We have been asked on many occasions whether a parent’s will, deed or power of attorney could be challenged. There are two basic reasons why such documents may be overturned – lack of capacity and undue influence – and the latter was the subject of a recent Mississippi court case.
In the case of Weirich v. Murchison (No. 2015-CA-00505-COA), the Mississippi Court of Appeals reviewed a challenge to some deeds executed by Clarence Murchison. His daughters alleged that certain deeds were invalid as having been the result of undue influence on their father by their brother, Gary. Gary Murchison, son of Clarence Murchison, began helping his father with his financial and business affairs after Clarence had a stroke in 2010. According to Yvonne Weirich, Clarence’s daughter, after the stroke, Clarence was unable to make complex decisions. In 2011, Gary and Clarence set up two joint accounts at Hancock Bank and Trustmark Bank where all of Clarence’s retirement income would be deposited. Clarence also executed a will in which he left all of his real property to his wife. In the case of her death, all of the real property Clarence owned would be left to his four children equally. On that same day, Clarence executed a general durable power of attorney and power of attorney for health appointing Gary as his agent. Shortly after the execution of the will and powers of attorney, Clarence was diagnosed with dementia and began taken medication for that illness.
Clarence’s wife died soon thereafter. Clarence, with Gary and Yvonne’s assistance, purchased a home close to Gary called the Anchor Lake House. Clarence, however, never lived in the house and moved in with Gary instead. Gary drove Clarence to town to take care of his property and took him to Slidell to shop for tools and other items. Clarence continued to have health problems. In 2012, Clarence had a stroke. Shortly after his discharge, Gary took Clarence to an attorney’s office. Dennis Murchison, Clarence’s youngest son, met them at the attorney’s office. The attorney spoke with Clarence alone. The next day, Clarence and his two sons went back to the attorney’s office. The attorney spoke with Clarence on the day he executed the deeds, and this conversation occurred outside the presence of Gary and Dennis. Clarence owned five parcels of property in the counties of Walthall, Pearl River, and Lamar. Clarence conveyed 38 acres of land in Lamar County to Karen Murchison, 40 acres of land in Pearl River County to Yvonne, 100 acres of land in Walthall County to Gary, and the house located in Pearl River County to Dennis. Clarence suffered another stroke ten days later and never regained consciousness before he died. Karen and Yvonne filed a complaint requesting the court to declare the five deeds void. They also requested that the property be sold and the proceeds be divided equally among each grantee. The chancellor upheld the deeds, finding that Yvonne and Karen failed to show that the conveyances were the product of undue influence.
Determining whether the conveyance is valid is a two-step process. According to our law,
A confidential relationship arises whenever there is a relationship between two people in which one person is in a position to exercise dominant influence upon the other because of the latter’s dependency on the former arising either from weakness of mind or body, or through trust[.] The burden of establishing the existence of a fiduciary relationship is upon the party asserting it. Where a confidential relationship exists, there is a presumption of undue influence concerning an inter vivos gift.
(citation omitted). This Court considers seven factors in evaluating whether a confidential relationship exists between two parties. Those factors are:
(1) whether one person has to be taken care of by others, (2) whether one person maintains a close relationship with another, (3) whether one person is provided transportation and has [his] medical care provided for by another, (4) whether one person maintains joint accounts with another, (5) whether one is physically or mentally weak, (6) whether one is of advanced age or poor health, and (7) whether there exists a power of attorney between the one and another.
If a confidential relationship exists between the grantor and the grantee, the grantee must overcome the presumption of undue influence by clear and convincing evidence. (citation omitted). To overcome the presumption of undue influence, the grantee must show: (1) good faith on the part of the grantee; (2) the grantor’s full knowledge and deliberation of his actions and their consequences; and (3) independent consent and action by the grantor.
There was conflicting evidence regarding whether Gary acted in good faith. But, the record contains sufficient credible evidence from which the chancellor could and did conclude that Gary acted in good faith. The record indicates that Clarence had full knowledge of his assets, his natural inheritors, and who controlled his finances. The attorney testified that he noticed that it became more difficult for Clarence to sign as they went over each deed but Clarence seemed to understand what was being read to him. Gary testified that after the deeds were executed, his father gave him the checkbook to pay the attorney. Thus, the record supports the chancellor’s finding that Gary overcame the presumption of undue influence by clear and convincing evidence.
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