

of mild to moderate severity," and he "believe[d] that [Ginger] is well served by assistance in important affairs of daily living and she is receiving at least minimal assistance, as required, from her daughter, with whom she lives."

¶13. Emily Atkinson, a personal friend of Ginger's, testified that she spoke or visited with Ginger on a regular basis. She said Ginger had shown her "the video of her last will" and had told Atkinson "that's what she wanted to do, and that came out of just how she had been made to feel." Emily also said she "pit[ied] the person that would try" to coerce Ginger into changing her will. When asked if she believed "Sheron was isolating [Ginger] from anyone," Atkinson responded, "No. Unh-unh. (No)." Emily claimed that Sheron had even offered to take Ginger to see the other children, but Ginger "didn't want to." She recalled one instance when Charlotte called her mother, but Ginger put the phone down and "didn't want to talk to them because Charlotte made her feel feeble-minded."

¶14. Sheron testified that Ginger paid her $2,000 a month to help take care of Ginger and take her to the farm regularly. She also confirmed that Ginger had executed a power of attorney in...