Diane Rutland Nations v. Rickie Dale Rutland
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CA-01671-COA
IN THE MATTER OF THE ESTATE AND LAST
WILL AND TESTAMENT OF WILLIE RAY
RUTLAND, DIANE RUTLAND NATIONS,
GREGORY RUTLAND, PEGGY RUTLAND
JONES AND CALVIN RUTLAND
APPELLANTS/
CROSS-APPELLEES
v.
RICKIE DALE RUTLAND AND TODD
RUTLAND
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANTS:
ATTORNEY FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
APPELLEES/
CROSS-APPELLANTS
09/04/2008
HON. J. LARRY BUFFINGTON
LAWRENCE COUNTY CHANCERY
COURT
THOMAS M. MURPHREE
MALCOLM T. ROGERS
JOSEPH BILBO MOFFETT
RAY T. PRICE
CIVIL - WILLS, TRUSTS, AND ESTATES
FOUND THAT THE TESTATOR LACKED
TESTAMENTARY CAPACITY, THAT A
PREVIOUS WILL WAS VOID DUE TO
FIDUCIARY RELATIONSHIPS, AND THAT
THE ESTATE WOULD PROCEED AS AN
INTESTATE ESTATE
AFFIRMED IN PART; REVERSED AND
RENDERED IN PART; REMANDED:
12/08/2009
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
MYERS, P.J., FOR THE COURT:
¶1.
Willie Ray Rutland died on January 30, 2005, at the age of seventy-three. Willie Ray
had never married and had no children. On February 28, 2005, his “double first” cousin
William Calvin Rutland (Calvin) offered a January 18, 2002, will for probate that named him
as executor and Diane Rutland Nations, Willie Ray’s niece, as sole beneficiary. On May 19,
2005, Rickie Dale Rutland and Todd Rutland, nephews of Willie Ray, filed a petition to set
aside the 2002 will. Rickie and Todd also offered for probate a February 13, 1989, will that
left Willie Ray’s real property to them. Following a trial to the court, the chancellor set aside
both wills and found that the estate should proceed intestate. Calvin, Diane, and her siblings
Peggy Rutland Jones and Greg Rutland appeal from that judgment, arguing that the
chancellor erred in setting aside the 2002 will. Rickie and Todd cross-appeal, arguing that
the chancellor erred in setting aside the 1989 will. Finding that the chancellor erred in setting
aside the 2002 will, we reverse, render, and remand for proceedings consistent with this
opinion.
FACTS
¶2.
Willie Ray lived on an eighty-eight acre farm inherited from his parents and located
in Lawrence County, Mississippi. In 1989, when Willie Ray was fifty-seven years old, he
executed a will leaving his real property to Rickie and Todd. Around 1990, Willie Ray
retired from his employment with the State of Mississippi.
¶3.
In July 1996, Willie Ray executed a power of attorney in favor of Todd, and he
executed a deed conveying his real property to Todd and Rickie, reserving a life estate for
himself. Willie Ray also added Josie Nell Lambert, Todd’s and Rickie’s mother, as a joint
owner of his bank accounts. Testimony generally agreed that Willie Ray’s physical health
2
began to decline in the years that followed. Willie Ray suffered several falls at home. In
November 1999, Willie Ray moved into the nearby New Dawn Retirement Center, a small
assisted-living facility in Lincoln County, Mississippi.
¶4.
In October 2001, Todd and Josie Nell attempted to move Willie Ray from New Dawn
into Todd’s newly rented home in Hattiesburg, Mississippi. Willie Ray resisted, and he
sought the assistance of his cousin and neighbor, Calvin. Willie Ray returned to New Dawn,
and shortly thereafter Calvin introduced Willie Ray to attorney Malcolm Rogers. Rogers
testified that Willie Ray wished to remain at New Dawn but had been told by his nephews
that he was unable to afford it. Willie Ray was concerned about the management of his
assets, particularly his real property and a certificate of deposit he believed was worth
$10,000. Rogers’s subsequent investigation determined that Willie Ray essentially had no
assets. Rogers also discovered the 1996 deed in the land records of Lawrence County.
