IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2023-CA-00398-COA
IN THE MATTER OF LEONARD ALLEN APPELLANT HARVEY, DECEASED: ROBIN CHIMENTO
v.
NINA JANELLE SCHWARK, EXECUTRIX APPELLEE
DATE OF JUDGMENT: 03/09/2023 TRIAL JUDGE: HON. D. NEIL HARRIS SR. COURT FROM WHICH APPEALED: JACKSON COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: SCOTT CORLEW ATTORNEY FOR APPELLEE: E. FOLEY RANSON NATURE OF THE CASE: CIVIL - WILLS, TRUSTS, AND ESTATES DISPOSITION: AFFIRMED - 01/07/2025 MOTION FOR REHEARING FILED:
BEFORE WILSON, P.J., WESTBROOKS AND McDONALD, JJ.
WESTBROOKS, J., FOR THE COURT:
¶1. In his last will and testament, Leonard Allen Harvey left his entire estate to his close
friend Nina Janelle Schwark. A few weeks later, he died in his home. Believing that Harvey
had no surviving heirs, Schwark filed a petition for probate. Robin Chimento and several
other family members objected to the probate and contested the will. After a bench trial, the
Jackson County Chancery Court found that Schwark overcame the presumption of revocation
and that the will was valid. On appeal, Chimento asserts five issues: (1) whether Schwark
proved testamentary capacity, (2) whether Schwark overcame the presumption of undue
influence, (3) whether the legal requirements for due execution were met, (4) whether
Schwark proved by clear and convincing evidence the legal requirements needed to probate a lost will, and (5) whether Schwark proved that the will was lost or destroyed. Finding no
error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. Ernest Jenkins and Leonard Harvey were friends for over fifty years. They met at a
Buick dealership in Biloxi, where Jenkins worked as a mechanic. Jenkins also worked at a
body shop where Harvey spent a lot of time. The two shared a common interest and
appreciation for cars.
¶3. Jenkins’ daughter, Nina Schwark, had also been very close to Harvey. Since she was
a young girl, Harvey would stop by their home to visit with her father. Schwark testified:
He spent a lot of time over there because when daddy was not working at a shop or whatever, he was working on the home, and Mr. Harvey would come over there and help him. And they would come in the yard. Daddy had his tool shop, and he was always a fixture in our lives.
Harvey did not have a wife or children, so Jenkins would also invite Harvey over for dinner,
family gatherings, and holidays. Schwark testified that even as she got older and started her
own family, she would continue to visit and check on Harvey.
¶4. Schwark was a registered oncology nurse at the VA in Biloxi. In September 2014, she
transferred to the Houston VA for “retirement benefits and an increase in pay.” Schwark
testified that before she moved, she often helped Harvey because he had a lot of health
problems, and his physical condition began deteriorating. Harvey had congestive heart
failure, diabetes, schizophrenia, neuropathy in his feet, and back issues that required him to
wear a back brace. Schwark often stayed on Harvey about taking his heart medicine to
prevent fluid buildup and swelling. She testified that she would pick up his medicine and
2 accompany him to some of his appointments at the VA. She also helped him run errands and
assisted him whenever he needed help. Schwark’s husband Charles and Harvey’s next-door
neighbor Mitchell Parker would also check on Harvey, take him to appointments, do work
around Harvey’s house, and run errands for him.
¶5. Parker testified that he often worried about Harvey because he was getting older. He
urged Harvey several times to hire an attorney to get his affairs and estate in order. When
recalling one conversation, he testified:
I said, well, Harvey, you still need to go to an attorney and, you know, make sure everything is okay if your brother is gone. He said, well, I’ve got two nieces in Gulfport. But he said, they’re not getting nothing. And he acted really arrogant about it, you know. And I said, Harvey you need to do something. And he said, well, they ain’t never done nothing for me, they ain’t never been over here. He said, I ain’t giving them nothing. I’m going to give it all to Ms. Schwark. I said, well why? She’s the only one that’s ever come out here and took care of me.
Parker said that sometime after this conversation, Harvey added Schwark to his bank
account. Harvey also began looking for someone to prepare a will for him. He asked
Schwark’s daughter, Christine Herring, if she had any recommendations because he knew
she was a paralegal at a law firm. At trial, she revealed that she gave him a recommendation
and told him which attorneys to avoid.1
¶6. On January 17, 2015, Harvey executed his last will and testament at the Jenkins’
home. Harvey asked Herring if she could come to her grandparents’ house and notarize the
will. She testified, “I show up and looked at the Will and realize he needed two witnesses.
