Ronnie E. Noblin v. Sammy J. Burgess
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CA-01425-COA
RONNIE E. NOBLIN, HENRY C. NOBLIN, JR.,
THOMAS C. NOBLIN, ROBBIE NOBLIN, NELL
NOBLIN JOHNSON, DIANE BOYKIN AND
JOYCE MILLER
APPELLANTS
v.
SAMMY BURGESS AND SHEILA MCDILL, COEXECUTORS OF THE LAST WILL AND
TESTAMENT OF ROBERT H. NOBLIN AND
INDIVIDUALLY AS SOLE DEVISEES AND
BENEFICIARIES
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANTS:
ATTORNEY FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEES
6/27/2008
HON. ROBERT G. EVANS
SMITH COUNTY CIRCUIT COURT
DAVID GARNER
LEWIS W. BELL
WILLIAM F. GOODMAN, JR.
EUGENE COURSEY TULLOS
MARK K. TULLOS
CIVIL - WILLS, TRUSTS, AND ESTATES
WILL CONTEST REJECTED AND WILL
UPHELD AS VALID
AFFIRMED - 6/8/2010
BEFORE MYERS, P.J., BARNES AND MAXWELL, JJ.
MAXWELL, J., FOR THE COURT:
¶1.
Robert H. “Bob” Noblin executed his last will and testament only hours before his
death. The proponents of the will and the sole beneficiaries under it, Sammy Burgess and
Sheila McDill, initiated probate proceedings in Smith County. Noblin’s numerous heirs at
law contested the will, asserting it was the product of undue influence. The trial court
granted the contestants’ request for a jury trial, and the jury returned a verdict in favor of the
proponents.
¶2.
On appeal, the contestants contend that a confidential relationship existed between the
testator and the proponents, raising a presumption of undue influence. They argue the
proponents failed as a matter of law to overcome this presumption by clear and convincing
evidence. In the alternative, the contestants claim the trial court erred in peremptorily
instructing the jury that the testator possessed testamentary capacity. They also argue the
trial court erred in failing to grant their proposed peremptory instruction, which would have
directed the jury to find the existence of a confidential relationship.
¶3.
We find no reversible error and affirm.
FACTS
¶4.
Noblin died in the early morning hours of October 3, 2003. He left behind no close
“blood” relatives. Noblin’s closest relatives by consanguinity appear to be an aunt and an
uncle. His uncle is one of the contestants along with multiple first cousins.1 The proponents,
Burgess and McDill, are Noblin’s stepchildren. Noblin’s only wife, who passed away in
1994, was the natural mother of Burgess and McDill. But because Noblin never adopted
Burgess or McDill, they bear no relationship to him under Mississippi’s law of intestate
succession.2
1
The contestants comprise seven of Noblin’s twenty-one or more heirs at law.
2
See generally Robert A. Weems, Wills and Administration of Estates in Mississippi
§ 1:9 (3rd ed. 2003).
2
¶5.
Although Noblin did not make a will until the final hours of his life, he had named
Burgess and McDill as contingent beneficiaries (entitled to payment if his spouse
predeceased him) on his individual retirement accounts (IRAs) and certificates of deposit.
In 1989, Noblin listed Burgess and McDill as his “son” and “daughter” on his IRA
applications.
¶6.
On September 23, 2003, Burgess took Noblin to see a doctor because Noblin had been
having physical problems.3 Burgess later took Noblin to Lackey Memorial Hospital in
Forest, Mississippi. While there, Noblin’s doctors determined he had widespread liver and
pancreatic cancer. Shortly after this diagnosis, Burgess drove Noblin to Baptist Hospital in
Jackson, Mississippi. Soon after Noblin’s arrival, his physicians determined he had no
treatment options other than taking medication to control his pain. Noblin remained at
Baptist Hospital from September 29 until he died on October 3. Burgess and McDill
attended to Noblin during these five days and took turns spending the night with him.
¶7.
On October 1, 2003, Burgess called Todd Sorey, an attorney back home in Smith
County. The call was placed from Noblin’s hospital room, where only Noblin and Burgess
were present. According to Burgess, he contacted Sorey at Noblin’s request. Burgess asked
Sorey to draft Noblin’s will, and Sorey agreed to do so. Both McDill and Burgess testified
that it was Noblin’s idea, and not their own, to make the will. Noblin never spoke with Sorey
directly over the phone.
Instead, Burgess talked to Sorey on the phone and relayed
3
At the time, Burgess was living with Noblin and had been for about two years.
Burgess testified that he had moved in with his stepfather because Burgess had just gotten
divorced.
3
information back and forth between Sorey and Noblin. According to Burgess, McDill, and
Sorey, Noblin had a severe hearing problem and was unable to personally speak to Sorey
over the telephone.
¶8.
Sorey testified he could hear Noblin responding to his questions. He also heard
Noblin speaking about the information he wanted in his will. According to Sorey, he had
known Noblin most of his life and was familiar with his voice. Sorey claimed that he could
hear Noblin’s voice over the phone. He recognized the tone, vernacular, and accent as
Noblin’s. Sorey maintained he had no doubt that he was speaking to Noblin, albeit with
Burgess as an intermediary.4 Sorey testified that he heard Noblin express his desire to leave
all his property to Burgess and McDill.
