                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2016-CT-01605-SCT

MARQUAN D. STOVER

v.

ELAINE G. DAVIS, EXECUTRIX OF THE
ESTATE OF TAMORA G. ROBINSON,
DECEASED

                             ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                         10/13/2016
TRIAL JUDGE:                              HON. WILLIAM H. SINGLETARY
TRIAL COURT ATTORNEYS:                    SHARON D. HENDERSON
                                          STEVE YOUNGER
                                          TRACEE O. DARBY
                                          JACK G. MOSS
COURT FROM WHICH APPEALED:                CHANCERY COURT OF THE
                                          SECOND JUDICIAL DISTRICT
                                          OF HINDS COUNTY
ATTORNEYS FOR APPELLANT:                  MARQUAN D. STOVER (PRO SE)
                                          RICK D. PATT
ATTORNEY FOR APPELLEE:                    JACK G. MOSS
NATURE OF THE CASE:                       CIVIL - WILLS, TRUSTS, AND ESTATES
DISPOSITION:                              REVERSED AND REMANDED - 04/25/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       BEAM, JUSTICE, FOR THE COURT:

¶1.    Marquan D. Stover filed a motion to contest the second codicil to his great aunt

Tamora Robinson’s last will and testament, alleging that the second codicil was the product

of undue influence by Robinson’s sister Elaine Davis. After a hearing, the Chancery Court
of the Second Judicial District of Hinds County, found no undue influence and dismissed

Stover’s motion to contest.

¶2.    Stover appealed, arguing that the chancellor had erred by not requiring Davis to rebut

the presumption of undue influence and that the decision was not supported by substantial,

credible evidence. The Court of Appeals issued a plurality decision, affirming the ruling of

the chancellor. Stover v. Davis, 2016-CP-01605-COA, 2018 WL 2110017 (Miss. Ct. App.

May 8, 2018). This Court granted Stover’s petition for a writ of certiorari. We hold that the

court must find by clear and convincing evidence that a presumption of undue influence,

which arises when a confidential relationship is coupled with suspicious circumstances, is

rebutted. We reverse the decisions of the Court of Appeals and of the chancery court, and we

remand for further factfinding by the chancellor.

                                          FACTS

¶3.    Robinson died on October 11, 2013, at the age of eighty-nine. She had no children,

and her husband predeceased her. Before her death, Robinson executed a last will and

testament, signed June 14, 1993, a first codicil, signed October 12, 2000, and a second

codicil, signed May 20, 2013. On October 28, 2013, the chancery court admitted Robinson’s

will and the two codicils to probate and issued letters testamentary to Davis.

¶4.    On November 7, 2013, Stover filed a motion to contest the second codicil on the

ground that it had been the product of undue influence by Davis. The second codicil had

made two changes to Robinson’s will. First, it changed the disposition of thirty acres of real

property, which originally had been devised to a nephew, Richard Robinson. That property



                                              2
was devised to Davis. Second, it nominated Davis as executrix and Robinson’s niece Sherry

Fletcher as successor executrix in the event that Davis was unable, removing Robinson’s

other sister, Clyda Myers, from that role. Davis testified that the reason for these changes was

that Richard Robinson and Clyda Myers both had predeceased Robinson.

¶5.    At the hearing, Stover testified that he believed the devise of property to Davis and

her nomination as executrix resulted from undue influence. Before Robinson’s mental

decline, according to Stover, she had expressed that she wanted the thirty acres to remain in

the Robinson family and that Davis violated that wish. Further, Stover testified that

Robinson was on medication for dementia. In early 2013, she suffered a stroke that had

worsened her mental condition greatly. After the stroke, Stover said that Robinson could not

eat, bathe, or comb her hair without assistance, and she could not identify the time, date, or

year. Stover testified that Robinson would frequently behave unusually, yelling, “Can I lay

down” when she already was lying down.

¶6.    Davis testified that Robinson, who was twenty-one years older than she, had been

diagnosed with dementia in March 2006. Following the diagnosis, the progress of the

disease had been slow, and Robinson, according to Davis, had known what she was doing

when she executed the second codicil. Davis testified that Robinson did sometimes ask to lie

down but that usually she was in a recliner at those times, although occasionally she was

lying in bed already. Davis also testified that the family had established a conservatorship for

Robinson in 2006 after Stover had purchased a Cadillac in Robinson’s name and also had




                                               3
acquired credit cards in her name.1 Clyda Myers had acted as Robinson’s conservator until

Myers’s death, when Myers was succeeded by Davis.