1 Herring testified that she did not know who Harvey ultimately chose to prepare his will.
3 So there happened to be another family-friend [there].” Mark Jalanivich2 was visiting with
the Jenkins when Herring was there. She asked Jalanivich to serve as the second witness,
and he agreed. In the will, Harvey declared:
I hereby give, devise and bequeath to my friend and daughter, not by blood, but by choice, NINA JANELLE SCHWARK, my entire estate, both real and personal, of whatever kind and character, and wheresoever situated, to include all of my interest in my home or homes, the furniture and fixtures, household goods, objects of art, clothing, jewelry, automobiles, stocks and bonds, banking or investment accounts, and other like personal effects which I may own at the time of my death.
He directed that his remains be cremated and that his ashes be given to Schwark. Also, he
appointed Schwark as executrix of his will. Schwark was in Houston when the will was
executed. She represented that she knew nothing about the will until she came home to
handle Harvey’s funeral arrangements. She said that when she arrived at her parents’ home,
her father gave her an envelope that Harvey had dropped off for her. The envelope contained
a copy of Harvey’s will.
¶7. The following month, Charles and Parker had not seen Harvey for several weeks.
Parker revealed that it was not uncommon to not hear from him for a few days because
Harvey was a “real private person,” and he often kept his phone off. However, as more time
passed, Charles and Parker grew concerned. Parker decided to call the Jackson County
Sheriff’s Office. On February 21, 2015, deputies were dispatched to Harvey’s home for a
wellness check. They found Harvey deceased in his recliner in his living room. The
investigative report stated, “Harvey appeared to have been deceased for several days or
2 Jalanivich was the brother of Schwark’s sister-in-law, Faye Jenkins. Faye was married to Schwark’s brother, Earnest Jenkins.
4 weeks and was severely decomposed.” Deputy Coroner Jason Moody contacted Charles to
inform him that they found Harvey’s body, and Charles subsequently broke the news to
Schwark. At trial, Schwark testified, “as soon as . . . my husband called me and told me that
they had found him, I packed my bags and headed home.”
¶8. Schwark handled the funeral arrangements. She had his body sent to Southern
Funeral Home to be cremated. She testified that she did not notify anyone because she
believed that Harvey had no family members. She testified that the only family he ever
mentioned was his older brother,3 but that brother predeceased him. She retrieved Harvey’s
cell phone to see if anyone would call; however, she maintained that there were no phone
calls. Schwark also claimed that she searched for documents in his home that might confirm
any existing family. She testified, “I looked through a few papers at his house, but the
condition of all of the papers in there, it was full of roaches and I stopped at some point.”
¶9. On April 2, 2015, Schwark filed a petition for probate, issuance of letters
testamentary, and determination of heir-at-law. On April 16, 2015, the court admitted the
will to probate and granted the letters testamentary. On July 20, 2015, the court entered an
order declaring that there were no heirs-at-law. Months later, it was revealed that Harvey
was actually survived by several nieces and nephews, including Robin Chimento, Patricia
Lukosavich, Robert Lester Harvey, Pamela Kenik, Daria Shirley, Jane Harvey, and Wendy
3 Robert Harvey was Harvey’s older brother. The record reveals that they were close. Although Robert lived in Ohio, they would still try to see each other as often as they could. For many years, they did an annual hunting trip in Colorado. However, when they got older, Robert would get his kids to drive him to Harvey’s house, or Harvey would travel to Ohio. Robert passed away in April 2014.
5 Medley.4 Chimento contacted Schwark and informed her that she was Harvey’s niece.
Chimento testified that she became aware that Harvey had passed away because her nephew,
Robert Lukosavich,5 received a letter from the Department of Veterans Affairs indicating that
he was the beneficiary of one of Harvey’s life insurance policies.
