IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2014-CA-00559-COA IN THE MATTER OF THE ESTATE OF RAMON REGAN, DECEASED: JUNE SWILLEY APPELLANT

v. ESTATE OF ELSIE SIMM LEBLANC APPELLEE

DATE OF JUDGMENT: 04/01/2014 TRIAL JUDGE: HON. CARTER O. BISE COURT FROM W HICH APPEALED: HARRISON COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANT: TIMOTHY LEE MURR HERBERT J. STELLY ATTORNEYS FOR APPELLEE: JAMES H. HEIDELBERG APRIL LEIGH MCDONALD NATURE OF THE CASE: CIVIL - W ILLS, TRUSTS, AND ESTATES TRIAL COURT DISPOSITION: GRANTED APPELLEE’S MOTION TO DECLARE DECEDENT’S PURPORTED LAST W ILL AND TESTAMENT INVALID DISPOSITION: AFFIRMED - 04/07/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., ISHEE AND CARLTON, JJ. CARLTON, J., FOR THE COURT: ¶1. June Swilley appeals the Harrison County Chancery Court’s judgm ent declaring the last will and testam ent of R am on Regan invalid. On appea l , S w i lley r aises t he f ollowing issues: ( 1 ) w h e t her the chancellor erred by f inding Regan’s last will and testam ent to be invalid; and (2) wheth e r the chancellor erred b y ref using to consider p arol e vidence to determ ine Regan’s intent. ¶2. Upon review, we f i nd that the docum e nt entitled Regan’s “Last W ill and Testam ent”lacks am

biguity and sim

ply f ails to designate, d escribe, or otherwise ide n t i f y any benef iciaries. W e theref

o re f ind n o error in t he c hancellor’s ref u sal to adm i t parol evidence and his d e c ision to declare t he will invalid. Accordingly , w e af f irm t he chancellor’s judgm ent. FACTS ¶3. Regan died on April 12, 2011. Prior t o his death, R egan resided f or about ten y ears in a personal care h om e m aintained by S willey and her husband, E lroy

. In 2008, Swilley arranged f

or Susan B eckham , a local notary publi c , t o a ssist Regan in preparing a will. During the m e eting with Regan, B eckham f illed out a preprinted f

orm titled “Last W ill and
Testam ent” pursuant to Regan’s instructions. Regan then signed the docum ent on February 7, 2008 , i n f

r ont of Beckham , Swilley , W .J. Cam eron, a nd Charlotte Saucier. Af ter witnessing Regan execute t he docum ent, Cam eron a nd Saucier also signed the last will and

testam ent in R egan’s presence as his w i t n e s s e s . The docum ent stated that Regan never

m arried or had a ny children. As the re c o r d i n t h i s case f u rther ref l ects, Regan’s parents preceded him in death. ¶4. Following Regan’s death, Swilley f iled a petition to prob a t e R e g a n ’ s last will and

testam ent. A search f

o r R e g a n ’ s heirs at law revealed that Regan’s aunt, Elsie Sim m LeBlanc, survived h im

. Although Elsie subsequently passed away o n January 13, 2013, her

s o n, Kenneth Sim m LeBlanc, f iled a caveat 1 against the probate o f Regan’s l ast w i l l a n d

1 A n o p p o n e n t o f a w ill m ay p rev en t co m m o n -f o rm p ro b ate b y f

ilin g a cav eat, o r an o b j e c t i o n , to th e p ro b a te o f th e w ill w ith th e ch an cery clerk o f t h e co u n ty w h e r e th e w ill sh all b e p r esen ted

. S ee R o b ert Weem s, M

ississip p i P r a ctice S

eries: Wills a n d A d m in istra tio n o

f E sta tes in M

ississip p i § 7 :1 2 (3 d ed

. 2 0 0 3 ). S ee a lso M iss. C o d e A n n . § 2testam ent as t he adm inistrator of Elsie’s estate (the Estate). Af ter a hearing o n t he m atter, the chancell o r d eterm ined that, pursuant to M ississippi’s laws of descent and distribution, Elsie constituted Regan’s sole heir at law. ¶5. O n b e h a l f o f the Estate, Kenneth f iled a m o tion to declare Regan’s last w i l l a n d

testam ent invalid because of the docum ent’s f ailure to designate a benef iciary and properly devise Regan’s property

