Audrey S. McGee v. Willie Neal Simpson
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-CA-02048-COA
IN THE MATTER OF CONSERVATORSHIP OF
HELEN NEAL SIMPSON: AUDREY S. MCGEE
APPELLANT
v.
WILLIE NEAL SIMPSON AND KATHRYN
SIMPSON MACFARLAND
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEES
06/11/2007
HON. JAMES H.C. THOMAS, JR.
FORREST COUNTY CHANCERY COURT
J. WARD CONVILLE
MARGARET WILLIAMS HOLMES
MICHAEL C. BAREFIELD
CIVIL - WILLS, TRUSTS, AND ESTATES
CHANCELLOR MADE FINDINGS OF
UNDUE INFLUENCE ON SUBJECT OF
CONSERVATORSHIP
AFFIRMED: 02/17/2009
BEFORE LEE, P.J., GRIFFIS AND BARNES, JJ.
GRIFFIS, J., FOR THE COURT:
¶1.
Audrey S. McGee appeals the chancellor’s order that set aside the beneficiary changes
made by her mother, Helen Neal Simpson, to her payable on death accounts (POD). On
appeal, Audrey argues that: (1) she did not have a fiduciary relationship with Simpson, and
(2) she never exercised undue influence over her.
chancellor’s findings.
We find no error and affirm the
FACTS
¶2.
Simpson had five children: Alfred, Audrey, Kathryn, Olivia, and Willie. She died on
March 5, 2005, at the age of eighty-six. On February 9, 2004, Simpson changed the
beneficiaries on her accounts at Trustmark National Bank to heavily favor Audrey so that,
at Simpson’s death, the beneficiaries of her four accounts at Trustmark were as follows: a
Personal Money Market Account and two Certificates of Deposit payable on death to
Audrey, and a Prime of Life Preferred Account payable on death to all five children. Prior
to these changes, all five of her children were beneficiaries.
¶3.
Simpson’s late husband allegedly fathered a daughter, Louise, twelve years before
their marriage. In December 2003, the Simpson family learned that Louise was dying of
cancer. Alfred, Kathryn, and Olivia went to visit her in the hospital. Louise’s daughter
asked if they would agree to have their names listed in Louise’s obituary as her half siblings.
Alfred, Kathryn, Olivia, and Willie agreed to be listed in Louise’s obituary. Due to past
friction between Simpson and Louise, Olivia talked to her mother about her decision to be
listed as Louise’s family in the obituary. Simpson said that was all before her time and made
no objection. The next day, Simpson even went with two of her children to visit Louise in
the hospital, and by all accounts, they had a very pleasant visit. Audrey was not asked to
appear in the obituary. During this time, early to mid-December 2003, the record indicates
no animosity between Simpson and Louise or Simpson and any of her children.
¶4.
The overall testimony of Alfred, Kathryn, Olivia, and Willie was that until late
December 2003, the Simpson family was a loving and committed family. Each also testified
about Audrey’s tumultuous relationship with their mother. Money was a common issue
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between Audrey and Simpson; at times, their arguments resulted in physical violence
between the two. Even though the children lived out of state for most of their adult lives,
they visited often and spent holidays with their mother. Kathryn had moved back to
Hattiesburg after her husband’s death to be closer to her mother. She testified that her
mother often spent the night at her house, and they would spend the day together. Each of
her children described Simpson as a loving and tender mother.
¶5.
The dynamics of the Simpson family abruptly changed in late December 2003. The
family was planning to celebrate the new year at Olivia’s house in New Orleans. A few days
before the celebration, Audrey confronted Alfred about the plan to be listed in Louise’s
obituary and was very belligerent. The following day, Alfred went out for the day, and when
he returned to his mother’s house, his mother’s attitude about Louise had changed
dramatically. Audrey also called Olivia and was irate that Olivia had agreed to have her
name in the obituary. Thirty minutes after Audrey called, Olivia got a call from her mother
who was a “totally different person,” and Simpson told Olivia not to visit Louise or have
anything to do with her. Simpson did not go to Olivia’s house as planned. Alfred tried to
make amends with his mother a few days later, but he was unable to do so.
¶6.