¶10. On September 17, 2015, Chimento, Patricia, Robert, Pamela, Shirley, and Wendy filed
a motion to set aside the order establishing the heirs-at-law. In response, Schwark claimed
she was not aware they existed until Chimento made her aware of them. Schwark did not
contest the motion and requested that a new publication be completed. On October 1, 2015,
the petitioners filed a caveat objecting to the probate of Harvey’s will, claiming that Harvey
lacked testamentary capacity and that Schwark exercised undue influence over Harvey. On
November 3, 2015, the petitioners also filed a petition for injunction seeking to enjoin
Schwark from altering or disposing of any estate assets. On January 22, 2016, the court
granted the petitioner’s motion to set aside the probate order after finding that the will was
not properly authenticated before being admitted to probate. That same day, an agreed order
enjoining Schwark from altering or disposing of the estate assets was entered.
¶11. On September 18, 2018, Chimento filed a motion to produce the original will. In the
motion, Chimento represented, “The Movant would show that the original Will was
purported to be recorded in the registry of the Court, however Movant was advised by the
Clerk that the original Will is not there and the Clerk only has a copy.” Schwark revealed
4 These individuals were Robert Harvey’s children. 5 Robert Lukosavich was the son of Chimento’s older sister, Patricia Lukosavich, and the great-nephew of Harvey. We note that he was not a party in this dispute.
6 that this prompted her to go search Harvey’s home for the original will; however, she was
unable to locate it due to the condition of Harvey’s home. Schwark testified that she
discovered mold and critters all over his home. There was evidence and testimony that
Harvey was a hoarder. Pictures of his house were introduced into evidence showing trash
and boxes stacked to the ceiling. She recalled two occasions where she tried to locate the
original will in Harvey’s home. On the first visit, Schwark fell through a rotted floor and had
to seek medical treatment. On the second visit, she found several papers tucked in the side
of the recliner in which Harvey died. She revealed that his bodily fluids had seeped into the
papers: “Everything was kind of mashed together. Like paper had dissolved together. It was
all around where he was sitting.”
¶12. On May 13, 2019, Schwark filed a motion for summary judgment, arguing that she
established a prima facie case that Harvey’s will was valid and that the petitioners failed to
offer any evidence of testamentary incapacity or undue influence. The court denied the
motion on August 21, 2019. The petitioners subsequently filed a motion for summary
judgment on February 26, 2020. They argued that Schwark had failed to produce the original
will, so therefore the will could not be admitted to probate. The court denied the motion on
August 27, 2020. Trial commenced on February 23, 2023.
¶13. At trial, Chimento claimed that despite not seeing him often, their family was still
close to Harvey. She testified, “Uncle Leonard was tied to his family, his nieces and his
nephews, and he would have never left anything outside of the family. He was close to his
nieces and nephews.” Out of all the nieces and nephews, Chimento was closest in proximity
7 to Harvey because she lived in Slidell, Louisiana. She explained that she would sometimes
stop by Harvey’s house or go to a restaurant with him. She testified that the last time she saw
Harvey was in July 2014. Her father had passed away a few months prior and she and her
husband delivered some of his old items to Harvey. She also claimed that the last time she
spoke to Harvey was in October 2014. All the other surviving family members had not seen
or spoken to Harvey in several years before he died.
¶14. Chimento, Patricia, and Wendy expressed their belief that the will was fabricated and
did not accurately reflect Harvey’s true intent. There were four things in particular that
sparked this speculation. First, they claimed that the VA was not aware that Harvey had died
and that they still had appointments scheduled for him. Second, they saw that Chimento and
her husband were listed as Harvey’s niece and nephew in his VA records and the police
report. Third, they claimed that Harvey would have handwritten his will instead of allowing
someone to type it. Chimento testified, “He is very private. He would not have wanted
somebody else to know his business. So I could just -- from what I knew about him, he
would have written something indicating what he wanted done with his property with his
assets, and that would be it.” Lastly, they claimed that Harvey would have wanted to be
buried instead of cremated.
¶15. Chimeto also testified that Harvey had sent Lukosavich a handwritten letter in
December 2014, explaining that he was adding Lukosavich to his Keesler Federal Credit
Union account and granting him access to his safety deposit box at Hancock Bank. The letter
instructed Lukosavich to send the attached forms back to Harvey so that he could update his
8 account information. Patricia testified, “It did not make any sense to me that [Harvey] would
be sending financial documents to relatives and then two weeks later sign a Will that said he
had no relatives, and was signing everything to a total stranger.”
¶16. On March 9, 2023, the court entered the judgment and order establishing the will’s
validity. The court held that Schwark had “overcome and rebutted the presumption of
revocation based on clear and convincing evidence” and that the will was valid. Aggrieved,
Chimento now appeals.
