Paul Posey v. Dorothy Pope

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2017-CA-00104-COA
PAUL POSEY AND ROBERT POSEY APPELLANTS
v.
DOROTHY POPE AND WILLARD POSEY APPELLEES
DATE OF JUDGMENT: 10/06/2016
TRIAL JUDGE: HON. EDWARD C. FENWICK
COURT FROM WHICH APPEALED: NESHOBA COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANTS: STEVEN DETROY SETTLEMIRES
ATTORNEYS FOR APPELLEES: G. TODD BURWELL
EMILY KINCSES LINDSAY
NATURE OF THE CASE: CIVIL - WILLS, TRUSTS, AND ESTATES
DISPOSITION: AFFIRMED: 08/28/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE GRIFFIS, P.J., FAIR AND TINDELL, JJ.
TINDELL, J., FOR THE COURT:
¶1. This appeal arises from a dispute among siblings Paul Posey and Robert Posey
(collectively, the Proponents) and Dorothy Pope and Willard Posey (collectively, the
Contestants) as to the validity of a 2008 will (the 2008 will) executed by their mother, Gladys
Posey. Following Gladys’s death in 2013, Paul submitted the 2008 will to probate and
recorded three warranty deeds (the 2013 deeds)1 that transferred portions of Gladys’s real
property to the Proponents’ children and grandchildren. The Contestants subsequently filed
1
Although Paul executed two of the deeds in 2012, he waited until 2013 to record
all three deeds. As a result, we collectively refer to these three warranty deeds as the 2013
deeds.
a complaint in Neshoba County Chancery Court and alleged the Proponents procured both
the 2008 will and the 2013 deeds through undue influence. In a bifurcated trial solely on the
issue of the 2008 will’s validity, a Neshoba County jury returned a verdict in favor of the
Contestants. Citing Mississippi Rule of Civil Procedure 54(b), the Neshoba County
Chancery Court entered a final judgment that revoked Gladys’s 2008 will.
¶2. The Proponents appeal both the chancellor’s final judgment and his denial of their
motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial.
On appeal, the Proponents raise the following arguments: (1) the chancellor’s evidentiary
rulings on the parties’ motion-in-limine requests resulted in the admission of evidence that
was unfairly prejudicial, confused the issues, and misled the jury; (2) the chancellor
erroneously gave jury instructions that were too numerous and that misled and confused the
jury; and (3) insufficient evidence supported the jury’s verdict that the Proponents procured
the 2008 will through undue influence.
¶3. Finding no error, we affirm.
FACTS
I. The 2007 Deeds and the 2008 Complaint
¶4. In 1996, Madison Posey executed a will that left all his real property to his wife,
Gladys. If Gladys predeceased Madison, his will directed that his real property be equally
divided among five of the couple’s six children, including the Proponents and the
Contestants. Gladys’s will mirrored the provisions of Madison’s will.
¶5. In 2004, Madison died and left Gladys approximately 138 acres of land in Neshoba
2
County, Mississippi. At the time of Madison’s death, Gladys was in her mid-eighties.
Through two separate warranty deeds signed on September 13, 2007 (the 2007 deeds),
Gladys conveyed approximately 132 acres of her property to the Proponents. On April 10,
2008, she executed a general durable power of attorney that appointed her son Paul her
attorney-in-fact.
¶6. On June 30, 2008, the Contestants filed a complaint (the 2008 action) to cancel the
2007 deeds based on undue influence and to confirm their title to part of the conveyed land
through adverse possession. In a January 30, 2012 final judgment, the chancellor found the
Contestants had sufficiently proven their claims of undue influence and adverse possession.
As a result, the chancellor set aside the property conveyed to the Proponents through the two
2007 deeds and granted the Contestants’ claims of title by adverse possession. On appeal,
this Court found the Proponents lacked standing to appeal the chancellor’s judgment. Posey
v. Pope, 130 So. 3d 1183, 1185 (¶5) (Miss. Ct. App. 2014). We therefore dismissed the
appeal. Id.II. The 2008 Will, the 2013 Warranty Deeds, and the 2013 Action
¶7. Gladys died on May 21, 2013.2 The same day, Paul recorded the three 2013 deeds,
which conveyed portions of Gladys’s real property to only the Proponents’ children and
grandchildren.3 Several days later, on June 6, 2013, Paul filed a petition to open Gladys’s
2
The record contains contradictory evidence as to the date of Gladys’s death.
