As our population grows older, litigation over property in estates and the validity and construction of a person’s Last Will & Testament are becoming more common.
These are the SIX things you should know about Wills, Estates and Estate Litigation in Mississippi.
1. First and foremost, SEEK OUT THE BEST WILL, ESTATE AND ESTATE LITIGATION ATTORNEY you can find.
You will want to consult an attorney with experience, not only in drafting wills and probating estates, but one with experience in litigating the controversies that often arise in the probate of an estate or the construction (interpretation) of a Will.
2. There are two types of Wills in Mississippi:
the holographic (handwritten) Will and the more formal typewritten will (usually prepared by an attorney). Here’s the statute defining who can make a Will and the requirements of it:
§ 91-5-1. Who may execute; signature; attestation:
Every person eighteen (18) years of age or older, being of sound and disposing mind, shall have power, by last will and testament, or codicil in writing, to devise all the estate, right, title and interest in possession, reversion, or remainder, which he or she hath, or at the time of his or her death shall have, of, in, or to lands, tenements, hereditaments, or annuities, or rents charged upon or issuing out of them, or goods and chattels, and personal estate of any description whatever, provided such last will and testament, or codicil, be signed by the testator or testatrix, or by some other person in his or her presence and by his or her express direction. Moreover, if not wholly written and subscribed by himself or herself, it shall be attested by two (2) or more credible witnesses in the presence of the testator or testatrix.
Notice that the statute also provides for the holographic or hand-written Will, which is valid only if it is “wholly written and subscribed (signed) by (the person making the Will).
A holographic or hand-written will, if done properly, is a valid Will, but one does not see many of these any more. The hand-written Will is a vestige of days gone by when people did not have ready access to an attorney (such as in very rural areas). Nevertheless, one does see these kind of Wills every now and then.
In addition, the Will should not be “attested” to by any person receiving property of any kind under the Will as that bequest may be void.
(§ 91-5-9. Devise to witness void: If any person be a subscribing witness to a will wherein any devise or bequest is made to him and the will cannot otherwise be proven, such devise or bequest shall be void, and the witness shall be competent as to the residue of the will as if a devise or bequest had not been made to him, and he may be compelled to testify. If such witness would have been entitled to any share of the testator’s estate in case the will were not established, then so much of such share shall be saved to the witness as shall not exceed the value of the devise or bequest made to him in the will.)
3. There is no requirement in Mississippi that a Will be probated.
Probate means filing with the Court, having the person designated as the Executor or Executrix confirmed by Order of the Court, that person taking an Oath to perform all the duties of an Executor and to carry out the provisions of the Will as the person making the Will (the Testator) directs. However, it is nevertheless a good idea to probate a Will, especially where the Testator owned land, because a notice to creditors must be published in a local newspaper and the creditors have 90 days to file their claims against the Estate. Once that is done and any valid claims paid, if it can be done out of the cash or personal property of the decedent, then any land owned by the decedent which is bequeathed to his or her heirs is clear of any claims against the property and the heirs are then free to borrow on the property or sell all or part of it. Once all this is done, the Estate can be closed and no heir can contest the Will or distribution of property under the Will after a period of two years.
(§ 91-7-23. Validity contested within two years: Any person interested may, at any time within two years, by petition or bill, contest the validity of the will probated without notice; and an issue shall be made up and tried as other issues to determine whether the writing produced be the will of the testator or not. If some person does not appear within two years to contest the will, the probate shall be final and forever binding, saving to infants and persons of unsound mind the period of two years to contest the will after the removal of their respective disabilities. In case of concealed fraud, the limitation shall commence to run at, and not before, the time when such fraud shall be, or with reasonable diligence might have been, first known or discovered.)
Notice that the statute cited above mentions probate of a Will “without notice.” There are two types of probate in Mississippi: those done “with notice” (called probating a Will in “solemn form”) and those probated without notice.
A will probated “with notice,” once filed with the Chancery Court, will have summonses issued to all the heirs, summoning them to a hearing for the “admission to probate” of the Will by the Chancellor and should any wish to contest the Will for any reason, they are to do so then.
If no contest is made, then after a Will is fully probated “with notice,” then any heir (or someone claiming to be an heir) is foreclosed from contesting the provisions of the Will. (So, in every case, a notice not only to creditors but to any “unknown” or suspected heirs should also be published in the newspaper or personally served with papers to be at the hearing admitting the Will to probate.
4. A Will may be contested on several grounds, here are some:
That the Testator was not of “sound mind” when he or she made the Will; or that the Testator was “unduly influenced” by someone in the writing of the Will or upon grounds of fraud, such as the Will is actually a fake. When the Will is challenged, for any of these or other reasons, you are then involved in a “Will Contest” and a trial will have to be held to determine the validity of the Will. Now you are into litigation and if you have an interest in upholding the Will, or even challenging the Will, you will need the best legal advice available and the best estate litigation attorney you can find, especially if significant sums of money, personal property or land are involved.
5. There are many reasons that a person may want to challenge the validity of a Will.
For example, a wife who is excluded from a Will nevertheless, under Mississippi law, has a right to receive at least a child’s share of the Estate of the decedent. A child of the decedent who is left out of a Will or not given the same as another child or children of the decedent may challenge the Will claiming that one or more persons (usually relatives) have “unduly influenced” the decedent and caused them (the challenger to be left out of the Will so that the others could get more.
6. Often in litigation it is important to know when and how the Will was prepared and executed;
…and where it was executed; and if in an attorney’s office, who took the decedent to the attorney to have the Will executed (this often occurs when an elderly person makes a Will); who witnessed the execution of the Will and will they actually “attest” (swear to) the fact that the Testator was “of sound mind” when he or she executed the Will, and many other facts.
The probate of Wills can be fairly simple and relatively inexpensive.
However, when heirs or other family members begin a challenge of the Will (challenging its validity by reason of “undue influence” or fraud or other reasons) then the whole matter is in controversy and a trial is usually held before a Chancellor and the facts determined: the Chancellor can hold the Will valid or he or she can invalidate the Will, in which case the decedent is deemed to have died without a will at all.
In that case, be it a husband or a wife, all the property of the decedent descends, in the usual case, to the spouse of the decedent and their children in equal shares.
Attorney David Butts has over 40 years of Will, probate and probate litigation experience.