STANDARD OF REVIEW
¶17. “In reviewing a chancellor’s findings, we employ an abuse-of-discretion standard of
review.” Mays v. Zumwalt (In re Est. of Amburn), 301 So. 3d 737, 740 (¶7) (Miss. Ct. App.
2020) (quoting Covington v. McDaniel (In re Est. of Necaise), 126 So. 3d 49, 56 (¶22) (Miss.
Ct. App. 2013)). “This Court will not disturb a chancellor’s findings of fact in a will contest
unless the findings are clearly erroneous or manifestly wrong, or the chancellor applied an
incorrect legal standard.” Id. “However, when considering a question of law, we employ a
de novo standard of review.” Id.
DISCUSSION
I. Testamentary Capacity
¶18. Chimento asserts that Schwark failed to meet her burden of proving that Harvey
possessed testamentary capacity. “For a will to be valid, the testator must possess
testamentary capacity.” Est. of Phelps v. Phelps, 180 So. 3d 835, 839 (¶15) (Miss. Ct. App.
2015) (quoting Noblin v. Burgess, 54 So. 3d 282, 291 (¶32) (Miss. Ct. App. 2010)). “For
9 testamentary capacity to be present, the testator must be of ‘sound and disposing mind’ at the
time of the will’s execution.” Id. (quoting Miss. Code Ann. § 91-5-1 (Rev. 2004)). “At that
time, the testator must: ‘understand and appreciate the nature and effect of his act of making
a will, the natural objects or persons to receive his bounty and their relation to him, and be
able to determine what disposition he desires to make of his property.’” Id. (quoting In re
Est. of Mask, 703 So. 2d 852, 856 (¶17) (Miss. 1997)).
¶19. “Testamentary capacity is determined based on three factors: (1) whether the testator
had the ability at the time of the will to understand and appreciate the effects of his act; (2)
whether the testator had the ability at the time of the will to understand the natural objects
or persons to receive his bounty and their relation to him; and (3) whether the testator was
capable of determining at the time of the will what disposition he desired to make of his
property.” Id. (quoting In re Est. of Laughter, 23 So. 3d 1055, 1061 (¶20) (Miss. 2009)).
“The key to testamentary capacity is mental competency at the time the will is made.” Id.
(quoting Lee v. Lee, 337 So. 2d 713, 715 (Miss. 1976)).
¶20. Our Supreme Court has explained the burden of proof concerning testamentary
capacity:
At trial, the will’s proponents carry the burden of proof, which they meet by the offering and receipt into evidence of the will and the record of probate. A prima facie case is made by the proponent solely by this proof. Afterwards, although the burden of proof remains on the proponents, the burden of going forward with proof of testamentary incapacity shifts to the contestants, who must overcome the prima facie case. The proponents may then present rebuttal proof if necessary. In short, the proponents must prove the testator’s testamentary capacity by a preponderance of the evidence.
In re Est. of Phelps, 180 So. 3d at 839 (¶16) (quoting In re Est. of Rutland v. Rutland, 24 So.
10 3d 347, 351 (¶10) (Miss. Ct. App. 2009)).
¶21. We find that Chimento failed to come forward with evidence to “to overcome the
prima facie case” of testamentary capacity. She asserted that Harvey must have lacked
testamentary capacity because he would not have left all his property to someone that was
not in the family. However, the record reveals that the nieces and nephews seldom visited
Harvey and spent very little time with him. Schwark, on the other hand, was one of the few
individuals who often checked on Harvey and helped him when he needed assistance. Parker
revealed that Harvey was “adamant” about leaving his property to Schwark, despite knowing
that he had family:
Q. So he knew about the two nieces?
A. Yes, sir. He told me about them. I didn’t know he had any.
Q. Did not want to leave them anything in his Will?
A. Absolutely nothing. Now, that’s his words and I’m quoting them.
Q. But he wanted to leave I guess everything to Nina Schwark?
A. Yes, sir.
Q. And why did he say he wanted to leave it to Nina?
A. He just said that the people -- his kin people in Gulfport -- and I’m going to quote this now the best I can -- had never done anything for him. And she’s the only one that’s took the time to check on him and come take him to dinner and stuff like this, little things that he - - and he was such a simple person, those mean a lot to him.
