last case this morning is number eighteen six or nine months great american life insurance versus tanner versus mi  inner pleader action in which a leader was designated by her husband as a beneficiary of an annuity as you know the score of a review summary judgment motions vote and you know typically appeals are not fact driven be because this is a summary judgment issue this is a fact driven argument  what's interesting is in in the cases that that where you challenge the designation of a beneficiary the burden is on the person challenging that designation by clear and convincing evidence that the person who made that as a nation lack the capacity to make that designation and that issue was s d and not even challenged instead the court imposed a burden upon the widow saying that she must overcome the designat fiduciary well that this if the court affirmed the ruling and what the court judge did is going to set mississippi case law on its head because mississippi recognizes and i house well it i'm not going to tell you i know you know much about mississippi law but this is my understanding correct but u and the person who's a beneficiary of property of a test hater has the the test for that is to work with the person in a confidential relationship with your client stone deny and did the person have a hand in signing over the designations and that's a presumption of been doing influence which i understood i thought your clients were required to overcome no ma'am  ok the mississippi the cases that i've cited geno vs harrington says that just because you're a spouse doesn't mean you are in a fiduciary and undo influence you are required to overcome that the case of general versus harrington the spouse there has to be a showing of some undue methods that the spells did to control and in the case of general the instruction was offered on the part of the contestants the person challenging that that there was a confidential relationship of the marriage raising the presumption in the court rejected that raising  presumption does not arise in also yes right and your honor eat that's based this is taste comes from no good term goes of punish the deceit and asked for assistance well what the court did is because the widow has a different standard there's no presumption that she's a producer or even with the power of attorney there's no presumption you have to add different factors to it but the court didn't even consider that issue the court said because there were a daughter and son the same presumption applies to the wife and the mississippi courts just don't hold that it's he the as far as mr craig is concerned we even contend that there's enough disputed evidence and we can go over each factor that of shows that we have disputed evidence to deal with to challenge the of the undue influence we have each of those and what the judge did is it weighed all those facts  you just have to rebut the presumption that truck right and then what then what then does that go to a jury yes ok and each one of these cases there's never been a case in mississippi in which a chantry court or circuit court has granted summary judgment and then each case is divided decided on appeal and getting down to it so what did what did the judge relied on the judge relied on a deputy i hear say affidavit the tried to skirt around the deposition testimony of the person challenging it in her deposition i asked her do you know anything along do influence know she wasn't in town you know of any his health was all right yes she knew all those things but yet in her af testimony of somebody who's dead it was hearsay the court said nobody objected on either side if i'm correct well that the court said that but we we objected and we decided this in our break several places in our in our brief where we of we commented that this is hearsay affidavit that contradicts what her prior no now we can go we can we can get into the application of the factors of the question is what if i court can subvert somebody's city intent and what it takes to do that right so first we're dealing with independent disinterested purses well the record shows that mr lachlan who's the banker mistral testified that it was idea to make the change that's in the record of thirteen forty nine that he was confident and understood and had no concern about what he was doing that don mitchell led the meetings that's in the record of thirteen fifty that in addition to that it confirmed that three weeks prior that he had found that money was being taken from his account that's in the record of thirteen fifty three to fifty four that shows some delay he shut the account down afterwards that's a pretty good deliberation and knowledge if you know somebody has an account somewhere else and is taking money out of your account and you shut it down that shows some reasonable list and deliberation on his part know he was these people credit was the only college graduate and the he was asked two or three times a by don i need some help with finances and he said he didn't want to do it and then finally he agreed to do this now people don't always go to larders to do and do the perfect thing but the question is did he have did captain on a river boat pretty independent fellow which is dr testified it was and he he when he was he didn't get the statements she did and he didn't know what mean this is this is not in the record but when when the he said he wants part of the reason he went to this by he was marrying the slaves and he wanted the natural heir his wife to receive it and he says i want them to receive it and his children have been taken money for years that's in the record and on disability for years and he was tired of it he says i want you to have this now we're lawyers sure that's easy and it's part of that's part of it's still but people's intent and what carrying out their wishes at their death so we can't we can't that's their  craig to take him to the bank and when they got to the bank they found he had reason to believe that the money had been mis misused and misspent and he made a reasonable step in closing it down also his doctor said he was independent and knew what is doing also the record is clear he was within two months of death of course but there are free three three months well there's a case that offside it where somebody is on their death that some people don't person that every person who ted was there said he did what he wanted to do no one on the other side we don't even have to go there because it's their