However, because the letters testamentary identify May 21, 2013, as the day Gladys died,
we use that date throughout our opinion.
3
Acting as Gladys’s attorney-in-fact, Paul had previously executed two of the deeds
on September 10, 2012, and the third on January 9, 2013.
3
estate and for the issuance of letters testamentary. Paul submitted for probate the 2008 will,
which considerably changed the distribution of Gladys’s property to favor the Proponents.
While Gladys’s 1996 will had evenly distributed her property among the Proponents, the
Contestants, and one other sibling, her 2008 will bequeathed four of her children, including
the Contestants, only $100 each and devised and bequeathed the remainder of her estate to
the Proponents.
¶8. On June 12, 2013, the chancellor entered an order to admit the 2008 will to probate.
The chancellor also appointed Paul executor of Gladys’s estate and issued letters
testamentary. In August 2013, the Contestants filed a complaint (the 2013 action) to set aside
the 2008 will and the property conveyed through the three 2013 deeds. The Contestants also
filed a successful motion to remove Paul as executor of Gladys’s estate and to consolidate
their complaint with the estate proceedings.
¶9. Prior to trial, the Proponents filed two motions in limine in which they sought to (1)
prohibit any mention to the jury of the undue-influence judgment related to the 2007 deeds;
and (2) bifurcate the trial to first determine the validity of the 2008 will. The Contestants
likewise filed a motion in limine that sought to restrict the trial to the issue of the 2008 will’s
validity. The Contestants’ motion in limine also sought the exclusion of the following: (1)
any mention of or testimony about “the [w]ill executed by Madison; the adverse possession
of the real property at issue in the 2008 [action]; and[] how any of the property, whether real
or personal, in . . . Gladys[’s estate] should be distributed”; (2) any testimony offered by the
Proponents to rebut a presumption of undue influence; (3) any hearsay regarding Gladys’s
4
opinion of the Contestants and how Gladys wished to dispose of her assets; and (4) any
hearsay regarding statements Dorothy allegedly made to third-party entities about Gladys and
Paul. Along with their motion in limine, the Contestants filed a motion to bifurcate the trial
so that the jury only received facts and evidence related to the 2008 will’s validity.
¶10. Following a March 17, 2016 hearing, the chancellor granted the parties’ requests to
bifurcate the trial. The chancellor therefore restricted the trial to the sole issue of the will
contest and reserved all other issues for a later determination. As to the parties’ motion-in-
limine requests, the chancellor found the Proponents could provide testimony to rebut any
presumption of undue influence. However, the chancellor excluded testimony of alleged
statements Dorothy made to third-party entities about Gladys and the Proponents as
irrelevant, speculative, and hearsay. With regard to evidence about the undue-influence and
adverse-possession rulings in the 2008 action and any statements Gladys made about her
opinion of the Contestants or how she wished her property to be distributed, the chancellor
reserved his decision “until trial or such other time that [he] deem[ed] appropriate.” In a
subsequent order, however, the chancellor determined that the parties’ prior litigation, and
the resulting findings of undue influence and adverse possession, “would be unfairly
prejudicial should the jury hear about the same and [should therefore] be excluded from the
will contest[] unless the party attempting to exclude the evidence . . . open[ed] the door by
introducing evidence that such party [had attempted] to exclude.” The chancellor explained,
though, that his ruling did not prohibit the parties from offering evidence presented in the
prior litigation about the two 2007 deeds.
5
¶11. Over the course of a three-day trial in September 2016, the parties presented evidence
and testimony about the validity of Gladys’s 2008 will and whether the Proponents had used
undue influence to procure the will. At the close of the Contestants’ case-in-chief, the
Proponents moved for a directed verdict and argued the Contestants had failed to establish
a presumption of undue influence. In denying the motion, the chancellor concluded the
Contestants had proven the existence of a confidential relationship between Gladys and the
Proponents. The chancellor also found that a triable jury question existed as to whether the
Proponents had abused their relationship with Gladys by either asserting dominance over her
or by substituting their intent for hers.