Louise died in January 2004. Willie attended her funeral, and Alfred, Kathryn, Olivia,
and Willie were listed as her half siblings in her obituary. A few days after the funeral,
Willie contacted his mother to let her know he was returning home to Ohio. During their
conversation, the call was disconnected. When Willie called his mother back, Audrey got
on the phone and at cursed him. Willie and Kathryn decided to go to their mother’s home
to talk to her. Audrey and her husband were at Simpson’s home. Audrey’s husband would
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not answer the door for Willie, but eventually, Audrey and Simpson did open the door. After
a brief exchange at the door, Simpson went inside and returned with a gun. She pointed the
gun at Willie’s head and pulled the trigger, but fortunately, the gun did not fire. There is
testimony that Simpson followed Willie to his car and pointed the gun at him again. By her
own testimony, Audrey did not try to defuse the situation.
¶7.
A few days after this altercation, Alfred wrote his mother a letter detailing his
disappointment and outrage concerning her behavior. The language of the letter was brutally
honest and likely caused Simpson to have a strong emotional reaction. During this same time
period, Simpson was driven by Audrey to Trustmark to change her beneficiaries. According
to Audrey, her mother had called her and asked her to come to Hattiesburg to take her to the
bank. Audrey lived in New Orleans.
¶8.
Simpson’s relationship with Alfred, Kathryn, Olivia, and Willie was very strained
after these events, and their interactions were limited. Simpson threatened to call the police
and charge Olivia with trespassing if she tried to visit her at her home. However, Simpson
had moments where she acted as though nothing was wrong between her and her children,
but all of these instances were when Audrey was not present. Prior to January 2004, Alfred,
Kathryn, Olivia, and Willie played active roles in Simpson’s life. They helped her access her
prescription insurance, helped her with bills, handled her lawn care, and had almost daily
interactions with her. From January 2004 to September 2004, there was very little interaction
between Simpson and Alfred, Kathryn, Olivia, and Willie.
¶9.
Simpson fell in September 2004, and her health declined until her death in March
2005. Audrey took control of her mother’s care and finances in September 2004. After their
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mother became ill, there was a constant power struggle between Audrey and her siblings,
which resulted in Simpson being transferred multiple times between hospitals in Hattiesburg
and New Orleans, even being checked in under a false name. There was no testimony that
Simpson was belligerent toward Alfred, Kathryn, Olivia, or Willie from the time she fell until
her death. Simpson called Olivia from the hospital and invited her and her siblings to visit.
Olivia testified that her mother was her “old self” during their conversation.
¶10.
In February 2005, Kathryn and Willie became conservators for their mother and froze
her bank accounts. After Simpson’s death, Audrey filed a petition to disburse the funds at
Trustmark, and Trustmark filed a complaint for interpleader which placed the funds into the
court. The chancellor found that Audrey had a fiduciary relationship with her mother and
that she exercised undue influence over her mother. The chancellor set aside Simpson’s
changes and ordered the accounts be paid according to the previous designation of
beneficiaries.
STANDARD OF REVIEW
¶11.
A chancellor's findings of fact will not be disturbed unless manifestly wrong or clearly
erroneous. Sanderson v. Sanderson, 824 So. 2d 623, 625 (¶8) (Miss. 2002). This Court will
not disturb the findings of a chancellor when supported by substantial credible evidence
unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous,
or an erroneous legal standard was applied. Id. at 625-26 (¶8).
ANALYSIS
1.
¶12.
Did Audrey have a fiduciary relationship with her mother, Simpson?
Audrey argues there was no evidence or testimony that she and Simpson had a
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confidential relationship in February 2004 when Simpson changed the beneficiaries on her
accounts. The siblings respond that the relationship between Audrey and Simpson meets the
definition of a confidential relationship given by the supreme court.
¶13.
The supreme court defines a confidential relationship as:
Whenever there is a relation between two people in which one person is in a
position to exercise a dominant influence upon the other because of the latter's
dependency upon the former, arising either from weakness of [the] mind or
body, or through trust, the law does not hesitate to characterize such
relationship as fiduciary in character.
Madden v. Rhodes, 626 So. 2d 608, 617 (Miss. 1993) (citation omitted). “[T]he relationship
must reflect 'a dominant, overmastering influence [which] controls over a dependent person
or trust justifiably reposed.'" Taylor v. Welch, 609 So. 2d 1225, 1231-32 (Miss. 1992)
(quoting Mullins v. Ratcliff, 515 So. 2d 1183, 1191-92 (Miss. 1987)).
