Estate of Harris, In re

• Decision Date: 22 February 1989
• Docket Number: No. 58350,58350
• Citation: 539 So.2d 1040
• Parties: In re ESTATE OF Ollie Lee HARRIS, Deceased. W.T. (Willie) HALE v. Leon M. BRADLEY, Executor.
• Court: Mississippi Supreme Court

Page 1040

539 So.2d 1040

In re ESTATE OF Ollie Lee HARRIS, Deceased W.T. (Willie) HALE v. Leon M. BRADLEY, Executor.

No. 58350.

Supreme Court of Mississippi.

Feb. 22, 1989.

Donna S. Smith, Colom & Colom, Columbus, for appellant.

W. Welborn Johnson, Columbus, for appellee.

Before DAN M. LEE, P.J., and ROBERTSON and ZUCCARO, JJ.

ZUCCARO, Justice, for the Court:

This matter is a confidential relationship and undue influence case arising out of a testatrix in her will favoring her neighbor and friends over distant nephews and nieces.

Ollie Lee Harris executed her last will and testament on June 11, 1982. She died on November 4, 1982, and the will was admitted to probate on January 24, 1983, in the Chancery Court of Lowndes County, Mississippi. On September 30, 1983, W.T. Hale, et al., appellants herein, filed a petition for contest of the will. After trial of the contest, the chancellor entered a decree in favor of appellee, the proponent of the will. The contestants of the will have timely perfected this appeal, and assign as error that

The appellee failed to overcome by clear and convincing evidence the presumption of undue influence arising from his confidential and fiduciary relationship with the testator.

Ollie Lee Harris, the testatrix, was a 68-year old female resident of Lowndes County, Mississippi. Prior to her death on November 4, 1982, Mrs. Harris had incurred several hospitalizations. Approximately a year before her death she was hospitalized and had 30 inches of her small intestines removed. By January of 1982, her physical condition required another hospitalization. During the remaining ten months of her life she was hospitalized in March and finally in October of 1982.

Before surgery in late 1981 to remove part of her intestines, the record establishes the testatrix had been a quiet, self-sufficient individual. After the surgery, she became weak and unable to attend to her business affairs without the assistance of others. At this point, Mrs. Harris's neighbor and friend, Leon Bradley, began assisting her. At the direction of Harris, Bradley managed her business affairs, handling cash, checking accounts, running errands and generally attending to her physical needs.

Mrs. Harris became concerned about having a will and asked Bradley to locate an attorney for her to draft her will. The record reflects Bradley located a local attorney, William Bearden, by stopping him one day on the street. Bearden, who had never acted as attorney for Mrs. Harris or Bradley, agreed to meet with Mrs. Harris and went to the local hospital where Mrs. Harris had been admitted for treatment. Bearden determined to his own satisfaction that at that time Harris was too ill to discuss her will and refused to draft it.

Several weeks later, after Harris had returned home from the hospital, Bradley drove Harris into town for a checkup with her doctor. After the visit with her physician, Mrs. Harris requested Bradley to take her to William Bearden's office. After discussing with Harris certain preliminary matters, Bearden agreed to draft Harris' will. Bearden testified at trial he discussed with Harris her estate, who the natural inheritors of her property would be, her assets, and determined that she had no husband or children and that she was competent to make her will.

Ollie Harris died approximately four (4) months later, on November 4, 1982. After the contestant had opened administration of an intestate estate for Ollie Lee Harris, Leon Bradley petitioned for probate of the previously mentioned will and it was admitted to probate. The will provided that one-half undivided interest in Harris's home be devised to Bradley and his spouse and the other one-half interest to another couple. The residue of Harris's estate under the will went to Bradley. Discovery was conducted and after trial, the chancellor entered a decree in favor of the proponent of the will. From that decree the contestant has timely perfected this appeal.

There is no dispute nor doubt that a confidential and fiduciary relationship existed between the appellee, Mr. Bradley, and the testatrix as to which the evidence is substantial. During the last months of Harris's life she relied upon Bradley to manage her business affairs and assist her in going to and from wherever she wanted and needed to go.

In Murray v. Laird, 446 So.2d 575, 578 (Miss.1984), we said concerning circumstances which give rise to a presumption of undue influence:

Thus, our law may be summarized to state that when the circumstances give rise to a presumption of undue influence, then the burden of going forward with the proof shifts to the grantee/beneficiary to prove by clear and convincing evidence of:

(1) Good faith on the part of the grantee/beneficiary;

(2) Grantor's full knowledge and deliberation of his actions and their consequences; and

(3) Advice of (a) competent person, (b) disconnected from the grantee and (c) devoted wholly to the grantor/testator's interest. Wofford v. Wofford, 244 Miss. 442, 142 So.2d 188 (1962); Croft v. Alder, 237 Miss. 713, 115 So.2d 683 (1959); Thomas v. Jolly, 251 Miss. 448, 170 So.2d 16 (1964).

See also, Costello v. Hall, 506 So.2d 293, 266 (Miss.1987); Kelly v. Shoemake, 460 So.2d 811, 820 (Miss.1984).

In Mullins v. Ratcliff, 515 So.2d 1183 (Miss.1987), we redefined the third prong of Murray thusly:

The independent advice prong of Murray has been read too strictly. Considering the heavy burden placed upon one seeking to overcome the presumption of undue influence, we find it necessary to redefine the third prong of the Murray test. This we do to the end that the power our law vests in property owners to make bona fide inter vivos gifts not be practically thwarted by often impossible evidentiary encumbrances. We declare that the appropriate third prong of the test is a requirement that the grantee/beneficiary prove by clear and convincing evidence that...