Rogers informed Willie Ray that the real property had been deeded to Todd and Rickie in
1996 and that the certificate of deposit, actually valued at about $25,000, had been
withdrawn in October 1999 by Josie Nell. Most of the proceeds had been converted to
certificates of deposit in Todd’s name only. Willie Ray told Rogers that he had been led to
believe that he retained full title to the realty and would do so until his death and stated that
he believed the 1996 deed had been a will.
¶5.
On October 18, 2001, Willie Ray terminated Todd’s power of attorney and executed
a power of attorney in favor of Diane. In January 2002, Willie Ray filed suit against Todd,
Rickie, and Josie Nell, alleging that the 1996 deed had been procured by fraud and that,
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during the sixty-three month period Todd held power of attorney, they had mismanaged or
diverted approximately $110,000 of his other assets.1 The suit was ultimately settled on June
23, 2003; the 1996 deed was set aside, and the other claims were dropped.
¶6.
On January 18, 2002, Willie Ray executed a second will, naming Calvin as executor
and Diane as sole beneficiary. This will was executed at New Dawn and witnessed by
Rogers, Calvin, and the proprietor of New Dawn, Elaine Davis.
¶7.
Following Willie Ray’s death in January 2005, Rutland and Diane offered the 2002
will for probate.
Rickie and Todd filed a contest, alleging that Willie Ray lacked
testamentary capacity to execute the 2002 will or, in the alternative, that it was a product of
Diane’s undue influence. Rickie and Todd also offered the 1989 will for probate.
¶8.
The chancellor, in a brief memorandum opinion, found that Willie Ray lacked
testamentary capacity to execute the 2002 will. The chancellor cited Willie Ray’s 2002
lawsuit, which “brought into question [Willie Ray’s] capacity . . . to understand what he was
doing.” The chancellor also cited the testimony of “the bank officials and others.” The
chancellor also set aside the 1989 will, finding that there was “no question that a fiduciary
relationship existed” between Rickie, Todd, and Willie Ray.
STANDARD OF REVIEW
1
While the pleadings in the 2002 action were not made part of the record on appeal,
testimony indicated that Willie Ray cited approximately $32,650 in checks written from his
account to Josie Nell, $4,900 in checks to Todd, $2,775 in checks to “cash,” $18,600 in
checks written to Walmart, $6,600 in ATM withdrawals, $1,200 in overdraft charges,
$27,000 from the certificate of deposit (including interest and early withdrawal penalties),
and $16,660 in retirement checks not deposited to Willie Ray’s accounts.
4
¶9.
In reviewing the judgment of a chancery court, an appellate court “will not disturb the
findings of a chancellor when supported by substantial evidence unless the chancellor abused
his discretion, applied an erroneous legal standard, was manifestly wrong, or was clearly
erroneous.” Hamilton v. Hopkins, 834 So. 2d 695, 699 (¶12) (Miss. 2003) (citations
omitted). Additionally, where the chancellor has made no specific findings, we will proceed
on the assumption that he resolved all such fact issues in favor of the appellee. Newsom v.
Newsom, 557 So. 2d 511, 514 (Miss. 1990). A chancellor’s interpretation and application
of the law, however, is reviewed de novo. Tucker v. Prisock, 791 So. 2d 190, 192 (¶10)
(Miss. 2001).
DISCUSSION
1.
Direct Appeal: The 2002 Will
A.
¶10.
Testamentary Capacity
To make a valid will, the testator must have been of sound mind at the time the will
was executed. Miss. Code Ann. § 91-5-1 (Rev. 2004). The supreme court has stated that
“the test of one’s capacity to execute a will is the ability of the testator at the time to
understand and appreciate the nature and effect of his act, the natural objects or persons to
receive his bounty, and their relation to him, and is capable of determining what disposition
he desires to make of his property.” In re Estate of Edwards v. Edwards, 520 So. 2d 1370,
1372 (Miss. 1988) (citations omitted). The supreme court continued:
At trial, the will’s proponents carry the burden of proof, which they meet by
the offering and receipt into evidence of the will and the record of probate. A
prima facie case is made by the proponent solely by this proof. Afterwards,
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although the burden of proof remains on the proponents, the burden of going
forward with proof of testamentary incapacity shifts to the contestants, who
must overcome the prima facie case. The proponents may then present rebuttal
proof if necessary. In short, the proponents must prove the testator's
testamentary capacity by a preponderance of the evidence.