Factors to be
considered in determining the existence of a confidential relationship are:
(1) [w]hether one person has to be taken care of by others, (2) [w]hether one
person maintains a close relationship with another, (3) [w]hether one person is
provided transportation and has [her] medical care provided for by another, (4)
[w]hether one person maintains joint accounts with another, (5) [w]hether one
is physically or mentally weak, (6) [w]hether one is of advanced age or poor
health, and (7) [w]hether there exists a power of attorney between the one and
another.
In re Estate of Sandlin v. Sandlin, 790 So. 2d 850, 853 (¶7) (Miss. Ct. App. 2001).
¶14.
After considering the seven factors, we find the chancellor did not abuse his discretion
and was not manifestly wrong. Although the evidence presented was circumstantial, “[i]t
follows, from the very nature of the thing, that evidence to show undue influence must be
largely, in effect, circumstantial.” Griffin v. Armana, 687 So. 2d 1188, 1194 (Miss. 1996).
¶15.
There is evidence that Simpson was taken care of by others, satisfying factor one.
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Prior to late December 2003, Alfred handled Simpson’s lawn care and helped with her
prescription insurance and her bills. But in January 2004, all the children stopped supporting
their mother, with the exception of Audrey. A logical conclusion is that Audrey took care of
Simpson once Simpson stopped receiving this help from her other children.
¶16.
There is also evidence of factors two and three. By Audrey’s testimony, she and her
mother had a close relationship and talked every day. Audrey also drove Simpson to the bank
to make the changes on her POD accounts in February 2004. Factor six is also satisfied.
Simpson was of advanced age, eighty-six years old. She also pointed a gun at her son and
pulled the trigger. According to all her children, this behavior was atypical.
¶17.
The evidence shows that Simpson was in a confidential relationship with Audrey from
September 2004 until her death. She was her mother’s primary care giver during her illness,
managed her finances, and was the hospital’s only contact person for the majority of this time.
There was substantial credible evidence that Audrey was in a position to exercise dominant
control over Simpson due to her relationship, or lack there of, with her other children. The
chancellor did not err by concluding that the relationship began nine months earlier when
Simpson’s relationship with Alfred, Kathryn, Olivia, and Willie deteriorated and prior to
Simpson changing her beneficiaries.
2.
¶18.
Did Audrey exercise undue influence over her mother, Simpson?
Audrey argues there was no evidence or testimony that she unduly influenced Simpson.
In response, the siblings contend that their mother’s drastic change in behavior was due to
Audrey’s presence, influence, and conduct.
¶19.
A presumption of undue influence "extends to every possible case in which a fiduciary
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relation exists as a fact, in which there is confidence reposed on one side, and the resulting
superiority influence on the other." In re Launius, 507 So. 2d 27, 30 (Miss. 1987) (overruled
in part on other grounds) (citation omitted). The finding of a confidential relationship raised
a rebuttable presumption of undue influence.
¶20.
The supreme court has said that once “the circumstances give rise to a presumption of
undue influence, then the burden of going forward with the proof shifts to the
grantee/beneficiary.” Murray v. Laird, 446 So. 2d 575, 578 (Miss. 1984). The beneficiary
must prove by clear and convincing evidence: “(1) [g]ood faith on the part of the
grantee/beneficiary; (2) [g]rantor's full knowledge and deliberation of his actions and their
consequences; and (3) [a]dvice of (a) [a] competent person, (b) disconnected from the grantee
and (c) devoted wholly to the grantor/testator's interest.” Id. (citations omitted).
¶21.
In her brief, Audrey states that “there is no reason . . . to discuss this issue” because her
siblings failed to establish a confidential relationship. However, because we affirm the
chancellor’s finding that a confidential relationship did exist, we look to the record for
evidence that rebuts the presumption of undue influence. The only evidence that supports
Audrey is her testimony that it was Simpson’s idea to change her beneficiaries and that she
did not pressure her mother to do so. This evidence alone does not rebut the presumption of
undue influence.
¶22.
Having reviewed the record, we find there was sufficient evidence to support the
chancellor's finding that Audrey was acting in a fiduciary relationship with Simpson and that
Audrey exercised undue influence over her mother. Our standard of review requires that we
affirm the chancellor in the absence of manifest error, abuse of discretion, or error of law.
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Finding none here, we affirm the chancellor's finding of undue influence and that the four
accounts should be paid as Simpson had directed prior to the change.
¶23. THE JUDGMENT OF THE CHANCERY COURT OF FORREST COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, ROBERTS
AND CARLTON, JJ., CONCUR.
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