IN THE SUPREME COURT OF MISSISSIPPI
NO. 2012-CA-02010-SCT
BRONWYN BENOIST PARKER
v.
WILLIAM DEAN BENOIST
AND
WILLIAM D. BENOIST, INDIVIDUALLY, AND IN HIS CAPACITY OF EXECUTOR OF THE ESTATE OF BILLY DEAN “B.D.” BENOIST, DECEASED
DATE OF JUDGMENT: 02/20/2012 TRIAL JUDGE: HON. PERCY L. LYNCHARD, JR. TRIAL COURT ATTORNEYS: GOODLOE TANKERSLEY LEWIS AMANDA POVALL TAILYOUR GRADY F. TOLLISON, JR. REBECCA B. COWAN KRISTEN E. BOYDEN COURT FROM WHICH APPEALED: YALOBUSHA COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANT: GOODLOE TANKERSLEY LEWIS AMANDA POVALL TAILYOUR ATTORNEYS FOR APPELLEE: GRADY F. TOLLISON, JR. REBECCA B. COWAN TAYLOR H. WEBB NATURE OF THE CASE: CIVIL - WILLS, TRUSTS, AND ESTATES DISPOSITION: ON DIRECT APPEAL: AFFIRMED IN PART; REVERSED AND RENDERED IN PART ON CROSS-APPEAL: AFFIRMED - 08/28/2014 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE WALLER, C.J., KITCHENS AND CHANDLER, JJ.
KITCHENS, JUSTICE, FOR THE COURT:
¶1. Bronwyn Benoist Parker and William Benoist are siblings who litigated the will of
their father, Billy Dean “B.D.” Benoist, in the Chancery Court of Yalobusha County. In
2010, B.D. executed a will which granted significantly more property to William–and
consequently, less to Bronwyn–than did a previous will that B.D. had executed in 1998.
Bronwyn alleged that William had unduly influenced their father, who was suffering from
dementia and drug addiction, into making the new will, which included a forfeiture clause
that revoked benefits to any named beneficiary who contested the will. Bronwyn lost the will
contest and her benefits under the new will were revoked by the trial court. In this appeal,
we must determine whether Mississippi law should recognize a good faith and probable
cause exception to a forfeiture in terrorem clause in a will. We hold that it should, and that
Bronwyn has sufficiently shown that her suit was brought in good faith and was founded
upon probable cause. Accordingly, we reverse the decision of the chancery court that
excluded Bronwyn from the will, and we render judgment in her favor to allow her to inherit
in accordance with her father’s 2010 will. We affirm the chancellor’s decisions to permit
William to pay attorneys with funds obtained from his father’s estate and to permit William
to continue as executor, and we affirm the chancery court’s decision to deny attorney fees
to the estate.
FACTS AND PROCEDURAL HISTORY
2 ¶2. In 1998, B.D. Benoist entered into mutual reciprocal wills with his wife Mary Benoist
(“the 1998 will”). The reciprocal wills provided that, in the event of either spouse’s death,
a credit shelter trust would be established to support the surviving spouse, with their children,
Bronwyn and William, as the trustees. After the death of the surviving spouse, the two
residual beneficiaries were to inherit equal shares of both the trust and the surviving spouse’s
estate. Mary died soon after executing her will, and the Mary G. Benoist Trust was set up to
support B.D. As cotrustees, Bronwyn and William were to manage the credit shelter trust
during B.D.’s lifetime, “pay all of the net income of the trust estate to or for the benefit of
[B.D.],” and pay out of the principal of the trust any amounts that they deemed necessary for
B.D.’s support, health, and maintenance. According to Bronwyn, at its highest valuation in
December 1998, the balance of the trust was $462,308. Starting in 2008, B.D. began
withdrawing large sums of money from the trust totaling $244,310.03. On May 31, 2011,
after B.D. had died, the trust account had a balance of $84,973.24.
¶3. In 2008, B.D.’s mind and memory began to deteriorate. William testified that it was
due to his drinking and characterized his father’s condition as “slight dementia.” William
testified that his father’s mind suffered when he drank heavily, but would snap right back
during periods of lucidity. During that time, B.D. also was taking Lortab for back pain.
According to William, B.D. would take “a couple [of Lortabs] in the morning, a couple at
night, and that pain medicine messed [his] mind up.” William himself had been on disability
since 2000 for cluster headaches, for which he took methadone. As a result of his condition,
he generally stayed around the house and didn’t do much. William either talked to or visited
3 B.D. every day after Mary died. In 2009, William’s wife filed for divorce. The divorce was
very difficult for William financially, and B.D. supplied him substantial assistance.
¶4. In 2009, B.D. began seeing Dr. Cooper McIntosh, an internist in Oxford, Mississippi.