burden to prove to change his intent by clear and convincing right that's right i agree with that was the burden of production that's right but we still have an issue of fact that the judge will decide without a trial why did you send us this recent mississippi court of appeals case that case was because it was decided last week and it was a one it was on the same shot didn't matter and the person who that's right and so your your honor and so i think that we've shown in the record good faith independent knowledge and deliberation there's no may please the court my name is mike farrell i'm from jackson mississippi has been let me just cut to the chase here because i think the facts are pretty fairly streamlined and my colleagues may differ with me but why shouldn't this that was opened with the consent of mr mitchell and also with the knowledge of a leader she knew about that bank account the other bank account in alabama which is in the record there never was one i don't know where that came from it's not in the record of i think mr mitchell was just confused or somebody was confused because there were accounts in that state that the banker testified to that he did not in fact during his deposition he pulled up the accounts  and they were that he had had several in arkansas for a number of years and also there was a bank account open up in florida also with a regents bank same banking system and that was done to facilitate the purchase groceries for mr rich by stepson of just one of two other points mr freeman mentioned that you know it had problems with his children taking money for a long time that's not true with children he had had a problem with his step children who even as adults were dependent on him they had some legal problems and he was very willing to pay legal fees and fines and whatnot and he probably was part of that after happened in six weeks during those six weeks craig in a later met was gone eight times in four different cities and signed nine financial documents for each of those alina was always present and craig helicopter he and he was always present when those nine financial documents were sucked and those are the suspicious circumstances and if they were going to prove or but the presumption of the good faith they should have had some explanation for why that happened and they did not for example on that first trip to the mine don's purpose was i want to go get my bank accounts they said he was says they went to regents bank on aug twelfth while there don told craig that his account had less than eighteen thousand when in july he had fifty eight thousand is money market account and eighty thousand in the had active checking accounts in alabama florida and four in arkansas don informed bank officials that he had no knowledge of accounts in alabama and florida and was only aware of three of the four county accounts opened in arkansas but the district court got it wrong he didn't get it wrong but she was quoting what crick in the late of mitchell testified to that was the source i think she was quoting them in making that funny well it's seventy three to seventy five whatever that is craig cheatham some volman in the finances docket one twenty six but that seemed to me to be part of the basis of why craig was supposedly you know being asked to change accounts or group just has to be there when they got the accounts three or four days later they go back to regions and that's when don mitchell goes in to see the banker and say i want to do a few things i'm the the family from arkansas never knew about the waiting until after the fact they weren't married it was something done very quickly and very secretly it was done in the leader's home and some time after vote and of her sister and other family members learn that they were married did provide with that provision in his trust he never funded the trust the never was two hundred thousand dollars what he thought there was and if credit to them is going to show good faith to show that there was some factual basis for  it on my bank account that's another thing the why doesn't the ever but the presumption sufficiently to go to trial it's got a book the presumption from four or three separate issues good faith deliberation and also an independent consent and action will let me take them one by one when they went to the bank of scotland holders the fourteenth all they did was go in and say mr banker i'm going to marry this lady i want to change my accounts and beneficiary that's all that banker knew he knew nothing about the liberation that goes to the credibility not the substance of his testimony of his testimony was he appeared rational to me it is the supreme court has said many times undue influence is something that happens behind closed doors and that's why you've got to look at the considered deliberation that when into the father did not play mental capacity so in terms of those other independent witnesses there was one who came to notarize akaka that she was in his home or a leader's home i don't know five ten  left i mean in a sense i've never seen any of these parties to this and all i can do is sort of rely on the credibility of each of you as the posing counsel and that makes me very nervous about deciding what was in this man's mind and whether undue influence is exerted under the circumstances and i don't think you need to look at it what's in his mind but if you look at all of the suspicious circumstances where there were these sign sole beneficiary of the whole thing two hundred fifty eight thousand he changed it on two weeks later august third he makes craig the sole beneficiary of two hundred fifty eight made a lead a beneficiary of one hundred forty nine thousand shows she then has over three hundred thousand which could be why he changed her egg to be the sole beneficiary of two hundred fifty eight thousand now about two weeks so they fix that paperwork that's what they look requested them to do that when they did that change september twenty fifth that's when they changed the beneficiary back to the lead herself and her daughter that change was set aside the argument was made but the daughter just totally innocent that made on summary judgment or after trial at that don't know your own i mean that is that but in that case there was no a suspicious circumstances the testimony was undisputed the grandfather loved the grandson and said in a number of whales i'm going to take care of you and remember you and i will it was decided after after all this could go