In the MATTER of the Last WILL and Testament of William Harry FANKBONER, Deceased.
Joseph PALLATIN
v.
Kandy JONES, Executrix of the Estate of William Harry Fankboner, and Ezekiel Jones, a Minor.
Supreme Court of Mississippi.
*494 Michael W. Crosby, Gulfport, for appellant.
Wayne L. Hengen, Hengen & Hengen, W. Eugene Henry, Biloxi, for appellee.
EN BANC.
ON PETITION FOR REHEARING
BANKS, Justice, for the Court:
The petition for rehearing is granted, the original opinion is withdrawn and this opinion substituted therefor.
In this will contest, Joseph Pallatin asks that we overturn the trial court's findings that the daughter of the testator did not unduly influence the testator to change his will and leave her one-half of his monetary assets and personal property to the exclusion of Pallatin and other charitable organizations. We are also asked to determine whether attorney fees and costs paid by him, without prior court approval, should be charged to him, and to revisit the question of sanctions under Rule 11 of the Mississippi Rules of Civil Procedure and the Litigation Accountability Act of 1988. Except as to the issue of unapproved expenditures and sanctions, we affirm.
I.
Joseph Pallatin, filed a petition seeking construction and validity of the last will and testament of his deceased friend, William Harry Fankboner.[1] Joseph sought to have the court find that Fankboner intended his first will to rule and to find that Kandy Jones unduly influenced Fankboner to draft a new will, naming her as one of the primary beneficiaries. The chancery court granted Kandy Jones a partial directed verdict and found that no justiciable issue existed as to Fankboner's mental competency. During the proponent's case in chief, Jones testified that on May 3, 1989, Fankboner wrote her and asked her to forgive him and to always remember that she is his daughter. It was during her testimony that Pallatin became aware of this letter and other notes from Fankboner.
*495 After deliberation, the jury found that Jones did not unduly influence Fankboner to change his will. In the final judgment, the chancellor awarded attorney fees and costs against Pallatin, ordered him to reimburse monies spent from the estate's account, and sanctioned him pursuant to Rule 11 of the Mississippi Rules of Civil Procedures and the "Litigation Accountability Act of 1988." Aggrieved, Joseph Pallatin filed this appeal.
II.
In an action contesting a will, a presumption of undue influence arises where there is a confidential or fiduciary relationship. Mullins v. Ratcliff,
In order for Jones to have overcome this presumption of undue influence, the evidence must have shown by clear and convincing evidence that (A) Jones exhibited good faith in the fiduciary relationship with Fankboner; (B) Fankboner acted with knowledge and deliberation when he executed the September 13, 1989 will; and (C) Fankboner exhibited independent consent and action. Murray v. Laird,
A.
To determine if Jones acted in good faith when she procured the September 13, 1989, will, the identity of the initiating party, who sought the preparation of Fankboner's will, must be determined. In making this determination, it is significant that Fankboner told two totally disinterested witnesses that he wanted to change his will. In Vega v. Estate of Muller, then Presiding Justice Hawkins stated:
In those cases where you admittedly have a confidential relations transfer from a dependent to a dominant party, it seems to me that the ultimate test should be something on the order of the following: Excluding the testimony of the grantee, those acting in the grantee's behalf (such as the attorney), and any others who could have a direct or indirect interest in upholding the transfer (such as grantee's family), is there any other substantial evidence, either from the circumstances, or from a totally disinterested witness from which the court can conclude that the transfer instrument represented the true, untempered, genuine interest of the grantor? If the answer to this question is yes, then it becomes a question of fact whether or not there was undue influence. If the answer is no, then as a matter of law the transfer is voidable.