¶12. After considering all the parties’ evidence, the jury returned a verdict in favor of the
Contestants. On October 6, 2016, the chancellor entered a final judgment pursuant to Rule
54(b) that revoked Gladys’s 2008 will. The Proponents filed an unsuccessful motion for a
JNOV or, in the alternative, a new trial. Aggrieved by the chancellor’s final judgment and
his denial of their posttrial motion, the Proponents timely appeal.4
DISCUSSION
I. Evidentiary Rulings
¶13. The Proponents argue the chancellor’s rulings on the parties’ motion-in-limine
requests resulted in the admission of evidence that was irrelevant, unfairly prejudicial, and
confusing to the jury. In particular, the Proponents challenge the chancellor’s decision to
admit into evidence the 2007 deeds, Gladys’s bank records, and the 2013 deeds.
4
As needed, we will relate any additional facts during our discussion of the issues the
Proponents raise on appeal.
6
¶14. “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable
than it would be without the evidence; and (b) the fact is of consequence in determining the
case.” M.R.E. 401. Unless the United States Constitution, the Mississippi Constitution, or
the Mississippi evidentiary rules provide otherwise, relevant evidence is admissible. M.R.E.
402. However, a “court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.” M.R.E. 403. We review the trial court’s admission or exclusion of evidence for
abuse of discretion. Ehrhardt v. Donelson, 221 So. 3d 393, 396 (¶15) (Miss. Ct. App. 2017).
“Where error involves the admission or exclusion of evidence, [the appellate courts] will not
reverse unless the error adversely affects a substantial right of a party.” Magers v.
Diamondhead Resort LLC, 224 So. 3d 106, 112 (¶11) (Miss. Ct. App. 2016) (quoting Whitten
v. Cox, 799 So. 2d 1, 13 (¶27) (Miss. 2000)).
a. The 2007 Deeds
¶15. In one of their motions in limine, the Proponents specifically asked the chancellor to
prohibit any mention to the jury about the facts and matters related to the 2008 action. In
ruling on the parties’ various motion-in-limine requests, the chancellor determined that the
2008 action and the resulting undue-influence and adverse-possession rulings should be
excluded from the present will contest. However, the chancellor explained his decision did
not prohibit the parties “from offering facts that were presented in the prior litigation
concerning the deeds that were at issue . . . .”
7
¶16. Based on the chancellor’s ruling, the Contestants sought to admit into evidence the
two 2007 deeds that conveyed part of Gladys’s property to the Proponents. The Proponents
objected to the admission of the 2007 deed conveying land to Paul on the ground of
relevance. They asserted no other objection to the exhibit’s admission, and they raised no
objection at all to the admission of the 2007 deed conveying land to Robert. In overruling
the Proponents’ objection, the chancellor found the deed was admissible “to establish a
pattern” of conduct between Paul and Gladys. On appeal, the Proponents acknowledge the
2007 deeds may have been potentially relevant to the will contest. However, they still assert
their admission was unfairly prejudicial, confused the issues, and misled the jury.
¶17. Upon review, we agree with the chancellor that the 2007 deeds were probative to the
question of the 2008 will’s validity. The Contestants sought to prove that the Proponents had
a confidential relationship with Gladys and that suspicious circumstances surrounded the
2008 will’s preparation and execution. Like the chancellor, we find the 2007 deeds provided
relevant evidence regarding the pattern of conduct that existed between the Proponents and
Gladys in the period leading up to the 2008 will’s preparation and execution. Despite the
Proponents’ assertions on appeal, we cannot find that any unfair prejudice or tendency to
confuse the issues or mislead the jury substantially outweighed the 2007 deeds’ probative
value. See M.R.E. 403. We therefore find no abuse of discretion in the chancellor’s decision
to admit the 2007 deeds.
b. Gladys’s Bank Records
¶18. The chancellor also allowed the Contestants to introduce into evidence the bank
8
records from a joint checking account Gladys shared with Paul. The Proponents objected
that the bank records bore no relevance to the issue of the 2008 will’s validity. On appeal,
the Proponents argue that the chancellor’s admission of the bank records “inject[ed]
collateral issues, to be decided at a later date, into the will contest[,]” unfairly prejudiced
them, and resulted in a verdict of passion.
¶19. Upon review, we find the disputed bank records were relevant to support the
Contestants’ claim that a confidential relationship existed between Gladys and the
Proponents until the date of her death. Whether a person maintains a joint account with
another is a factor to consider in determining the existence of a confidential relationship.
