Decisions – Miss.S.Ct. – Aug. 28, 2014

Bronwyn Benoist Parker v. William Benoist Parker –  will contest, in terrorem clause –  this is a dispute between two siblings over their father’s estate.  In 1998, B.D. Benoist executed a will.  In 2010 he executed another will.  The latter favored William over Bronwyn.   It also contained an in terrorem clause whereby a beneficiary who contested the will lost her rightt to inhereit.  Bronwyn challenged the 2010 will anyway claiming that the newer will was the result of undue influence.  Bronwyn lost at trial and the chancellor ruled she could not take under the will.  The Miss. S.Ct reversed.  As a matter of first impression, an in terrorem clause will not prohibit a beneficiary from inheriting if she challenges the will in good faith.  

In 1998, B.D. and his wife Mary made mutual reciprocal wills.  WHen one of them died, a credit shelter trust would be established to support the remaining spouse.  The children were the trustees.  Mary died soon after.  At that time, the trust had $462,308.  Over the years, B.D. withdrew large sums of cash.,  After he died in 2011, the trust account had $84,973. William testified that B.D. drank heavily and suffered slight dementia but his mind was fine when he was not drinking.  William himself suffered from cluster headaches for which he took methadone.   In 2009, William’s wife filed for divorce and B.D. supplied William with financial assistance.  

In 2009, Bronwyn became concerned about her father. B.D. was diagnosed with mild dementia.  Bronwyn, concerned about the money going out, tried to get a power of attorney over her father.  In 2010, B.D. made a new will granting William more property than he would have gotten under the 1998 will.   When B.D. died a year later, Bronwyn challenged the will.   William was the executor of the estate and the court allowed him to take $20,000 out of the estate to defend against Bronwyn’s claims.  After a jury trial, nine jurors found the 2010 will valid and enforceable.  WHile they found that WIlliam and his father had a confidential relationship, they found that William did not exert undue influence.  After the verdict, the chancellor found that Bronwyn would inherit nothing under a clause in the will whereby the challenger inherited nothing.   The chancellor also held that the part of the provision whereby the unsuccessful challenger had to pay the attorney’s fees was unenforceable.  Bronwyn appealed and William cross-appealed. 

The Miss.S.Ct. reversed the chancellor’s decision whereby Bronwyn was stripped of her rights as a beneficiary. “While this may be a case of first impression in Mississippi, this issue has been confronted by courts for hundreds of years, and most of them have held that forfeiture clauses in wills are unenforceable when a will contest is brought in good faith and based
upon probable cause.”   Bronwyn also appealed the chancellor’s allowing William to take $20,000 out of the estate to pay a retainer for attorneys.  The Court finds that the chancellor did not err in allowing this.  Nor did the chancellor err in not removing WIlliam as the executor.   On the cross-appeal, the court finds that the chancellor did not err in refusing to make Bronwyn pay attorneys fees.

There is no statutory authority for a testator to require the payment of attorney fees, and Bronwyn and William were not parties to a contract which included an attorney fees provision. Bronwyn has not been subject to punitive damages, nor is she in contempt of court. The chancellor did not abuse his discretion in denying attorney fees to William. The chancellor correctly noted that Mississippi does not statutorily authorize the payment of attorney fees by an unsuccessful will contestant. All that is permissible is for the will to detail the disbursement of the testator’s property. The Legislature has not seen fit to grant testators the authority to invoke the power of the courts to compel unsuccessful contestants to pay attorney fees incurred in defending a will contest. As concluded by the chancellor, there are no means by which William can obtain attorney fees in these circumstance.

Hayne v. The Doctors Company – Steven Hayne was the state’s medical examiner for many, many years despite the fact that he was not a board-certified forensic pathologist.   Kennedy Brewer was a death row inmate later freed when it was discovered that the bite mark evidence (testified to by Hayne and dentist West) was false.   Brewer sued Hayne and Hayne asked his medical malpractice insurer to indemnify him.  The insurer refused on the grounds that the plaintiff was not one of Hayne’s patients and the policy excluded acts done in the employment of government.  Hayne sued his insurer and lost.  He appeals and the Miss.S.Ct, affirms.

We are constrained to agree with The Doctors’ position that Brewer simply cannot, by any stretch of the imagination, be considered Hayne’s patient. The language of the policy is unambiguous in this regard. Further, “an insured is charged with the knowledge of the terms of the policy upon which he or she relies for protection.” Mladineo v. Schmidt, 52 So.
3d 1154, 1161 (¶ 26) (Miss. 2011). Although Hayne claims that The Doctors negligently misrepresented to him in the policy booklet that the policy would cover him for suits such as the one he now faces, the plain language of the policy itself unambiguously informs him that it does not. When the language of the policy is unambiguous, knowledge of the policy
is imputed to the insured.

Tazarious Cooper v. State –  grounds for Terry stop – Greenville police received a citizen’s complaint about “young black men” “standing out on the sidewalks, corners, selling drugs” at the 500 block of Union Street.  When police arrived at that spot, they saw  young black male Tazarius Cooper.   The officer turned on his blue lights, exited his vehicle, and attempted to make a Terry (investigatory) stop  “by ordering Cooper to ‘come here and let me talk to you.'”  Instead of complying, Cooper ran to an abandoned  house and forced the door open.  Cops followed him into the house and saw him throw a bag into a hole in the living room wall.  The bag contained a blue substance that tested positive for the drug known as ecstasy.”

  The trial court denied Cooper’s motion to suppress the evidence, and Cooper was convicted. We find that the citizen’s complaint was insufficient to establish a reasonable suspicion of Cooper, or to conduct a Terry stop. But because Cooper was not stopped, and because Cooper lacked standing to challenge the search of a home which did not belong to him, we affirm the trial court’s decision.

2 thoughts on “Decisions – Miss.S.Ct. – Aug. 28, 2014

  1. Pingback: Decisions – Miss.S.Ct. – Feb. 19, 2015 | Jane's Law Blog

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