Power v. Scott, No. 2001-CA-00341-COA.

• Decision Date: 04 June 2002
• Docket Number: No. 2001-CA-00341-COA.
• Parties: James D. POWER, Mary Cox Power and Samuel D. Hensley, Jr., Appellants, v. Leslie SCOTT, Individually, and as Executrix of the Estate of Ellen Marie Power, Deceased, Appellee.
• Court: Mississippi Court of Appeals

837 So.2d 202

James D. POWER, Mary Cox Power and Samuel D. Hensley, Jr., Appellants, v. Leslie SCOTT, Individually, and as Executrix of the Estate of Ellen Marie Power, Deceased, Appellee.

No. 2001-CA-00341-COA.

Court of Appeals of Mississippi.

June 4, 2002.

Rehearing Denied August 20, 2002.

Certiorari Denied January 9, 2003.

Dennis L. Horn, Shirley Payne, Madison, attorneys for appellant.

Marlane Elizabeth Chill, Jackson, Luke Dove, attorneys for appellee.

Before McMILLIN, C.J., LEE, and BRANTLEY, JJ.

LEE, J., for the court.

¶ 1. James D. Power, Mary E. Cox Power, and Samuel D. Hensley, Jr., M.D., filed a bill of discovery to contest the last will of their daughter and ex-wife, Ellen Marie Power Hensley. The Powers and Dr. Hensley contested the will on the basis of lack of mental capacity and undue influence. The Powers and Dr. Hensley requested that Leslie Scott, executrix and beneficiary of the estate of Ellen Powers Hensley, produce the medical, financial, and legal records of Ellen to help prove their claims. Leslie Scott filed a motion to dismiss or in the alternative a motion for summary judgment. Concerning the motion for summary judgment, the chancellor held that neither the Powers nor Dr. Hensley had standing and entered an order granting the motion for summary judgment. Feeling aggrieved, the Powers and Dr. Hensley assert the following issues: (1) whether the chancellor erred when he held that the Powers and Dr. Hensley did not have standing to contest the will, (2) whether the chancellor erred when he decided not to remove the executrix, (3) whether the chancellor erred by failing to make findings of fact and conclusions of law, and (4) whether, on remand, this case should be consolidated with proceedings arising from the divorce action between the decedent, Ellen Marie Power, and her former husband, Dr. Hensley. This Court concludes that issue one requires that this case be reversed and remanded.

FACTS

¶ 2. Ellen Marie Power Hensley drafted two wills prior to her death. Her first will reflected the date of May 9, 1997. Her second will showed the date of September 23, 1998. During the time between the execution of her first and second will, Ellen and Dr. Hensley were divorced. A section of the property settlement agreement addressed the estates of Ellen and Dr. Hensley wherein each waived his or her rights to an interest in the other's estate.

¶ 3. On December 10, 1998, Ellen Marie Power Hensley took her own life. Shortly thereafter, the executrix and primary beneficiary, Leslie Scott, filed the 1998 will for probate. In response, the Powers and Dr. Hensley filed a bill of discovery to obtain the medical, legal, and financial records of Ellen. The Powers and Dr. Hensley asserted that the records were necessary to establish that Ellen was suffering from psychological disturbances at the time she signed her wills. They asserted that Ellen lacked the mental capacity to execute a valid will and that her will was the product of undue influence from Leslie Scott.

¶ 4. Leslie Scott did not produce the documents requested by the Powers and Dr. Hensley. Instead, she filed a motion to dismiss or in the alternative for summary judgment. The motion asserted that none of the parties had standing to contest the second will. The chancellor agreed and granted the motion for summary judgment.

DISCUSSION

I. WHETHER THE CHANCELLOR ERRED WHEN HE HELD THAT THE POWERS AND DR. HENSLEY DID NOT HAVE STANDING TO CONTEST THE WILL.

¶ 5. The Powers and Dr. Hensley assert that they are necessary parties to the will contest. James D. Power and Mary Power assert that as heirs at law they are necessary parties under the terms of Miss. Code Ann. § 91-7-25 (Rev.1994). Dr. Hensley asserts that he is a necessary party to the will contest since he was the former husband of Ellen and since a matter is still pending regarding the sum of alimony, if any, that he must pay into Ellen's estate. Leslie Scott, in her capacity as an individual, as well as executrix of Ellen's estate, argues that the Powers and Dr. Hensley have no financial interest to protect; therefore, under Mississippi law they do not have standing and summary judgment was appropriately granted.

¶ 6. The lower court is vested with the discretion to grant a summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Collier v. Trustmark Nat'l Bank, 678 So.2d 693, 695 (Miss.1996); M.R.C.P. 56. The standard of review when a trial judge has granted a summary judgment is de novo. Dees v. Estate of Moore, 562 So.2d 109, 110 (Miss.1990)

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¶ 7. "While the question of `devisavit vel non' (`will or no will') is the primary issue in a will contest, and under Miss. Code Ann. § 91-7-19 (1972), either party to a will contest has an automatic right to a jury trial, where no genuine issues of material fact have been presented in the pleading stage a motion for summary judgment is properly granted." Matter of Launius, 507 So.2d 27, 29 (Miss.1987). Matter of Launius explains the burden of the contestant of a will facing a motion for summary judgment as follows:

Appellees, as proponents of the will, have the burden of proving the will throughout. They meet this burden by showing the will was duly executed and admitted to probate. When the will is admitted to probate, proponents put on prima facie evidence that the testator had testamentary capacity and further that no undue influence was placed upon him. The burden of going forward then shifts to contestant, who must overcome the presumption raised by proponents that testator had testamentary capacity, (and, therefore, that the testator's execution of the will was a free and voluntary act).

When the Mississippi Rules of Civil Procedure come into play within a situation involving a contest to will, where movants for summary judgment (appellees) have shown there is no genuine issue of material fact vis-a-vis probate of the will, contestant, as the adverse party, "may not rest upon the mere allegations of denials of his pleadings, but his response, by affidavits or as otherwise provided in this Rule, must set forth specific facts showing that there is a genuine issue for trial." M.R.C.P. 56(e).

Id. at 29-30 (citations omitted).

¶ 8. With this standard in mind, we must determine if the chancellor correctly concluded that summary judgment was appropriate because the Powers and Dr. Hensley lacked standing. The chancellor concluded that Dr. Hensley did not have standing to contest the 1998 will because he became divorced from Ellen in 1997. As a result of the divorce, Dr. Hensley signed a property settlement agreement in which he waived and relinquished any right or claim to receive a share of Ellen's estate or to serve as executor. In addition, the chancellor found that the Powers were not "interested parties" under Miss. Code Ann. §...