Vega v. Estate of Muller,
In the instant case, the two disinterested witnesses were Sergeant Jones and Captain Beverly Tuomala. Sergeant Jones, a medical service specialist and shift leader at Keesler Air Force Base, and one of the subscribers to the September 1989 will, testified that Fankboner talked about changing his will several weeks prior to signing it and that Fankboner went over the will several times before signing it. The second subscribing witness, Captain Beverly Tuomala, testified that Fankboner was a very good communicator and a very adamant individual. She stated that she asked him if that was his will and if he wanted her to sign it, he nodded yes and pointed to the area where she needed to sign.
*496 Secondly, the place of the execution of the will and the persons in whose presence the will was executed are significant. The will was executed at the Keesler Medical Center. The two subscribing witnesses, Captain Tuomala and Sergeant Jones, along with other medical personnel, were present.
The third and fourth factors are the consideration/fee that was paid and the identity of the person who paid the fee. The fee was paid from Fankboner's account, which was at the time a conservatorship account. Jones testified that in her capacity as conservatrix, she paid for the will on Fankboner's behalf.
The fifth and last factor that should be considered to determine the "good faith" of Jones is the secrecy and openness given the execution of the will. The evidence indicated that the execution was quite open and well observed, given the layout of the intensive care unit where Fankboner was being monitored. Jones' contention that her father, Fankboner, initiated the new will is not only supported by her testimony, but by the subscribing witnesses' testimony. In addition, Barbara Champ, a witness for Pallatin, testified that Fankboner told her that he wanted to take care of his family and to exclude the charitable organizations that he listed in his February 3, 1989, will. We find that substantial evidence existed to support a finding that Jones showed good faith.
B.
According to the test delineated in Murray, there are four factors that should be used to determine Fankboner's knowledge and deliberation at the time that the will was executed:
a) his awareness of his total assets and their general value, b) an understanding by him of the persons who would be the natural inheritors of his bounty under the laws of descent and distribution or under a prior will and how the proposed change would legally affect the prior will or natural distribution, c) whether non-relative beneficiaries would be excluded or included and, d) knowledge of who controls his finances and business and by what method, and if controlled by another, how dependent is the grantor/testator on him and how susceptible to his influence.
Murray,
Secondly, we have recognized that the "disclosure of intent made prior to execution of an instrument helps dilute the undue influence presumption." Mullins,
C.
The law requires clear and convincing evidence of independent consent and action by the testator. Murray,
Given the facts and the circumstances of this case, the evidence is sufficient to clearly and convincingly show that Jones did not substitute her intent for that of Fankboner. We conclude that this assignment of error is without merit.
III.
Pallatin contends that the chancellor erred when he charged him $8,305.44 for legal fees and other expenses paid in connection with the estate proceedings in Indiana and Arkansas, as well as the legal fees paid to his attorney, Michael W. Crosby. Jones argues that we should follow our reasoning in Clarksdale Hospital v. Wallis that attorneys' fees are the personal obligation of the executor or administrator and compel Pallatin to reimburse the Fankboner estate. Clarksdale Hosp. v. Wallis,
In Harper v. Harper,
in annual and final settlements, the executor, administrator, or guardian shall be entitled to credit for such reasonable sums as he may have paid for the services of an attorney in the management or in behalf of the estate, if the court be of the opinion that the services were proper and rendered in good faith.
Miss. Code Ann. § 91-7-281 (1972). Rule 6.07 of the Uniform Chancery Court Rules provides that "claims arising after the death of a decedent, such as funeral bills, expenditures for monuments, attorney's fees, and the like must be approved by the Chancellor before payment. Otherwise, payment thereof will be at the risk of subsequent disapproval by the chancellor as to the propriety or reasonableness thereof." Miss.Unif. Chan.Ct.R. 6.07 (emphasis added).