He complained of falling and dizziness. The doctor listed the numerous drugs that B.D. was
taking, and stated in a report that B.D. had “significant dementia.” B.D. went to Dr. McIntosh
several times that year, at times appearing confused. At one point, William called on B.D.’s
behalf requesting Lortab, but when B.D. was examined, he did not appear to be in pain. At
trial, Dr. McIntosh testified that he “never saw [B.D.] where I would say he was incompetent
over, what, almost two years, a year and a half.” In June of 2009, B.D. was diagnosed with
mild dementia at a V.A. hospital in Jackson.1 Eventually, Bronwyn became so concerned
about her father’s increased drinking, depression, and dementia that she wanted to get a
power of attorney over him. Bronwyn also became concerned about significant withdrawals
that were made from B.D.’s trust account and his private Merrill Lynch account, which were
sent directly to William. Near the end of his life, B.D. also conveyed a large portion of his
real estate to William.
¶5. In 2010, B.D. executed a new will (“the 2010 will”), granting more property to
William than he would have received under his father’s 1998 will. When B.D. died less than
a year later, William submitted the 2010 will for probate. Bronwyn, until that point unaware
1 Several other allegations were made concerning B.D.’s mental state. B.D. was rumored to have sexually harassed two women. B.D. and Bronwyn’s husband, Walt, had enjoyed a good relationship until, according to Bronwyn, B.D. became distrustful and unfriendly toward him. Also, B.D.’s golfing buddies testified that he would show up for golf, and then just wander off without playing.
4 of the new will, entered the 1998 will for probate. She also filed a complaint requesting that
the court remove William as a cotrustee of the Mary G. Benoist Trust and order him to make
a full and accurate accounting of the trust, void any benefits William had received due to his
undue influence upon B.D., and grant any legal and equitable relief to Bronwyn to which she
was entitled.2 Over Bronwyn’s objection, the chancery court permitted William, as executor
of B.D.’s estate under the 2010 will, to take assets worth $20,000 from the estate to pay a
retainer fee to the Tollison law firm to defend against some of Bronwyn’s claims. This was
done despite Bronwyn’s removing B.D.’s estate as a party from the action against the Mary
G. Benoist Trust. The chancery court also declined to remove William as the executor of the
estate and appoint a temporary executor.
¶6. The matters were consolidated, and a jury trial ensued in the Chancery Court of
Yalobusha County. Bronwyn argued that William had exerted undue influence over B.D. by
convincing B.D. to give several inter vivos gifts of thousands of dollars and real estate to
William. She also alleged that William was behind the drafting and execution of B.D.’s 2010
will, which granted William substantially more assets than he would have received under the
1998 will. She contended that William had hidden a document which granted both William
and Bronwyn B.D.’s power of attorney, and instead turned B.D. against Bronwyn’s husband
Walt by convincing him that Walt wanted to use some of B.D.’s property for a commercial
development. William argued that Walt and Bronwyn were collaborating against B.D., and
that they were going to use Bronwyn’s inheritance under the 1998 will in a way which was
contrary to B.D.’s wishes. He stated that his father’s gifts to him all were aboveboard and
2 The trust action is not at issue in this appeal.
5 simply were the gifts a loving father would give to a son who was having a tough time.
Several witnesses were called, including Dr. McIntosh, to testify about B.D.’s mental state
and his late-in-life alcoholism and prescription drug problems. Other relevant facts will be
included in this opinion as necessary.
¶7. After a jury trial in the Chancery Court of Yalobusha County, nine jurors found that
the 2010 will was valid and enforceable.3 The jury unanimously found that there existed a
confidential relationship between William and B.D., but it did not find that William had
exerted undue influence over B.D. Further, the 2010 will included a forfeiture provision
which stated that any beneficiary of the will who instigated a will contest, “regardless of
whether or not such proceedings [we]re instituted in good faith and with probable cause,”
would have his or her benefits under the will revoked. The chancellor found the provision
enforceable and held that Bronwyn was no longer a beneficiary of the will. However, he held
that the part of the provision which mandated that unsuccessful challengers must pay attorney
fees was unenforceable, as it permitted the testator to dispose of property that was not his.
Bronwyn appealed, raising the following issues:
1. The lower court erred when it failed to recognize a good faith and probable cause exception as adopted by most jurisdictions, the Uniform Probate Code, and the Restatement to the forfeiture clause in the 2010 will.
2. The lower court erred in ruling that Benoist, as Executor of the Estate, pay a retainer of $20,000 to the Tollison Law Firm when Benoist and Parker–the only parties in interest–were voluntarily before the court and had joined issue before the court as to the probate of the 2010 will.
3 Bronwyn does not ask the Court to overrule the jury’s determination of the validity of the 2010 will.
6 3. The lower court erred in failing to remove Benoist as the Executor of the Estate and appoint a temporary administrator during the pendency of the will contest.
William cross-appealed, arguing that the chancellor had erred in not enforcing the attorney
fee provision in B.D.’s will.
ANALYSIS 4
I. Whether the law of Mississippi should recognize a good faith and probable cause exception to forfeiture provisions in wills.
¶8. The forfeiture clause in the 2010 will stated:
If any beneficiary hereunder (including, but not limited to, any beneficiary of a trust created herein) shall contest the probate or validity of this Will or any provision thereof, or shall institute or join in (except as a party defendant) any proceeding to contest the validity of this Will or to prevent any provision thereof from being carried out in accordance with its terms (regardless of whether or not such proceedings are instituted in good faith and with probable cause), then all benefits provided for such beneficiary are revoked and such benefits shall pass to the residuary beneficiaries of this Will. . . .
