Taylor v. Tolbert

Decision Date28 June 2022
Docket Number2021-CA-00900-COA
Citation342 So.3d 1204
Parties Micheal TAYLOR, Executor of the Estate of Mary Markwell, Deceased, Appellant v. Cheryl Markwell TOLBERT, Appellee
CourtMississippi Court of Appeals

ATTORNEYS FOR APPELLANT: JOHN THOMAS LAMAR JR., Senatobia, TAYLOR ALLISON HECK

ATTORNEYS FOR APPELLEE: JERRY WESLEY HISAW JOSEPH, Southaven, M. SPARKMAN JR.

BEFORE CARLTON, P.J., LAWRENCE AND McCARTY, JJ.

CARLTON, P.J., FOR THE COURT:

¶1. Mary Markwell executed a will in 2014. She died on November 15, 2019. Appellant Micheal1 Taylor is her grandson and the sole beneficiary under her will. The Chancery Court of Tate County granted Taylor's petition to probate a copy of his grandmother's will when the original will could not be found at her death. Appellee Cheryl Tolbert, Markwell's daughter, objected. After a bench trial solely on the probate issue, the chancery court entered an order setting aside and dismissing its probate order, finding that the lost will had been revoked. In so finding, the chancery court applied the rebuttable presumption of revocation by destruction that arises when a will is known to have existed and was in the maker's possession, but it cannot be found after the maker's death. See, e.g., Berry v. Smith (In re Est. of Leggett) , 584 So. 2d 400, 403 (Miss. 1991). The chancery court found that Taylor had failed to rebut that presumption by clear and convincing evidence.

¶2. The chancery court subsequently certified its order setting aside the probate of Markwell's will as a final judgment. See M.R.C.P. 54(b). Taylor appeals, asserting that the chancery court erred in applying the revocation presumption or, alternatively, in failing to find that Taylor presented sufficient evidence rebutting that presumption. Finding no error in the chancery court's judgment, we affirm.

PROCEDURAL HISTORY AND STATEMENT OF FACTS

¶3. Markwell executed a last will and testament on July 17, 2014, at the law office of her family attorney, John T. Lamar Jr. Lamar kept a copy of the will and, as the chancellor found, the original will was given to Markwell at that time. Taylor, Markwell's grandson, was the sole beneficiary under Markwell's will. Markwell died on November 15, 2019. Four days later, when Markwell's original will could not be found, Taylor filed a petition to have a copy of her will probated. A copy of Markwell's will and a sworn proof of will were attached to the petition. The chancellor granted the petition, entering an order on November 20, 2019, admitting the copy of Markwell's will to probate and appointing Taylor as executor of Markwell's estate.

¶4. On January 3, 2020, Tolbert, Markwell's daughter, filed a petition seeking to set aside the probate of the will, asserting that Taylor had failed to present the proof necessary to allow a copy of a will to be admitted to probate. A bench trial was held in July 2020, addressing only whether Markwell's will was properly admitted to probate.

¶5. At trial, the chancellor heard the testimonies of Taylor; Taylor's girlfriend of four years, Amber Chambers; Taylor's paternal grandmother, Peggy Taylor; Tolbert; and Tolbert's boyfriend of two years, Justin Sowell.

¶6. All witnesses agreed that Markwell was a strong-willed, independent woman who did not tell many people about her personal business. Markwell's husband had predeceased her by about twenty years, and she lived alone in her home from that time up until the last months before she died.

¶7. Taylor testified that he did not know his grandmother had executed a will until after she died and he obtained a copy of the will from Lamar. Tolbert also testified that she did not know about the will. Both Taylor and Tolbert testified that neither of them were on any of Markwell's checking accounts, and neither of them knew of anyone else who was.

¶8. About six months before she died, Markwell's daughter, Cindy, moved in with her, and the record also reflects that Tolbert and her boyfriend Justin cared for Markwell before her death. As addressed below, there is conflicting testimony about when Tolbert and Justin started caring for Markwell at her home. Markwell was hospitalized on November 8, 2019, and died on November 15.

¶9. Regarding his relationship with his grandmother, Taylor testified that he lived a quarter of a mile down the road from Markwell and visited her "almost daily." According to Taylor, from the time his grandfather died in 1998 up until October or so of 2019, he took care of his grandmother's property, cutting her grass and bush hogging the surrounding property. He also took her to the doctor on occasion. Amber, Taylor's girlfriend, corroborated this testimony. According to Taylor, around the summer of 2019, Tolbert and her boyfriend started taking care of things at Markwell's home and taking her to appointments.

