IN THE SUPREME COURT OF MISSISSIPPI NO. 2016-CA-00338-SCT IN THE MATTER OF THE ESTATE OF DOROTHY

JOHNSON, DECEASED, SHEILAWEST AND JENNIFER PATZIUS, COEXECUTRICES: SHEILA WEST, JENNIFER PATZIUS AND JESSICA McALISTER

v. RON JOHNSON, BRAD JOHNSON AND MELANIE FOWLER
DATE OF JUDGMENT: 09/02/2015 TRIAL JUDGE: HON. GLENN ALDERSON TRIAL COURT ATTORNEYS: B. SEAN AKINS JOE M. DAVIS COURT FROM W HICH APPEALED: TIPPAH COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: B. SEAN AKINS ATTORNEY FOR APPELLEE: JOE M. DAVIS NATURE OF THE CASE: CIVIL - OTHER DISPOSITION: AFFIRMED - 12/14/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. BEAM, JUSTICE, FOR THE COURT: ¶1. This appeal stem s f r om a judgm ent of the Tippah C ounty Chancery Court to set aside
inter vivos gif

t s m ade by Sheila W est. ¶2. Acting through a d urable power of attorney granted b y h er m other, D orothy Johnson, Sheila W est rem oved her brother’s, niece’s, and nephew’s nam es f rom certif icates o f deposit (CDs) originally created by Dorothy Johnson, and replaced them with her own n am e and the

nam es of her two daughters. Sheila’s brother, Ron Johnson, p etitioned the chancery court toset aside these am endm ents as an im proper transf

er of an inter vivos gif

t. Following a trial

on the m atter, the c hancellor f ound that Sheila did not o vercom e a presum ption of undue
inf luence in m aking what am ounted to inter vivos gif ts and thereby reverted ownership of the
CDs to t h e i r o r i g i nal f

orm . This Court f

inds that, because Dorothy Johnson retained an ownership interest in all of the CDs a t issue, neith e r the original convey ance n or Sheila’s sub s e q u e n t transf

ers c an be considered inter vivos gif ts. Theref

ore, we f ind that the chancellor erred in his analy sis of the issue. ¶3. However, also at issue in this m atter i s whether Sheila W est e n gaged in self -dealing under the durable p ower of attorney granted t o h e r b y D o rothy J ohnson. W hile initially pleaded but not scrupulously argued by the p arties, the r each of Sheila’s p ower as Dorothy ’s attorney -in-f

act was discussed during trial, c reating a detailed record f or this Court to review. Finding that Sheila f

a iled to o vercom e the burden of undue inf luence created by the conf idential relationship between herself and Dorothy , we af

f irm t he chancellor’s decision to revert the CDs to their status prior to Sheila’s 2010 am endm ents.

FACTS AND PROCEDURAL HISTORY ¶4. In F ebruary of 2 005, Dorothy Johnson inherited a large sum of m oney f ollowing her sister’s death. Dorothy used the m oney t o m a ke changes to her exi sting investm ents and created new certif

icates of deposit at the People’s Bank in Ripley , Missi s s i p p i

. I n March 2005, Dorothy purchased a f ive-y ear CD (#092247) valued a t $50,000. I n May 2005, Dorothy purchased f

our additional f

ive-y ear CDs. One CD was valued at $57,370.11, while the other CDs were each valued at $50,000. All f ive CDs were purchased as f o llows:

2N um

ber Owners Value #092247 in the nam e of “Dorothy

Johnson or Jennif

er Patzius or Melanie Fowler.” $50,000

#092553 in the nam e of “Dorothy

Johnson or Sheila W est or Ronny Johnson” $57,370.11

#092554 in the nam e of “Dorothy

Johnson or Brad Johnson or Jessica McAlister” $50,000

#092555 in the nam e of “Dorothy

Johnson or Melanie Fowler or Jennif e r Patzius” $50,000

#092556 in the nam e of “Dorothy

Johnson or Brad Johnson or Jessica McAlister” $50,000

¶5. On July 1 3, 2 005, Dorothy privately m et with an attorney w ho prepared her last will and t estam ent a n d a durable power of a ttorney