Chimento also alleged that Harvey had paranoid schizophrenia; however, no medical records
were offered during trial to confirm that Harvey suffered from this condition. Chimento even
11 admitted that she felt like Harvey was in his right mind before he died:
Q. . . . When you talked with Mr. Harvey at any time before his death, did you hear him say anything to you or to anybody else that would make you think he didn’t know what he was doing or where he was or anything like that?
A. No.
Q. All right. Did you ever call anybody, whether it’s a professional-type person like a doctor or a counselor or a psychiatrist, or any other family members and tell them, “I think Mr. Harvey’s slipping,” or, “He’s out of his mind,” or, “He doesn’t know where he is or what he’s doing?”
Similarly, Wendy Medley could not say that she thought Harvey lacked testamentary
Q. Okay. Give me any reason you can think of, or even a feeling, if it’s just a feeling that you have, that leads you to believe that Leonard’s mind was gone or that he didn’t know what he was doing when he executed this will.
A. I don’t have any reasons personally.
¶22. The record contains ample deposition and trial testimony confirming that Harvey
possessed testamentary capacity at the time he executed his will. During his deposition,
Parker testified that he believed that Harvey had his right mind in 2015:
Q. In 2015 or early 2016, any time -- I’m sorry, ’14 and ’15, any time you’d go over there and check on him, did he ever seem like he was out of his mind or did he say anything that you thought was odd or weird?
A. No, sir. You’d have to know Mr. Harvey, because Mr. Harvey was weird anyway. It was just the way he was. And it wasn’t because of lack of knowledge, he was just a very private person.
When asked if there was ever a time that he felt like Harvey’s mind was slipping, Parker
12 testified
Oh, no. The only time that I noticed Mr. Harvey, not slipping, really, but that last two weeks he was having a lot of heart problems. . . . But that’s the only time -- the latter part of that, about two weeks before that, I noticed that he just didn’t feel good. You know, I could tell. But ever knowing him not to be capable. I mean, when he was eighty-one, he was building a fence out next to the road. And he had good brains.
Similarly, Schwark revealed during her deposition that Harvey’s mental condition was
normal before he died.
Q. Do you know anything about his mental condition before he died?
A. How long before he died? ·
Q. Let’s say six months before he died.
A. Oh, yeah.
Q. Tell me about that.
A. He was the Mr. Harvey I always knew.
¶23. “In considering all the evidence, some testimony will receive greater weight. The
testimony of subscribing witnesses receives greater weight than the testimony of witnesses
who were not present at the will’s execution.” In re Est. of McQueen, 918 So. 2d 864, 871
(¶30) (Miss. Ct. App. 2005) (citing In re Est. of Edwards, 520 So. 2d 1370, 1373
(Miss.1988)). Both Herring and Jalanivich certified that on the day in question, Harvey was
“of sound and disposing mind and memory, mentally alert, and possessed of all his mental
faculties.” A few days after the will was executed, they again asserted that Harvey was
mentally competent in their individual affidavits. Herring also testified at trial regarding
Harvey’s mental condition:
13 Q. All right. And as far as Mr. Harvey’s physical and mental condition that day, how would you describe it?
A. Mr. Harvey’s always been the same.
Q. Nothing unusual about him that day?
The Chancellor gave due credit to Herring’s testimony as opposed to Harvey’s nieces, who
were not present when the will was executed. All the individuals who had a relationship with
Harvey and had actually interacted with Harvey not long before his passing testified that he
was in his right mind, that he understood that he was leaving his property to Schwark, and
that he was clear that he only wanted her to receive. Chimento and the other contestants
failed to present any evidence to demonstrate the contrary. Accordingly, we find that this
issue is without merit.
II. Undue Influence
¶24. Chimento also argues that Schwark was in a confidential relationship with Harvey.
She further asserts that the fact that Schwark’s daughter, Herring, was involved in the
execution of the will demonstrated a suspicious circumstance because Herring was not a
disinterested witness. “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.” Est.
of Phelps, 180 So. 3d at 840 (¶23) (citing In re Last Will & Testament of Bowling, 155 So.
