We have had many people come to our office over the years upset, many times extremely upset, that a family member has left his or her entire estate to one person.  A great majority of the time the person who comes to our offices is a son or daughter whose surviving parent left them nothing in the will.   Sometimes the person who is named as the beneficiary in the will is a relative of the deceased person who has appeared and taken care of an elderly person late in his or her her life.  Occasionally, the sole beneficiary of a will is not a relative at all, but a caregiver.   Sadly, in many cases, there is nothing to be done, particularly if the will is executed properly by an attorney versed in estates and family law.   However, there are provisions in the law allowing one to "contest" a will and get it set aside. As the title of this blog hints at, it is difficult, but not impossible, to have a will set aside. 

     In our opinion, the easiest will to set aside is one that does not comply with the laws of the State of Mississippi for the execution of a valid "typewritten" will.  Miss. Code Annot. Section 91-5-1 gives the requirements for the execution:  

     1.  You must be at least 18 years old.

     2.  You must be of sound mind.

     3.  The will must be signed in front of two credible witnesses.

These are the basic requirements for the valid execution of a typewritten will.  (One is able to execute a will wholly in his or her own handwriting, but those "holographic" wills and their requirements will be discussed in another blog post.)

Once the person executing the presumed valid will is deceased, the will must be proven in court to be validly executed.  Section 91-7-7 of the Mississippi Code Annot. gives two (2) ways one can prove the will:

     1.  One of the witnesses to the will can execute an affidavit that the requirements of the will were met.

     2.  If the affidavits of the witnesses were not executed at the time of the signing of the will, and none of them can be found, then proof must be provided as to the handwriting of the person making the will and of all of the witnesses to the will.

Thus, if an attempt is made to probate a will that does not meet the requirements for execution and proof, then it can be successfully set aside.

     If the will on its face meets all the requirements for execution and proof set out above, it becomes a much more difficult task to have a will set aside .  The most common reason these types of cases end up in Court is when a family member of the deceased (or someone else) takes advantage of and elderly person of unsound mind and/or exercises undue influence over that person.  The typical case would be a validly executed will which leaves all or most of the estate to a non-family member, such as a caretaker, but sometimes involves one family member receiving the lions share of an estate and leaving the others out.

     Undue influence is a difficult thing to prove, as you could imagine.  The rather complicated case of Estate of Anita Virginia Rish Hitt vs Charlotte Yancey Hart, Et Al, No.2020-CA-01229-COA, illustrates a successful challenge to an otherwise validly executed  will.  This case, ruled on by the Mississippi Court of Appeals on May 3,l 2022, is among the most recent cases on the subject.   There, the dispute was between one daughter, Sheron, and the other children and stepchildren of the deceased person, Mrs. Anita Virginia Rush. Mrs. Rush executed a will in 2015 at an attorney's office which left everything to Sheron, excluding all the other children and step-children.

     The excluded children filed suit to dismiss the probate of this will when Mrs. Rush died, alleging undue influence by Sheron in the execution of the will.  The trial court did find undue influence and dismissed the probate of the will, due to Sheron's actions.   The trial court noted that Sheron lived with her mother by herself, cut off or sabotaged all contact between her mother and the other children, and drove her to most places, including the attorney's office where the will was made.    She also took control of her mother's finances and controlled her mother in other ways.  Sheron appealed the dismissal of the probate of the will.

      The Appeals Court in its opinion re-stated the law on undue influence by observing that, while Sheron's close and confidential relationship with her mother by itself does not raise the presumption of undue influence, the combination of her actions and the mental infirmity of Mrs. Rush did. For example, Sheron's active assistance in the execution of the 2015 will, along with her substantial benefit from the will, helped raise the presumption. Once the trial judge found that undue influence was presumed in this case, Sheron was required by clear and convincing evidence to show that the will was not the result of undue influence.   The trial judge was correct in his ruling that Sheron did not overcome that presumption.

     That case does call to mind a third way a Will can be contested, one that our offices were personally involved in, that the person making the will was not of sound mind.  (This issue was also raised in Mrs. Rush's case, and at least two doctors gave depositions as to Mrs. Rush's "sound mind".)  Our office handled a case years ago wherein this was the main issue.  Our client was the adopted son of his father, who lived alone.   Our client discovered that his father had done the following in the course of seven (7) days:

     A.   Married a much, much younger waitress who worked at a coffee shop he frequented.

     B.   Executed a will leaving everything he owned to her.

     C.   Deeded his house to her.

     Now, this case was different in that there was no confidential or close relationship of the waitress to our client's father, but we knew that his father was not of sound mind in making the will, based on earlier dealings with him. The waitress hired an attorney to represent her when we filed suit to have the deed and will set aside, and it took our offices almost a year to get it to trial and get the deed and will set aside.  It was simply a case of someone trying to take advantage of an elderly person, one who, unfortunately, ended up having to testify.    Our client's father could not remember anything at that point, including getting married, making a will, or executing a deed.  He did not remember who I was or even what he was doing in the courthouse that day.  Even though we were successful in getting the will and deed voided, and were gentle with him, we walked away sad and angry that the case had to get to that point for the poor man.  

      To re-iterate, there have been many people in our offices over the years who truly believe that there has been undue influence toward someone making a will or that the person making the will was of unsound mind at the time, but most don't have the evidence to prove either of those things.  Basically, you can leave everything you own in the will to a total stranger or organization, and trying to set it aside is often an expensive and difficult proposition.  

     The only person you cannot leave out of a will is a spouse, who gets a child's share.  Otherwise, absent the kind of things discussed in this blog, anything goes for a properly executed will.