. W i thin the language of both docum ents, Dorothy ensured her investm ents were protected and that they would be distributed upon her death according to her specif ied b enef iciaries

. During the m e eting, Dorothy assigned the power of attorney to her daughter Sheila but did not im m ediately deliver it. ¶6. Five y ears later, in the spring of 2010, Dorothy ’s health began to decline. A lthough sound of m ind, Dorothy becam e bedridden and unable to perf orm routine tasks. At that tim e, Sheila was living with her m other and had assum ed m o st of the responsibilities around the hom e. W hen Dorothy b ecam e m ore dependent on her daughter, she delivered the power of attorney to Sheila, m a king it easier f or her to m anage the day -to-day caregiving. ¶7. That sam e spring, the f ive CDs at i ssue m atured. On A ugust 23, 2010, Sheila visited People’s B a n k a n d used her a uthority as h older of Dorothy ’s power of attorney to ef f ect changes to each of the above-m e ntioned CDs. Sheila’s changes were as f ollows:

32005 No. 2005 Owners VALUE 2010 No. 2 010 Owners

# 092247 in the nam e of “Dorothy

Johnson or Jennif

er Patzius or Melanie Fowler” $50,000 #99869 in the nam e of “Dorothy Johnson or Sheila W est or Jennif er Patzius” # 092553 in the nam e of “Dorothy

Johnson or Sheila W est or Ronny Johnson” $57,370.11 #99870 in the nam e of “Dorothy Johnson or Sheila W est or Jennif er Patzius” # 092554 in the nam e of “Dorothy

Johnson or Brad Johnson or Jessica McAlister” $50,000 #99867 in the nam e of “Dorothy Johnson or Jessica McAlister or Sheila W est” # 092555 in the nam e of “Dorothy

Johnson or Melanie Fowler or Jennif

e r Patzius” $50,000 #99868 in the nam e of “Dorothy Johnson or Sheila W est or Jennif er Patzius” #092556 in the nam e of “Dorothy

Johnson or Brad Johnson or Jessica McAlister” $50,000 #99866 in the nam e of “Dorothy Johnson or Sheila W est or Jessica McAlister”

¶8. Dorothy died on October 14, 20 1 0 , a n d t h e p e t ition f or probate of last will and

testam ent was f

iled one m onth later. Claim ing that t h e will did not “represent Dorothy ’s intentions,” Ron Johnson–Dorothy ’s son and Sheila’s brother–f iled a p etition to c ontest the validity of the will being probated on February 22, 2011. ¶9. During discovery , Ron learned of the CDs and the changes Sheila had m ade. He also discove r e d t h at the CDs w ere kept in Dorothy ’s bank lock box, to which only Dorothy , Sheila, and Sheila’s daughters–Jennif e r Patzius and Jessica McAlister–had access. W hile
Ron and his children or i g i n a l l y w ere listed on them , neither Ron, Melanie F owler (his

4daughter) nor Brad Johnson (h i s s on) v iewed or had access t o the certif icates at any point.
Ron testif ied t hat, p rior to his petition, he was aware of the CDs a nd the f a ct that h e and his children w ere listed on som e of them as owners, but n either he nor his children were aware of the structure, m aturity

rate, or am ount of

each certif

icate. ¶10. Ron rec o g n i z e d t h at, although they were r ef erenced in the will, the CDs were not
assets of the estate. As a result, he abandoned his petition contesting the validity of the will and instead f

iled a p etition against Sheila and Jennif er to set aside inter vivos gif ts. He later

am ended the p etition to include Sheila’s daughter, Jessica McAlister, as a respondent, and to join his children as petitioners. ¶11. Trial was held on June 25, 2015, during which the chancellor f ound that Sheila and her daughters had f