3d 907, 910-11 (¶16) (Miss. Ct. App. 2014)). “The contestant of the probated will has the
14 burden of establishing the existence of a confidential relationship between the testator and
the beneficiary.” In re Est. of Williams, 379 So. 3d 968, 980 (¶44) (Miss. Ct. App. 2024)
(citing Norris v. Norris, 498 So. 2d 809, 813 (Miss. 1986)). If the contestant proves that
there was a confidential relationship, “[t]he burden shifts then to the one who wishes to
uphold the gift to rebut the presumption by clear and convincing evidence.” In re Caspelich,
22 So. 3d 1199, 1205 (¶19) (Miss. Ct. App. 2009).
¶25. “A confidential relationship exists when a dominant over-mastering influence controls
over a dependent person or trust, justifiably reposed.” In re Est. of Thornton, 922 So. 2d 850,
852-53 (¶7) (Miss. Ct. App. 2006) (citing In re Estate of Dabney, 740 So. 2d 915, 919 (¶12)
(Miss. 1999)).
The factors used to determine whether a confidential relationship existed between the testator and beneficiary are:
(1) whether one person has to be taken care of by others,
(2) whether one person maintains a close relationship with another,
(3) whether one person is provided transportation and has their medical care provided for by another,
(4) whether one person maintains joint accounts with another,
(5) whether one is physically or mentally weak,
(6) whether one is of advanced age or poor health, and
(7) whether there exists a power of attorney between the one and another.
Id. Here, a few factors are applicable. Harvey was of advanced age and poor health. Due
to his increasing health problems, Harvey did receive some assistance from Schwark,
15 Charles, and Parker. However, they did not take care of him on a regular basis. There was
evidence that Harvey mainly took care of himself. Although Harvey had health problems,
he was not physically or mentally weak. Several people testified that Harvey was highly
intelligent, still active, able to do work on cars and his house, and still driving himself at the
age of eighty-four. He only needed transportation when he was having car problems or
medical emergencies. Although Schwark testified that she took Harvey to some of his doctor
appointments and the hospital, it could not be said that she provided for Harvey’s medical
care. There was evidence that Harvey maintained a joint account with Schwark. There was
also evidence that Harvey and Schwark had a close relationship. He was close friends with
Schwark’s father for over fifty years and had known her since she was a child. Lastly,
Chimento alleged that Schwark had power of attorney over Harvey; however, the record
confirms this was not the case.
¶26. “A presumption of undue influence is not raised merely because a beneficiary
occupies a confidential relationship with the testator; something more is required, such as
active participation by the beneficiary in the procurement, preparation or execution of the
will or mental infirmity of the testator.” In re Est. of Williams, 379 So. 3d 968, 980-81 (¶45)
(Miss. Ct. App. 2024) (quoting Est. of Sandlin v. Sandlin, 790 So. 2d 850, 854 (¶9) (Miss.
Ct. App. 2001)). “The existence of a confidential relationship, standing alone, does not give
rise to a presumption of undue influence.” Id. (citing In re Will of Adams, 529 So. 2d 611,
615 (Miss.1988)). “For testamentary gifts, ‘[i]f it is determined that a confidential
relationship exists, an abuse of that relationship must be shown for the [c]ontestants to raise
16 a proper presumption of undue influence.’” Id. (quoting Kimbrough v. Est. of Kimbrough,
134 So. 3d 281, 285 (¶13) (Miss. 2014)). “[E]ven when a confidential relationship can be
said to exist between the parties, . . . the beneficiary under the will must have used that
relationship for his personal gain or to thwart the intent of [the] testator.” Id. (citing Costello
v. Hall, 506 So. 2d 293, 298 (Miss. 1987)).
¶27. Although it can be argued that a confidential relationship existed between Harvey and
Schwark, it cannot be said that Schwark used that relationship for her personal gain or to
thwart Harvey’s intent. Furthermore, she was certainly not involved in preparing or
executing Harvey’s will. Schwark’s uncontradicted testimony was that she was working in
Houston when Harvey had his will prepared and did not see a copy of the will until she came
home to handle his funeral arrangements. Also, the fact that Herring was involved in
executing the will does not necessarily mean that Schwark was somehow involved. Harvey
knew that Herring was a notary, and he simply asked her to come and notarize the will.
While reading the document, she saw that he needed two witnesses, and since she was
already there, she served as one. Nothing in the record suggests that something nefarious
was going on.
