Colbert v. Gardner

125 So. 3d 675, 2013 WL 5716535, 2013 Miss. App. LEXIS 707
CourtCourt of Appeals of Mississippi
DecidedOctober 22, 2013
DocketNo. 2012-CA-01047-COA
StatusPublished
Cited by1 cases

This text of 125 So. 3d 675 (Colbert v. Gardner) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Colbert v. Gardner, 125 So. 3d 675, 2013 WL 5716535, 2013 Miss. App. LEXIS 707 (Mich. Ct. App. 2013).

Opinion

ROBERTS, J.,

for the Court:

¶ 1. Ruth Colbert appeals the Hinds County Chancery Court’s decision to deny her petition to set aside George William Mace’s will. According to Colbert, Mace lacked the testamentary capacity to execute his will. Colbert also claims that the chancellor should have set aside Mace’s will because it was the product of Patricia Gardner’s undue influence over Mace. Finding no error, we affirm the chancellor’s judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. Mace never married, but Colbert is his biological daughter. She was born in 1943, but she did not have a close relationship with Mace. She testified that she never lived with him, and she moved to Illinois when she was seven or eight years old. When Colbert was eleven or twelve years old, Mace called her at her home in Illinois. According to Colbert, during that telephone conversation, Mace said that he wanted to “take care of her.” But Colbert testified that to her knowledge, Mace never actually provided for her. The record indicates that Mace and Colbert did not communicate for some time after that.

¶ 3. Approximately forty years later, Mace and Colbert met face-to-face for the first time that Colbert could remember. Colbert testified that Mace acknowledged that she was his daughter when they met in 1994. However, in 1996, Mace did not name Colbert as a beneficiary of the joint will that he executed with his brother, Theodore Roosevelt Mace. Mace appointed Theodore as the executor of his will, and named him as the primary beneficiary. Mace also listed a number of his extended family members as secondary beneficiaries under the 1996 joint will.

¶ 4. In 1999, Mace’s great niece, Gardner, moved into Mace’s home to help both Mace and Theodore. Essentially, Gardner acted as their, caregiver. She also cooked, cleaned, performed household duties, and drove them to their appointments. During 2000, Theodore moved into a nursing home. Gardner continued to live with Mace. In general, Gardner continued to help' Mace with tasks that he was not physically capable of performing by himself. However, Mace continued to pay his own bills, handle his own finances, and manage his business affairs.

¶ 5. On February 1, 2003, Mace revoked his 1996 will. Nine days later, Mace executed a new will. Mace’s 2003 will was somewhat similar to his 1996 will in that he did not list Colbert as a beneficiary; he appointed Theodore as the executor of his will; and he named Theodore as the primary beneficiary of his estate: But in the event that Theodore predeceased Mace, [678]*678Gardner was appointed as the successor executor of Mace’s 2003 will, and one of the secondary beneficiaries of his estate.1 Mace also listed other family members along with Gardner as secondary beneficiaries of his 2008 will. However, Mace omitted members of his family who had died since he had executed his 1996 will.

¶ 6. Gardner continued to live with Mace. Theodore died approximately five years before Mace passed away on February 20, 2009. Mace was ninety-seven years old when he died. His will was admitted to probate in May 2009. Three months later, Colbert filed two petitions: (1) a petition to be adjudicated as Mace’s biological daughter and his sole surviving heir,2 and (2) a petition to contest Mace’s 2008 will. According to Colbert, Mace lacked testamentary capacity to execute the 2003 will. Colbert also claimed that Gardner’s status as the primary beneficiary of Mace’s estate was the product of Gardner’s undue influence over Mace. Colbert requested that the chancellor declare Mace’s 2003 will “null and void” and find that she is the sole beneficiary of Mace’s estate.

¶ 7. The parties went to trial for four days split between February and July 2011. Ultimately, the chancellor found that Mace had the requisite mental capacity to execute his 2003 will, and the 2003 will was valid as a matter of law. The chancellor found that there was a confidential relationship between Mace and Gardner. But the chancellor also held that there were no suspicious circumstances to suggest that Gardner used her confidential relationship with Mace to exert undue influence over him. Consequently, the chancellor denied Colbert’s petition to contest Mace’s will. Colbert appeals.

STANDARD OF REVIEW

¶ 8. “When reviewing a chancellor’s legal findings, particularly involving the interpretation or construction of a will, this Court will apply a de novo standard of review.” In re Last Will & Testament of Carney, 758 So.2d 1017, 1019 (¶ 8) (Miss.2000). With respect to a chancellor’s findings of fact in a will contest, the Mississippi Supreme Court has held that it “will not disturb [the] findings of a chancellor unless the chancellor was manifestly wrong [or] clearly erroneous, or [the chancellor] applied an erroneous legal standard.” Goode v. Village of Woodgreen Homeowners Ass’n, 662 So.2d 1064, 1070-71 (Miss.1995).

ANALYSIS

¶ 9. As a preliminary matter, we note that Gardner did not file a brief in response to Colbert’s appeal. Under the circumstances, we have two options that depend on the record and the quality of Colbert’s brief. If “the record is complicated or of large volume and the case has been thoroughly briefed by the appellant with apt and applicable citation of authority so that the brief makes out an apparent case of error,” we should consider Gardner’s failure to file a brief as a “confession of error” and reverse the chancellor’s judgment. Sullivan v. Sullivan, 942 So.2d 305, 307 (¶ 7) (Miss.Ct.App.2006) (quotation marks omitted). But if “the record can be conveniently examined and such examination reveals a sound and unmistakable basis or ground upon which the judgment may be safely affirmed,” we may affirm the chancellor’s judgment. Id. (quotation marks omitted). The record is not large or complicated. The trial transcript is less than 350 pages long. The court record contains less than sixty pages. And there are relatively few exhibits. [679]*679Thus, we turn to whether there is a “sound and unmistakable basis” to support the chancellor’s judgment. Id.

I. MENTAL CAPACITY

¶ 10. Colbert argues that Mace “was incapable of managing his own affairs or estate.” To support her claim, Colbert notes Mace’s advanced age and his reb-anee on Gardner to' help him with some of his everyday tasks. According to Colbert, Mace “was not mentally or physically capable of determining [how he wanted to dispose of] his property because of [Gardner’s] exercise of dominion and control by undue influence over [Mace’s] person and estate.” Colbert further claims that Mace “did not have the capability, understanding, or knowledge to appreciate the fact that [Colbert], his daughter[,] was his only heir-at-law and [she] was being excluded [from his 2003 will], as a result of [Gardner’s] dominance, control, and undue influence.” Finally, Colbert notes that Mace had sought medical treatment for dizziness, weakness, “hearing acuity, poor appetite and gastritis, longstanding allergy problems,” and vision problems.

¶ 11.

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Bluebook (online)
125 So. 3d 675, 2013 WL 5716535, 2013 Miss. App. LEXIS 707, Counsel Stack Legal Research, https://law.counselstack.com/opinion/colbert-v-gardner-missctapp-2013.