In the instant case, Pallatin admitted that he did not get a court order to pay the $8,305.44. Pallatin explained that he proceeded under Indiana law which provides that "[i]f you are a beneficiary or executor in any will, even though there is another will that comes up you still have a duty to go forward, as long as you do so in good faith, to prosecute that will and to have it decided which will is to control. And even if you lose, you still have a right to costs and attorney fees... ." In Mississippi, we have said that an executor or executrix who acts without prior court approval, does so at his or her peril. Harper,
Here, the items which go to make up the $8,305.44, include matters ordinarily incident to the administration of an estate as well as items incident to the present litigation. In light of our disposition as to sanctions, it is certainly conceivable that expenditures made in connection with some or all of this litigation *498 could be considered reasonable and necessary to the fair administration of the estate. See Burns Ind. Code Ann. § 29-1-10-14 (1993).
As we understand the decision of the chancellor, the court below never reached the issue of the propriety of the expenditures, but instead based its conclusion in this regard on the finding that no estate proceedings should ever have been commenced in Indiana. The court cited no authority for this conclusion and it has not been briefed by the parties. On the face of it, the deceased had personal property in the state of Indiana giving that state a sufficient nexus for the administration of the estate. See Miss. Code Ann. § 91-7-1 (1972); Burns Ind. Code Ann. 29-1-10-1 (1993). The named executor resided in that state and consideration of that fact would indicate that administration there would be the most economical for the estate. There may be other considerations which dictated the chancellor's conclusion.
For the foregoing reasons, we reverse as to this issue and remand for further consideration.
IV.
Pallatin contends that the sanctions that he received under both Mississippi Rules of Civil Procedure 11 and the "Litigation Accountability Act of 1988" are unwarranted since he had a good-faith belief when he initiated the complaint. Under Rule 11(b), sanctions are warranted when the pleading or motion is 1) frivolous or 2) is filed for the purpose of harassment or delay. Miss.R.Civ.P. 11. Under the "Litigation Accountability Act of 1988," the chancellor must have first found that the action was brought without substantial justification, that it was interposed for delay or harassment, or that it unnecessarily expanded the proceedings. Miss. Code Ann. § 11-55-1 (Supp. 1993).
Pallatin contends that at the time of filing, he believed that the case had merit, based upon the information that he had. Pallatin further contends that, objectively viewed, that belief was not unreasonable since he and his attorney had "hope of success." Bean v. Broussard,
Pallatin contends that this was not a frivolous case and that it was not brought to harass the proponent. The presumption of undue influence, along with the suspicious circumstances surrounding the execution of the will, gave the contestant some "hope of success". Bean,
Because substantial justification existed to support the filing of the complaint, and because there is no evidence that the claim was unnecessarily expanded or brought to delay or harass, we reverse and render the judgment as to sanctions.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART, REVERSED AND RENDERED, IN PART.
HAWKINS, C.J., DAN M. LEE and PRATHER, P.JJ., and SULLIVAN, PITTMAN, McRAE, JAMES L. ROBERTS, Jr. and SMITH, JJ., concur.
NOTES
Notes
[1] Fankboner executed three wills. On February 3, 1989, Fankboner executed his first Last Will and Testament in South Bend, Indiana. In this will, Fankboner bequeathed five dollars ($5.00) to his daughter, the appellee in this case, Kandy Jones, and five dollars ($5.00) to his son, Mark Fankboner. He left his grandson, Kandy Jones' son, Ezekiel Jones, twenty-five thousand dollars ($25,000). The appellant, Pallatin, was named as the personal representative and bequeathed two thousand five hundred dollars ($2,500). There were ten other bequests to friends and charitable organization ranging from one thousand dollars ($1,000) to fifteen thousand dollars ($15,000).
On August 9, 1989, Fankboner allegedly signed, while in Biloxi, Mississippi, a second will in which he divided his estate among his son, Mark, his daughter, Kandy, and friend, Barbara Champ. (This will is not at issue since the evidence was undisputed that Fankboner was delusional at the time that he signed this document).
On September 13, 1989, Fankboner executed his third will also in Biloxi, Mississippi. In this will, he bequeathed one-half of his estate to Kandy and one-half to his grandson.