Legal Question in Wills and Trusts in Mississippi
contesting of will/ undue influence
I would like to know the mississippi law on contesting my fathers will - my reason is undue influence. My mother died in 2001 in a car accident and my father died 2005. They both had wills stating the same thing if something happened to the other the estate would be divided three ways. My dad never really recovered from losing my mother.Since her death a new will has surfaced changing everything. since my brother and in wife moved in to take care of him was left basically everything. my father was taking a lot of medications for pain at times excessive amounts. I have wittness to the fact of his abuse of his medications. I have been made the Administratrix of his estate.The brother that lived with my father did not want to probate the will\estate. The estate my estiminate at least one million dollar estate. Why wouldn't my brother want to file the estate in probate court. Please advise me on this matter. Thank you very much!
1 Answer from Attorneys
Re: contesting of will/ undue influence
There is a presumption of undue influence where there is a bequest by a testator to one in a fiduciary relationship with him, if the fiduciary has any involvement in the preparation of the will.
To overcome the presumption of undue influence, Sims was required to prove the following by clear and convincing evidence:
1. The beneficiaries must have acted in good faith. a. Who initiated the procurement of a will? b. Where was the will executed and in whose presence? c. What consideration was paid? d. Who paid the consideration? e. Was there secrecy or openness in the execution?
2. The testator must have had full knowledge and deliberation in the execution. a. Was the testator aware of his total assets and their general value? b. Did the testator understand who his natural inheritors were? c. Did the testator understand how the change would legally effect prior wills? d. Did the testator know that non-relative beneficiaries would be included? e. Did the testator know who controlled her finances and by what method? 1. How dependent is the testator on those handling her finances? 2. How susceptible is he to influence by those handling his finances? 3. The testator must have exhibited independent consent and action.
IN THE MATTER OF THE ESTATE OF OLA AURELIA MCQUEEN, No. 2003-CA-01498-COA (Miss COA 2005)
I can't answer your other question about your brother intent.
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