          IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2013-CA-01670-COA

IN THE MATTER OF THE ESTATE OF                               APPELLANTS/CROSS-
DOROTHY COLE PHELPS, DECEASED: IRENE                                APPELLEES
PHELPS TERRY AND MARY ELLEN VICK
PHELPS DOMIN

v.

HENRY VICK PHELPS, III, EXECUTOR OF                              APPELLEE/CROSS-
THE ESTATE OF DOROTHY COLE PHELPS,                                    APPELLANT
DECEASED

DATE OF JUDGMENT:                         09/06/2013
TRIAL JUDGE:                              HON. MARIE WILSON
COURT FROM WHICH APPEALED:                SHARKEY COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANTS:                  WREN CARROLL WAY
ATTORNEY FOR APPELLEE:                    P. SCOTT PHILLIPS
NATURE OF THE CASE:                       CIVIL - WILLS, TRUSTS, AND ESTATES
TRIAL COURT DISPOSITION:                  FOUND WILL IS VALID AND SHOULD BE
                                          ADMITTED TO PROBATE
DISPOSITION:                              AFFIRMED - 12/08/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE LEE, C.J., CARLTON AND FAIR, JJ.

      LEE, C.J., FOR THE COURT:

¶1.   This appeal arises from the validity of Dorothy Cole Phelps’s will. Dorothy’s three

daughters, Helen Carolyn Phelps May (“Carolyn”), Irene Cole Phelps Terry (“Irene”), and

Mary Ellen Vick Phelps Domin1 (“Vicki”) filed a petition to contest probate of Dorothy’s

will. They claimed that Dorothy lacked testamentary capacity and was unduly influenced by



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          The spelling Doman was used in the will.
her son, Henry Vick Phelps III (“Henry III”). The chancellor found that the will was valid

and should be admitted to probate. From this, Irene and Vicki appeal arguing the chancellor

erred in finding: (1) Dorothy had testamentary capacity and (2) Henry III presented clear and

convincing evidence to rebut the presumption of undue influence. Henry III cross-appeals

arguing the chancellor erred in: (1) excluding Frank Gardner Power’s testimony and (2)

denying his motion for a directed verdict. We affirm.

                        FACTS AND PROCEDURAL HISTORY

¶2.    Henry V. Phelps II (“Henry II”) and Dorothy had four children: Carolyn, Irene, Vicki,

and Henry III.

¶3.    On June 14, 1975, Dorothy executed a holographic codicil appointing Henry III as

administrator and giving him ownership of their property should she and Henry II die at the

same time.

¶4.    On January 28, 1977, Henry II and Dorothy executed joint wills. Each spouse’s will

devised and bequeathed his/her property to the other spouse, with Carolyn, Irene, Vicki, and

Henry III each receiving $100.

¶5.    On April 10, 1979, Dorothy executed a holographic codicil leaving Henry III all

personal and real property should she and Henry II die at the same time. This writing

specifically notes that Dorothy’s daughters had previously received land.

¶6.    On July 23, 1987, Henry II and Dorothy executed a codicil to their 1977 wills, which

provided that should they die at the same time, their entire estate would go to Henry III, with

the exception of Carolyn, Irene, and Vicki each receiving $25,000.



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¶7.    On December 11, 1987, Henry II died. Dorothy’s devises and bequests in the 1977

will lapsed upon Henry II’s death, and without a new will, the estate would be divided

equally between Carolyn, Irene, Vicki, and Henry III upon Dorothy’s death. All previous

codicils would have no effect since Henry II and Dorothy did not die at the same time.

¶8.    After Henry II’s death, Dorothy fell into a state of depression and was hospitalized

until around December 15, 1987. On January 13, 1988, Dorothy was hospitalized again due

to a kidney problem and remained hospitalized until January 21, 1988.