(Emphasis added.)
¶9. A hearing was held on the applicability of the forfeiture clause. By order, the
chancellor held that the forfeiture clause was enforceable, “as testators enjoy the right to do
as they wish, subject to existing laws.” Because Mississippi law did not prohibit such a
clause, “the clause contained in B.D. Benoist’s Will is valid and enforceable.” Under the
terms of the clause, Bronwyn was denied any benefits under the will and ordered to pay all
4 We review questions of law de novo and questions of fact under an abuse of discretion standard. Matter of Estate of Mason, 616 So. 2d 322, 327 (Miss. 1993) (internal citations omitted).
7 attorney fees and court costs associated with the will contest.5 The chancellor never
determined whether Bronwyn’s suit was brought in good faith. Because she lost, the
forfeiture provision automatically cut her out of the will. We hold that such a provision is
unconstitutional under Mississippi’s Constitution, void as against public policy, and
fundamentally inequitable, and we join the large number of jurisdictions who permit a good
faith and probable cause exception to forfeiture clauses in wills.
¶10. While this may be a case of first impression in Mississippi, this issue has been
confronted by courts for hundreds of years, and most of them have held that forfeiture
clauses in wills are unenforceable when a will contest is brought in good faith and based
upon probable cause. “The origins of this exception are found in the 1688 English case of
Powell v. Morgan[, 2 Vern. 90, 23 Eng. Rep. 668 (Ch. 1688)], where, without explanation,
the court simply stated that the contestant had ‘probabilis causa litigandi,’6 and that
consequently no forfeiture would result.” Gerry W. Beyer, Rob G. Dickinson, Kenneth L.
Wake, The Fine Art of Intimidating Disgruntled Beneficiaries with In Terrorem Clauses, 51
SMU L. Rev. 225, 247 (1998). The logic for a good-faith exception is simple: courts exist
to determine the truth. A forfeiture clause that operates regardless of a party’s good faith in
bringing suit to ascertain the validity of a will frustrates the fundamental purpose of a court,
which is to determine whether a will is valid or not. This was recognized by the Supreme
Court of Connecticut, whose opinion is worth quoting at length. The court stated:
5 The chancery court initially held that Bronwyn was required to pay attorney fees for initiating the will contest pursuant to the terms of the will. Upon granting Bronwyn’s motion to reconsider, the chancellor held that B.D.’s will could not obligate her to pay attorney fees. 6 This means, literally, “probable cause for competition.”
8 Courts cannot know whether a will, good on its face, was made in conformity to statutory requirements, whether the testator was of sound mind, and whether the will was the product of undue influence, unless these matters are presented in court. And those only who have an interest in the will will have the disposition to lay the facts before the court. If they are forced to remain silent, upon penalty of forfeiture of a legacy or devise given them by the will, the court will be prevented by the command of the testator from ascertaining the truth, and the devolution of property will be had in a manner against both statutory and common law. Courts exist to ascertain the truth and to apply it to a given situation, and a right of devolution which enables a testator to shut the door of truth and prevent the observance of the law is a mistaken public policy. If, on contest, the will should have been held invalid, the literal interpretation of the forfeiture provision has suppressed the truth and impeded the true course of justice. If the will should be held valid, no harm has been done through the contest, except the delay and the attendant expense.
South Norwalk Trust Co. v. St. John, 92 Conn. 168, 101 A. 961, 963 (1917). That court
concluded that a legatee who brings a contest in good faith and upon probable cause should
not forfeit his legacy, as “[h]e has been engaged in helping the court to ascertain whether the
instrument purporting to be the will of the testator is such.” Id.7
7 Several other courts have come to the same conclusion. See Matter of Seymour’s Estate, 600 P.2d 274, 278 (N.M. 1979) (“[N]o-contest provisions are valid and enforceable in New Mexico, but they are not effective to disinherit a beneficiary who has contested a will in good faith and with probable cause to believe that the will was invalid.”); In re Foster’s Estate, 376 P.2d 784, 786 (Kan. 1962) (“[A] bona fide belief in the invalidity of the will and with probable cause prevents the application of an in terrorem clause as to a beneficiary under the will.”); Hartz’ Estate v. Cade, 77 N.W.2d 169, 171 (Minn. 1956) (holding that the existence of a good faith and probable cause exception is “more in conformity with the interests of justice and the dictates of public policy”); Ryan v. Wachovia Bank & Trust Co., 70 S.E.2d 853, 856 (N.C. 1952) (“[A] bona fide inquiry whether a will was procured through fraud or undue influence, should not be stifled by any prohibition contained in the instrument itself.”); In re Estate of Cocklin, 17 N.W.2d 129, 135 (Iowa 1950) (recognizing that a good faith and probable cause exception to forfeiture clauses was “in the interest of good public policy”); Dutterer v. Logan, 137 S.E. 1, 3 (W. Va. 1927) (“We think there can be no doubt that the great weight of authority is against the strict enforcement of forfeitures contained in devises and bequests. On the contrary, that when there is probabilis causa litigandi, such forfeitures will not be enforced. . . .”); In re Chappell’s Estate, 221 P. 336, 338 (Wash. 1923) (“[I]t not being denied that the contest was made in good faith, . . . we are further convinced that