¶28. Additionally, Parker’s deposition testimony confirmed that Schwark was not trying
to influence or control Harvey:
Q. Did you ever see Nina do anything that you thought was out of the way with Mr. Harvey?
A. No, sir.
Q. Did you ever see her force him to do anything?
17 A. Oh, no. No, sir.
Q. Was he the kind of person that you could get something over on?
A. No, sir. I don’t think so. Personal opinion. He was a pretty smart man.
¶29. Taking all this into consideration, we cannot say that there was any abuse or
suspicious circumstances that would give rise to a presumption of undue influence. This
III. Due Execution
¶30. Chimento also claims that Herring and Jalanivich could not prove the due execution
of the will. Mississippi Code Annotated section 91-5-1 provides the requirements for the
valid execution of a will:
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. 2021). Mississippi Code Annotated section 91-7-7 provides
the requirements for proving the due execution of a will:
The due execution of the will, whether heretofore or hereafter executed, must be proved by at least one (1) of the subscribing witnesses, if alive and competent to testify. If none of the subscribing witnesses can be produced to prove the execution of the will, it may be established by proving the handwriting of a testator and of the subscribing witnesses to the will, or of some of them. The execution of the will may be proved by affidavits of
18 subscribing witnesses. The affidavits may be annexed to the will or may be a part of the will, and shall state the address of each subscribing witness. Such affidavits may be signed at the time that the will is executed.
Miss. Code Ann. § 91-7-7 (Rev. 2021).
¶31. Here, due execution of the will was proven by the subscribing witnesses. Herring and
Jalanivich signed the will and provided their addresses in the attestation clause. On the same
day that the will was executed, Herring and Jalanivich also signed an affidavit. The affidavit
stated,
We, each of the subscribing witnesses to the foregoing Last Will and Testament of Leonard Allen Harvey, do hereby certify that said instrument was signed by the said Leonard Allen Harvey, in our presence and by each of us in the presence of one another, and that the said Leonard Allen Harvey declared the same to be his Last Will and Testament in the presence of each of us and that on said occasion the said Leonard Allen Harvey was of sound and disposing mind and memory and under no duress or undue influence and that we each signed as subscribing witnesses to said Will at the request of the said Leonard Allen Harvey in his presence and in the presence of each other.
The affidavit was annexed to the will. Herring and Jalanivich also completed separate
affidavits a few days after the will was executed. Both affidavits confirmed that they served
as witnesses and signed the will “at the same time and in the presence of each other.” They
also asserted that Harvey “was over the age of twenty-one (21) years and of sound and
disposing mind and memory, mentally alert, and possessed of all his mental faculties.”
¶32. Additionally, Herring confirmed through testimony at trial that she and Jalanivich
witnessed Harvey sign the will. She testified that Harvey contacted her about notarizing the
will at her grandparent’s house. When she arrived, Jalanivich was visiting with Harvey and
grandparents. She asked Jalanivich to serve as the additional witness so that her
19 grandparents would not have to get out of their recliners. She testified, “He came to the
kitchen table, Mr. Harvey signed, [Jalanivich] signed and then he wrote his address down.”
The court even confirmed with Herring that they all three were present at the kitchen table
and witnessed each other sign:
THE COURT: Did you see him sign?
THE WITNESS: I did. I saw both of them sign.
THE COURT: Did Mark see him sign?
THE WITNESS: (Nodding head.)
THE COURT: Yes?
THE WITNESS: Yes.
The testimony and evidence demonstrate that Herring and Jalanivich proved due execution
of the will. Accordingly, this issue is without merit.
IV. Requirements for Probate
¶33. Chimento also contends that Schwark failed to prove the requirements needed to
probate the will. One of the requirements is proof that the will was lost; therefore, we will
combine issues four and five in this analysis.
¶34. Our supreme court has held:
The law regarding admission into probate of a lost will is discussed at length in Warren v. Sidney’s Estate, 183 Miss. 669, 184 So. 806 (1938). That case sets forth the elements necessary to probate a copy of a lost will, which are: (1) the proof of the existence of the will; (2) evidence of its loss or destruction; and (3) proof of its contents. Sidney’s Estate, 183 Miss. at 675-76, 184 So. at 807. A fourth element has been added: (4) that the testator did not destroy the will with the intent to revoke it. Robert A. Weems, Wills and Administration of Estates in Mississippi § 7–17 (1988). This last element arose from the
20 theory that when a will cannot be found following the death of a testator and it can be shown that the testator was the last person in possession of the will, there arises a rebuttable presumption of revocation.
In re Est. of Cannon, 733 So. 2d 245, 249 (¶19) (Miss. 1999). The proponent has the burden
to prove each of these elements by clear and convincing evidence. See Abshier v. Chapman
(In re Est. of Mitchell), 623 So. 2d 274, 275 (Miss. 1993); Est. of Leggett v. Smith, 584 So.
