Hinders v. Hinders, 2000-CT-01779-SCT.

• Decision Date: 24 October 2002
• Docket Number: No. 2000-CT-01779-SCT.,2000-CT-01779-SCT.
• Citation: 828 So.2d 1235
• Parties: Thelma M. HINDERS, Joyce H. Stamps and Joan H. Reinhard v. Joyce Lynne HINDERS.
• Court: Mississippi Supreme Court

828 So.2d 1235

Thelma M. HINDERS, Joyce H. Stamps and Joan H. Reinhard v. Joyce Lynne HINDERS.

No. 2000-CT-01779-SCT.

Supreme Court of Mississippi.

October 24, 2002.

Gregory Moreau Johnston, Oxford, Lem G. Adams, III, Brandon, attorneys for appellants.

Anselm J. McLaurin, Brandon, attorney for appellee.

EN BANC.

ON WRIT OF CERTIORARI

CARLSON, J., for the Court.

¶ 1. The Madison County Chancery Court found that a testator's pre-divorce will leaving everything to his ex-wife remained a valid will, not expressly or impliedly revoked by the subsequent execution of a property settlement agreement prepared in conjunction with an irreconcilable differences divorce proceeding. Certain heirs-at-law of the testator appealed the chancellor's decision to this Court, which assigned the case to the Court of Appeals. The Court of Appeals affirmed the trial court's judgment. This Court granted certiorari to consider under what circumstances a pre-divorce will is revoked by a divorce accompanied by a property settlement agreement inconsistent with the will. We decline to adopt a rule of automatic revocation in such a case, but attempt instead to clarify the current status of the law of implied revocation. In doing so, we affirm the judgment of the Court of Appeals.

FACTS AND PROCEEDINGS BELOW

¶ 2. On December 6, 1993, John A. Hinders (John), and his wife, Joyce Lynne Hinders (Joy), executed very basic "compatible" one-page wills leaving everything to each other. It is undisputed that the wills met the requirements of Miss.Code Ann. § 91-5-1 (1994). In John's will, he directed that Joy serve as executrix without having to post bond or make an accounting, and he "devise[d] and bequeath[ed] all of my property, real personal or mixed and wherever situated unto my wife, JOYCE L. HINDERS." ¶ 3. John and Joy separated in February, 1995, and divorced on August 25, 1995, after 27 years of marriage. No children were born to the marriage. Prior to the entry of the final divorce decree, John and Joy executed an eight-page "Separation and Property Settlement Agreement" (property agreement) on August 11, 1995. The prior wills were not mentioned in the property agreement. After the divorce, it appears undisputed from the record that the terms of the property agreement were fulfilled¹ and that John and Joy never thereafter lived together.² Without ever canceling his 1993 will or executing a new will, John suddenly and tragically died from an aneurism on February 11, 1999.

¶ 4. On the next day, February 12, 1999, Joy filed a Petition to Probate Will and Appoint Executrix in the Chancery Court of Rankin County, Mississippi.³ This case was assigned cause number 45,710. On the same day, a Decree Admitting Will to Probate and Appointing Executrix was entered, and Letters Testamentary issued. On March 3, 1999, Joy filed a Motion for Authority to Vote Stock based on the allegation that John was the sole owner of outstanding stock in J.J.H., Inc., a Mississippi corporation which served as franchise operator for the McDonald's Restaurants in Brandon and Flowood.⁴ On the same date, the Rankin County chancellor signed an order authorizing Joy to vote the stock. On March 9, 1999, Joy filed a Motion for Authority to Sell Assets, and on the same date, the chancellor signed an order granting Joy the authority to sell the restaurant assets of J.J.H., Inc. in accordance with a purchase and sale agreement between Mc-Donald's Corporation, J.J.H., Inc., and John's estate. This flurry of activity by Joy quickly got the attention of John's mother and siblings, because on March 17, 1999, they filed a Motion to Intervene and to Set Aside Order Authorizing Sale of Assets, and on March 24, 1999, they filed a Motion to Dismiss Probate Proceedings.⁵ On March 17, 1999, the same heirs-at-law, Thelma M. Hinders (Thelma), Joyce H. Stamps (Joyce), and Joan H. Reinhard (Joan), commenced a separate action by filing a complaint in cause number 45,880 on the docket of the Chancery Court of Rankin County. In this complaint, Thelma, Joyce and Joan sought relief via the chancery court's declaration that John's will of December 6, 1993, had been revoked by the property agreement of August 11, 1995 (executed during the divorce proceedings), thereby causing John to have died intestate, with his heirs-at-law to inherit from John, exclusive of Joy, since Joy had received assets from John through the property agreement. Once again, James, Jennifer, Jane and Judy each filed in this new cause a waiver of process and general entry of appearance. By May 5, 1999, it came to light that John had a fixed place of residence in Madison County, Mississippi, at the time of his death; therefore, finding that John's will must be probated by the Chancery Court of Madison County, pursuant to Miss.Code Ann. § 91-7-1 (1994), the Rankin County chancellor, by order dated May 5, 1999, transferred cause number 45,710 to the Madison County Chancery Court. By order dated September 8, 1999, the Rankin County chancellor transferred cause number 45,880 to the Madison County Chancery Court.