¶9.    On February 10, 1988, Henry III drove Dorothy from Nitta Yuma, Mississippi, to

Hollandale, Mississippi, so she could “tend to some business.” Dorothy met with an

attorney, Mike Cordell, and executed the will that is the subject of this appeal.2 Henry III

was not present during the will’s execution. The will was then placed in a safety deposit box

in both Dorothy and Henry III’s names.

¶10.   This will specifically revoked Dorothy’s 1977 will and left to Carolyn, Irene, and

Vicki a life estate in 320 acres of land, with the right to the income from the land during their

lives, and a remainder interest in Henry III. The residue of Dorothy’s property was left to

Henry III, and Henry III was appointed executor of Dorothy’s estate.

¶11.   On June 17, 2011, Dorothy died. Subsequently, Henry III filed a petition for probate

of Dorothy’s will in the Sharkey County Chancery Court. Prior to the will being admitted

to probate, Carolyn, Irene, and Vicki challenged the will on the grounds that Dorothy lacked



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       Dorothy also filed a petition to probate Henry II’s 1977 will. On March 1, 1988,
Dorothy was appointed executor of Henry II’s estate, and probate was completed on
February 8, 1996.

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testamentary capacity, and the will was the product of Henry III’s undue influence. Carolyn

later dismissed her contest.

¶12.   After a trial, the chancellor found that there was a confidential relationship between

Henry III and Dorothy, that there was an abuse of the confidential relationship, but that

Henry III had rebutted the presumption of undue influence by clear and convincing evidence.

Thus, in an amended final judgment, the chancellor found that Dorothy had testamentary

capacity to execute the will on February 10, 1988, and the will was not the product of undue

influence. Irene and Vicki appeal.

                                       DISCUSSION

       I.     The Will

¶13.   “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 Estate of Mace, 125 So. 3d 675, 678 (¶8) (Miss. Ct. App. 2013) (quoting 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, [this Court] ‘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.’” Id. (quoting Goode v. Village of Woodgreen

Homeowners Ass’n, 662 So. 2d 1064, 1070-71 (Miss. 1995)).

       A.     Testamentary Capacity

¶14.   In their first issue, Irene and Vicki claim the chancellor erred in finding that Dorothy

possessed testamentary capacity.



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¶15.   “For a will to be valid, the testator must possess testamentary capacity.” Noblin v.

Burgess, 54 So. 3d 282, 291 (¶32) (Miss. Ct. App. 2010). “For 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 Estate of Mask, 703

So. 2d 852, 856 (¶17) (Miss. 1997)).

¶16.   Our supreme court has explained the burden of proof on the issue of testamentary

capacity is as follows:

       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 Estate of Rutland, 24 So. 3d 347, 351 (¶10) (Miss. Ct. App. 2009) (quoting In re Estate

of Edwards, 520 So. 2d 1370, 1372 (Miss. 1988)).

¶17.   In the instant case, an objection to probate was entered prior to the will being admitted

to probate.

¶18.   Henry III made his prima facie case of the will’s validity through the testimony of Kay

Ousley Hyer, Cordell’s legal secretary at the time Dorothy’s will was executed. Although

Hyer had no recollection of the events on February 10, 1988, Hyer testified that she would

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not have signed the will’s attestation clause if she felt, through her interactions with Dorothy

on February 10, 1988, that Dorothy was not of sound and disposing mind and memory.

When asked whether Cordell would have signed the attestation clause, Hyer stated: “He

would not have affixed his signature if [Dorothy was] not of sound mind and body.”

¶19.   To support their argument on this issue, both Irene and Vicki testified that Dorothy

lacked testamentary capacity because of her grief over Henry II’s death and because of other

medical issues.

¶20.   However, “[t]he mere fact that someone is too ill to handle his affairs does not in and

of itself render him . . . void of testamentary capacity.” In re Estate of Laughter, 23 So. 3d

1055, 1061 (¶22) (Miss. 2009). Furthermore, we recognize that “[t]he testimony of

subscribing witnesses receives greater weight than the testimony of witnesses who were not

present at the will’s execution.” In re Estate of McQueen, 918 So. 2d 864, 871 (¶30) (Miss.