. The Estate also f iled a m otion to strike the af f idavit of B eckham , which Swilley attached to her resp o nse to t he m otion to declare Regan’s last will and

t e s t a me n t invalid. The Estate s ought to strike Beckham ’s a f f i davit on the ground t ha t Beckham ’ s testim ony

was inadm issible as evidence. ¶6. As ref

lected in the record, Regan’s last will and testam ent stated that, u pon his death, he wanted to distribute all h is estate, including his m onetary a nd real property

. However, the docum ent f

ailed to designate a benef

iciary t o whom Regan w ished to distribute his property

. Swilley asserted t hat, due t o a s crivener’s error by Beckham i n f illing o ut the blank f

orm , the docum ent f

ailed to nam e the S willey s as Regan’s benef iciaries. S willey asserted, however, that the docum ent still m e t the statutory r equirem ents f or a will and c learly ref

lected Regan’s intent to devise or bequeath his property

. She t h e r e f o r e a rgued t hat the chancellor should consider parol evidence to determ ine Regan’s intent. B y contrast, the Estate contended that the f ailure t o n am e a benef

iciary m ade i t im

possible t o determ i ne Regan’s intent by reviewing the docum ent alone. The Estate f urther argued that the chancellor shoul d n ot consider parol evidence to ascertain Regan’s intent.

9 1 -7 -2 1 (R ev . 2 0 1 3 ) (d iscu s sin g o b j ectio n s to th e p ro b ate o f a w ill). 3¶7. Af

ter considering the parties’ argum ents, t he chancellor entered an o rder granting the
Estate’s m otion to declare R egan’s purported last will and testam ent invalid. The chancellor
f ound that he m

ust f irst look to the f

our corners of the docum ent to determ ine Regan’s intent and that he could not si mply a dd language to the will. Because the chancellor f ound that Regan’s last will and testam ent f a i led to n am e a ny benef iciary and was not subject to

m ultiple interpretations, he r ef u s ed to consider a ny parol evidence regarding Regan’s

testam entary intent. Concluding that he was lef t “with n othing in the docum e n t to interpret” and that the docum ent sim ply f ailed to devise or bequeath Regan’s property to any one, the chancel l o r d eclared the docum ent to be an i nvalid t estam entary i nstrum ent. Aggrieved by the chancellor’s judgm ent, Swilley now appeals to this Court.
STANDARD OF REVIEW ¶8. On appeal, this Court “will not reverse a chancery court’s f indings, be they o f

ultim ate f act or of evidentiary f

act, where there is subst a n t i al evidence supporting those f indings.”
Estate of Langston v. W

illiams , 5 7 So. 3 d 618, 619 (¶6) (Miss. 2 011) (citation om itted). W e only disturb a chancellor’s f indings of f

act where the c hancellor abused his d iscretion, was

m anif estly wrong or c learly erroneous, or applied a n erroneous legal s t a n dard. Madden v. Rhodes , 6 26 So. 2d 608, 616 (Miss. 1 993). We r eview questions of law de novo. I n re Jones , 138 So. 3d 205, 208 (¶7) (Miss. Ct. App. 2014).
DISCUSSION
I. Whet h e r t he chancellor erred by finding R egan’s last w ill and testam ent to be invalid.
II. Whether the c hancellor erred by refusing to conside r parol

4evidence to determ ine Regan’s intent.

¶9. On appeal, Swilley argues that R egan’s last will and testam ent c l e a r l y outlined his

testam entary intent but, d ue t o a scrivener’s error, the docum ent f ailed to designate Swilley and her husband, Elroy , a s Regan’s benef iciaries. In her brief

, Swilley asserts that the chancellor erred by

granting the Estate’s m otion to declare Regan’s last will a n d testam ent invalid. 2 She f

urther asserts that the chancellor e r red by ref using to consider parol evidence

to determ i ne Regan’s true t estam e ntary intent. Because we f ind that Swilley ’s assignm ents of error a re intertwined, we address b oth issues together. I n so do i ng, we f irst exam ine applicable statutory

law and then applicable caselaw. ¶10. Mississippi C ode Annotated section 91-5-1 (Rev. 201 3 ) e s t a b l i shes the f ollowing requirem ents f

or a will to be valid in Mississippi: Every person eighteen (18) y ears of age or older, being of sound and disposing m in d , s h a l l h ave power, by last will and testam ent, or codicil in writing, to devise all the estate, right, title and interest i n po s s e ssion, reversion, or remainder, which he or she hath, or at the t ime of his or her death shall have, of , in, or to lands, tenements, hereditaments, or annuities, or rents charged upon or issuing out of them, or goods and chattels, and personal e state of any description w hatever , provided such last will and testam e nt, or codicil, be signed by the testator or testatrix, or by som e other person i n h i s o r her presence and b y his or her express direction. Moreover, if not wholly written and subscribed by him s elf o r h e r self , i t shall be attested by two (2) or m ore credible witnesses in the presence of the testator or testatrix. (Em phasis added). W here a testator f ails to devise or bequeath all his property , Mississippi