a iled to present any evide n c e t o o vercom e a presum ption of undue
inf luence. Thereaf

t e r , t h e c h ancellor set aside the changes to the CDs as im proper

am endm ents to an inter vivos gif t and ordered them b e returned to their original 2005 f orm of o w nershi p . H e t hen required they be distributed in equal shares pursuant to that ownership, and in accordance with Item IV of Dorothy ’s will, which stated:
I own six Certif

icates o f Deposit, e a ch of w hich contain m y nam e and t wo other nam es. I desire t h at those Certif i cates of D eposit be divided equally , share and share alike, betwee n t h e signatories listed o n each of those Certif icates of Deposit. Aggrieved, Sheila and her daughters f iled a Rule 59 m otion to a m end the judgm ent or, in the alternative, f

or new trial. The court denied the m otion. ¶12. On Decem

ber 23, 2015, Sheila and her d aughters tim e ly f iled a notice of appeal. On
F e b ruary 18, 2016, the chancellor signed an order which, once entered, p rovid e d t h e

5appellants f ive day s to post a supersedeas bond in the am ount of $160,856.32. U nderstanding that, regardless o f the appeal’s o utcom e, she and her daughters would receive at least half of the r ecognized CD values ( $128,685.05 to be divided a mo n g the t hree of them ), Sheila requested that their half of the CDs in dispute be used as collateral f o r t h e b o n d. The chancellor rejected Sheila’s c ollateral assignm e n t and insisted the bond be posted in cash by March 4, 2016. Sheila and her daughters f ailed to p ost the bond a nd the chancellor required that his original order be carried out, disbursing the CDs, as directed in their 2005 f orm . ¶13. Sheila and h er daughters now petition this C ourt, raising issues concerning inter vivos gif ts, the appropriate burden of proof , t he distribution of the CDs and t he supersedeas bond requirem ents. W e f

ind that the case hinges on the questions of (1) whether the transf ers in
2005 and 2010 can be c onsidered inter vivos g i f t s and ( 2) whether Sheila abused her authority u nder the power of attorney by rem oving Ron, Brad, and Melanie f rom the original
CDs and replacing their nam es with Jennif er, Jessica, and herself

. Additionally , w e address the q uestion raised by t he a

ppellants r e garding whether the chancellor abused his discretion by f ailing to approve a s upersedeas b ond as requested by S heila and her d a u g hters, and thereaf ter ordering the i m m ediate distribution of the certif i cates of deposit. F in ding that Sheil a h a d e xceeded the scope of the power of attorney and t hat the chancellor properly reverted the CDs t o their original f orm , distributing them according to Dor o t h y ’ s w i l l, we af f irm the chancellor’s judgm ent.

STANDARD OF REVIEW

6¶14. This Court will not disturb the f indings o f a c h ancellor w hen supported by substantial credible evidence unless the chancellor abused h is o r her d iscretion, w as m anif estly wrong, clearly erroneous, or an erroneous legal standard was applied. Sanderson v. S anderson , 824
So. 2d 623, 625–26 (Miss. 2002). Likewise, we will not reverse the chancellor’s decision
if his f indings are c onsiderably supported by evidence i n the record. Wright v. Roberts , 797
So. 2d 992, 997 (Miss. 2001). W e em ploy the de novo standard when reviewing questions of law. Russell v. Perform a nce Toyota, Inc. , 826 So. 2d 719, 721 (Miss. 2002).
DISCUSSION
I. Inter V

ivos Gifts ¶15. In his chancery court petition, Ron claim e d Sheil a i mp r o p e r l y u sed the power of attorney to withdraw the principal and interest f rom each of the f

ive CDs and create new CDs

nam ing a com

bination of Dorothy , Sheila, Jennif er, and Jessica as o wners. Ron argues that Shei l a