Ct. App. 2005) (citing Edwards, 520 So. 2d at 1373). Therefore, Hyer’s testimony is given

more weight than the testimony of Irene and Vicki, who were not present at the will’s

execution, did not interact with Dorothy on February 10, 1988, and have an interest in the

outcome of this case.

¶21.   Even if Irene and Vicki presented sufficient evidence to overcome Henry III’s prima

facie case, we note that Henry III presented rebuttal evidence through the testimony of Flora

Collins. Collins worked for Dorothy for approximately twenty-six years and interacted with

Dorothy on an almost daily basis. Collins stated that Dorothy appeared to be herself, “like

she’s always been,” after returning home from the hospital. Collins also stated that Dorothy



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told her about the will on two separate occasions: “She told me that I have a will and they’re

going to be surprised who I’m going to leave everything to.” Additionally, we note that the

will appears reflective of Dorothy’s intent in prior codicils. This issue is without merit.

       B.     Undue Influence

¶22.   In their second issue, Irene and Vicki claim Henry III did not present sufficient

evidence to overcome the presumption of undue influence.

       1.     Presumption of Undue Influence

¶23.   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. In re Last Will &

Testament of Bowling, 155 So. 3d 907, 910-11 (¶16) (Miss. Ct. App. 2014) (citing Croft v.

Alder, 237 Miss. 713, 115 So. 2d 683, 688 (1959)).

¶24.   It is conceded that there was a confidential relationship between Dorothy and Henry

III. However, the fact, alone, that a confidential relationship existed between Henry III and

Dorothy is not sufficient to give rise to the presumption of undue influence. See In re Estate

of Grantham, 609 So. 2d 1220, 1224 (Miss. 1992).

¶25.   Nevertheless, in In re Estate of Harris, 539 So. 2d 1040 (Miss. 1989), our supreme

court held that the presumption was raised with very little besides a confidential relationship.

In re Last Will & Testament of Smith, 722 So. 2d 606, 612 (¶18) (Miss. 1998). In Harris,

“the beneficiary simply found an attorney at the testator’s request and drove the testator to



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the attorney’s office.” Id.

¶26.   The facts in the instant case are distinguishable from those in Harris. Henry III did

not contact the attorney prior to the execution of the will. Nor did Henry III have knowledge

that he was driving Dorothy to Hollandale for the purpose of executing a will. Henry III

merely drove Dorothy to Hollandale on February 10, 1988, so she could “tend to some

business.”

¶27.   Furthermore, Henry III was not present during the execution of the will. Hyer testified

as to Cordell’s usual practice with respect to allowing other people in the room during the

execution of a will. Hyer stated: “I cannot recall a time that he would do that. It was always

just the individual . . . It would be just between [Cordell and] that individual.”

¶28.   In finding a presumption of undue influence, the chancellor noted Dorothy’s health

and age. The chancellor also noted that after the will’s execution, the will was placed in a

safety deposit box in both Dorothy and Henry III’s names; therefore, Henry III had the

opportunity to view the will after its execution. The circumstances listed by the chancellor

had nothing to do with the preparation and execution of the will or with Dorothy’s

independent action.

¶29.   The fact, alone, that a confidential relationship existed between Henry III and Dorothy

is not sufficient to give rise to the presumption of undue influence. See Grantham, 609 So.

2d at 1224. Henry III was not actively involved in preparing or executing the will, nor were

there suspicious circumstances that negate independent action. See Dean v. Kavanaugh, 920

So. 2d 528, 537 (¶46) (Miss. Ct. App. 2006). As such, the chancellor erred in finding that



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there was a presumption of undue influence. However, because we ultimately reach the same

conclusion, this issue is without merit.