¶9.
After this phone conversation, Sorey drafted a will leaving Noblin’s entire estate to
Burgess and McDill. McDill picked up the will at Sorey’s office on October 2 and brought
it back to the hospital in Jackson. Burgess then asked Noblin’s nurse, Lynn Thornton, to find
hospital employees to witness the will. Thornton herself agreed to witness the will. She
recruited Corley Callum, also a registered nurse, to fill the role of the other attesting witness.
¶10.
Of the two attesting witnesses, only Callum testified at trial. According to Callum,
immediately before witnessing the will, she had a conversation with Noblin. Though she
could not remember the exact exchange, she satisfied herself that Noblin’s will reflected his
intent. Callum testified that through her conversations with Noblin at the time the will was
4
Sorey readily conceded that he would have preferred to have met with Noblin
personally, but explained that a personal meeting never took place because he was leaving
town the afternoon of October 1, 2003.
4
executed, she was able to verify that “what was taking place was what he wanted to do.”
¶11.
Noblin executed his will on the afternoon of October 2 some time between 12:00 p.m.
and 3:00 p.m. He died at 12:10 a.m. on October 3.
PROCEEDINGS AND DISPOSITION IN THE TRIAL COURT
¶12.
Following Noblin’s death, Burgess and McDill initiated probate proceedings in the
Smith County Chancery Court. The contestants filed a will contest and requested a jury trial.
The chancellor then transferred the case to Smith County Circuit Court, where a jury trial
was held.5
¶13.
The trial judge granted a directed verdict in favor of the proponents on the issue of
testamentary capacity. The trial court later gave a peremptory instruction for the jury to find
the testator possessed the requisite capacity to make a will. The court, however, submitted
to the jury the issues of (1) whether a presumption of undue influence arose by virtue of a
confidential relationship between the testator and the proponents, and (2) whether clear and
convincing evidence existed to overcome the presumption of undue influence. The trial court
denied the contestants’ request for a peremptory instruction on issue (1).
¶14.
Following a three-day trial, the jury found in favor of the proponents, and the trial
5
We note that Mississippi’s chancery courts have full jurisdiction over “matters
testamentary and of administration.” In re Estate of Hathorne v. Griffin, 987 So. 2d 486, 489
(¶13) (Miss. Ct. App. 2008) (quoting Miss. Const. art. 6, § 159). Although subject-matter
jurisdiction was proper in the chancery court, neither party has taken issue with the circuit
court’s lack of jurisdiction. But even if either party complained on this ground, article 6,
section 147 of the Mississippi Constitution prohibits reversal of a circuit or chancery
judgment solely on the ground of either court’s lack of subject-matter jurisdiction. See also
Tillotson v. Anders, 551 So. 2d 212, 215 (Miss. 1989). Therefore, absent some other error,
we need not visit this issue.
5
court entered a judgment reflecting the jury’s decision.
STANDARD OF REVIEW
¶15.
In reviewing a jury verdict, we apply the following standard:
[An appellate court] resolves all conflicts of evidence in the appellee’s favor
and determines all reasonable inferences from testimony given towards the
appellee’s position. Reversal occurs only where the facts presented are so
overwhelming in the appellant’s position that reasonable jurors could not have
found for the appellee. When an appellant challenges the sufficiency of
evidence to support a jury’s verdict, the appellate court’s scope of review is
limited. All evidence must be reviewed in the light most favorable to the
appellee. An appellate court may only reverse a jury verdict when the facts
considered in that light point so overwhelmingly to the appellant’s position
that reasonable men could not have arrived at a contrary verdict. In the event
that evidence is conflicting, a jury is the sole judge of the credibility of
witnesses and the weight of their testimony.
In re Estate of Dabney v. Hataway, 740 So. 2d 915, 919 (¶11) (Miss. 1999) (internal citations
and quotation marks omitted).
DISCUSSION
I.
Undue Influence
¶16.
The contestants’ first and main contention is that the proponents presented insufficient
evidence to overcome the presumption of undue influence, which they allege arose by virtue
of a confidential relationship. On this ground, they ask this Court to reverse and render the
judgment of the trial court.
A.
¶17.
Presumption of Undue Influence
In Croft v. Alder, 237 Miss. 713, 115 So. 2d 683 (1959), our supreme court crafted the
confidential relationship doctrine applicable to wills contested on the basis of undue
influence. Robert A. Weems, Wills and Administration of Estates in Mississippi § 8: 18 (3rd
6
ed. 2003). The Croft court held a presumption of undue influence arises where: (1) a
confidential relationship existed between the testator and a beneficiary, and (2) the
beneficiary in the confidential relationship was actively involved in some way with preparing
or executing the will. Croft, 237 Miss. at 722-23, 115 So. 2d at 686. A confidential
relationship is present where “one person is in a position to exercise dominant influence upon
the other because of the latter’s dependency on the former arising either from weakness of
mind or body, or through trust.” In re Estate of Laughter v. Williams, 23 So. 3d 1055, 1063
(¶31) (Miss. 2009) (citation omitted).
