Will of Fankboner, Matter of

• Decision Date: 09 June 1994
• Docket Number: No. 91-CA-0221,91-CA-0221
• Citation: 638 So.2d 493
• Parties: In the Matter of the Last WILL and Testament of William Harry FANKBONER, Deceased. Joseph PALLATIN v. Kandy JONES, Executrix of the Estate of William Harry Fankboner, and Ezekiel Jones, a Minor.
• Court: Mississippi Supreme Court

Page 493

638 So.2d 493

In the Matter of the Last WILL and Testament of William Harry FANKBONER, Deceased Joseph PALLATIN v. Kandy JONES, Executrix of the Estate of William Harry Fankboner, and Ezekiel Jones, a Minor.

No. 91-CA-0221.

Supreme Court of Mississippi.

June 9, 1994.

Michael W. Crosby, Gulfport, for appellant.

Wayne L. Hengen, Hengen & Hengen, W. Eugene Henry, Biloxi, for appellee.

ON PETITION FOR REHEARING

EN BANC.

BANKS, Justice, for the Court:

The petition for rehearing is granted, the original opinion is withdrawn and this opinion substituted therefor.

In this will contest, Joseph Pallatin asks that we overturn the trial court's findings that the daughter of the testator did not unduly influence the testator to change his will and leave her one-half of his monetary assets and personal property to the exclusion of Pallatin and other charitable organizations. We are also asked to determine whether attorney fees and costs paid by him, without prior court approval, should be charged to him, and to revisit the question of sanctions under Rule 11 of the Mississippi Rules of Civil Procedure and the Litigation Accountability Act of 1988. Except as to the issue of unapproved expenditures and sanctions, we affirm.

I.

Joseph Pallatin, filed a petition seeking construction and validity of the last will and testament of his deceased friend, William Harry Fankboner. ¹ Joseph sought to have the court find that Fankboner intended his first will to rule and to find that Kandy Jones unduly influenced Fankboner to draft a new will, naming her as one of the primary beneficiaries. The chancery court granted Kandy Jones a partial directed verdict and found that no justiciable issue existed as to Fankboner's mental competency. During the proponent's case in chief, Jones testified that on May 3, 1989, Fankboner wrote her and asked her to forgive him and to always remember that she is his daughter. It was during her testimony that Pallatin became aware of this letter and other notes from Fankboner.

After deliberation, the jury found that Jones did not unduly influence Fankboner to change his will. In the final judgment, the chancellor awarded attorney fees and costs against Pallatin, ordered him to reimburse monies spent from the estate's account, and sanctioned him pursuant to Rule 11 of the Mississippi Rules of Civil Procedures and the "Litigation Accountability Act of 1988." Aggrieved, Joseph Pallatin filed this appeal.

II.

In an action contesting a will, a presumption of undue influence arises where there is a confidential or fiduciary relationship. Mullins v. Ratcliff, 515 So.2d 1183, 1192 (Miss.1987). Suspicious circumstances, along with the confidential relationship, also give rise to a presumption of undue influence. See Estate of Lawler v. Weston, 451 So.2d 739, 741 (Miss.1984). In the instant case, Jones, one of the principal beneficiaries, contacted the attorney, Hengen, who represented her in the conservatorship and in the preparation of the testator's will; she actively participated in the procurement and preparation of the testator's will; there was no communication between the attorney, Hengen, and the testator, Fankboner; Jones delivered the will from Hengen to her father; and Jones allegedly stepped into the next room while the will was being executed, and then she returned to the room and took possession of the will once it was signed. However, in her deposition, she testified that she was in the room while Fankboner signed the will. These suspicious circumstances, along with the conceded confidential relationship that Jones stated existed between Jones and Fankboner, gave rise to a presumption of undue influence in the instant case.

In order for Jones to have overcome this presumption of undue influence, the evidence must have shown by clear and convincing evidence that (A) Jones exhibited good faith in the fiduciary relationship with Fankboner; (B) Fankboner acted with knowledge and deliberation when he executed the September 13, 1989 will; and (C) Fankboner exhibited independent consent and action. Murray v. Laird, 446 So.2d 575, 578 (Miss.1984) as modified in Mullins, 515 So.2d at 1193.

A.