¶10. Taylor testified that sometime in 2017, Markwell brought out her lock box and opened it on the kitchen table in Taylor's presence. The box locked with a key, and Markwell kept the key in her purse on a key ring. Taylor said that the lock box contained $45,000 in cash, some silver certificates, some old coins, and some paperwork. He said that he and his grandmother did not go through the paperwork in the lock box. He admitted that he did not see Markwell's original will in the lock box, but he added, "I feel like that's where it was."

¶11. Again, when specifically asked by the chancellor, "You never saw that original will at any time, did you?", Taylor answered, "No, sir." He testified that all he knew was that his grandmother told him "to go see John Lamar if anything ever happened to her." Taylor also testified that his grandmother told him to get the lock box and "run with it" when she died because "[t]hat's where the money was."

¶12. Per his grandmother's instructions, after Markwell died Taylor went to Lamar's office where Lamar had a copy of Markwell's will and gave it to Taylor. As noted, Taylor testified that he did not know that Markwell had executed a will in 2014; he said he "had no idea about a will" until he went to Lamar's office after Markwell died and Lamar gave him the copy of the will.

¶13. Lamar told Taylor to go to Markwell's house and look for the original will. Taylor testified that he did not find the original will at Markwell's house and the lock box was missing. Taylor further testified that Tolbert and Justin, as well as his Aunt Cindy, had free access to Markwell's home in the last months before Markwell's death and Tolbert had access to Markwell's purse that had her keys in it. Taylor had testified that the key to the lock box was on a key ring, but he admitted he had not seen the key ring—or the lock box—since his grandmother showed him the contents of the lock box in 2017.

¶14. Taylor also testified that after the funeral some members of the family gathered at Markwell's home. His Aunt Cindy asked if Markwell had a will and Tolbert said that Markwell had "papers." Taylor testified that he had already gotten a copy of Markwell's will from Lamar, so he decided to tell Tolbert what it said. According to Taylor, Tolbert "said she had already seen it." Amber also testified that she heard Tolbert tell Taylor that she already knew what was in Markwell's will. Taylor said that after the funeral he "asked [Tolbert] about the lock box, and she said that nobody found it." In this same conversation, Tolbert also told him that his grandmother "had paid off [Tolbert's] son's school, paid off his tools, and wrote her [(Tolbert)] a check for $64,000, and that she wanted to change the will."

¶15. Peggy Taylor, Taylor's paternal grandmother, testified that she and Markwell were very close for the last fifteen years of Markwell's life. In 2014, Markwell told her that she had made a will and that everything was going to Taylor. Peggy said that Markwell told her that she gave everything to Taylor because her children had already received their share of her estate. Peggy also testified that Markwell told her about two weeks before Markwell died that Taylor wanted to hang the new television she had bought on the wall, and that she had agreed because it was "going to be his."

¶16. Tolbert testified that she had basically taken over as Markwell's primary caregiver during Markwell's final illness. According to Tolbert, from 2017 until her mother passed away she would take her to doctor visits and see her at least weekly because she also had to "cut the grass." Tolbert said she never saw or knew about a lock box. Tolbert testified that she did not know that Markwell had a will, but that in 2017 her mother told her "that she had made paperwork out and put everything in [Taylor]’s name, and he had stopped doing everything he told her that he was going to do." According to Tolbert, the agreement between her mother and Taylor was that "he kept the grass cut, the pasture bush hogged, and anything fixed around the house that she needed done," and that Taylor stopped doing that in 2017.

¶17. Tolbert further testified that after the funeral, she told Taylor that her mother told her "she had paperwork and ... she wanted it changed." Tolbert testified that "at her mother's direction," she filled out a check for $64,000 in her name that her mother signed, and she filled out another check for approximately $23,000 in payment for her son's student debt, signed by her mother. The check for $64,000 was stated to be for "funeral bills and expenses."

¶18. Justin also testified. He said that he was at the hospital with Tolbert and Markwell (in the final week before she died) and Markwell said that she wanted to make a will. He believed that Markwell knew her time was near. He went to the nurses’ station to get a notary, but they did not have one. Nothing more was said about a will before Markwell died.

¶19. After hearing the evidence presented and reviewing the applicable law, the chancellor ruled that Taylor had failed to rebut the presumption that a lost will has been revoked by destruction where it was last known to...

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