¶7.    Davis testified that she and her husband, Leroy Davis, and another relative, Sylvester

Griffin, visited Robinson on May 20, 2013, at the nursing home. Davis recalled conversations

with Robinson in which she would state how much she missed Myers, and Davis said she

would remind Robinson that Myers had died “and, you know, we need to know what you

want to do.” Davis testified that Robinson was concerned about “her business,” meaning the

will. Davis asked Robinson whom she wanted to replace Myers as executrix, and Robinson

replied, “Why can’t you and Sherry2 do it.” Davis also told her that Richard Robinson had

died and asked Robinson what she wanted to do about the property she had left to him.

According to Davis, Robinson thought about it and said she wanted to leave it to Davis.

Davis asked if she was sure, and Robinson said yes. So Davis used her own cell phone and

called Robinson’s attorney, Jack Moss. Davis said that when Moss arrived, Robinson

recognized him.

¶8.    Moss testified that he had been Robinson’s attorney since approximately 1980, that

he had drafted the will and both codicils for Robinson, and that he had established her

conservatorship. Moss testified that when Davis called, he asked to speak with Robinson.



       1
         Stover testified that Robinson had leased this vehicle for him like she had done for
four or five other vehicles up until that point. Stover explained that the credit cards were in
his name because Robinson also frequently purchased his children’s school supplies. Davis
pursued an elderly abuse claim with the attorney general’s office, but nothing came of the
investigation. It is undisputed that Robinson was suffering from dementia.
       2
           Presumably, Robinson was referring to Sherry Fletcher.

                                              4
They talked for a few minutes, and he said he wanted to meet with her in person. Moss

traveled to Compere Nursing Home and visited Robinson. He asked the family to leave the

room so that he could question Robinson to determine her capabilities. He testified that

Robinson’s state of mind was good. She was physically weakened, but she could sit up in

bed. Moss said that Robinson recognized him and knew the objects of her bounty. Moss

testified that, after speaking with Robinson for twenty or thirty minutes, he went back to his

office and drafted the second codicil. Then he returned to the nursing home and read over the

codicil with Robinson. She signed it, witnessed by Moss and Sylvester Griffin. Moss opined

that Robinson had not been influenced unduly by anyone in executing the codicil.

¶9.    The chancellor found that Davis had established a prima facie case of the validity of

the will and codicils. The chancellor found that Stover had not satisfied his burden to show

that the second codicil was the result of undue influence and entered a judgment dismissing

Stover’s motion to contest.

                               STANDARD OF REVIEW

¶10.   “A chancellor’s findings of fact will not be disturbed unless they are manifestly wrong

or clearly erroneous, or unless the chancellor applied an erroneous legal standard.” Wright

v. Roberts, 797 So. 2d 992, 997 (Miss. 2001) (citing In re Estate of Grantham, 609 So. 2d

1220, 1223 (Miss. 1992)).

                                       DISCUSSION




                                              5
¶11.   “The sole issue in a will contest is devisavit vel non,3 or will or no will.” Trotter v.

Trotter, 490 So. 2d 827, 833 (Miss. 1986). The proponent of the will has the burden of proof

of the will’s validity, and this burden of proof stays with the proponent throughout the trial.

Harris v. Sellers, 446 So. 2d 1012, 1014 (Miss. 1984). The proponent makes a prima facie

case of validity when the will and record of probate are admitted into evidence. Id. At that

point, the burden shifts to the contestant to produce evidence challenging the will’s validity.

Clardy v. Nat’l Bank of Commerce of Miss., 555 So. 2d 64, 66 (Miss. 1989).

¶12.   The contestant raises a presumption of undue influence by showing the existence of

a confidential relationship between the testator and a beneficiary under the will, along with

suspicious circumstances. Croft v. Alder, 237 Miss. 713, 723, 115 So. 2d 683, 686 (1959).

Suspicious circumstances may include the testator’s mental infirmity or direct involvement

of the beneficiary in the confidential relationship in preparing or executing the will. Id. at

686. When a presumption of undue influence arises, then the proponent of the will bears the

burden to rebut the presumption with clear and convincing evidence that the will was not the

result of undue influence. In re Estate of Dabney, 740 So. 2d 915, 921 (Miss. 1999) (citing

Croft v. Alder, 237 Miss. 713, 115 So. 2d 683, 686 (1959)). To rebut the presumption, the

proponent must show three things: “(a) good faith on the part of the beneficiary, (b) the

testatrix’s full knowledge and deliberation of the consequences of her actions, and (c) the



       3
       Devisavit vel non means “he (or she) devises or not.” Devisavit vel non, Black’s Law
Dictionary (10th ed. 2014). “An issue directed from a chancery court to a court of law to
determine the validity of a will that has been contested, as by an allegation of fraud or
testamentary incapacity. Id.