Kimbrough v. Estate of Kimbrough, 134 So. 3d 281, 284-85 (¶12) (Miss. 2014). Thus, the
bank records were clearly probative to show whether such a relationship existed between
Gladys and the Proponents. Furthermore, the bank records established who wrote which
checks from the joint account, such as the check Paul filled out for the payment of the 2008
will’s preparation. In addition, the bank records showed to what extent the Proponents had
access to and control over Gladys’s finances. Because we find the bank records’ probative
value substantially outweighed any danger of unfair prejudice or tendency to confuse the
issues or mislead the jury, we find no abuse of discretion in the chancellor’s admission of the
records. Accordingly, we find this argument lacks merit.
c. The 2013 Deeds
¶20. Finally, the Proponents contend the chancellor abused his discretion by admitting into
evidence the 2013 deeds. The Proponents argue the 2013 deeds lacked relevance to the will
9
contest because Paul executed them four years after the 2008 will. Furthermore, the
Proponents assert the 2013 deeds’ probative value was substantially outweighed by the
danger of unfair prejudice and a tendency to confuse the issues and mislead the jury.
¶21. At trial, Paul testified he really only used his mother’s power of attorney when she had
to “go to the hospital or something, [and] I had to sign for her . . . .” Paul further testified
about the instructions Gladys gave him on the division of certain real property among her
grandchildren. According to Paul, he always followed his mother’s instructions for the
disposition of her property.
¶22. On cross-examination, the Contestants sought to impeach Paul’s credibility by
introducing into evidence the 2013 deeds. Paul executed the 2013 deeds pursuant to the
power of attorney. In addition, the 2013 deeds conveyed part of Gladys’s property to only
the Proponents’ children and grandchildren rather than to all of Gladys’s grandchildren and
great-grandchildren. Overruling the Proponents’ objection to the 2013 deeds’ relevance, the
chancellor allowed the Contestants to admit the 2013 deeds for the limited purpose of
impeaching Paul’s credibility.
¶23. After considering the evidence, we find no abuse of discretion in the chancellor’s
decision to admit the 2013 deeds. As discussed, the Contestants only sought to admit the
2013 deeds to impeach Paul’s direct-examination testimony. Since the chancellor allowed
the 2013 deeds for that limited purpose, their admission did not inject collateral issues into
the will contest. The parties presented no arguments regarding the validity of the 2013 deeds,
and thus, the sole issue before the jury remained the validity of Gladys’s 2008 will.
10
Furthermore, on redirect examination, Paul had an opportunity to explain his actions in
executing the 2013 deeds pursuant to the power of attorney. For these reasons, we find this
assignment of error lacks merit.
II. Jury Instructions
¶24. The Proponents next argue the chancellor erred by giving too many jury instructions,
which they claim confused and misled the jury. According to the Proponents, the chancellor
should have followed Uniform Rule of Circuit and County Court 3.07 and limited each party
to the submission of only six jury instructions.5 As support for their contention that the
overall number of instructions confused the jury, the Proponents point to a written question
the jury submitted to the chancellor during its deliberations.
¶25. We review a trial court’s decision to give or refuse jury instructions for abuse of
discretion. Magers, 224 So. 3d at 109 (¶6). “When jury instructions are challenged on
appeal, we do not review them in isolation: rather, we read them as a whole to determine if
the jury was properly instructed.” Id. at 109-10 (¶6) (internal quotation marks omitted).
Where the jury instructions as a whole fairly announce the relevant caselaw and create no
injustice, we will find no reversible error. Id. at 110 (¶6).
5
In relevant part, Rule 3.07 states:
At the conclusion of testimony, the attorneys must select no more than six jury
instructions on the substantive law of the case from the instructions prefiled
and present them to the judge. The court, for good cause shown, may allow
more than six instructions on the substantive law of the case to be presented.
URCCC 3.07.
11
¶26. At the beginning of the jury-instruction conference, the Proponents objected that the
fourteen instructions the Contestants submitted were too numerous and would confuse the
jury. In response, the Contestants explained that, since the chancellor did not usually instruct
a jury, they submitted a number of basic court instructions. The Contestants further argued
that, since the litigation was complex “in terms of the shifting of burden of proof[,]” good
cause existed for the submission of more than six jury instructions. After considering the
parties’ arguments, the chancellor decided not to limit the number of jury instructions the
parties could submit. The chancellor further provided, though, that he would determine
whether to actually give each instruction as it was discussed.
¶27. During the jury’s deliberations after the trial, the chancellor received a note from the
jury that stated as follows: “Explain Question #3 more. Acted independently and without
undue influence when she executed her will? The process before or the actual signing.”