B.
¶18.
Overcoming the Presumption of Undue Influence
Croft also established that once the required showing is made to raise the presumption
of undue influence, the burden shifts to the proponents to rebut the presumption by clear and
convincing evidence. Croft, 237 Miss. at 723, 115 So. 2d at 686.
¶19.
In order to overcome the presumption of undue influence, the proponents must show
by clear and convincing evidence: (1) the beneficiary acted in good faith; (2) the testator had
“full knowledge and deliberation” in executing the will; and (3) the testator exhibited
“independent consent and action.” In re Last Will and Testament and Estate of Smith v.
Averill, 722 So. 2d 606, 612 (¶22) (Miss. 1998). Factors to be considered in assessing the
beneficiary’s good faith include:
(1) who initiated the procurement of the will;
(2) where the testator executed the will and who was present at the execution;
(3) what consideration was paid and who paid it; and
(4) whether the execution was done in secrecy or openly.
See id. Factors to be assessed in determining the testator’s knowledge and deliberation in
7
executing the will include:
(1) whether the testator was aware of his total assets and their worth;
(2) whether the testator understood who his “natural inheritors” were;
(3) whether the testator understood how his action would legally affect prior
wills;
(4) whether the testator knew non-relative beneficiaries would be included;
and
(5) whether the testator knew who controlled his finances and the method
used:
(a) how dependent the testator is on persons handling his finances; and
(b) how susceptible the testator is to be influenced by any such persons.
See id.
¶20.
Regarding the testator’s “independent consent and action,” unlike the other two
prongs, there is no express list of factors. The supreme court has in the past required a
showing that the testator acted on “[a]dvice of . . . [a] competent person, . . . disconnected
from the [beneficiary] and . . . devoted wholly to the . . . testator’s interest.” Murray v. Laird,
446 So. 2d 575, 578 (Miss. 1984). Though still a relevant consideration, this requirement has
been absolved by more recent precedent, which has instead required “a showing of the
grantor’s ‘independent consent and action’ based on all of the surrounding facts and
circumstances.” Vega v. Estate of Mullen, 583 So. 2d 1259, 1264 (Miss. 1991).
1.
¶21.
Good Faith
Other than inferences that might be drawn from circumstances surrounding the will’s
procurement, the contestants produced no evidence that Burgess or McDill influenced
Noblin’s decision to make a will or suggested the terms of the will. In fact, the evidence
points to the contrary. Burgess and McDill both testified that the idea of making a will
originated with Noblin. Burgess testified Noblin wanted him to contact Sorey to draft a will.
8
Sorey testified he could clearly identify Noblin’s voice over the phone, and Noblin expressed
his desire to leave all of his property to Burgess and McDill. Sorey explained he was
satisfied the will embodied Noblin’s wishes. And just prior to the will’s execution, Callum
had a conversation directly with Noblin. Through this conversation, she ascertained the
will’s provisions reflected his intent.
¶22.
While we recognize much of this testimony is self-serving, our law is clear that
witness credibility determinations are for the jury. See, e.g., Solanki v. Ervin, 21 So. 3d 552,
568 (¶41) (Miss. 2009).6 Burgess, McDill, and Sorey, in particular, were all vigorously
cross-examined about the circumstances surrounding the making of the will.
¶23.
It is not disputed that Noblin executed his will in a hospital room. Noblin signed the
will in the presence of Burgess and McDill, as well as the two subscribing witnesses, Callum
and Thornton. Gail Young, a hospital employee, was present to notarize documents. As to
the consideration paid, Sorey testified he would have sent the bill for Noblin to pay but was
unable to do so. According to Sorey, no one ever told him they would pay his fee for
drafting the will, and no one ever paid it. Finally, there is no indication the execution was
done in secrecy. The issue here is not whether the heirs had knowledge of the will’s
execution, but whether the “the physical place the will was executed was in plain view of the
witnesses.” Estate of Smith, 722 So. 2d at 613 (¶23). Here, Callum testified she saw Noblin
sign the will. The contestants offered no contrary evidence to show the execution was in any
6
Though “the testimony of the proponents or interested parties is not sufficient to
rebut the presumption of undue influence,” In re Estate of Holmes, 961 So. 2d 674, 681
(¶19) (Miss. 2007), we note that Callum had no interest in the will.
9
way concealed from the view of the attesting witnesses or done in a secretive manner.
2.
¶24.
Knowledge and Deliberation
Under this prong, the proponents offered a great deal of evidence that Noblin managed
and controlled his own personal affairs and finances. At least eight witnesses testified in
support of the fact that Noblin was an extraordinarily independent person. Several of the
contestants even testified to this fact. For example, contestant Henry Clay Noblin described
Noblin as an “independent[] loaner [sic], off to his self [sic] fellow, [who] did his own work.”
According to contestant Diane Boykin, Noblin “made up his own mind about things,” and
“[i]t was his way or no way. So, if you asked him something and he answered, that was . .