to trial if they had any evidence with disinterested witnesses to prove those three factors good faith building knowledge and deliberation and independent consent action that's what they didn't have and there's no no need to go to trial they didn't rebut or something read i agree in fact we said in our brief if he had just made his wife a beneficiary on one of these policies and it craig not been around you know that may not raise any suspicion it would have been easy as the mississippi supreme courts it didn't involve any undue method you know but here or there is this rapid sequence of events after  y within two or three days he's got a power of attorney he turns around immediately faxes they have to disappear and great american and says hey this power of attorney is revoked here's mine don't do anything  next day they go to the regions make out within the same week they go to the trial attorney in little rock well now i mean they do say that craig had refused to talk to them about financial different times and it wasn't easy for greg to get there he had to travel from guns were orcon so to either west memphis or to horn like mississippi but he was he works for a manufacturing facility in jumper i forget the name of it take it off or to make this long trips i mean that you could infer that he wanted to be there to make sure that don did what he wanted to be done for about the benefit and for his benefit no claim whatsoever that she did anything wrong or that donna had any ill will or a motive to disinherit her well again i'm just going from the district court opinion but it doesn't look as if she was and in close contact with her father she was ron he worked until age seventy eight or seventy nine i believe seventy nine he didn't just retired after he got diagnosed for the lung cancer i thought were tired then and then died two years later two or three years later aged eighty one obviously in his day he was a very robust person that the dippers that i think were disinterested they have no stake in the outcome but they were only present for a few minutes and was hardly in a position to show evidence of either good faith or have gone on and  deliberated on this decision or that they had any independent counsel and under the third point under mississippi law it used to it used to require to go to trial would you would both sides strike the other's testimony downs testimony craig's testimony ava's testimony they're all interested witnesses to lead his testimony with those with two three which refers to the then existing mental emotional and physical condition and fact there is a mississippi supreme court case that cited that  from the long time memory in texas you know dead man you can't offer testimony of a dead person normally there are a couple exceptions under hearsay but you know like dying declaration and so on but i never intended to make a will or something like that you can't can't offer that substantively well maybe mississippi doesn't have it well thank you very my class here nobody is here to testify and i think the impressions that would be given would be totally different now you asked for now you know people are geared to live alone and don had known mr leader was a good friend of her of her husband she'd been a widow for two years he picks up the phone and calls rob they were dating for two years it was his idea at any age you can get married it was it was his idea to get married they've been talking the record is clear they've been talking about that for a while and so the idea of some scheme or speculation is out of the air and if this court wants to decide in a firm cases based on inference or conspiracies there's not in the record well that's a problem how how what finally killed  pneumonia or what he died of or he had had i had cancer and died in a well i know that but sometimes people ask heart attack and here's the thing a vote a vote was left to mark his other daughter had seen him in ten years these people might get ten ten if they were taxed if you want to say your father this was in october and then no november you better see them they didn't come eva as the went to to take care of a dog interest in texas instead of taken saying her fault and your honor avers testimony this is her deposition i asked her if she had any evidence that donna acted with his but for his own free will she says no she wasn't present that's in the record twelve eighty six to twelve he said she was when she also testified in her inner text in november twentieth two thousand and fifteen that was twenty of within a month of his death quote i know he sounded very clear thinking when i spoke to him i am thankful for that that's in the record ninety four she would say she was asked and said she was unaware of  his capacity to make decisions she did not disagree with dr gentry's assessment that her father's cape was capable of making independent judgments in august two thousand and fifteen miss turner testif that she had no information to contradict dr gentry's opinion that over father's competency or of any undue influence that's in the record of twelve eighty four through eighty seven yet this court and his independent thinking she talked about this dredge kept having an idea of his own and not being controlled by any and the only record evidence of this is is his wife who we asked to get married seeing there passively and one of the reasons she was there as mr lackland testified that she was he probably wanted her on the account she had to sign  signature card he made that request now counsel opposite overstates a requirement that says there has to be some independent advice whatever that may be so i thought it was independent consent and action well the case of moans first at rakhal if cited by the course is that the independent advice prong in murray has been read to strickly considering the heavy burden out those terms for our razor so that there can be kind of confusing the banker but fill them out wrong so it was sent back until three times where they got it right how he wanted to give to his wife assets according to her wishes which he had promised to do that's not in the record i don't mean to be but if you gave that money to a been phyllis maybe the whole thing would go away well that's mr make it quick what i mean to you in several references to you know what if this went back for trial i don't have it in front of me i believe this is a non jury case so if it went back it would go right out and said this case came from the chancellor but you