the Successful Representation
Estate matters can be tricky for the inexperienced. Did you know there are over 200 statutes covering wills and estates in Mississippi? For instance, what happens when there is no will, and the heirs consist of some full blood siblings and some half-blood siblings? And can an Administrator or Executor really sell property and move assets? (Answer: not without the Court’s approval).
We are highly experienced in administering intestate (no will) and testate estates, from the initial Petition to Probate thru the Accounting and Closing of the Estate, as well as determining heirs and other matters attendant to estate administration. In some cases, only a determination of heirship will be necessary, which is more cost effective than opening the estate, and takes less time to do. Our staff will assess your particular situation and we will determine what is the best approach for you and your needs.
When looking at will contests, whether defending them or instituting them, we are always mindful of what the testator (the deceased) really wanted. However, before that question is answered, we must be certain the will, or testament, is valid. Here is what the statute says regarding the making of a will:
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.
You may have heard the term holographic will. Unfortunately, unlike the name may suggest, there’s no fancy Star Trek device here. A holographic will means a will that is wholly hand-written, and we have successfully probated those wills as well.
If a will is determined to be valid, the next question becomes whether the testator had testamentary capacity at the time he or she made the will; i.e., did they know what they owned, and who they were leaving it to? Finally, the question remains whether someone used their influence over them to make them change the will. This is called undue influence, and it occurs if the Court finds that there was a “confidential relationship” between the beneficiary and the will maker. There is much case law which helps define confidential relationship, including whether the beneficiary was a caretaker of the will maker, or was his Attorney in Fact.
If the Court finds that a confidential relationship existed, then the burden of proof shifts to the beneficiary to prove, by clear and convincing evidence, that the gift was not the product of undue influence. Lastly, keep in mind that you can request a jury in a will contest. This is always an important consideration, because, as any trial lawyer knows, presenting cases to a jury or a judge are very different things.
We have been successful in representing clients in everything from multi-million dollar estate battles, down to probating simple wills or administering small non-will estates when necessary for the client.