Question

Why is it advisable for people to create a will? What happens if a person does not create a will and they pass--who gets their property?

Discussion Topic Two:

Do some quick internet research and find a case that deals with a will contest. Provide a brief summary of the facts of the case, and provide the court's analysis. Be sure to use a reference.

Answer 1

1) The most common and simple reason to make a will is to decide who will get your property when you die.Without, a will (or other plan, like a living trust), your state laws determine how your property will be distributed - usually to your closest relatives, like your spouse, childern or your parents.

2.)

Burris Vs Estate of Burries et al. The COA affirmed on September 25,2018.

Milt Burries had filed a will contest raising issues of testamentary capacity and undue influence regarding the will of his father, Eddie Burries.The chancellor Granted summary judgement innfavour of Renee Sims Burries, and Milt Appealed, arguing that it was error for the chancellor to adjudicate facts rather than letting a jury decide them.

. The Mississippi Supreme Court in In re Launius, 507 So. 2d at 29-30, explained the burden of the contestant of a will facing a motion for summary judgment as follows:

Appellees, as proponents of the will, have the burden of proving the will throughout. They meet this burden by showing the will was duly executed and admitted to probate. When the will is admitted to probate, proponents put on prima facie evidence that the testator had testamentary capacity and further that no undue influence was placed upon him. The burden of going forward then shifts to contestant, who must overcome the presumption raised by proponents that testator had testamentary capacity, (and, therefore, that the testator’s execution of the will was a free and voluntary act). When the Mississippi Rules of Civil Procedure come into play within a situation involving a contest to [a] will, where movants for summary judgment (appellees) have shown there is no genuine issue of material fact vis-a-vis probate of the will, contestant, as the adverse party, may not rest upon the mere allegations of denials of his pleadings, but his response, by affidavits or as otherwise provided in this Rule, must set forth specific facts showing that there is a genuine issue for trial.

With this in mind, Milt argues that there existed genuine issues of material fact as to his father’s testamentary capacity and the presence of undue influence by Renee to defeat the summary judgment motion and continue the case to trial.

The court went on to analyze the trial court’s findings of fact on the issues of testamentary capacity and undue influence, finding no error, and returned to consideration of the chancellor’s role as finder of fact vs. that of a jury in a summary judgment proceeding:

The record supports Renee’s assessment of the proceedings in the chancery court. While Milt is correct in his assertion that it is improper for a chancellor in a will contest to adjudicate facts unless the parties have agreed to dispense with a jury, he fails to fully appreciate that there must be genuine issues of material facts to be determined by a jury and that after Renee moved for summary judgment, with supporting affidavits, showing no genuine issue of material fact on the issues of testamentary capacity and undue influence, he could not rest on his general allegations and suppositions regarding his father’s relationship with Renee and his father’s mental health. He, as the contestant of Eddie’s will, was required to bring forth an affidavit or affidavits demonstrating “sufficient evidence to establish the essential elements of [his] case on which [he] would bear the burden of proof at trial.”

Milt offered no evidence to substantiate his claims at the trial level and does not do so here. The will was created three years prior to Eddie’s death, and there is no indication in the record that he lacked the testamentary capacity to create it or that he suffered undue influence from Renee. We hold that the chancellor’s findings on this issue are supported by substantial evidence. Therefore, the judgment of the Chancery Court of Amite County is AFFIRMED.

Ref:-Betterchancery.com