Harris v. Sellers, 54142
| Decision Date | 07 March 1984 |
| Docket Number | No. 54142,54142 |
| Citation | 446 So.2d 1012 |
| Court | Mississippi Supreme Court |
| Parties | Mrs. Willie C. HARRIS & Alma Staten v. Buford C. SELLERS, Sr., Executor of Estate of Doris C. Pavlica, Deceased. |
Paul D. Snow, III, Jackson, for appellant.
Alan M. Purdie, Gore, Gore & Purdie, Grenada, for appellee.
Before ROY NOBLE LEE, P.J., and PRATHER and SULLIVAN, JJ.
The burden of proof in a will contest suit is the subject matter of this appeal. The contestants are Mrs. Willie C. Harris and Mrs. Alma Staten, who challenge the validity of the will of Mrs. Doris Pavlica, their sister. The basis for the contest is the undue influence exerted by their nephew and sole beneficiary, Buford C. Sellers. The chancery court held that a confidential relationship existed between the nephew and the testatrix at the time the will was executed, but that there was no proof of undue influence. The chancellor sustained the proponents' motion to exclude the contestants' evidence and to dismiss the suit made at the conclusion of contestants' proof.
The assignments of error are that the chancery court erred in:
(1) Sustaining the appellee/proponents' motion to dismiss in absence of proof by clear and convincing evidence that there was no undue influence;
(2) Refusing to allow hospital records into evidence; and
(3) Excluding testimony of contestants under the "Dead Man's Statute."
We reverse and remand this case for retrial.
Buford C. Sellers, of Oakland, and nephew to the testatrix and the contestants, is pastor of a church and principal of an elementary school. At the request of his aunt, Mrs. Doris Pavlica, he held a power of attorney over her business affairs from December 4, 1980 to the date of her death on May 26, 1981. During this interval, he assisted her in selling her home, although she signed the deed herself. Sellers placed the house sale proceeds in joint accounts with his aunt. Admission of the existence of a confidential relationship with his aunt was made by Sellers in his testimony.
Regarding the execution of the will, Sellers testified he brought his aunt to his home from the hospital in December when her insurance benefits ran out. Previously she asked Sellers to prepare a will for her, and again in December, 1980, she repeated that request.
On December 26, 1980, Sellers prepared a will using a form will mailed to him from his church organization for promotion of "Make Your Will Month." He typed the will making himself sole beneficiary; in the event of Seller's demise prior to the testatrix's death, the sole beneficiary was Helen J. Sellers, Sellers' wife. Mrs. Pavlica requested that Buford Sellers be named sole beneficiary; no testimony was offered concerning the designation of the alternative beneficiary. Sellers secured two employees from the Bank of Oakland to witness the execution of the will in the kitchen of his home.
A prior will of Mrs. Pavlica named her sisters, the contestants, as beneficiaries. The contestants lived a long distance from Mrs. Pavlica.
In the spring of 1981 Mrs. Pavlica returned to the hospital when insurance benefits were restored.
The contest of this will was based on allegations of undue influence of Sellers, mental incapacity of the testatrix, and insufficient execution required by law.
The first assignment addresses the issue of whether the chancellor misapplied the law in determining upon whom the burden of proof of undue influence is placed where a confidential relationship exists.
Admittedly by the proponent, a confidential relationship existed between the testatrix and the beneficiary. At the conclusion of contestants' proof the chancellor's bench opinion recited that
Upon inquiry by the contestants' attorney, the chancellor stated that "the executor had the burden of proof." The chancellor sustained the proponents' motion to exclude contestants' testimony and to dismiss suit. The order executed pursuant to the bench opinion recited that "a confidential fiduciary relationship existed between them; that there was a strong presumption created by law against the validity of the will and that the burden of proof to establish the will ... remained upon the proponent; the court finds that this presumption was overcome by the clear and convincing credible testimony offered by the contestants themselves."
In the record, it appears that the chancellor in his bench opinion misapplied the burden of proof, although he vocalized it properly.
