Mississippi Probate Attorney

Mississippi Probate and Estate Administration

Mississippi Adverse Possession: It Takes More than a Fence

I wrote yesterday about adverse possession in Mississippi and how it relates to probate.  Today I want to look at a recent Mississippi Court of Appeals case in which the appellant tried to use adverse possession to claim a possessory right in the land of his neighbors to the north. The court tested the claim by applying the elements of adverse possession that we discussed yesterday to the facts of the situation and deciding whether the appellant had met his burden of proof by providing clear and convincing evidence.

In Niebanck v. Block, two families of landowners (the Dale and the Wimses families) had discovered that a Mr. and Mrs. Niebanck had a fence running across the southernmost part of their property and asked the Niebancks to remove it.  In response, the Niebancks wrote the Dale’s and Wimses’ each a letter offering to purchase their land for 5,000 dollars an acre. In the letter, the Niebancks stated that they had believed the property to the fence and including the fence was theirs. And that they had used and maintained said property for over 14 years. However, in fairness and with neighborly consideration they would like to make an offer to buy the property.

Both neighbors responded to the Niebancks letter with a request that the fence be removed and the use of the property be returned to them. The Niebancks then sought an injunction from the court to prevent the removal of the fence and asserted their claim that the property was actually theirs under the legal principle of adverse possession. The Niebancks argued that they had maintained possession of their neighbors’ land for the statutory 10-year period in an adverse way.  Specifically, the Niebancks asserted that they owned 0.7 and 0.4 acres of each of their northern neighbors’ land.

The lower court found that the Niebancks had failed to meet certain elements of adverse possession. In particular the Neibancks had failed to establish by clear and convincing evidence that they had maintained 2) actual or hostile possession and 3) open, notorious, and visible possession.  The Niebancks appealed.

On appeal, the Mississippi Court of Appeals reviewed the lower court’s decision regarding adverse possession.  The Court noted that in order for the possession to be considered hostile, the landowner of the disputed property could not believe that the possessors presence on the property was by permission.  In this case, the previous owner of the Dale’s and Wimses’ property had given Mrs. Niebanck permission to ride her horse on his property. This made the Niebancks occasional use of their property permissive as oppose to hostile.

The element of actual or hostile possession is there to put the current landowner on notice to the fact that their land is being occupied by another. Setting up a dwelling or making a spectacle of your use of the land is often enough to meet this requirement. But if you have received permission to use the land, all subsequent acts become permissive possession rather than actual or hostile.

The court also discussed whether the Niebancks met the element of having open, notorious, and visible possession of their neighbors land. The court held that mere possession of the land is not enough for it to be considered open and notorious. This requirement is also there to give the landowner notice that a person other than them is occupying their land. Thus giving them a chance to regain possession of their land.

The Niebancks asserted that their possession was open and notorious based on the fact that there was an old barb wired fence north of their actual boundary line.  Previous cases have said that if a fence encloses the property for a period of ten or more years, title of the land will vest in the adverse possessor, even if the fence is in disrepair.[1]

However, the Niebancks did not build the fence.  It was there when they came into possession of their land. The previous owner, who owned all the acreage that was subsequently subdivided and sold to the Niebancks, Dales and Wimses, had put the fence up as part of a corral for cows. Therefore, the fence was not used to show open, visible and notorious possession.  And the Niebancks did not fulfill the burden of proving, by clear and convincing evidence, that the element of open, notorious and visible possession was met.

The Mississippi Court of Appeals held that the husband and wife failed in their claim of adverse possession and consequently needed to remove their fixtures from their neighbors land.

Niebanck v. Block, NO. 2009-CA-00530-COA.

[1] Roy v. Kayser, 501 So. 2d 1110, 1112 (Miss. 1987).

 

Adverse Possession in Mississippi

Probate law is often intertwined with real-estate law.  In fact, many people learn of the need for probate only when they get ready to deal with a piece of family property and discover an unprobated estate in the chain of title (for more information, see our Section on Probate & Real Estate or, for a good example of how this can come up, see the recent case of Tatum v. Wells)

One of the real-estate-related issues that can surface in a probate proceeding is called adverse possession.  Adverse possession is a function of the law that allows a person to acquire title to another person’s land by maintaining possession of the land for a continuous period of 10 years or more.