9 ¶11. The Restatement (Third) of Property supports the position that a probable cause
exception should be made to forfeiture provisions in will contests. Restatement (Third) of
Property: Wills and Donative Transfers § 8.5 (2003). “A provision in a donative document
purporting to rescind a donative transfer to, or a fiduciary appointment of, any person who
institutes a proceeding challenging the validity of all or part of the donative document is
enforceable unless probable cause existed for instituting the proceeding.” Id. The
Restatement does acknowledge that forfeiture clauses may serve a valuable purpose in
deterring “unwarranted challenges to the donor’s intent by a disappointed person seeking to
gain unjustified enrichment,” or preventing “costly litigation that would deplete the estate
or besmirch the reputation of the donor,” or discouraging “a contest directed toward coercing
a settlement–the so-called strike suit.” Id. at cmt. b. However, enforcing such a provision
without a probable cause exception would defeat “the jurisdiction of the court to determine
the validity of a donative transfer.” Id. Essentially, the Restatement reasons that unlimited
appellant had probable cause for instituting the proceedings he did, and that by so doing he did not forfeit his legacy.”); Tate v. Camp, 245 S.W. 839, 842 (Tenn. 1922) (holding that the reasoning of the cases which found that a good faith and probable cause exception should apply to will contests announced “a more equitable and just rule”); Rouse v. Branch, 74 S.E. 133, 135 (S.C. 1912) (“The right of a contestant to institute judicial proceedings upon probable cause to ascertain whether the will was ever executed by the apparent testator is founded upon justice and morality.”); In re Friend’s Estate, 58 A. 853, 854 (Pa. 1904) (“The better rule, however, seems to us to be that the penalty of forfeiture of the gift or devise ought not to be imposed when it clearly appears that the contest to have the will set aside was justified under the circumstances, and was not the mere vexatious act of a disappointed child or next of kin.”). The Uniform Probate Code also has adopted a good faith and probable cause exception. See Unif. Probate Code § 3-905 (1982).
10 enforceability of forfeiture clauses frustrates the fundamental purpose of the courts to
ascertain the truth.8
¶12. Additionally, permitting a good faith and probable cause exception to challenges to
wills containing forfeiture provisions is firmly in line with the maxims of equity. Will
contests take place in chancery court. “A party seeking equity must show that in good faith
he has done equity. . . . [N]othing but conscience, good faith, and reasonable diligence can
call forth the activities of a court of equity. . . .” V. A. Griffith, Miss. Chancery Practice §
32 (2000). Suits in equity already must be brought in good faith. Allowing a good faith and
probable cause exception would impose no higher burden on chancery courts to ascertain the
truth and intentions of the parties. Additionally, “[t]o protect and enforce property rights is
the object of equity. . . .” Id. at § 34. For a court of equity to protect and enforce property
rights, it must be able to hear disputes regarding those rights. Without a good faith exception
to forfeiture clauses, the testator’s will would frustrate the very object of equity. This cannot
be allowed.
¶13. All the above notwithstanding, the most compelling reason to allow a good faith
exception lies in Mississippi’s Constitution. The right of access to the courts is fundamental
in this State. “All courts shall be open; and every person for an injury done him in his lands,
goods, person, or reputation, shall have remedy by due course of law, and right and justice
8 The Restatement also offers a good definition of probable cause in such a context. “Probable cause exists when, at the time of instituting the proceeding, there was evidence that would lead a reasonable person, properly informed and advised, to conclude that there was a substantial likelihood that the challenge would be successful.” Restatement (Third) of Property: Wills and Other Donative Transfers § 8.5 cmt. c (2003).
11 shall be administered without sale, denial, or delay.” Miss. Const. art. 3 § 24. To allow the
enforcement of a forfeiture clause, regardless of a good faith challenge based upon probable
cause, would be unconstitutional and against public policy. A forfeiture provision that acts
regardless of a will contestant’s good faith would frustrate the right of that citizen to access
the courts and have a court determine whether he was injured and whether he is entitled to
a remedy. A testator cannot be allowed to hamper so fundamentally such a vital right to his
heirs. The Supreme Court of Wisconsin recognized as much in that state’s counterpart to
Section 24 of the Mississippi Constitution.9 It stated that such a section is “a basic and
valuable guaranty that the courts of the state should be open to all persons who in good faith
and upon probable cause believe they have suffered wrongs.” In re Keenan’s Will, 205 N.W.
1001, 1006 (Wis. 1925).10 A good faith and probable cause exception to the enforceability
of forfeiture clauses in wills is in keeping with the guaranty of all citizens of this state to seek
redress for their grievances through due process of law.
¶14. The weight of authority, logic, and fairness are firmly on the side of a probable cause
and good faith exception. The courts of this state are charged with ascertaining the truth.