– a c ting under her m o ther’s nam e –created a n inter vivos g if t t o h erself and her daughters, thereby a

ppropriating f

unds belonging to Ron, Brad, a nd Melanie. He echoes this
argum ent in his b rief b ef

ore t he Court, elaborating on the claim and indicating that Sheila did

not carry her burden to prove that this inter vivos gif t was valid. However, we need not address the validity

of the gif t, as we f ind that no gif

t was m ade under the law. ¶16. It is well-settled that to s how that an inter vivos g if t was given, a party m

ust p rove f

ive elem ents by

clear and convincing evidence: (1) that the donor was com petent to m ake a gif

t; (2) that the donation was a voluntary act and the donor had donative intent; (3) that the gif

t m ust be com

plete and not conditional; (4) that delivery

was m ade; and

7(5) that the gif t was irrevocable.
In re Estate of

Laughter , 23 So. 3d 1055, 1 066 (Miss. 2009) (citing In re Estate of Ladner , 909 So. 2d 1051, 1054 (Miss. 2004)). However, w e also recognize that “ [ d ]eli v e r y and relinquishm ent o f control are requisites of an inter v ivos gif t.” In re E

state o f Laughter , 23
So. 3d at 1066. Delivery –either actual or constructive–is an essential elem ent to an inter
vivos gif t’s validity

. Thom as v. E u b a n ks’ Estate , 358 So. 2d 709, 713 ( Miss. 1978). Arguably , the f

o undational elem ent of a valid i nter vivos gif t i s its unconditional delivery , “in s uch m anner that the donor retains no control or dom inion over it.” I n re Estate o

f Laughter , 23 So. 3d at 1055. ¶17. Chi e f J u s t i c e Wh i t f i e l d o b s e r v e d in 1901 that, a s i t relates to inter vivos gif ts, “[ c]onvey ing all is evidence of absence of hope of recovery , but a lso evidence that because of it, t he p arty m eans the gif t to take ef

f ect at once, unconditionally and i rrevocably .” Wilson

v. Jourdan , 29 So. 823, 824 (Miss. 1901). Eighty -f iv e y e a r s later, we r eiterated that rule, noting that a n inter vivos gif t cannot be revocable or conditional. See Carter v. State Mut.
Fed. Sav. & Loan Ass’n , 498 So. 2d 3 24, 327 (Miss. 1986). There m ust be delivery of the property and the donor m

ust surrender all dom inion over it. Id. ( see also Gidden v. Gidden , 167 So. 785, 790 (1936), and Y ates’ Estate v. Alabam a-Mississippi Conference Ass’n of Seventh-Day Adventists , 176 So. 534 (Miss. 1937)). ¶18. W h ile Dorothy listed herself along with two additional nam es on the CDs in 2005, and Sheila t hen changed those CDs to include Dorothy and two d if f erent nam e s in 2010, a t no point d id Dorothy relinquish her control or dom inion over the C Ds to the other two owners.

8Rather, each party becam e a co-owner of the respective C Ds. W henever a C D i s titled in

the nam es of two or m ore p ersons, pay able to any of the persons nam ed, it is presum ed that those persons are owners of the a ccount. In re Last W ill and Testam ent and Estate of Dunn

v. Reilly , 784 So. 2d 935, 942 ( Miss. 2001) ( citing Madden v. Rhodes, 626 So. 2d 608, 616 (Miss.1993)). Each “depositor” i s then able to treat the j oint property as if i t were entirely his own. Drum m onds v. Drum m onds, 156 So. 2 d 8 19, 8 21 (1963))