After discussing the jury’s note, the chancellor and the parties’ attorneys concluded the
question referred to jury instruction C-15, which contained four questions the jury had to
answer either affirmatively or negatively. The third question contained in instruction C-15
asked: “Do you find, by a preponderance of the evidence, that Gladys Posey acted
independently and without undue influence when she executed her will?” Without objection
from either party, the chancellor responded to the jury by writing that the answer to their
question was set out in instruction C-8. Following the chancellor’s response, the jury
continued its deliberations and then returned a verdict without asking for further guidance.
¶28. The Mississippi Supreme Court has explained “that the number of instructions
12
submitted to the court and the jury ‘lies within the sound judicial discretion of the trial
judge[,] who may limit or expand for good cause shown.’” Blue v. State, 716 So. 2d 567,
573 (¶25) (Miss. 1998) (quoting Young v. State, 451 So. 2d 208, 211 (Miss. 1984)). The
supreme court has further held that the six-instruction limit acts as a “numerical beginning
point” rather than an “inflexible rule[.]” Id. In the present case, we find no abuse of
discretion in the chancellor’s decision to allow the Contestants to submit more than six jury
instructions. In addition, we find no abuse of discretion in the chancellor’s decision to give
more than six of the Contestants’ submitted instructions. While the Proponents renew their
trial objection as to the number of jury instructions given, they neither discuss which specific
jury instructions may have confused or misled the jury, nor do they argue that any of the
Contestants’ instructions provided an incorrect statement of law. Furthermore, the
Proponents assert no claim that the chancellor incorrectly responded to the jury’s question
during its deliberations. Thus, after reading the given jury instructions as a whole, we find
they fairly announced the applicable caselaw and created no injustice. See Magers, 224 So.
3d at 109-10 (¶6). We therefore find this assignment of error lacks merit.
III. Sufficiency of the Evidence
¶29. In both their motion for a directed verdict at the end of the Contestants’ case-in-chief,
and again in their posttrial motion for a JNOV, the Proponents challenged the sufficiency of
the evidence supporting the finding of undue influence. When reviewing the sufficiency of
the evidence, we consider “the trial court’s ruling at the last time the sufficiency of the
evidence was challenged.” Warren v. State, 187 So. 3d 616, 627 (¶29) (Miss. 2016) (quoting
13
Wales v. State, 73 So. 3d 1113, 1120 (¶19) (Miss. 2011)). We therefore review the
chancellor’s denial of the Proponents’ motion for a JNOV. In so doing, we “view[] the
evidence in the light most favorable to the [nonmoving party], and if substantial evidence
supports the verdict, we will affirm the judgment of the trial court.” Cope v. Thrasher
Constr. Inc., 231 So. 3d 989, 993 (¶5) (Miss. 2017) (citing Adcock v. Miss. Transp. Comm’n,
981 So. 2d 942, 948 (¶25) (Miss. 2008)); accord Hall v. State, 245 So. 3d 396, 401 (¶21)
(Miss. 2018).
¶30. The Proponents admit that sufficient evidence existed to demonstrate a confidential
relationship between Paul and Gladys. However, they also correctly assert this fact alone
fails to give rise to a presumption of undue influence. See Estate of Phelps v. Phelps, 180
So. 3d 835, 840 (¶23) (Miss. Ct. App. 2015). “A presumption of undue influence arises
where: (1) a confidential relationship existed between the testator and a beneficiary, and (2)
there existed suspicious circumstances—such as the testator’s mental infirmity—or the
beneficiary in the confidential relationship was actively involved in some way with preparing
or executing the will.” Id. Here, the Proponents contend the Contestants presented
insufficient evidence to prove the second prong of the undue-influence analysis.
¶31. In denying the Proponents’ motion for a JNOV, the chancellor found the Contestants
presented sufficient evidence for the jury to determine whether the Proponents were actively
involved in the 2008 will’s preparation or execution or whether suspicious circumstances
existed that negated any independent action by Gladys. During the trial, the Contestants
established that Gladys and her husband, Madison, had used Mont Mars for their legal
14
matters, including the preparation of their wills in 1996. While Gladys also used Mars to
prepare the 2007 deeds, she did not use him a year later to prepare her 2008 will. Instead,
Gladys hired Wade White, who had not previously done any legal work for her. White
testified that he had known Gladys his entire life. He stated he was related to Willard’s wife
and was related by marriage to Paul’s son, Eddie Posey, and to Eddie’s wife. In addition,
White testified that, in his capacity as the attorney for the Neshoba County Board of
Supervisors, he worked closely with Eddie, who was the county road manager.