. law.” Finally, contestant Ronnie Noblin described Noblin as “strong-willed.”
¶25.
Two non-relative acquaintances of Noblin’s also echoed these sentiments. According
to David Gainey, who had known Noblin since childhood, Noblin “pretty much stuck to
himself as far as his business was concerned” and “made up his own mind.” Joe Rigby, a
friend of Burgess’s, testified that Noblin “was [the] kind of person that stayed to himself and
took care of Bob.” As contestant Boykin put it, Noblin had garnered the nickname – “one
way Bob.”
¶26.
According to McDill and Burgess, this independence extended to financial matters as
well. Although we find no specific proof of what Noblin knew of his total assets, the
testimony of Burgess and McDill supports that Noblin took care of his own finances. Both
Burgess and McDill asserted they did not own a joint account with Noblin or assist Noblin
in writing checks.
¶27.
There is little or no proof to show Noblin either did or did not understand who his
10
intestate heirs were. Also, no prior wills existed for the subject will to effect.
3.
¶28.
Independent Consent and Action
Again, other than inferences that might be drawn from the procurement of the will,
especially from Burgess’s telephone call to Sorey, the evidence points to the fact that Noblin
exercised his own independent consent and action with regard to the making of the will and
its terms. Callum’s testimony, as a disinterested person, is of course very significant on this
factor. Callum testified to the following:
Q:
Okay. Once you walked into the room, did you have any conversations
with Mr. Noblin?
A:
I don’t remember the exact words or exact conversation that I had with
Mr. Noblin, but I did have a conversation with him, yes.
Q:
Okay, what were your conversations about?
A:
I’m sure the usual exchanges of, you know, hey, Mr. Noblin, how are
you doing, that kind of thing took place originally; and then, you know,
verifying that what was taking place was what he wanted to do.
Q:
Okay. And did you satisfy yourself that that’s what he wanted to do?
A:
I did, through the questions that I asked him, yes.
Callum remained in the room for approximately thirty minutes during the execution of the
will. During cross-examination, Callum added, “I’m not going to sign my name to any
document that I feel is deceitful. I read the will[,] and I made my own judgment based on
the questions that I asked Mr. Noblin.” After reading the will, remaining in the room for half
an hour, and having a conversation with Noblin, Callum “satisfied [herself] knowing that
[she] was doing what Mr. Noblin wanted done.” She then observed Noblin sign his will.
¶29.
Under these circumstances, we find a factual question on which reasonable minds
11
could differ. The trial court did not err in refusing to hold the presumption of undue
influence could not be overcome as a matter of law. The trial court properly submitted this
issue to the jury.
II.
Testamentary Capacity
¶30.
The trial judge granted a directed verdict on testamentary capacity, finding Noblin
possessed the requisite capacity to make a will. The judge later granted a peremptory
instruction to that effect. The contestants argue reasonable minds could differ over the
question of whether the testator had capacity. They contend this issue should have been
submitted to the jury.
¶31.
We review de novo the trial court’s grant or denial of motion for a directed verdict.
Solanki, 21 So. 3d at 557 (¶10). The applicable standard of review is as follows:
In deciding whether a directed verdict should be granted, the trial judge is to
look solely to the testimony on behalf of the party against whom a directed
verdict is requested. He will take such testimony as true along with all
reasonable inferences which can be drawn from that testimony which is
favorable to that party, and, if it could support a verdict for that party, the
directed verdict should not be given. If reasonable minds might differ as to
this question, it becomes a jury issue.
Id. at 556 (¶8). The same standard applies to ruling on a peremptory instruction. Id. at 557
(¶10).
¶32.
For a will to be valid, the testator must possess testamentary capacity. For
testamentary capacity to be present, the testator must be of “sound and disposing mind” at
the time of the will’s execution. Miss. Code Ann. § 91-5-1 (Rev. 2004); In re Estate of
12
Edwards v. Edwards, 520 So. 2d 1370, 1372 (Miss. 1988); Weems, at § 4:3.7
The
requirement of a sound and disposing mind does not mean the testator’s mind must be as
good as it ever was. Weems, at § 4:3. Rather, the relevant test centers on the time the will
is executed. At that time, the testator must: “understand and appreciate the nature and effect
of his act [of making a will,] the natural objects or persons to receive his bounty and their
relation to him, and [be] able to determine what disposition he desires to make of his
property.” In re Estate of Mask v. Elrod, 703 So. 2d 852, 856 (¶17) (Miss. 1997).
¶33.
Our supreme court has explained the burden of proof on the issue of testamentary
capacity as follows:
The proponents of the will meet their burden of proof by the offering and
receipt of the will into evidence and the record of probate. The proponents
make a prima facie case solely on this proof. The burden then shifts to the
contestants to overcome the prima facie case, but the burden of proof remains
with the proponents to show by a preponderance of evidence that the testator
had capacity.
Estate of Holmes, 961 So. 2d at 679-80 (¶13) (internal citations omitted). Here, the
proponents offered the will, subscribing witness affidavits, and the record of probate into
evidence. Thus, a prima facie case of testamentary capacity arose, shifting the burden to the
contestants.