. A s a result, any individual owner–including Dorothy

– had the authority to withdraw f unds, liquidate, or reinvest any

of their respective CDs at any tim e. ¶19. This rule is outlined in M i ssissippi Code S ection 8 1-5-63, which provides i n pertinent part that:
W h en a deposit has been m ade or is hereaf ter m ade in t he nam e of two (2) or m ore persons, . . . the deposit or any part thereof or i nterest or d ividends thereon m ay be paid to any one (1) of those persons, without liability whether one or m o re of those persons is living or not, and t he receipt of acquittance of the person so paid shall be a valid and suf f icient release and discharge to the bank f or any p ay

m ent so m ade. The m aking of a deposit in that f orm , o r the m aking of additions thereto, shall c r e a t e a presum ption in any action or proceeding to which either the bank or any survivor is a p arty of the intention of all the persons n a m ed on the deposit to vest title to the deposit and the additions thereto a nd all interest or dividends thereon in th e s u rvivor or survivors. Miss. Code Ann. § 81-5-63 ( R e v . 2 0 1 5). The Mississippi Court o f Appeals has expertly explained that t his sec t i o n allows f or d eposits in the nam e of two or m ore persons to be withdrawn b y just one of the nam ed parties without the b ank incurring liability

. See DeJean

v. DeJean , 982 S o. 2d 443, 449 ( Miss. Ct. App. 2007). Sim ilar t o t h e d e p o s its in Dejean , the 2005 and 2010 C Ds at issue were owned jointl y by Dorothy and a com bination of her

9children and grandchildren. This joint ownership a llowed any nam ed owner to withdraw the

f unds at any

tim e. Id

. ¶20. Because Dorothy m aintained her status as a CD owner, Sheila’s transf e r did not create

an inter vivos gif

t. W ith the record clearly s h owing that Dorothy ret a i n e d c o n t rol and dom inion over the CDs to the extent that she could rem ove them f rom the s a f

e -deposit box and c ash them out at any tim e, w e cannot say that either she or Sheila ef f ected a valid inter
vivos gif t through the creation of the CDs or the 2 0 10 transf ers of ownership. Moore v. Moore , 363 So. 2 d 286, 288 (Miss. 1978). W e theref ore f ind Ron’s argum ent t hat Sheila

m ade an inter vivos gif

t to herself

and her daughters unsupported by t he applicable law.
II. Durable Pow er of Attorney ¶21. W h ether Sheila abused her authority under the power of

attorney by r em oving Ron, Brad, and Melanie f

rom the original CDs and replacing their nam es with Jennif er, Jessica, and h erself

, rem ains an issue bef

ore this Court. Though not p ersistently argued, Ron and his children a l leged early on that Sheila violated her f iduciary duty as holder of Dorothy ’s power of attorney by appropriating f u n ds through the CD transf ers, contrary to Dorothy ’ s w i shes and instructions. Throughout this litigation, the f o cus rem ained on the im

proper inter vivos gif ts, perm itting t he parties to present evidence supporting or def ending against a f

inding of

a c o nf idential relationship, undue inf luence, and a

buse of authority

. Although the chancellor did not approach this issue head-on, the record i s replete w it h e v i d ence and testim ony addressing t he m atter. W e recognize our “obligation to af f irm a trial court judgm ent correct

a s a ma t t e r of law, even though the trial court m ay have been m istaken in its reason f o r

1 0g ranting the judgm ent.” Shewbrooks v. A.C.&S. Inc., 529 S o. 2d 557, 564 (Miss. 198 8 )

superseded b

y statute on other grounds as stated in N. Am . Midway Entm ’t, LLC v. Murray , 200 So. 3d 437, 439 n.4 (Miss. 2 016). Today , we scrupulously review the record evidence to determ ine if

such was the case in this m atter. 1
A. Creation and Delivery of the Durable Power of Attorney ¶22. A durable power of attorney is a written docum ent through which a n individual ( the “principal”) gives a nother p erson (the “agent”) the authority to act f or the pri n c i p a l in accordance w ith the term s and condi t i o n s s p e cif ied in the docum ent. T he connection between principal a nd agent is a particular ty pe of agency relationship that is governed b y the statutory requirem ents s et f

orth in Title 8 7, Chapter 3 o f t h e Mississippi C ode. As with other principal-agent relationships, the party trusted with the responsibility in the p o w e r o f attorney

owes certain d

uties to the principal. See In re Estate of Hem phill , 1 86 So. 3d 920, 933 (Miss. Ct. App. 2016) (citing Restatement ( Third) o f A g ency § 8.07 (2006) (“An agent has a duty t o act in accordance with the express a nd im plied term s of

any contract between the agent and the principal.”)). The principal m ust perf orm all duties d esignated in the contract consistently

with her role as a f

iduciary

.