Mississippi Code Annotated section 91-7-29 (1972) establishes the burden of proof. "On the trial of (issue devisavit vel non), the proponent of the will shall have the affirmative of the issue...." Our case law has followed that mandate. Sheehan v. Kearney, 82 Miss. 688, 21 So. 41 (1896); Ellis v. Ellis, 160 Miss. 345, 134 So. 150 (1931).
The Sheehan v. Kearney case has been viewed as a leading case in this country for its well-reasoned opinion. Smith, "Where There is a Will, There is a ..." Burden of Proof; or Was Cornelius Sheehan Unduly Influenced. 14 Miss. L.J. 103 (1941). An outline of such a lawsuit is discussed.
After the probate of a will, a contestant files a petition to contest the will, thereby joining the issue of devisavit vel non. Notwithstanding the fact that a contestant files the petition, the order of presenting proof at trial begins with the proponent of the will as he has the burden of proof. The burden of proof is met by the offering and receipt into evidence of the will and the record of its probate. A prima facie case is made by the proponent solely by this proof. As stated in Sheehan, supra, "Now, when the proponent of a will offers the will and the record of its probate, a presumption is thereby raised that the alleged testator had testamentary capacity, and this presumption satisfies the burden of proof in that respect; ... the production of such will and such record of probate, under our statute, raises the presumption that the alleged will was the free and voluntary act of the alleged testator."
Upon the presentation of such proof, the proponent has satisfied his initial burden by the application of the presumption. The contestants then must offer proof to overcome the prima facie case. The burden of proof is still with the proponent, but the burden of going forward with proof of undue influence, or lack of testamentary capacity, or other defense, shifts to the contestants.
In the case sub judice, the proponent admitted the fact that there was a confidential relationship with his aunt. The facts testified to warranted this conclusion even if Sellers had not made that admission. The chancellor also found as a fact in his opinion that the confidential relationship existed.
Under the case law of our state, the existence of a confidential or fiduciary relationship gives rise to a presumption of undue influence. Meek v. Perry, 36 Miss. 190 (1858); Croft v. Alder, 237 Miss. 713, 115 So.2d 683 (1959). The proof of the confidential relationship proves the undue influence by the imposition of the presumption. Clearly here the contestants met their burden of going forward with the proof in establishing the confidential relationship.
The chancellor in his ruling that there was no proof of undue influence was manifestly wrong. The ruling overlooks the presumption of undue influence that the law imposes where a confidential or fiduciary relationship exists. Therefore, the granting of the motion to dismiss at this point of the trial was error. The contestants had complied with their duty at trial.
At retrial, however,...
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Mullins v. Ratcliff
...of a fiduciary relationship is upon the party asserting it. Norris v. Norris, 498 So.2d 809, 813 (Miss.1986); Harris v. Sellers, 446 So.2d 1012, 1014 (Miss.1984). Because of the severity of the burdens and penalties of the confidential relationship, the party claiming the benefits of the ex......
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Whitworth v. Kines
...of proof lies on the party asserting it. Mullins, 515 So.2d at 1192; Norris v. Norris, 498 So.2d 809, 813 (Miss.1986); Harris v. Sellers, 446 So.2d 1012, 1014 (Miss.1984); Jeter v. Culp, 343 So.2d 1226 (Miss.1977). When a confidential relationship has been established, a presumption of undu......
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Norris v. Norris, 56529
...cases that the burden of establishing the existence of a confidential relationship is upon the party asserting it. Harris v. Sellers, 446 So.2d 1012, 1014 (Miss.1984); Jeter v. Culp, 343 So.2d 1226 (Miss.1977); Moore v. Stone, 208 So.2d 585 (Miss.1968); Green v. Frazier, 242 Miss. 315, 135 ......
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Costello v. Hall, 56571
...However, we would note that, while the chancellor correctly stated the test for rebutting this presumption, from Harris v. Sellers, 446 So.2d 1012, 1014-15 (Miss.1984), he incorrectly applied it. The holding of the trial court centered primarily around the fact that Mr. Terry did not confer......