¶32. At the time Gladys signed the 2008 will, Paul was her primary caretaker. Gladys was
89 years old, and two of her daughters, Clara Benson and Elaine Powell, testified that
cataracts had caused their mother’s eyesight to greatly deteriorate. Although White testified
that Gladys herself called him to discuss the preparation of her 2008 will, Clara disputed
whether her mother could have looked up the number in the phone book. According to
Clara, Gladys’s eyesight had become so poor that Gladys had difficulty reading or even
seeing a glass of water in front of her. Clara further testified that Gladys needed help dialing
phone numbers and would ask Clara to dial the numbers for her.
¶33. White testified he could not tell whether Gladys was by herself when the two initially
discussed the preparation of the 2008 will because they spoke over the phone. After their
telephone conversation, White prepared the 2008 will and took it to Gladys’s house for her
to review and sign. White testified that Gladys remained seated in a recliner during the visit
and that Paul’s son, Jeffrey Posey, had to let White and his secretary into the house.6
6
White testified he could not remember if Jeffrey was already present to let him into
Gladys’s house or if someone had to call Jeffrey and ask him to let White into the house.
15
¶34. Unlike Gladys’s prior will, the 2008 will left her entire estate to the Proponents with
the exception of a $100 bequest to Clara, Elaine, and each of the Contestants. White testified
that he did not recommend to Gladys that she distribute her property that way. White further
testified that Gladys did not pay him during his visit to her house. Instead, White later
received a check from the joint banking account Gladys shared with Paul. The check was
dated the same day that Gladys executed the 2008 will. Paul testified that he went to his
mother’s house the day she signed the will. Upon arriving, Paul stated that he learned about
the 2008 will for the first time and that his mother gave him a check to pay White. Paul
testified that his mother was capable of filling out checks herself but that she only signed the
check for White. As a result, Paul stated that he dated and filled out the check and then
delivered it to White’s office.
¶35. Based upon the evidence the Contestants presented during their case-in-chief, the
jurors could have reasonably found the Proponents participated in the 2008 will’s preparation
or execution or that suspicious circumstances existed that negated any independent action by
Gladys. As a result, the jury could have found sufficient information to support a
presumption of undue influence. Once the presumption of undue influence arose, the burden
shifted to the Proponents—the will beneficiaries—to prove the following: “(1) [g]ood faith
on the part of the beneficiar[ies]; (2) the testator’s full knowledge and deliberation of [her]
Jeffrey testified he thought he arrived at Gladys’s house at the same time as White, let White
into the house, and then waited outside while White spoke to Gladys. Jeffrey testified that,
at the time, his grandmother had an ulcer on her leg that required daily redressing. Because
of his healthcare background, Jeffrey testified that he checked on his grandmother each day
and helped her redress the wound.
16
actions and their consequences; and (3) independent consent and action on the part of the
testator.” Estate of Phelps, 180 So. 3d at 841 (¶31). The Proponents were required to prove
each of these factors by clear and convincing evidence. See id.
a. Good Faith
¶36. To determine the Proponents’ good faith, we consider the following: “(a) the identity
of the initiating party seeking preparation of the will; (b) the place of the execution of the
will and in whose presence; (c) the fee paid; (d) by whom it was paid; and (e) the secrecy or
openness surrounding the execution of the will.” Id. at (¶32).
¶37. As discussed, Gladys and her husband had traditionally used Mars for all their legal
matters. Even for the 2007 deeds, Gladys used Mars. However, for the preparation of her
will just a year later, Gladys hired White, who was related to Paul’s son and daughter-in-law
by marriage and worked closely with Paul’s son. Due to their mother’s deteriorating
eyesight, Clara and Elaine disputed whether Gladys had the ability to locate and dial an
unknown telephone number without assistance. Nevertheless, White testified that Gladys
initiated the will’s preparation herself and that he spoke to no other family members about
the document. White stated, though, that he only spoke to Gladys over the phone about the
will’s preparation. As a result, White could not confirm that Gladys was actually alone when
she called.