1 Wh ile w e ap p reciate th e m erits o f Ju stice C o l em an ’s d issen t, an d t h e i mp o r t a n t d istin ctio n b etw een t h e ro les o f th e trial co u rts an d th e ap p e llate c o u rts, o u r rev iew o f th e reco rd an d tran scrip t b ef

o re u s p ro v id es th e C o u rt w ith th e in f o rm atio n n ecessary to af

f irm th e ch an cello r’s d e cisio n . T h e ch a n cello r rev iew ed arg u m en ts by t h e pa r t i e s , m a kin g o n -th ereco rd rem ark s ab o u t th e circu m stan ces b ef o re h im , an d d eterm in ed th at Sheila had f ailed to r ebut the presum

ption of undue inf

luence c reated b y the conf idential f iduciary relationship she shared with her m other. ( Infra ¶ 32). The analy sis in paragraphs 33 through 48 includes our review of

this inf orm ation and conf

irm s as m uch. 1 1¶23. Wh e r e the power of attorney authorizes the attorney -in- f a c t t o s i g n “ f

i n a n c i a l instrum ents, contracts, or d o c um ents” relating to personal property and t o p erf orm any act that ought to b e d o n e , c h a n g i n g the benef iciary on a CD is im

plicitly c overed as a ty

pe of
f inancial instrum e nt. 2 However, t his broad authority d oes not perm it the attorney -in-f act to
engage in undisclosed, self -dealing activities. “ It is f undam ental law that a n agent owes his principal a

bsolute g ood f

aith and f idelity , and he cannot in the exercis e of his authority as agent a cquire property or interest therein rightf u l l y belonging t o his principal without f ull disclosure and f

ree c onsent of h i s principal.” McKinney v. King , 498 So. 2 d 387, 388 (Miss. 1986). If disputed, the attorney -in-f act’s actions m

ust be shown to be within the p rincipal’s intent when grantin g t he power of attorney , in the best interests and f o r the benef

it of the principal, and in accord with the duty of good f aith owed by the attorney -in-f a ct to the principal. Any property or i n t e r est obtained in violation of the attorney -in-f a ct’s f iduciary duty “ t hereby

is voidable by , and m ay

be set aside by

the principal or his estate.” Id. ¶24. In 2005, when o f sound m ind a n d p h y s i c a l a b i l ity , Dorothy created t he power of attorney and draf

ted her w ill. D orothy ’s choice t o appoint S heila as her attorney -in-f act was

a natural choice: at the t im e , Sheila already had assum e d t he role of “caretaker” in the f am ily and was heavily involved in t he care and support of her parents. Notably , in 2001, S heila lef t

2 A certif icate o f d ep o sit is co n sid ered a n o te o f th e b a n k

. I t is “an in stru m en t co n tain in g an ack n o w led g m en t b y a b a n k t h at a su m o f m o n ey h as b een receiv ed b y th e b an k an d a p ro m ise b y t h e b an k t o rep ay th e su m o f m o n ey .” M iss. C o d e A n n . § 7 5 -3 -1 0 4 (j ) (R ev . 2 0 1 6 )

. T h e term s an d p ro v i sio n s o f th e C D create a co n tract, w h ich “d eterm in es th e m an n er in w h ich th e f

u n d s o f th e d ep o s ito r m ay

b e w ith d raw n an d is su b

j ect to th e law o f co n tracts.” E

p p erso n v. S O U T

H B a n k , 9 3 S o . 3 d 1 0 , 1 6 (M iss. 2 0 1 2 )

.