9 Wis. Const. art. I, § 9 (“Every person is entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his person, property, or character. . . .”) preemption recognized by Koscielak v. Stockbridge-Munsee Community, 811 N.W.2d 451, 457-58 (Wis. Ct. App. 2012) (holding that the provision was preempted by federal law when applied against Native American tribes who enjoyed absolute immunity as a foreign sovereign). 10 “Is it not against public policy to permit one person to deprive another from asserting his rights in court? And especially so before it is ascertained that the prohibition against contest is in fact that of the testator and not that of one exercising undue influence over him, or that he was mentally competent to make it?” In re Keenan’s Will, 205 N.W. 1001, 1006 (Wis. 1925).
12 Chancery courts are charged with protecting property rights. The Constitution of Mississippi
recognizes the fundamental right of an aggrieved citizen of this state to have access to courts
to receive compensation for any injury done to him or her. The will of the testator should
control, but courts exist to determine whether the testator’s will is a valid reflection of the
testator’s wishes. Black’s Law Dictionary defines “probate” as a “[c]ourt procedure by which
a will is proved to be valid or invalid. . . .” Black’s Law Dictionary 1081 (5th ed. 1979). By
definition, probating a will is proving that it is valid. This must occur through litigation. A
strict interpretation of no-contest provisions in wills would hamper courts’ goal of
determining what is, once and for all, the will of the testator. A bona fide inquiry into the
validity of the will should not be defeated by language contained in the will itself. We hold
that, in Mississippi, forfeiture provisions in wills are enforceable unless a contest is brought
in good faith and based on probable cause. “Probable cause exists when, at the time of
instituting the proceeding, there was evidence that would lead a reasonable person, properly
informed and advised, to conclude that there was a substantial likelihood that the challenge
would be successful.” Restatement (Third) of Property: Wills and Other Donative Transfers
at § 8.5 cmt. c. The determination of good faith and probable cause should be inferred from
the totality of the circumstances.
II. Whether Bronwyn Parker’s challenge to the 2010 will was made in good faith and founded upon probable cause.
¶15. We find that there is sufficient evidence before us to determine whether Bronwyn’s
challenge to the 2010 will was undertaken in good faith and founded upon probable cause.
A. Estoppel
13 ¶16. William initially argues that Bronwyn should be estopped from arguing that the
forfeiture clause is unenforceable because her attorney asked the jury to consider the
forfeiture clause during its deliberations. He argues that a party may not take “a position
which is inconsistent with the one previously assumed in the course of the same action or
proceeding.” Grand Casino Tunica v. Shindler, 772 So. 2d 1036, 1039 (Miss. 2000)
(quoting Miss. State Highway Comm’n v. West, 181 Miss. 206, 179 So. 279, 283 (1938)).
William argues that, by asking the jury to consider the clause, Bronwyn “fully conceded its
legitimacy and enforceability. . . .”
¶17. This argument is without merit. As the trial court found at the time, the entire will had
been admitted as an exhibit, and therefore the entire contents of the will were before the jury
to consider. Simply pointing the jury to a clause of the will did not amount to concession of
its validity. On the contrary, Bronwyn’s entire suit was based on the invalidity of the will as
a whole. Bronwyn is not estopped from arguing that the forfeiture provision is unenforceable.
B. Good faith and probable cause
¶18. Bronwyn contends that her contest was based on good faith and probable cause and
bases much of her argument on a case from Tennessee which addressed a situation nearly
identical to the one before us. In Winningham v. Winningham, 966 S.W.2d 48, 49 (Tenn.
1998), a father/testator had executed a new will shortly before his death which granted
significantly more property to his son than had been granted in previously executed, mutually
reciprocal wills made by the father and his wife. The new will contained a forfeiture clause
which specifically attempted to eliminate a good faith challenge to the will by denying
14 benefits to any challengers. Id. The Tennessee Supreme Court applied Tennessee’s good
faith and probable cause exception, holding that, in Tennessee:
a testator cannot eliminate the good faith and reasonable justification exception even by specific language. As stated in Tate v. Camp, “Courts exist to ascertain the truth and to apply the law to it in any given situation; and a right of devolution which enables a testator to shut the door of truth and prevent the observance of the law, is a mistaken public policy.” [Tate, 245 S.W. at 842].
Winningham, 966 S.W.2d at 52 (emphasis added). The court moved on to determine whether
the plaintiff’s contest had been made in good faith.
In the case before the Court, the record supports the trial court’s finding that the suit was filed by Ms. Winningham in good faith. The previous will had divided the property equally between the plaintiff and the defendant. The defendant testified that she believed that her father lacked mental capacity at the time he wrote the later will. The 1992 will, which decreases her share in the estate, was written just months before the testator’s death from cancer and while he was receiving debilitating medical treatment. . . . The plaintiff presented no evidence of bad faith. Filing the suit was not “a mere vexatious act” but was based on honest conviction.
Id.
¶19. The court then went on to determine whether the plaintiff’s suit was founded on
probable cause. The court found that, “on balance, there was reasonable justification for Ms.