¶38. Even though Paul testified he knew nothing of the will beforehand, he admitted that
he arrived at Gladys’s home the same day she executed the new will. Although Gladys was
still able to write her own checks, Paul testified that his mother only signed the check for the
17
payment of the will’s preparation. Paul stated that he actually filled out the check from the
joint account he shared with his mother and then personally delivered the payment to White’s
office. According to Paul, he also placed the 2008 will in his personal safety deposit box and
never told the Contestants about the document. Paul further testified that, although he
mentioned the 2008 will’s existence to Clara and Elaine, he never related to them the
contents. Based on such testimony, the jury could have concluded the Proponents failed to
prove by clear and convincing evidence that they acted in good faith.
b. Knowledge and Deliberation
¶39. We next consider the following factors to determine whether Gladys had full
knowledge and deliberation of her actions and their consequences:
(a) whether [Gladys] was aware of her total assets and their worth; (b) whether
[Gladys] understood who her natural inheritors were and how her action would
legally affect prior wills; (c) whether [Gladys] knew nonrelative beneficiaries
would be included or excluded; and (d) whether [Gladys] knew who controlled
her finances and how dependent [Gladys] was on anyone handling her
finances.
Estate of Phelps, 180 So. 3d at 841 (¶33).
¶40. The Contestants and Clara testified that Gladys was not aware of the value of her
assets. Based on White’s limited conversations with Gladys, he also could not testify that
Gladys knew her total assets and their worth. According to White, he and Gladys never
discussed the details of her estate. Instead, Gladys simply instructed him to prepare a will
that left Clara, Elaine, and each of the Contestants $100 and the Proponents the remainder
of her estate.
¶41. The record reflects no dispute that Gladys had full knowledge of her natural inheritors.
18
However, while the Proponents assert that Gladys had good reason to be upset with several
of her children and to change the amount they inherited under the 2008 will, they offered no
testimony to show by clear and convincing evidence that Gladys understood how her actions
would legally affect her prior will.
¶42. As for the final factor, the Proponents acknowledge in their appellate brief that Paul
helped Gladys with her finances because Gladys “was virtually physically unable to pay bills
and such.” In June 2007, Gladys was hospitalized for several weeks. On the day Gladys was
discharged, Paul drove her to the bank so she could add him as a joint account owner. The
following year, in April 2008, Gladys executed a power of attorney that appointed Paul as
her attorney-in-fact. Paul testified that he often wrote checks from the joint account. While
Gladys sometimes filled out checks, Paul testified there were many other times when he filled
out the checks and his mother simply signed them. Based on the testimony and evidence, the
jury could have found the Proponents failed to prove by clear and convincing evidence that
Gladys had full knowledge of who controlled her finances.
c. Independent Consent and Action
¶43. One way for the Proponents to prove Gladys exhibited independent consent and action
was to demonstrate that Gladys sought advice from (a) a competent person; (b) who was
disconnected from the 2008 will’s beneficiaries; and (c) who was wholly devoted to Gladys’s
own interest. See In re Estate of Hart, 20 So. 3d 748, 756 (¶22) (Miss. Ct. App. 2009).
¶44. No dispute exists that White was competent to legally advise Gladys on the 2008 will.
However, White testified that he did not advise Gladys about the substance of her will
19
because she had already decided what she wanted. He simply prepared a will to reflect her
stated wishes.7 “The jury is the final arbiter of a witness’s credibility” and “weighs the
weight and worth of any conflicting testimony.” Williams v. State, 794 So. 2d 1019, 1028
(¶59) (Miss. 2001). After assessing the evidence, the jury could have found the Proponents
failed to prove by clear and convincing evidence that Gladys exhibited independent consent
and action.
¶45. Viewing the evidence in the light most favorable to the Contestants, we conclude a
reasonable juror could have found the Contestants met their evidentiary burden to establish
the second prong for undue influence. We further find sufficient evidence existed for a jury
to determine the Proponents failed to rebut the presumption of undue influence by clear and
convincing evidence. Because substantial evidence supports the jury’s verdict, we refuse to
reverse the chancellor’s denial of the Proponents’ motion for a JNOV. See Cope, 231 So.
3d at 993 (¶5). We therefore find this assignment of error lacks merit.
CONCLUSION
¶46. Because we find no merit to the Proponents’ assignments of error, we affirm the
chancellor’s final judgment and his denial of their motion for a JNOV.
¶47. AFFIRMED.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR,
WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.
7
The Contestants’ attorney clearly conveyed that the Contestants were not accusing
White of any wrongdoing; rather, White just “had the pleasure and privilege” of being the
attorney who drafted the disputed will.
20