¶34.
To support their argument on this issue, contestants direct our attention to the notes
of Dr. Grace Shoemaker, Noblin’s oncologist. These notes indicate Noblin was “lethargic”
and “jaundiced” on October 2 – the date Noblin signed the will. They also point to testimony
that Noblin had been given pain medicine off and on during his stay at Baptist Hospital and
7
The testator must also be of sufficient age to possess testamentary capacity. See
Miss. Code Ann. § 91-5-1 (Rev. 2004).
13
that he did not eat on October 1 or 2. The contestants also rely on nursing notes, taken in the
two days before the will was signed, which indicate that Noblin hallucinated and heard
voices after receiving medication.
¶35.
Dr. Shoemaker testified “lethargic” means “sleepy, decreased level of consciousness.”
She testified her October 2 entry would have been made between 8 a.m. and 9 a.m. Nurse’s
notes taken on the morning of October 2 at 7:45 a.m. indicate Noblin was “[v]ery lethargic”
but “[e]asily aroused.” According to Dr. Shoemaker, “easily aroused” means “with any kind
of stimulus, either talking to them or touching . . . them, they [would] wake up and . . .
respond to you.” Although Noblin was lethargic, Dr. Shoemaker explained, he would “wake
up and talk” when stimulated. In addition, when asked whether a lethargic person can
continue to conduct their own business, Dr. Shoemaker responded: “There are lots of degrees
of lethargy, yes.” When asked directly about whether Noblin was of sound mind when the
will was made, Dr. Shoemaker did not make an assessment. The following exchange
occurred:
Q:
Okay. And as far as Bob Noblin’s mental status between the hours of
12:00 noon and 2:00 in the afternoon, are you able to give an opinion
based upon a reasonable degree of medical probability as to whether or
not Mr. Noblin was mentally able to understand and appreciate what he
was doing and signing?
A:
I’m not sure what date you’re talking about. But my memory of that,
completely, I’d have to rely on what I’ve written in the record.
Q:
Okay. And would you also rely on what a nurse, as far as the nurse’s
assessment of the patient?
A:
I would rely on a nurse’s ability to assess that, yes.
Q:
Well, what about – you indicated you recall Ms. Corley Callum.
14
A:
Q:
Okay. Would you rely on her assessment?
A:
¶36.
Vaguely.
I assume I would, yes.
This Court addressed a similar factual scenario in In re Estate of Pigg v. McClendon,
877 So. 2d 406 (Miss. Ct. App. 2003). In Estate of Pigg, this Court reversed a trial court’s
decision to submit the issue of testamentary capacity to the jury. Id. at 411 (¶23). The
testatrix executed her will on April 10, 1997, leaving all her property to siblings and halfblood siblings but making no provision for one of the contestants, her brother. Id. at 408-09
(¶¶2-4). One witness testified by deposition that the testatrix had experienced hallucinations
during the month of April, slightly over one week prior to executing the will. Id. at 410
(¶14). In addition, the testatrix’s treating physician, who saw her both the day before (April
9) and the day after (April 11) she executed the will, testified that “someone who had that
many multiple problems, certainly they felt bad, and I’m not sure that they would be thinking
rationally. I’m thinking in general terms.” Id. at (¶15). However, Judge Southwick writing
for this Court pointed out her physician did not have any record of seeing her on April 10 –
the date she executed the will – and offered no opinion on her mental status on that date. Id.
at (¶16).
¶37.
On the other hand, two witnesses – one being the attorney who drafted the will and
the other being the attorney’s wife who occasionally worked in her husband’s law office –
testified at trial that they witnessed the will’s execution. Both acknowledged the testatrix
appeared to be in physical discomfort the morning she signed the will. Id. at 410-11 (¶20).
But they further testified they went over the dispositive paragraphs of the will with her, and
15
she responded to questions appropriately. Id. at 411 (¶20).
¶38.
The trial judge submitted the issue of testamentary capacity to the jury, which this
Court found to be reversible error under these circumstances. Id. at (¶23). In reaching this
decision, the Court noted: “At the close of their case, the contestants had produced no
evidence that [the testatrix] failed to have sufficient mental capacity on the critical date of
April 10, 1997.” Id. at 410 (¶18). This Court emphasized the importance of testimony of the
attesting witnesses regarding the testatrix’s responsiveness on the date in question, and the
fact that the testatrix made a natural disposition of her property. Id. at 411 (¶22).
¶39.
In another instructive case, Hayward v. Hayward, 299 So. 2d 207, 210-11 (Miss.