Winningham’s decision to file the suit, the purpose of which was to establish the testator’s
1981 will as his last will and testament.” Id. at 53. Many of the factors which supported a
finding of good faith also supported a finding of probable cause. Id. The plaintiff felt she was
entitled to the inheritance that was drawn out in the earlier will and reasonably could have
believed that her father’s mental state had become so impaired that he was incompetent to
make the new will. Id.
15 ¶20. William argues that Winningham is distinguishable from this case and should not be
considered as support for Bronwyn’s position. Winningham was decided in a state where a
good faith and probable cause exception already existed, whereas here, no Mississippi
authority can be found on the subject. Further, the plaintiff in Winningham relied on advice
from her attorney that her contest would be successful. Winningham, 966 S.W.2d at 53.
William argues that, because Bronwyn was presented with evidence supporting William’s
claim before she continued the contest, her contest could not have been made in good faith.
¶21. Bronwyn’s claim was based upon the fact that she understood her parents’ intentions
in the mutual reciprocal wills from 1998 to be that she and her brother “share and share
alike.” It cannot be disputed that those were the wishes of her mother, Mary, who died
shortly after her will was executed. Mary’s will explicitly stated that her children were to
inherit equally the remainder of her trust upon the death of B.D. Mary’s and B.D.’s 1998
wills provided that the estate of the latter-deceased parent would be given to William and
Bronwyn, “in equal shares, per stirpes.” At least until 2010, Bronwyn was under the
impression that the estate would be divided according to the 1998 will. Further, she testified
about B.D.’s failing mental and physical health toward the end of his life, and even William
testified about B.D.’s alcoholism and use of strong prescription pain killers. Bronwyn knew
that Dr. McIntosh had prescribed two drugs used to treat “cognition problems.” Dr.
McIntosh’s records state that, when he prescribed those drugs for B.D., B.D. was suffering
from “significant dementia.” Further, large withdrawals were made from B.D.’s trust account
and his private Merrill Lynch account, which were sent directly to William. B.D. also
conveyed a large portion of his real estate to William around the time the 2010 will was
16 executed. Bronwyn understandably was worried about these inter vivos gifts. Overall,
Bronwyn argues that her father’s failing mental state, his erratic behavior, and his
dependence on alcohol and pain killers made him vulnerable to the suggestions of William,
an unemployed man experiencing a difficult divorce who convinced B.D. to give him large
sums of money beyond what he would have received under the provisions of his father’s
1998 will. Several similar circumstances justified a finding of good faith and probable cause
by the Tennessee Supreme Court in Winningham.
¶22. We find that Bronwyn’s will contest was brought in good faith and was founded on
probable cause. As noted by the Tennessee Supreme Court in Winningham, many of the
factors which support a finding of good faith support a finding of probable cause, and vice
versa. Based on the totality of the circumstances, Bronwyn had a reasonable expectation that
her will contest would be successful and has provided significant evidence that she instituted
the contest in good faith. Further, three jurors of twelve agreed with her claim that the 2010
will was invalid. The claim was not frivolous or made to cause vexatious litigation. The
evidence presented by Bronwyn “would lead a reasonable person, properly informed and
advised, to conclude that there was a substantial likelihood that the challenge would be
successful.” Restatement (Third) of Property: Wills and Other Donative Transfers at § 8.5
cmt. c. No evidence was adduced that showed bad faith on Bronwyn’s part. Based upon the
totality of the circumstances, Bronwyn satisfied her burden of proof to demonstrate that her
will contest was brought in good faith and was founded upon probable cause. Accordingly,
we reverse the judgment of the chancery court and render judgment in favor of Bronwyn on
the forfeiture clause issue. The 2010 will is valid except for the forfeiture clause, and
17 Bronwyn cannot be cut out of the will for bringing her good faith suit to determine its
validity.
III. Whether the trial court properly permitted William, as executor of B.D.’s estate, to pay $20,000 to the Tollison Law Firm out of the estate assets.
¶23. On December 9, 2011, William, in his capacity as the executor of B.D.’s estate, filed
a Petition for Authority to Liquidate Estate Assets and Pay Estate Liabilities. He requested
$14,968.76 to pay the law firm of Stubblefied & Yelverton, $1,387.17 to pay an accounting
firm, and $20,000 to pay a retainer to the Tollison Law Firm to represent the estate in the will
contest. Bronwyn had no objection to the payments to Stubblefield & Yelverton or to the
accounting firm. However, Bronwyn did object to the retainer to Tollison. She argued that
William was in an adverse position to the Estate under the 1998 will, and that his position
in the will contest was only as an individual, and not as the executor of B.D.’s estate. The
chancellor granted William’s petition to liquidate assets and retain the Tollison firm.
Bronwyn argues that the chancellor erred, because William was acting in his individual
capacity and because he stood adverse to the estate of the 1998 will.