                                              6
testatrix received the advice of a competent person disconnected from the beneficiary and

devoted wholly to him.” Id. at 921 (citing Murray v. Laird, 446 So. 2d 575, 578 (Miss.

1984)).

¶13.   As the Court of Appeals recognized, the chancellor made no findings on whether a

confidential relationship had existed between Robinson and Davis or whether a presumption

of undue influence arose. Stover, 2018 WL 2110017, at *24. Yet the Court of Appeals held

that, even if a presumption of undue influence had arisen, Davis rebutted it, because clear and

convincing evidence existed in the record to satisfy the three-prong test. Stover, 2018 WL

2110017, at *27. We disagree. The record shows that the chancellor found that Davis had

made a prima facie case of the will’s validity and that Stover had not met his burden to show

that the second codicil was the product of undue influence. The chancellor misstated the

burden of proof as preponderance of the evidence when the burden for a presumption of

undue influence is clear and convincing. See In re Estate of Dabney, 740 So. 2d at 921

(citing Croft, 115 So. 2d at 686). Further, the record does not show the burden-shifting

scheme set forth above. If a presumption of undue influence had, in fact, arisen, then Stover

did meet his burden, and Davis, the proponent of the will and codicils, bore the burden to

rebut the presumption with clear and convincing evidence.

¶14.      As the chancellor rightly found, Davis’s submission of the will and the record of

probate and its receipt into evidence established a prima facie case of the will’s validity. But

Stover’s proof raised a presumption of undue influence, because he showed that Davis was




                                               7
in a confidential relationship with Robinson when the second codicil was executed and that

the second codicil had been executed under suspicious circumstances.

¶15.   Because Davis was Robinson’s duly appointed conservator, a confidential relationship

was established. We have held that “[a] conservator stands in the position of a trustee, has

a fiduciary relationship with the ward and is charged with a duty of loyalty toward the ward.”

Bryan v. Holzer, 589 So. 2d 648, 657 (Miss. 1991). While the existence of a conservatorship

alone is not immediate grounds for undue influence, the courts should not take lightly the

role, power, trust, and influence of the conservatorship relationship between the person or

ward and his or her conservator. Wards deserve the most meticulous judicial scrutiny in

situations such as this to ensure the ward’s protection. When a confidential relationship

exists, coupled with suspicious circumstances, the proponent of the will bears the burden of

rebutting the presumption by clear and convincing evidence.

¶16.   Suspicious circumstances were shown by the undisputed evidence that Robinson

suffered from dementia. A conservatorship had been established for Robinson in 2006, and

Davis, who stepped into the role of conservator after Myers died, was directly involved in

the preparation of the will. Davis testified that she discussed the will with Robinson. Davis

reminded Robinson of the deaths of a named beneficiary and the executrix, and the changes

made in the codicil were both to Davis’s benefit. Davis called Attorney Moss on her own

cell phone to initiate the process of procuring the second codicil. Given that these facts were

uncontested, the burden shifted to Davis to prove, by clear and convincing evidence, “(a)

good faith on the part of the beneficiary, (b) the testatrix’s full knowledge and deliberation



                                              8
of the consequences of her actions, and (c) [that] the testatrix received the advice of a

competent person disconnected from the beneficiary and devoted wholly to him.” In re

Estate of Dabney, 740 So. 2d at 921(citing Murray, 446 So. 2d at 578).

¶17.   Because the chancellor erroneously did not recognize that a presumption of undue

influence had arisen, the chancellor made no findings of fact on the three-part test for

determining whether Davis had rebutted the presumption by clear and convincing evidence.

Instead, the chancellor found that Stover had not met his burden. But Stover had, in fact, met

his burden of production, resulting in the burden’s shifting to Davis to rebut the presumption

with clear and convincing evidence. Because the evidence was such that the chancellor

reasonably could have found either that Davis had rebutted the presumption or that she had

not, we reverse the decisions of both courts and remand to the chancery court for factfinding

on whether Davis rebutted the presumption by clear and convincing evidence.

                                      CONCLUSION

¶18.   We hold that the chancellor manifestly erred by failing to find that a presumption of

undue influence had arisen, by stating the wrong burden of proof, and by failing to require

Davis to rebut the presumption of undue influence with clear and convincing evidence.

Therefore, we reverse the decisions of the Court of Appeals and of the chancery court, and

we remand for further factfinding by the chancellor.

¶19.   REVERSED AND REMANDED.

     RANDOLPH, C.J., KING, P.J., COLEMAN, MAXWELL, CHAMBERLIN AND
ISHEE, JJ.,CONCUR. KITCHENS, P.J., AND GRIFFIS, J., NOT PARTICIPATING.




                                              9