1974), our supreme court likewise reversed the trial court’s decision to submit the issue of
testamentary capacity to the jury. In Hayward, when the testator executed his will on May
15, 1970, he was elderly, almost totally deaf and blind, in poor physical condition, and
suffering from arteriosclerosis. Id. at 207. The contestants alleged the testator lacked
capacity to make a will. As support, they offered the testimony of two doctors and several
lay witnesses. Id. at 208. One of the doctors, who had treated the testator in 1969, testified
that he had seemed “lethargic” and had “no appetite.” Id. The physician opined “it was
unlikely that Hayward would have had ‘testamentary capacity’ on the date of the execution
of the will[.]” Id. Based on the testator’s arteriosclerosis, the physician explained he
“wouldn’t ‘expect’ [the testator] to have had ‘testamentary capacity.’” Id. A second
physician, who had been the testator’s family physician for around twenty-five years, had
seen the testator 4 or 5 times from 1968 to 1970. Id. This physician testified: “‘I have an
opinion, but this is not a fact. I do not think [the testator] was mentally competent” at the time
16
he executed the will. Id. The basis for this assessment also focused on the testator’s
arteriosclerosis. Id. However, the family physician did not see the testator on the date of the
will’s execution. Id. Finally, several lay witnesses testified that, due to the testator’s severe
blindness and deafness, he often failed to recognize people unless they were very close to
him, and he often had extreme difficulty communicating with people. Id.
¶40.
To rebut the contestants’ witnesses, the proponents offered several witnesses who
claimed the testator was of sound mind when executing the will. Id. at 209. The attorney
who drafted the will “testified unequivocally that the testator was fully aware of the natural
objects of his bounty . . . and knew the nature and extent of the property owned by him.” Id.
The attorney also claimed “the provisions incorporated in the [will] were given to him by [the
testator] who instructed him as to how he wished to leave his property.” Id. The attorney
testified that after he drafted the will, the testator read the will and expressed that it
memorialized his wishes. Id.
¶41.
The supreme court, quoting a previous decision favorably, emphasized the
significance of “the crucial moment when evidence of testamentary capacity attains its
maximum and controlling relevancy, that is, . . . the time of the will’s execution.” Id. at 20910 (quoting Ward v. Ward, 203 Miss. 32, 37, 33 So. 2d 294, 295 (1948)). The Hayward
court held:
We have concluded . . . that the evidence offered as tending to establish a lack
of testamentary capacity . . . amounts to no more than a scintilla and is wholly
incapable of supporting the charge. It was error for the chancellor to submit
to the jury the issue [of] testamentary capacity[,] and [the proponents’] request
for a directed verdict on that issue . . . should have been granted.
Id. at 210-11.
17
¶42.
In the present case, just as in Estate of Pigg and Hayward, only the proponents
presented probative evidence of testamentary capacity at the precise time the will was
executed. Callum’s testimony is highly probative of the testator’s mental capacity at this
critical time. We have discussed Callum’s testimony at length and do not repeat it here,
except to add the following exchange:
Q:
A:
I was.
Q:
And what did you base that upon?
A:
Through conversations I had with Mr. Noblin that day.
Q:
And you don’t recall the specifics of the conversation?
A:
I do not.
Q:
As a nurse in the oncology department, is that something that you
would regularly do, is to check the mental status of a patient?
A:
I would say absolutely. Any time you encounter a patient, you assess
their mental status.
Q:
Okay. And you satisfied yourself that Mr. Noblin was of sound and
disposing mind?
A:
¶43.
Now, [in] the affidavit . . . paragraph three claims that . . . Noblin was
then and there of sound and disposing mind and memory. Were you
satisfied with that statement before you signed the affidavit?
I was satisfied or I would not have signed my name.
We recognize the importance of the supreme court’s instruction that: “[T]estimony
of subscribing witnesses is entitled to greater weight than the testimony of witnesses who
were not present at the time of the will’s execution or did not see the testator on the day of
the will’s execution.” Estate of Edwards, 520 So. 2d at 1373. Further, “the subscribing
18
witnesses to a will may testify as experts on the question of testamentary capacity.” Id.
¶44.
Here, Callum, the only subscribing witness who testified, maintained that Noblin had
capacity at the critical time he executed the will. Her testimony is supported by other
witnesses as well, including McDill, who testified that Noblin put on his glasses and read the
will before signing it. We further note that Noblin’s will reflected a natural disposition of
his property to his stepson and stepdaughter, whom the record indicates he considered to be
his own children, though he never adopted them.
¶45.
The contestants claim the evidence of Noblin being lethargic, jaundiced, on
medication, and allegedly hallucinating and hearing voices on days prior to signing the will
created a jury question on the issue of testamentary capacity. Similar contentions were raised
in Estate of Pigg and Hayward. And in both cases, the trial court committed reversible error
by submitting the issue of testamentary capacity to the jury based upon unsubstantiated
inference, where the attesting witnesses indicated the testator had capacity at the crucial and
controlling moment of the will’s execution. We find the contestants’ proof insufficient to
create a jury issue about the testator’s capacity to make a will at the critical time of
execution.8
Therefore, the trial court properly granted a directed verdict and later a
peremptory instruction in favor of the proponents on this issue.
III.
Peremptory Instruction
¶46.
At trial, counsel for the contestants submitted proposed jury instruction C-9 – a
8
The contestants also claim Noblin’s signature on the will did not match a signature
on a September 29 hospital record. However, the contestants have not made a sufficient
showing that the signature on the hospital record was Noblin’s. We find this allegation
insufficient to create a jury question as well.