2 S w illey alleg es th at th e ch an cello r’s o rd er d eclarin g R eg an ’ s last w ill an d testam en t in v alid am o u n ted to a g ran t o f su m m ary j u d g m en t in f av o r o f th e E state. S w illey co n ten d s th at th e c h an cello r erred i n g r an tin g th e E state’s m o tio n b ecau se th ere w as l im ited d isco v ery co n d u cted , th e p a rties to o k n o d e p o sitio n s, th e reco rd f ailed t o sh o w th a t t h e ch an cello r co n sid ered B e ck h am ’ s a f f i d a v i t p rio r to h is ru l in g , an d th e c h an cello r f ailed to h ear an y testim o n y f ro m S w illey o r h er w itn esses b ef

o re en t erin g th e o rd er. 5Code Annotated section 91-1-13 ( Rev. 2013) provides that all property , “real and personal,

not devised or bequeathed in the l ast will and testam ent of any p erson shall descend and be distributed in the sam e m anner as the estate of an intestate; and the executor or adm inistrator shall adm inister the sam e accordingly .” 3 ¶11. “No m atter how earnestly one m ay desire and intend to m ake a will, a paper, although
f ully intended by the w riter t o be a will, is inef f ective and invalid unless i ts execution m eets statutory r equirem ents.” W ilson v
. Polite , 218 S o . 2d 843, 849 (Miss. 1969). A will is a

s t a t e me n t of a p erson’s desires regarding the distribution of his assets t o designate d benef iciaries. A non h o l o g raphic will, or an attested will, m ust b e executed in conf

orm ity with statutory law and m

u st be attested by two or m ore credible witnesses in t he presence of the testator. 4 See Miss. Code Ann. § 91-5-1. ¶12. Our precedent provides that “[ t]he expressed intent of the testator i s the guiding star rather than ‘what he wished’ or m ay have wished.” Stovall v. Stovall , 3 60 So. 2d 679, 681 (Miss. 1978) ( citation om itted). “A trial court begins its review with looking f irst within the
‘f o ur corners’ o f the d ocum ent at issue. If there exists no am biguity within the w riting, then
f urther analy sis i s proscribed.” DeJean v. DeJean , 982 S o. 2d 443, 448 ( ¶10) (Miss. Ct. App.

3 S e e Willia m s v. G o o ch , 2 0 8 M i ss. 2 2 3 , 2 3 5 , 4 4 S o . 2 d 5 7 , 6 1 (1 9 5 0 ) (h o ld in g t h at th e u n d e v ised p o rtio n o f th e testato r’s p ro p erty w as in testate p ro p erty th at d escen d ed to h er h eir at law ). S

ee a lso M iss. C o d e A n n . § 8 9 -1

- 1 3 (R ev . 2 0 1 1 ) ( d i s cu ssin g w h at h ap p en s w h en an in d iv i d u al d ies w ith o u t an h eir, issu e, ch ild , o f f sp r in g , d escen d an t, o r o th er relativ e).

4 F o r ex am

p le, th is C o u rt f

o u n d t h at a n o n h o l o g r ap h ic w ill sig n ed o n ly b y th e testato r an d a n o t ary p u b lic w as in v alid as a m atter o f law

. S ee In re E sta te o f T h o m a s , 9 6 2 S o . 2 d 1 4 1 , 1 4 5 (¶1 8 ) (M i ss. C t. A p p . 2 0 0 7 ). 62007) (citing In re L ast W ill & Testament of Roland , 920 S o . 2d 539, 541 ( ¶11) (Miss. Ct. App. 2006)). ¶13. “Parol e vidence m a y o nly be considered if the language o f t h e w i l l i t s elf can be construed to result in m ore than one interpretation a s to the disposition of property .” In re
Estate of Black , 135 So. 3 d 181, 183 (¶5) (Miss. Ct. App. 2013) (citing Seal v. Seal , 312 So. 2d 1 9 , 2 1 ( M i ss. 1975)). F or exam ple, extrinsic evidence m ay b e adm issible to resolve or explain a m