       2.     Overcoming the Presumption of Undue Influence

¶30.   Even if there was a presumption of undue influence, Henry III presented sufficient

evidence to overcome such a presumption.

¶31.   Our supreme court has stated that:

       [T]he presumption of undue influence is overcome if the beneficiary has
       proven by clear and convincing evidence:

       (1) Good faith on the part of the beneficiary;

       (2) the testator’s full knowledge and deliberation of his actions and their
       consequences; and

       (3) independent consent and action on the part of the testator.

Grantham, 609 So. 2d at 1224 (citing Mullins v. Ratcliff, 515 So. 2d 1183 (Miss. 1987)).

¶32.   In the instant case, the record contains sufficient evidence to satisfy each of these

three prongs. With respect to the good-faith requirement, the chancellor considered the

following factors: (a) the identity of the initiating party seeking preparation of the will; (b)

the place of the execution of the will and in whose presence; (c) the fee paid; (d) by whom

it was paid; and (e) the secrecy or openness surrounding the execution of the will. In re

Estate of Holmes, 961 So. 2d 674, 682 (¶25) (Miss. 2007). The chancellor found that

Dorothy initiated the preparation of the will, the terms of the will were discussed between

Dorothy and Cordell outside the presence of others, and the will was executed before two




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attesting witnesses.3 Although there was no evidence of the fee paid or who paid the fee, we

agree there was clear and convincing evidence that Henry III acted in good faith.

¶33.   With respect to the second requirement—that Dorothy had full knowledge and

deliberation of the consequences of her actions—the chancellor considered the following

factors: (a) whether Dorothy was aware of her total assets and their worth; (b) whether

Dorothy understood who her natural inheritors were and how her action would legally affect

prior wills; (c) whether Dorothy knew nonrelative beneficiaries would be included or

excluded; and (d) whether Dorothy knew who controlled her finances and how dependent

Dorothy was on anyone handling her finances. Holmes, 961 So. 2d at 684 (¶39). The

chancellor found that the will gave each daughter not only a life estate in 320 acres of land

but also exclusive control and possession of the income generated by that land, which was

evidence that Dorothy was aware of her total assets. The chancellor also found that the

revocation clause along with specific devises and bequests in the will was evidence that

Dorothy understood who her natural inheritors were and how her action would legally affect

prior wills. It is clear from prior documents that Dorothy never had any intention of

including nonrelative beneficiaries. Finally, the chancellor found that there was evidence

that Dorothy knew who controlled her finances. We agree there was clear and convincing

evidence that Dorothy had full knowledge and deliberation of the consequences of her

actions.

¶34.   With respect to the last requirement, the chancellor found that Dorothy exhibited



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           See Rogers v. Pleasant, 729 So. 2d 192, 194 (¶9) (Miss. 1998).

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independent consent and action when she obtained independent advice from Cordell, who

was a competent person, disconnected from Henry III, and devoted wholly to Dorothy’s

interests. Holmes, 961 So. 2d at 680 (¶18). We agree there was clear and convincing

evidence that Dorothy exhibited independent consent and action.

¶35.   Assuming there was a presumption of undue influence, the presumption was

overcome by clear and convincing evidence that Henry III acted in good faith, Dorothy had

full knowledge and deliberation of the consequences of her actions, and Dorothy exhibited

independent consent and action when she executed her will. This issue is without merit.

       II.   Cross-Appeal

¶36.   Henry III cross-appeals arguing the chancellor erred in: (1) excluding Power’s

testimony and (2) denying his motion for a directed verdict. However, because we affirm,

these issues do not need to be addressed.

¶37. THE JUDGMENT OF THE CHANCERY COURT OF SHARKEY COUNTY
IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANTS.

     IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, MAXWELL,
FAIR AND WILSON, JJ., CONCUR. JAMES, J., DISSENTS WITHOUT SEPARATE
WRITTEN OPINION.




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