¶ 5. Based on the Pre-Trial Order and Amended Pre-Trial Order filed in the Chancery Court of Madison County (Cause Number 99-650), it appears that the two original causes were consolidated for trial purposes. On September 29, 1999, the Madison County Chancery Court conducted a hearing on what had by now become a will contest.

¶ 6. In an effort to have John's will revoked, the heirs-at-law called as witnesses Joy Hinders (John's ex-wife, called as an adverse witness), Judy Goolsby (who had lived with John for about 3 years prior to his death), Thelma Hinders (John's mother), Judith Ann (Judy) Reynolds (John's sister), and Joyce Stamps (John's sister). In response, Joy testified and also called as witnesses Tony Raffa (John's long-time friend since high school), and Richard Sparkman (John's certified public accountant). In the end, the chancellor took this cause under advisement and ultimately entered a detailed seven-page order dated September 22, 2000, and filed for record on September 26, 2000. In her order, the chancellor made findings of fact, cited the statutes and case law considered by her, and concluded, inter alia, that the execution of the property agreement did not expressly or impliedly revoke John's prior will, nor was there any evidence to justify a finding that John's conduct established his express or implied intent to revoke the will. The chancellor held:

that the will of John A. Hinders remains a valid will and the property settlement agreement executed by the (sic) John and Joyce Hinders does not operate to expressly or impliedly revoke the will dated December 6, 1993 in which Joyce L. Hinders, his former wife, was the sole beneficiary.

¶ 7. It is from this order of the Madison County Chancery Court that the heirs-atlaw appealed.

PROCEEDINGS BEFORE THE COURT OF APPEALS

¶ 8. Before the Court of Appeals, John's heirs-at-law argued that the trial court had erred (1) in making incorrect conclusions of law thereby requiring a non-deferential de novo appellate review, (2) in failing to apply the rule of law that a divorce revokes the provisions of a will of a deceased for the benefit of the ex-spouse, (3) in holding that John's prior will for the benefit of Joy was not impliedly revoked by the property agreement executed by John and Joy during the divorce proceedings and by John's subsequent acts of revocation, (4) in holding that John's prior will for the benefit of Joy was not expressly revoked by the property agreement, and (5) in failing to address whether Joy breached the property agreement.

¶ 9. The Court of Appeals held (1) that current Mississippi law does not provide for automatic revocation of a pre-divorce will due to a subsequent divorce accompanied by a property settlement agreement containing provisions inconsistent with the will, Rasco v. Estate of Rasco, 501 So.2d 421 (Miss.1987); (2) that based on the evidence and the law, the chancellor was not manifestly in error in finding that John had not impliedly revoked his 1993 will, Bower v. Bower, 758 So.2d 405, 412 (Miss. 2000); In re Estate of Cannon, 733 So.2d 245, 248 (Miss. 1999); Estate of Lyles, 615 So.2d 1186, 1188 (Miss.1993); Rasco v. Estate of Rasco, 501 So.2d 421, 423 (Miss. 1987); Matter of Will of Palmer, 359 So.2d 752 (Miss.1978); Cain v. Cain, 795 So.2d 614, 617 (Miss.Ct.App.2001); and (3) that Joy did not breach the terms of the property agreement by attempting to take under John's will.

PETITION FOR WRIT OF CERTIORARI

¶ 10. In their petition for writ of certiorari before this Court, the heirs-at-law narrow the issues. They claim that (1) the Court of Appeals correctly found that the issue of automatic revocation is one of broad public importance requiring determination by this Court, (2) the Court of Appeals failed to follow the Rasco decision which purportedly held that a divorce accompanied by a property settlement agreement which is fully carried out results in a revocation (at least by implication) of the provisions of a pre-divorce will in favor of the ex-spouse, and (3) the Court of Appeals did not conduct a non-deferential de novo review of the chancellor's decision since the decision was based on incorrect conclusions of law.

DISCUSSION

¶ 11. The second issue is dispositive for our purposes and is the only issue that merits discussion. This issue can be clearly stated as:

I. WHETHER A PRE-DIVORCE WILL CONTAINING PROVISIONS INCONSISTENT WITH A SUBSEQUENT PROPERTY SETTLEMENT AGREEMENT IN A DIVORCE PROCEEDING IS REVOKED AUTOMATICALLY, OR BY IMPLICATION.

¶ 12. We quickly put to rest the issue regarding automatic revocation. In their brief before the Court of Appeals, the heirs-at-law stated that many states have adopted the rule of revocation by divorce, either by statute or case law. However, Mississippi has no such statute, and based on our existing statutes concerning revocation of wills, as well as ...