To determine if Jones acted in good faith when she procured the September 13, 1989, will, the identity of the initiating party, who sought the preparation of Fankboner's will, must be determined. In making this determination, it is significant that Fankboner told two totally disinterested witnesses that he wanted to change his will. In Vega v. Estate of Muller, then Presiding Justice Hawkins stated:

In those cases where you admittedly have a confidential relations transfer from a dependent to a dominant party, it seems to me that the ultimate test should be something on the order of the following: Excluding the testimony of the grantee, those acting in the grantee's behalf (such as the attorney), and any others who could have a direct or indirect interest in upholding the transfer (such as grantee's family), is there any other substantial evidence, either from the circumstances, or from a totally disinterested witness from which the court can conclude that the transfer instrument represented the true, untampered, genuine interest of the grantor? If the answer to this question is yes, then it becomes a question of fact whether or not there was undue influence. If the answer is no, then as a matter of law the transfer is voidable.

Vega v. Estate of Muller, 583 So.2d 1259, 1275 (Miss.1991) (Hawkins, P.J., dissenting).

In the instant case, the two disinterested witnesses were Sergeant Jones and Captain Beverly Tuomala. Sergeant Jones, a medical service specialist and shift leader at Keesler Air Force Base, and one of the subscribers to the September 1989 will, testified that Fankboner talked about changing his will several weeks prior to signing it and that Fankboner went over the will several times before signing it. The second subscribing witness, Captain Beverly Tuomala, testified that Fankboner was a very good communicator and a very adamant individual. She stated that she asked him if that was his will and if he wanted her to sign it, he nodded yes and pointed to the area where she needed to sign.

Secondly, the place of the execution of the will and the persons in whose presence the will was executed are significant. The will was executed at the Keesler Medical Center. The two subscribing witnesses, Captain Tuomala and Sergeant Jones, along with other medical personnel, were present.

The third and fourth factors are the consideration/fee that was paid and the identity of the person who paid the fee. The fee was paid from Fankboner's account, which was at the time a conservatorship account. Jones testified that in her capacity as conservatrix, she paid for the will on Fankboner's behalf.

The fifth and last factor that should be considered to determine the "good faith" of Jones is the secrecy and openness given the execution of the will. The evidence indicated that the execution was quite open and well observed, given the layout of the intensive care unit where Fankboner was being monitored. Jones' contention that her father, Fankboner, initiated the new will is not only supported by her testimony, but by the subscribing witnesses' testimony. In addition, Barbara Champ, a witness for Pallatin, testified that Fankboner told her that he wanted to take care of his family and to exclude the charitable organizations that he listed in his February 3, 1989, will. We find that substantial evidence existed to support a finding that Jones showed good faith.

B.

According to the test delineated in Murray, there are four factors that should be used to determine Fankboner's knowledge and deliberation at the time that the will was executed:

a) his awareness of his total assets and their general value, b) an understanding by him of the persons who would be the natural inheritors of his bounty under the laws of descent and distribution or under a prior will and how the proposed change would legally affect the prior will or natural distribution, c) whether non-relative beneficiaries would be excluded or included and, d) knowledge of who controls his finances and business and by what method, and if controlled by another, how dependent is the grantor/testator on him and how susceptible to his influence.

Murray, 446 So.2d at 579. Jones stated that Fankboner told her that he wanted her to buy him a trailer to live in because he did not want to live in a nursing home. Jones also stated that Fankboner told her to get his ex-wife (and her mother) to travel from Dallas, Texas, to tend to his needs and to hire a couple to help take care of him. In granting the partial directed verdict, the chancellor in the instant case stated that, "[e]veryone who has testified said that up until the date he passed away, almost--and I think up until that day--that he was giving directions, that he understood the extent of his holdings and that he was sharp mentally, that he was writing notes, that he was participating in this and that."

Secondly, we have recognized that the "disclosure of intent made prior to execution of an instrument helps dilute the undue influence presumption." Mullins, 515 So.2d at 1194 quoting Murray, 446 So.2d at 578-79. Witness for Pallatin and long-time friend of Fankboner, Barbara Champ, testified that Fankboner told her in August of 1989, prior to the execution of the September 13, 1989, will, that he wanted to change his will to exclude the different charitable organizations and to include his family. She stated that Fankboner told her that he should take care of his own first and the ones that took care of him. As here, in Taylor we explained that there was no undue influence because the evidence showed that "Mr. Taylor was a strong willed person, dominant over his children and was a man who thought things out for himself, made his own decisions and backed them up with action." Taylor v. Welch, 609...