biguities in the d esignation or description of benef iciaries. See H

utton v. Hutton , 233 Miss. 458, 469, 1 02 So. 2d 424, 428 (1958) (allowing extrinsic evidence to determ ine the true b enef

iciary o f t he testator’s will since the nam e used by the testator could have

a p p l ied t o one o f two persons). However, “[ t]he parol[ -]evidence rule prohibit s t h e introduction of outside evidence where a docum ent is clear, def inite[ , ] and u nam

b iguous on its f ace.” DeJean , 982 S o . 2 d a t 448 (¶10) (citing In re Roland , 920 So. 2d at 541 (¶11)). “The c ourts cannot, by parol t estim ony , ma k e a will which t he testator did not m ake.” Stovall , 360 So. 2d at 681 (citation om itted). ¶14. In In re Roland , an attorney who draf ted the wills f

o r b o t h a h u s b a n d a n d w i f e provided a n af

f idavit stating that the couple intended t o evenly divide their estate am ong their children f rom p revious m arriages. In r e Roland , 920 So. 2d at 541 ( ¶ 1 7) (Grif f is, J., dissenting). T he chancellor f ound, however, that t he plain language of the w ills lef t the residual e s tate only to t he husband’s children because the wif e predeceased him

. I

d. at 543 (¶12). Despite the intention of t he parties, or of the attorney in draf ting the wills, this Court f ound parol e vidence inadm issible since the language of the wills resulted in only one

7interpretation as to the disposition of the parties’ property

. Id. at 541-43 (¶¶11-12). 5 ¶15. In t he present case, Regan’s “Last W ill and Testam ent” stated the f ollowing regarding the disposition o f his p r operty : “Upon m y death, I w ant m y property distributed as f ollows:
All m y estate, this includes m o netary and real property .” As in In r e Roland , our review of Regan’s l ast will and testam ent reveals that the docum ent contains n o am biguous language

or i m precise description o f a benef iciary

. Instead, a s t he record ref l ects, Regan’s p urported last will and testam ent sim ply f ailed to devise or bequeath Regan’s property because Regan f ailed to nam e or otherwise identif y a benef iciary

. ¶16. Because R egan’s last will and testam e nt lacks a m biguity , w e f

ind that the chancellor correctly ref

used to allow parol evidence as to Regan’s te stam e ntary intent. A s the record ref lects, to give ef

f ect to Regan’s will, this Court would have to insert a b enef iciary ’s nam e where the will com

pletely f ailed to provide o ne. Although our precedent establishes that we
construe a will in light of the c ircum stances surrounding the testator at the tim e he wrote the will, our caselaw also recognizes that “[ c ] o u r t s m ay not a m end o r ref orm a [ w ]ill, neither

m ay courts add to o r take f rom a [ w]ill or m a k e a new [ w]ill f or t h e parties.” Hemphill v. Robinson , 355 So. 2d 302, 306-07 (Miss. 1978) (citations om itted). ¶17. As ref

lected in the record, the invalidity of R egan’s p urported last will and testam ent is r ooted in the docum ent’s f ailure to distribute any of R egan’s assets upon his d eath. Since Regan’s l ast will and testam ent f a i l ed to devise or bequeath h is property to a nam ed

5 S e e a lso In re E

sta te o f B la ck , 1 3 5 S o . 3 d 1 8 1 , 1 8 3 (¶6 ) ( M iss. C t. A p p . 2 0 1 3 ) (f i n d in g th at th e testato r’s “in ten t w as n o t p r o p e rly an issu e, b ecau s e th e leg al o p eratio n o f th e w o rd s o f

th e w ill itself

allo w ed o n l y

o n e resu l t as to h o w th e estate [ w as] d iv id ed ”). 8benef

iciary , and since t he docum ent ref lects n o attem

pt within its f

our corners to identif

y a benef iciary , we af

f irm the chancellor’s decision declaring the will invalid and his ref usal to adm it parol evidence. Accordingly , this assignm ent of error lacks m erit. ¶18. THE JUDGMENT OF THE HARRISON COUNTY C HANCERY COURT IS AFF I R MED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT. LEE, C.J., IRVING AND G R I F F I S, P.JJ., BARNES, ISHEE, ROBERTS, MAX W ELL, FAIR AND JAMES, JJ., CONCUR.

9