19
peremptory instruction directing the jury to find a confidential relationship existed between
the testator and the proponents. The trial judge denied the peremptory instruction. The
contestants argue the instructions given by the trial judge impermissibly permitted the jury
to determine whether a confidential relationship existed, when, they contend, a confidential
relationship was established as a matter of law. The proponents respond that the jury
instructions taken as a whole fairly announced the law and created no injustice, and any error
in the denial of the peremptory instruction is harmless.
¶47.
We review de novo the trial court’s grant or denial of a request for a peremptory
instruction. Solanki, 21 So. 3d at 557 (¶10). The following standard is the same for
reviewing the trial court’s ruling on a motion for a directed verdict:
The rule for determining whether a peremptory instruction is appropriate
requires that all evidence favorable to the party against whom the peremptory
instruction is requested must be accepted as true, all evidence in favor of the
party requesting the peremptory instruction in conflict with that of the other
party must be disregarded, and, if the evidence and the reasonable inferences
to be drawn from same will support a verdict for the party against whom it is
requested, then the peremptory instruction should be refused.
In re Last Will and Testament of Dickey v. Dickey, 542 So. 2d 903, 904 (Miss. 1989).
¶48.
Here, as the parties point out, the trial judge initially informed the attorneys, outside
of the presence of the jury, that:
Clearly the active participation by the beneficiaries in the procurement,
preparation and delivery of the will, to which the proponents testified
themselves, fits squarely within the definition of a confidential relationship as
defined in the jury instructions submitted by the proponent[s] and the
contestant[s] . . . . Such actions seem to invite a will contest, but whether the
actions of the proponents are sufficient to support a verdict of undue influence
remains to be seen.
Nevertheless, it appears he later changed his mind and denied instruction C-9, which stated:
20
“The Court instructs the jury that you shall find that a confidential relationship existed
between the testator . . . and the proponents[.]”
¶49.
The initial matter that we must consider is the fact that counsel for the proponents
conceded, albeit with some hesitation, after questioning at oral argument before this Court
that a confidential relationship existed. We are certainly wary of resting our decision on a
concession made during appeal, which we ultimately determine is not supported by the
record. Although matters stipulated at trial are procedurally barred from being appealed, see
State ex rel. Holmes v. Griffin, 667 So. 2d 1319, 1327 (Miss. 1995), this issue was not
stipulated at trial. The fact remains that the trial judge considered conflicting evidence on
the existence of a confidential relationship. The concession aside, we find the trial court
ultimately arrived at the correct decision to submit the issue to the jury.
¶50.
Our supreme court has described a confidential relationship as one where “a fiduciary
relation exists as a fact, in which there is a confidence reposed on one side and the resulting
superiority and influence on the other.” Davion v. Williams, 352 So. 2d 804, 807 (Miss.
1977) (quoting Croft, 237 Miss. at 725, 115 So. 2d at 687); see also Estate of Laughter, 23
So. 3d at 1063 (¶31) (A confidential relationship is present where “one person is in a position
to exercise dominant influence upon the other because of the latter’s dependency on the
former arising either from weakness of mind or body, or through trust.”); Taylor v. Welch,
609 So. 2d 1225, 1231-32 (Miss. 1992)) (“In order for a litigant to prove a confidential or
fiduciary relationship from which undue influence arises, the relationship must reflect ‘a
dominant, overmastering influence which controls over a dependent person or trust
justifiably reposed.’”); Norris v. Norris, 498 So. 2d 809, 812-13 (Miss. 1986) (“[A]
21
confidential relationship is not confined to any specific association of persons but arises any
time there appears on the one side an overmastering influence or, on the other, weakness,
dependence, or trust, justifiably reposed.”). The supreme court has also held that “[t]he basis
of this relationship need not be legal; it may be moral, domestic, or personal.” Hendricks v.
James, 421 So. 2d 1031, 1041 (Miss. 1982).
¶51.
It is well settled that “the burden of establishing the existence of a confidential
relationship lies with the party asserting it”– the contestants. In re Will and Testament of
Launius v. Warden, 507 So. 2d 27, 31 (Miss. 1987). The contestants must show that a
confidential relationship existed at the time the will was executed by clear and convincing
evidence. In re Will and Testament of Boyles v. Tadlock, 990 So. 2d 230, 236 (¶22) (Miss.
Ct. App. 2008). The following factors should be considered in assessing the existence of a
confidential relationship:
(1) whether one person has to be taken care of by others, (2) whether one
person maintains a close relationship with another, (3) whether one person is
provided transportation and has their medical care provided for by another, (4)
whether one person maintains joint accounts with another, (5) whether one is
physically or mentally weak, (6) whether one is of advanced age or poor
health, and (7) whether there exists a power of attorney between the one and
another.
Estate of Dabney, 740 So. 2d at 919 (¶12). If reasonable minds can differ over the existence
of a confidential relationship, the question is one for the jury. Davion, 352 So. 2d at 807-08.
¶52.