Mere possession will not meet the standard set for receiving title by adverse possession. In order for a court to find adverse possession, the possessor must prove that the possession is 1) under claim of right; 2) actual or hostile; 3) open, notorious, and visible; 4) exclusive; 5) continuous and uninterrupted for 10 years; and 6) peaceful.[1] The person seeking the title to the land must also show by clear and convincing evidence that each element has been met.

Clear and convincing evidence is the highest standard for proving your case that the court has. It is defined as a showing of evidence that produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. It is evidence so clear, direct, weighty and convincing that the fact finder comes to a clear conviction, without hesitancy, of the truth of the precise facts of the case.[2]

Tomorrow, we will see how this plays out in a recent Mississippi case involving adverse possession.

[1] Stallings v. Bailey, 558 So. 2d 858, 860 (Miss. 1990).

 

[2] Moran v. Fairley, 919 So. 2d 969, 975 (¶24) (Miss. Ct. App. 2005).

A Person with No Standing Cannot Contest a Will

I wrote yesterday about the role of standing in Mississippi will contests. Simply stated, a person cannot bring a valid will contest unless they have a valid interest in the outcome of the matter to bring before the court.

The recent probate case of Tatum vs. Wells[1] illustrates the role that standing can play in a Mississippi will contest.  In December 1966, Eldridge Tatum died leaving six children. He had a will that left all of his property and possessions to one son, Robert Tatum. Robert admitted the will to the probate court in October of 1967 and was appointed as executor of Eldrige’s estate.  But Robert died unexpectedly in 1969, before his father’s estate was closed.

Eldridge’s estate remained in limbo.  As time progressed, Robert’s property was dispersed amongst his wife and seven children, who maintained and paid taxes on the land that Eldridge had left to Robert. In 2004, Robert’s children attempted to divide the property amongst themselves. However, the title company refused to complete the transfer of title until Eldridge Tatum’s estate was closed. (Note: This is an example of how a probate issue can lie dormant for years, only to pop up when someone needs to deal with the property–see our section on Probate and Real Estate for more information.)

Robert’s daughter Helen Wells went before the probate court and asked to be appointed executrix over her grandfather’s estate so that she could close it. Her cousins responded to her request to be named executrix by contesting the will.  The cousins were upset that all of Eldridge’s property had been left to Robert, to the exclusion of their parents.  By the time of the will contest, all of Eldridge Tatum’s children had passed away.

The lower court dismissed the case, finding that the grandchildren who were contesting Eldridge’s will lacked standing to do so.  The contesting parties appealed, placing the issue before the Mississippi Court of Appeals.

The Court of Appeals noted that Eldridge’s children would have been interested parties to their father’s will at the time it was admitted to probate.  They were his heirs at law who would have taken property from their father through intestate succession.  In other words, because they would have benefited from the invalidity of Eldridge’s will, they had a legitimate interest in the probate proceeding and thus had standing to contest his will, as long as they did so within the two-year statute of limitations.

But Eldridge’s children didn’t contest the will.  Could their children (i.e., Eldridge’s grandchildren) now do so?  The answer depended on whether, at the time the will was entered into probate, they had a direct pecuniary interest in the estate that would have been detrimentally affected if the will had been determined to be invalid.

Mississippi does allow a right of representation, which allows descendants of deceased heirs to take the share that their parent would have taken if alive.  But the right of representation only applies if the heir is deceased.  In this case, the grandchildren who contested the will would not have had a right of representation at the time of the will contest since their parents were still alive at that time.  Even if the will had been found invalid and their parents had inherited a share of Eldridge’s estate, there is no guarantee any of Eldridge’s estate would have passed to the grandchildren (for example, it could have been spent by their parents before it got to the next generation). Therefore, the grandchildren had no claim to the estate now that their parents have all passed away.

The Court of Appeals held that the grandchildren were not interested parties at the time the will was entered into probate. They lacked a pecuniary interest at the time their grandfather died and throughout the two-year period open to contest. They did not have the ability to inherit through intestate succession at that time, and they had no assurance that they would have received the property even if their parents had inherited it.  Thus, the grandchildren did not have standing to contest the will.

Tatum v. Wells, 2007-CP-02081-COA

[1] Tatum v. Wells, 2007-CP-02081-COA.

 

Standing in Mississippi Will Contests

A basic principle of the American legal system is that a person who brings a lawsuit must have a legitimate reason to do so.  This principle is embodied in the doctrine of standing, which refers to the ability of a party to demonstrate that it has a legitimate interest in the outcome of a case so as to justify that party’s participation on the case.  In the words of the United States Supreme Court, “the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.”[1] A person without standing cannot bring a lawsuit.