¶24. “[W]here one will has been admitted to probate in common form under the laws of
this State as the last will of a deceased testator, it will remain the last will of the testator
unless (within the time allowed by law) it is set aside by an order of the chancery court upon
a contest and issue devisavit vel non. . . .” Perry v. Aldrich, 251 Miss. 429, 441, 169 So. 2d
786, 791 (1964). William argues that the 2010 will was admitted to probate as the last will
of B.D., and, as such, it remained the last will of B.D. unless and until Bronwyn’s will
contest was successful. Accordingly, Bronwyn’s will contest was a direct challenge to the
18 estate of B.D. established by the 2010 will, of which William was the executor. “Every
executor of a will and administrator with the will annexed must swear that he or she will
execute the will according to the wishes of the testator.” Jeffrey Jackson, Encyclopedia of
Miss. Law § 33:57 (2001) (emphasis added). As the executor, William had the authority
under the will to “employ . . . attorneys . . . and . . . to pay reasonable compensation for their
services and to charge same to. . . .” To ensure that the wishes of B.D. as written in his 2010
will were followed, William was acting in his capacity of the executor of the estate when he
paid the Tollison Law Firm to represent him–the executor–in the will contest. To hold that
this was inappropriate would discourage executors who also are beneficiaries from defending
wills because they would have to pay lawyers out of their own pockets. We hold that the
chancellor did not err in permitting William to use part of the assets of the estate to defend
the will contest. Bronwyn’s claim in this regard is without merit.
IV. Whether the trial court erred in failing to remove William as the Executor of B.D.’s estate and appoint a temporary administrator during the pendency of the will contest.
¶25. Bronwyn filed an Amended Petition to Remove William D. Benoist as Executor,
arguing that he had substantially drained B.D.’s estate both before and after B.D.’s death
through a pattern of undue influence over B.D., whose mind was failing toward the end of
his life. She listed several inter vivos gifts from B.D. to William, which included substantial
amounts of real property and cash which originally would have been part of the estate split
evenly between William and Bronwyn under the 1998 will.11 Bronwyn argued that her will
11 These include money spent for William’s own benefit, including $11,640 to a divorce attorney to handle William’s divorce, $139,109.29 to William personally, money for dental
19 contest, combined with William’s depletion of estate assets which properly would have gone
to Bronwyn under the 1998 will, rendered William adverse to the estate, and that a neutral
executor should be appointed. She also requested that an inventory and accounting of the
assets of the estate be made. After considering the arguments of the parties, the chancellor
denied the petition, stating that there remained “factual issues” which were “strongly
disputed between the parties.” The chancellor held that “[t]here [wa]s no uncontested
evidence for the Court to remove William D. Benoist as the Executor of the Last Will and
Testament of Billy Dean ‘B.D.’ Benoist.”
¶26. “[W]henever a last will and testament shall be contested, the chancery court or
chancellor in vacation, on petition of any interested person, may appoint a temporary
administrator if it shall appear necessary for the protection of the rights of the parties. . . .”
Miss. Code Ann. § 91-7-53 (Rev. 2013). Chancellors have wide discretion in appointing a
new executor in a will contest, and this Court “should not reverse his action unless there is
clear evidence of abuse of that discretion.” Sandifer v. Sandifer, 237 Miss. 464, 469, 115 So.
2d 46, 48 (1959). On appeal, Bronwyn essentially reiterates the facts that she believes
necessitated a finding by the chancellor that a new executor should be appointed–substantial
gifts from B.D. to William before B.D.’s death and William’s mismanagement and depletion
of estate assets after B.D.’s death. She argues that, because the jury found that William was
in a confidential relationship with B.D., there was a presumption of undue influence.
work, and money to pay private school tuition for one of William’s children.
20 ¶27. We find that the chancellor did not abuse his discretion in denying Bronwyn’s petition
to remove William as executor. The chancellor considered all of the arguments Bronwyn has
made on appeal and determined that the circumstances did not warrant the appointment of
a new executor. We cannot say the chancellor was manifestly wrong or that he abused his
discretion. We are slightly troubled, however, by the wording of the chancellor’s order
denying Bronwyn’s petition. The chancellor stated that there was no “uncontested evidence”
that would justify removing William as the executor. It is not required that there be
uncontested evidence to justify the removal of an executor. All that is required is that the
chancellor determine, in his or her discretion, that it is necessary to remove the current
executor to protect the rights of the parties to the will contest. See Miss. Code Ann. § 91-7-53
(Rev. 2013). “Nowhere does the statute say that before he may appoint a temporary
administrator he must find that the executor named in the will is disqualified or has been
guilty of misconduct in office.” Sandifer, 115 So. 2d at 47-48. We clarify that chancellors
enjoy wide discretion in granting or denying requests to remove an executor, and that a party
is not required to present “uncontested evidence” to succeed in such a petition. Bronwyn’s
claim of error on this issue, however, is without merit.
V. CROSS APPEAL: Whether the trial court erred in denying attorney fees to B.D.’s estate and William as provided for in the 2010 will.