Id. at 1372-73 (internal citations and quotations omitted).
¶11.
Rogers and Calvin, subscribing witnesses to the 2002 will, testified unequivocally that
Willie Ray possessed the requisite elements of testamentary capacity on January 18, 2002,
when the will was executed. The record also contains the affidavit of Davis, an attesting
witness, to the same effect.
¶12.
The proponents of the 2002 will also offered the deposition of Dr. David Smith of the
Pinnacle Medical Clinic in Summit, Mississippi. Dr. Smith testified that he had treated
Willie Ray for a period of years before and after the execution of the 2002 will. On March
23, 2002, Dr. Smith examined Willie Ray and conducted a “mini mental status exam” at the
patient’s request. Willie Ray scored “25 out of 30,” which Dr. Smith described as consistent
with normal mentation. Dr. Smith noted that Willie Ray suffered from various medical
conditions – hypertension, osteoarthritis, osteoporosis, monoclonal gammopathy of
undetermined significance, and renal insufficiency – but found “no evidence of dementia nor
any impairment in his ability to make his own decisions.” Finally, Dr. Smith opined, to a
reasonable degree of medical certainty, that on January 18, 2002, Willie Ray was capable of
each of the requisite elements of testamentary capacity.
¶13.
While the proponents of the will clearly made a prima facie case, the chancellor found
that Willie Ray lacked testamentary capacity to execute the 2002 will. The chancellor cited
6
the 2002 lawsuit against Rickie, Todd, and Josie Nell, as well as “the testimony of the bank
officials and others.” In reviewing the record, however, we find little evidence that could
support this finding.
¶14.
Only the agreed settlement from the 2002 lawsuit cited by the chancellor has been
made part of the record, and it offers no support for his findings regarding the prior lawsuit.
Furthermore, the testimony in the record regarding this suit was unanimous that it concerned
only actions undertaken between 1996 and October 2001; we fail to see any relevancy to
Willie Ray’s testamentary capacity on January 18, 2002. See In re Estate of Smith v. Smith
v. Averill, 722 So. 2d 606, 611 (¶13) (Miss. 1998) (holding that the relevant time for
testamentary capacity is the date of the execution of the will at issue).
¶15.
Only a single deposition from a bank official was entered into evidence, that of
Brenda Henderson, a financial service representative at Trustmark Bank. Her testimony
primarily concerned the disposition of Willie Ray’s certificate of deposit and bank accounts.
While she did note that Willie Ray “made it clear he was getting up in age” and had added
Josie Nell to his accounts so “she could handle things for him if he was not able to,”
Henderson offered nothing bearing upon Willie Ray’s testamentary capacity at the time of
the 2002 will.
¶16.
In reviewing the record, we find only two other witnesses that could support the
chancellor’s finding, Rickie and Todd. Rickie, who lived in Atlanta, Texas, testified that by
2001 he would only visit with Willie Ray “probably four times a year for a couple days.”
He also acknowledged that he had not spoken with Willie Ray for “a few months” prior to
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the execution of the 2002 will.2
Rickie testified that by that time Willie Ray had a
“decreased” or “deteriorated” mental capacity and “was not fully functional.” When asked
to cite examples of Willie Ray’s behavior that led him to this conclusion, Rickie testified that
Willie Ray “was living alone most of the time,” “wouldn’t bathe,” had “quit driving,” and
had “fallen down a couple of times.”
¶17.
Todd testified that around 1998, Willie Ray “started going down.” Todd testified that
Willie Ray “would forget things,” and related that a woman had come to Willie Ray’s house
and offered to paint it. She distracted Willie Ray while another man attempted to burglarize
the home. Todd stated that he believed Willie Ray had “started going kind of down” because
“in a couple of weeks, the same people came back and tried to do it again.” Todd also
testified that after Willie Ray moved into New Dawn in November 1999, “[his mental
condition] progressively got worse.” By the time of the execution of the 2002 will, Todd
testified, “I don’t think he really knew exactly what he was doing.” Todd testified that he
had “tried to stay away from [Willie Ray] as much as possible,” after October 2001, but Todd
added that “when we’ve had court proceedings . . . he was like the same old uncle, like
nothing had ever happened.” 3
¶18.