The law of standing applies to will contests as well.  In order to contest a will and the bequests made within the document, one must first have standing to come before the court. A person has standing to contest a will when they are deemed to be an interested party.

In Mississippi, any interested party may contest the validity of a will as long as the contest comes within the two years that follow the will’s admittance to probate in common form. If the interested party fails to bring contest within the two-year period, the probate is final and binding.  There is an exception to the finality of the probate is made for minors and people of unsound mind who may wish to contest the will. They will receive an additional two years to contest validity once their respective disabilities have been removed.[2]

Interested parties are defined as “parties who have a pecuniary interest in the subject of the contest, and under all of the authorities the heirs at law who would take the property of the deceased in the absence of a valid will.”[3]

[1] Warth v. Seldin, 422 U.S. 490, 498 (1975).

[2] See Miss. Code Ann. § 91-7-23.

[3] Hoskins v. Holmes County Cmty. Hosp., 135 Miss. 89, 101, 99 So. 570, 573 (1924).

Inheritance Rights of Adopted Children in Mississippi

A recent Mississippi Supreme Court involved two adopted children were set to inherit from their non-biological grandmother’s will. Another beneficiary sought to have their adoption set aside so they could not benefit from the grandmother’s estate. The court held that only the biological parents of the adopted children had the right to object to the adoption.

William Gartrell, III and Diane Weiss were married, each having two children from a previous marriage.  In 1984, William adopted Diane’s two daughters, Jodey and Lisa. The girls were 18 and 15 at the time of the adoption. Their natural father, George Weiss, did not contest the adoption.

In 2002, William passed away leaving his two biological children Will and Cindy, as well as his adopted children Jodey and Lisa, as his heirs.  In 2003, William’s mother Dorothy Gartrell passed away. She died leaving a will that left everything she had to her children William and Kay. The terms of the will specified that each child get half of her estate. And since William predeceased his mother his half would be inherited by his children, per stirpes.  (Per stirpes is a legal term referring to how assets will be distributed in the event that a beneficiary predeceases the person who made the will. It also identifies the class who is eligible to inherit in place of the dead beneficiary. In this case, William’s “heirs at law” were specified to receive his share.)

When Dorothy passed away, her daughter Kay, the executrix of the will, petitioned the court to determine William’s “heirs at law.” The court found that William’s legal heirs were his two biological children, Will and Cindy, and his two adopted children, Jodey and Lisa. The court based their findings on Mississippi Code Section 93-17-13 (Rev. 2004), stated that by adopting Jodey and Lisa they were entitled to inherit in the same way as “brothers and sisters of the full blood by the laws of descent and distribution of the State of Mississippi.”

Kay did not agree with the findings of the court and brought a petition to contest the 1984 adoption of Jodey and Lisa. She argued that the court that granted the adoption did not have proper jurisdiction over the adoption or the biological father. The lower court found that the adoption lacked jurisdiction and invalidated it.

Jodey, Lisa, and their other Diane appealed the decision to the Supreme Court of Mississippi arguing that Kay lacked standing to object to the adoption. Standing requires that the party have a personal stake in the issue in question. While it could be argued that Kay has a personal stake in the adoption, as it relates to the will, she does not have a stake in the adoption itself.

In Mississippi, both natural parents must be notified of the adoption and only a natural parent has a statutory right to object to an adoption. Cases in which natural grandparents objected to an adoption have held that even grandparents lack standing to object.

The court noted one exception in which an heir of an estate was allowed to attack an adoption of an adult male, In re Estate of Reid. This case is distinguished from Gartrell in part because the adoption in Reid had been obtained by fraud. The legal tool of adoption was abused as a way to secure an inheritance through fraud and undue influence.  Once the adoption was issued, the adopted adult became the sole beneficiary of the estate. Evidence of fraud and undue influence will be allowed by the court to show lack of intent on the part of the creator of the will.

There was no issue of fraud or undue influence in this case. The adoption was based on blending a family and was not used as a device to ensure inheritance.  Therefore, the court found no similarity between the current case and that of Reid. The Supreme Court of Mississippi held that only a natural parent may contest the adoption of a child and that Kay Gartrell lacked proper standing to contest the adoption of Jodey and Lisa.

Gartrell v. Gartrell, 2008-IA-00676-SCT (Dec. 17, 2009)

In re Estate of Reid, 825 So. 2d 1 (Miss. 2002)