¶28. The forfeiture provision of B.D.’s will stated that if any beneficiary instituted a will
contest, that beneficiary “shall pay all attorneys fees and court costs associated with the Will
contest or related action.” When the chancery court initially held that the forfeiture provision
in B.D.’s will was enforceable, it also concluded that Bronwyn was required to pay attorney
21 fees for initiating the will contest. Upon granting Bronwyn’s motion to reconsider, the
chancellor held that B.D.’s will could not obligate her to pay attorney fees. The chancellor
reasoned that, although the “paramount duty of the court is to ascertain the intent of the
testator,” the court still may not give effect to such intent if it is “contrary to law or public
policy.” The chancellor reasoned that, in requiring payment of attorney fees, the testator
essentially was attempting to dictate the transfer of property that was not his and was beyond
his control. The chancellor analyzed Mississippi Code Section 91-5-1,12 which governs the
authority of individuals to create wills, and concluded that it did not give persons power over
property which was not theirs to begin with. We agree with this conclusion. Section 91-5-1
permits the testator to dispose of and “devise all the estate, right, title and interest in
possession, reversion, or remainder, which he or she hath, or at the time of his or her death
shall have. . . .” Miss. Code Ann. § 91-5-1 (Rev. 2013). The testator is not empowered to
control assets that do not belong to him or her through a will, but may control only those
things “which he or she hath, or at the time of his or her death shall have. . . .” Id. This
12 Every person eighteen (18) years of age or older, being of sound and disposing mind, shall have power, by last will and testament, or codicil in writing, to devise all the estate, right, title and interest in possession, reversion, or remainder, which he or she hath, or at the time of his or her death shall have, of, in, or to lands, tenements, hereditaments, or annuities, or rents charged upon or issuing out of them, or goods and chattels, and personal estate of any description whatever, provided such last will and testament, or codicil, be signed by the testator or testatrix, or by some other person in his or her presence and by his or her express direction. Moreover, if not wholly written and subscribed by himself or herself, it shall be attested by two (2) or more credible witnesses in the presence of the testator or testatrix.
Miss. Code Ann. § 91-5-1 (Rev. 2013).
22 clearly does not contemplate funds of a third party over which the testator had no control
during his or her life or at his or her death. Mississippi does not statutorily authorize the
payment of attorney fees by an unsuccessful will contestant. Accordingly, William can
prevail in his claim only if there is an alternative avenue through which an award of attorney
fees is appropriate.
¶29. We review a chancellor’s determination of whether to award attorney fees under an
abuse of discretion standard. Schwander v. Rubel, 221 Miss. 875, 897, 75 So. 2d 45, 54
(1954) (quoting King v. Wade, 175 Miss. 72, 166 So. 327, 330 (1936)) (emphasis added).
“[W]hen there is no contractual provision or statutory authority providing for attorney’s fees,
they may not be awarded as damages unless punitive damages are proper as well.” Willard
v. Paracelsus Health Care Corp., 681 So. 2d 539, 544 (Miss. 1996). There is no statutory
authority for a testator to require the payment of attorney fees, and Bronwyn and William
were not parties to a contract which included an attorney fees provision. Bronwyn has not
been subject to punitive damages, nor is she in contempt of court. The chancellor did not
abuse his discretion in denying attorney fees to William. The chancellor correctly noted that
Mississippi does not statutorily authorize the payment of attorney fees by an unsuccessful
will contestant. All that is permissible is for the will to detail the disbursement of the
testator’s property. The Legislature has not seen fit to grant testators the authority to invoke
the power of the courts to compel unsuccessful contestants to pay attorney fees incurred in
defending a will contest. As concluded by the chancellor, there are no means by which
William can obtain attorney fees in these circumstances.
CONCLUSION
23 ¶30. We hold that forfeiture provisions in wills in Mississippi are enforceable unless the
will contest has been founded upon probable cause and made in good faith. This is in accord
with the majority of U.S. jurisdictions, the Restatement of Property, and the Uniform Probate
Code, and most faithfully conforms to our state constitutional guarantees of access to courts
and the maxims of equity. Under the totality of the circumstances, Bronwyn Benoist Parker’s
will contest was based upon probable cause and was brought in good faith. Accordingly, the
forfeiture provision in B.D.’s will is unenforceable against her. We reverse the decision of
the Chancery Court of Yalobusha County in this regard, and render judgment in Parker’s
favor to the effect that she is entitled to her inheritance as provided in her father’s 2010 will.
¶31. We further hold that the trial court did not abuse its discretion in permitting William
Benoist to remove estate assets to pay attorneys to represent the estate during the will contest,
and it did not err in refusing to remove him as executor of B.D. Benoist’s estate under the
2010 will. Both of those decisions were in the sound discretion of the chancellor, and he
neither abused that discretion nor was he manifestly wrong. Finally, we hold that the
chancery court was correct in determining that testators do not have the authority in
Mississippi to require unsuccessful will contestants to pay attorney fees for their adversaries,
as there is no statutory law permitting it. As the case did not involve any of the other
situations in which attorney fees may be awarded, the chancery court correctly denied the
payment of such attorney fees. Accordingly, we affirm in part and reverse and render in part.
¶32. ON DIRECT APPEAL: AFFIRMED IN PART; REVERSED AND RENDERED IN PART. ON CROSS APPEAL: AFFIRMED.
24 WALLER, C.J., DICKINSON, P.J., CHANDLER, PIERCE AND KING, JJ., CONCUR. RANDOLPH, P.J., LAMAR AND COLEMAN, JJ., NOT PARTICIPATING.