In the context an inter vivos transfer, the supreme court has held that “a familial
relationship is not intrinsically one of confidence.” Foster v. Ross, 804 So. 2d 1018, 1023
(¶17) (Miss. 2002). In this same vein, we have stated: “[A] deed from a parent to a child
alone and of itself raises no presumption of undue influence since, in the absence of evidence
22
to the contrary, the parent is presumably the dominant party. This is true even though the
parent is aged, or aged and infirm.” In re Estate of Summerlin v. Summerlin, 989 So. 2d 466,
477 (¶37) (Miss. Ct. App. 2008). Here, we are guided by these principles, given that the
relationship between Noblin and his stepchildren was in essence a parent/child relationship,
as evidenced by his IRA applications completed in 1989 wherein he referenced them as his
“son” and “daughter.” Even the tombstone purchased by Noblin in 1994 had the word
“father” inscribed above Noblin’s name. Noblin had no natural children of his own and
could only have been referencing his relationship with his stepchildren. Further, Sorey
testified Noblin told him Burgess and McDill were his “son” and “daughter.”
¶53.
In Davion, the supreme court found reversible error in peremptorily instructing the
jury to find the existence of a confidential relationship, where the question was one over
which reasonable minds could differ. Davion, 352 So. 2d at 807-08. There, the testatrix
executed two wills purporting to be her last will and testament. Id. at 805-06. The first will
left the testatrix’s entire estate to her brother. Id. The second will left her entire estate to her
neighbor. Id. at 806. The brother sought to probate the first will, which the neighbor
contested on the ground that it had been revoked by the second will. Id. at 805. The brother
answered, arguing the latter will was the product of undue influence. Id. After the close of
the evidence, the trial court granted two instructions, peremptory in character, placing the
burden of proof on the neighbor to show by clear and convincing evidence that the second
will was not the product of undue influence. Id. at 806-07. The peremptory instructions
assumed that a confidential relationship was present with regard to the second will. Id. The
sole issue on appeal was whether the trial court committed reversible error in not submitting
23
the issue of the existence of a confidential relationship between the testatrix and the neighbor
to the jury.
¶54.
The neighbor, who stood as the contestant of the first will but the proponent of the
second, lived next door to the testatrix for many years and was a close personal friend to her.
Id. at 806. The brother lived “a good distance away” in another state. Id. The neighbor went
to the office of the lawyer who drafted the will and provided some of the details to put into
the will. Id. Around six days after the second will was drafted, the testatrix placed the
neighbor’s family’s names on her checking account so that they could attend to her business
if anything happened to her, according to a bank official. Id. However, multiple witnesses
testified to the testatrix’s strong-willed nature. Id. Furthermore, the evidence was clear that
“on the occasion of the execution of the second [w]ill, she was under no disability and no
misapprehensions, but that her mind was clear and that she had control of all of her faculties
and knew exactly what she wanted to do concerning her property[.]” Id. Given the
conflicting evidence, the supreme court found the trial court’s failure to submit the issue of
the existence of a confidential relationship to the jury was reversible error, reasoning:
In the present case, concerning a relationship between neighbors, given the
testimony as to the strong[-]willed nature of [the testatrix], her independent
execution of the [w]ill, and testimony at least indicating the beneficiary
occupied a subservient role in the relationship; it must be held that a question
arose particularly suitable for determination by a jury.
Id. at 808.
¶55.
Here, we reiterate that the contestants were required to show by clear and convincing
evidence the existence of a dominant, overmastering influence on the part of the beneficiaries
over the testator. Taylor, 609 So. 2d at 1231-32; Will and Testament of Boyles, 990 So. 2d
24
at 236 (¶22). If reasonable minds could differ over whether this showing has been made, the
trial court must submit the issue to the jury. Davion, 352 So. 2d at 807-08. While we
certainly agree under the unusual fact of this case that there was evidence of such a dominant
influence, we cannot ignore the evidence supporting the opposite proposition. No less than
eight witnesses, including three of the contestants, testified to Noblin’s independent nature.
Much of this testimony centered on his insusceptibility to be influenced by others in his
decision making and his practice of tending to his own business and financial affairs. We
also cannot ignore Callum’s testimony as a disinterested witness that Noblin’s will reflected
his wishes. Although doctor’s and nurse’s notes tended to show Noblin’s mental weakness
soon before the will’s execution, Callum’s testimony certainly supported the opposite at the
critical time of the will’s execution. And her testimony was uncontradicted on this point.
Furthermore, the contestants presented no evidence that Noblin maintained any joint account
with another person or that there existed any power of attorney between him and another
person.
¶56.
Under these facts, we conclude the contestants failed to establish the existence of a
confidential relationship by clear and convincing evidence as a matter of law. Due to
conflicting evidence on this issue, we find reasonable minds could differ over whether a
confidential relationship existed between Noblin and Burgess and McDill. Therefore, we
find no error in the trial court’s submission of this issue to the jury.
¶57.
Accordingly, we affirm the judgment of the trial court.
¶58. THE JUDGMENT OF THE SMITH COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANTS.
25
KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE AND
ROBERTS, JJ., CONCUR. IRVING AND CARLTON, JJ., NOT PARTICIPATING.
26
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