Both Todd and Rickie denied that they or their mother had mismanaged Willie Ray’s
2
Rickie testified that he had last seen Willie Ray sometime after the family began
discussing moving Willie Ray from New Dawn to Todd’s home in Hattiesburg, but that the
final visit was prior to the October 2001 falling out.
3
Todd testified on cross-examination that he stopped seeing Willie Ray in October
2001 and did not see Willie Ray again until some time in 2003.
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assets. Each also testified that Willie Ray had executed the 1996 deed on his own initiative
and that neither nephew had been involved in transferring the property.
¶19.
In reviewing this testimony we find nothing sufficient to support the chancellor’s
finding that Willie Ray lacked testamentary capacity. Both Rickie and Todd acknowledged
that they had not seen Willie Ray for several months prior to the execution of the 2002 will.
“[T]estimony regarding capacity from witnesses who have not seen the testator in months
will be deemed irrelevant by the Court.” Averill, 722 So. 2d at 611 (¶13). Such proof is “too
distant to have significant import.” Id. at (¶15).
¶20.
Furthermore, we require that the opinions of lay witnesses regarding testamentary
capacity be supported by “facts as a basis for the witnesses’ conclusion.” In re Estate of
Briscoe v. Briscoe, 293 So. 2d 6, 8 (Miss. 1974). Overly broad or generalized testimony
indicating a lack of capacity will be deemed insufficient where it is contradicted by
competent evidence and is “obviously based upon the infirmities of advancing age rather than
upon any abnormal conduct indicative of mental aberration.” Id. Therefore, Rickie’s and
Todd’s testimonies, at best, could demonstrate some occasional deficiency in Willie Ray’s
long-term memory; such is not sufficient to establish an absence of testamentary capacity.
See, e.g., Averill, 722 So. 2d at 611 (¶13) (holding that a person generally lacking
testamentary capacity may make a valid will during a “lucid interval” where capacity exists).
¶21.
Finally, on appeal the nephews argue that Willie Ray “was not even aware of the
status of ownership of his property, nor the totality of his estate.” This is an apparent
reference to Willie Ray’s confusion as to the value of his certificate of deposit and his belief
9
that he retained full title to his real property. The only testimony regarding this, however,
was offered by the attorney, Rogers, who testified that this was Willie Ray’s belief at the
beginning of his representation of Willie Ray in October 2001. Rogers also testified that, at
the time of the execution of the 2002 will, Willie Ray understood that he no longer possessed
the certificate of deposit or full title to the property; Willie Ray filed the 2002 lawsuit
contemporaneously with the execution of the will in an attempt to recover this property.
¶22.
After a thorough review of the record, we conclude that the chancellor’s finding that
Willie Ray lacked testamentary capacity to execute the 2002 will is not supported by
sufficient evidence in the record.
B.
¶23.
Undue Influence
While the chancellor did not expressly find that the 2002 will was a product of
Diane’s undue influence, this was an alternative theory offered by the contestants. On
appeal, they urge this court to assume that the chancellor resolved this issue in their favor and
affirm the chancery court’s judgment setting aside the 2002 will as a product of undue
influence.
¶24.
We have stated:
A will is said to be the product of undue influence when an adviser has been
so importunate as to subdue the testator's will and free agency. Such may be
accomplished through a variety of methods, such as advice, arguments, or
persuasion. However, not all influence exerted is undue. The influence must
have been so overwhelming that the resulting instrument reflected the will of
the adviser rather than the testator.
In re Estate of Pigg v. McClendon, 877 So. 2d 406, 411 (¶24) (Miss. Ct. App. 2003) (internal
10
citations omitted).
¶25.
A presumption of undue influence arises where a confidential relationship exists
between the testator and a beneficiary and there is “some showing that the beneficiary under
the will abused the relationship either by asserting dominance over the testator or by
substituting his intent for that of the testator.” In re Estate of Grantham v. Roberts, 609 So.
2d 1220, 1224 (Miss. 1992). Such can be accomplished “where a beneficiary actively
participates in the procurement, preparation or execution of the will.” Id.
¶26. In reviewing the record, we find it insufficient to support a finding of undue influence
through direct evidence. The question of whether a presumption of undue influence arose
requires further examination.