2d 400, 403 (Miss. 1991).
¶35. “When a will is known to have existed and was in the maker’s possession, but it
cannot be found after the maker’s death, the Mississippi Supreme Court has stated that a
rebuttable presumption arises that the maker destroyed the will with the intent to revoke it.”
Taylor v. Tolbert, 342 So. 3d 1204, 1208 (¶22) (Miss. Ct. App. 2022) (citing In re Est. of
Mitchell, 623 So. 2d at 275). “The presumption arises when the evidence shows (a) the
would-be testator made a will, (b) last known to have been in its maker’s possession prior
to his death, but (c) not found after death despite diligent search.” Id. at 1208 (¶24) (quoting
In re Est. of Leggett, 584 So. 2d at 403).
¶36. Here, the evidence is uncontradicted that (a) Harvey made a will on January 17, 2015;
(b) after the will was executed, Harvey left the place of execution with the original will in
his possession; and (c) the will was not found after his death, despite a diligent search by
Schwark. Schwark testified that she made two attempts to locate the original will. She knew
that he often put important papers in his recliner, so she looked there hoping to find the
original will:
The only place that I could think that he would have put any other paperwork was in the recliner that he stayed in. And it had -- it had papers tucked down
21 in the side. But that is the -- that’s the chair that he died in, and anything that was in that chair was destroyed.
Nothing in the record suggests that Harvey intended to destroy his will. Instead, the evidence
suggests that the will was accidentally destroyed. Also, no evidence in the record suggests
that Schwark destroyed the original will. In fact, she was not even aware that Harvey had
executed a will and left all his property to her until after his death. Herring testified that she
never informed her mother about the execution or the contents of the will. Schwark also
revealed that her father never informed her about the will. He simply gave her the sealed
envelope that Harvey had dropped off at his house for her. In the final judgment, the trial
court opined:
The uncontroverted testimony at trial and the most clear and convincing evidence the Court heard was that Ms. Schwark did not know about the will and could not have destroyed the original will as, at the time the will was made on January 7, 2015, she was working in Houston, Texas, for a year and only came home after Mr. Harvey’s death, when he was found on February 21, 2015, as stated in the Certificate of Death. Ms. Schwark received an envelope from her father with a copy of the will, which was later probated. The fact that Mr. Harvey made the will, which was duly executed, and he was found dead approximately six (6) weeks later, coupled with the fact that prior to his death, he left the envelope with Ms. Schwark’s father, which was sealed and contained a copy of the original will, further overcomes the presumption of revocation.
We find that sufficient evidence in the record supports this finding. Our Supreme Court has
held, “‘Where—as here—a trial judge sits without a jury,[it] will not disturb his factual
determinations where there may be found in the record substantial supporting evidence.’”
In re Est. of Cannon, 733 So. 2d 245, 248 (¶17) (Miss. 1999) (quoting In re Est. of Tallant
v. Tallant, 644 So. 2d 1189 (Miss. 1994)). “We must ‘affirm a chancellor on a question of
22 fact unless upon review of the record we be left with the firm and definite view that a
mistake has been made.’” Id. (quoting Snow Lake v. Smith, 610 So. 2d 357, 360 (Miss.
1992)). Accordingly, we find no error in the chancellor’s determination that Schwark
overcame the presumption of revocation.
CONCLUSION
¶37. Based on our review of the record, we find that the chancellor did not err in admitting
Harvey’s will for probate. There was no evidence of undue influence. Schwark overcame
the presumption of revocation and proved that Harvey possessed testamentary capacity when
the will was executed. Harvey intentionally chose to leave his property to Schwark because
she cared for him, and he considered her to be his daughter, “not by blood but by choice.”
Additionally, the evidence and testimony confirmed that the will was properly executed. The
chancellor made specific findings, and his decision was supported by substantial evidence
in the record. We are not at liberty to substitute our judgment for the chancellor’s. Thus,
we must affirm the judgment of the Jackson County Chancery Court.
¶38. AFFIRMED.
BARNES, C.J., CARLTON AND WILSON, P.JJ., McDONALD, LAWRENCE, McCARTY, EMFINGER AND WEDDLE, JJ., CONCUR. ST. PÉ, J., NOT PARTICIPATING.