Clearly, there was sufficient evidence to find that a
confidential relationship existed between Diane and Willie Ray at the time of the execution
of the will: Willie Ray suffered from numerous physical ailments; he resided in an assistedliving facility and required assistance to travel; Diane possessed a power of attorney; and she
had handled Willie Ray’s finances since October 2001.
¶27.
Assuming that a confidential relationship existed, the contestants must still produce
evidence of an abuse of that relationship relating to the execution of the will. In reviewing
the record, it is apparent that they failed to meet that burden.
¶28.
Both Todd and Rickie admitted that they knew nothing of the circumstances of the
execution of the 2002 will. Willie Ray’s cousin, Calvin, and his attorney, Rogers, both
testified that Willie Ray had been introduced to Rogers by Calvin. The scope of the initial
representation was not the drafting of a will, but the severance of the fiduciary relationship
11
between Willie Ray and Todd and the recovery of Willie Ray’s assets that he believed had
been wrongly diverted to his nephews.
¶29.
Rogers testified that, while meeting with Willie Ray at New Dawn to discuss the 2002
lawsuit, he explained that if Willie Ray were to die during the pendency of the suit, any
property recovered in the suit would be divided between his heirs at law through intestate
succession.4 Calvin was present during the meeting, and Davis was “in and out,” but Diane
was not present.
¶30.
Rogers asked Willie Ray if he desired a specific disposition of his property, and at that
point Willie Ray asked Rogers to prepare a will. Willie Ray volunteered that he wished to
leave his property to his niece, Diane.
¶31.
Rogers testified that, at the time the will was executed, he “may” have met Diane
once. Rogers testified that he had encountered Diane in the parking lot at New Dawn on one
occasion, as she was arriving and he was leaving, but Rogers was unsure whether this was
before or after the will was executed.
¶32.
After discussing the will further with Willie Ray, Rogers returned to his office, drafted
the will, and returned to New Dawn where the will was executed the same day.
¶33.
Diane testified that she “had nothing to do” with the execution of the 2002 will. She
testified that she lived in Roxie, Mississippi, and was not present at or near New Dawn on
January 18, 2002. Diane stated that she had learned of the will several days or weeks after
4
Rogers was, apparently, unaware of the 1989 will at the time.
12
its execution.
¶34.
The only testimony that could support a presumption of undue influence is Diane’s
admission that she had driven Willie Ray to Rogers’s office once, or possibly twice, some
time in 2001. This alone is simply too tenuous and too remote to the execution of the 2002
will to prove an abuse of the confidential relationship sufficient to raise a presumption of
undue influence.
¶35.
Therefore, we find the evidence insufficient to support a finding that the 2002 will
resulted from undue influence. Accordingly, the chancellor erred in setting aside the 2002
will.
2.
¶36.
Cross-Appeal: The 1989 Will
The chancellor found the 1989 will should be set aside, citing “a fiduciary
relationship” between Willie Ray and Todd and Rickie. On cross-appeal, the nephews argue
that this finding was unsupported by the record and legally insufficient to set aside the will.
They also argue that no evidence in the record can support setting the 1989 will aside. On
our review of the record, we agree with the first two propositions: no testimony or evidence
offered at trial could support a finding of a confidential relationship between Rickie or Todd
and Willie Ray in 1989, nor was any evidence offered that there was an abuse of such
relationship if it existed. See Costello v. Hall, 506 So. 2d 293, 298 (Miss. 1987). However,
we find that the 1989 will was nonetheless properly set aside because the 2002 will expressly
revoked all prior wills. See Miss. Code Ann. § 91-5-3 (Rev. 2004). Accordingly, this issue
is without merit.
13
¶37. THE JUDGMENT OF THE CHANCERY COURT OF LAWRENCE COUNTY
IS REVERSED, AND JUDGMENT IS RENDERED FINDING THAT THE 2002
WILL IS VALID AND SHALL BE ADMITTED TO PROBATE. THE JUDGMENT
IS AFFIRMED ON CROSS-APPEAL. THE CASE IS REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO THE APPELLEES/CROSS-APPELLANTS.
KING, C.J., LEE, P.J., GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON
AND MAXWELL, JJ., CONCUR. IRVING, J., NOT PARTICIPATING.
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