1 2her job to care f or her ailing f

ather. W hen her f

ather passed away , She i l a r e ma r r i e d but
f aithf ully visited Dorothy every day af ter work. As Dorothy ’ s h ealth began to decline, Sheila

resum e d her role as caregiver, eventually m oving into her m other’s hom e to ensure Dorothy

was cared f

or around the c l o c k. Although a nurse f requently v isited to m o nitor Dorothy ’s

m edical needs, Sheila assum ed prim ary responsibility f or Dorothy ’s day -to-day care until her death in 2010. ¶25. Through the witness t estim ony and o ther evidence, the record shows that at the tim e the changes in the CDs were m ade–August 23, 2010–Sheila was both Dorothy ’s caregiver and her attorney -in-f

act. Because the durable power of attorney was created i n July 2005 and

not delivered until Dorothy ’s health declined i n M a y 2010, the parties do n ot dispute its validity

. Sheila was properly taske d w i t h m anaging Dorothy ’s business and legal af f airs, which she dutif

ully executed. However, she m anaged her responsibilities to Dorothy without using the authority provided by the power of attorney until August 2010, when she em ploy ed the power to changed ownership of the CDs. ¶26. The l ower court recognized that the validity of the power of attorney is undisputed. However, om itted f

rom the discussion was whether the p owers delivered to S heila in 2010
prov i d e d her with the authority to rem ove Ron and his c h ildren f rom the CDs without evidence of Dorothy ’ s intent to do so. The power o f attorney pro vided S heila with the
f ollowing pertinent powers: (1) To have broad and discretionary p owers in handling m y business af

f airs, including the receipt and deposit . . . investm ents that I m ight have.

1 3(2) To sign and execute all f inancial or o ther legal docum ents f or and on m y behalf , including, but not l im ited to

. . . d raf ts or o ther securities and deposits of a ll pr o c e e d s and receipts f rom all investm ents and incom e i n m y n am e in any banking institution in the United States, including the State of M ississippi.

. . . ( 4) To enter into my lock box at any tim e and t o deposit and take theref rom any papers or valuables which I m ight have. Unlike other powers of a ttorney this Court previously has ruled upon, Dorothy ’s appointm ent did not i nclude a provision f or gif ts. Nor did t he docum ent include a s elf -dealing clause, prohibiting or providing f or the receipt of property or f unds b y the a ttorney

- in-f

act. Because the docum ent is silent o n both, we review the CD revisions u nder Mississippi Code Section 81-5-63, which provides that “the creation o f a certif icate of d eposit creates an autom atic
presum ption of ‘intent’ to give ownership to the persons nam ed on the C D, whether living

or as survivors. Such presum ptive title m ay be def

eated upon proof of f

orgery , f raud, duress, or . . . [ the] unrebutted presum ption of undue inf

luence.” Foster v. Ross , 804 So. 2d 1018,
1022 (Miss. 2002). W e theref ore begin o ur analy sis by d eterm i ning whether Ron created the
presum ption of undue inf

luence by proving the existence of a conf idential relationship between Sheila and D orothy a f t e r t h e durable power of attorney was delivered. W e then evaluate whether any conf idential relationship af

f e c ted Sheila’s execution of the power of attorney and whether she rebutted the presum ption of undue inf

l uence. B. Confidential Relationship ¶27. “This Court has held in num erous cases that the burden of establishing the existence of a conf idential relationship is upon t he p arty a s serting it.” Norris v. Norris , 498 So. 2d 809,
813 (Miss. 1986). As previously recognized, the parties did not d isp u t e t h e validity of

1 4Dorothy ’s power o f attorney : it was created in 2005, prior to Dorothy ’s health issues, and was

draf ted without Sheila’s knowledge or inf l uence. The parties f

urther agree that Sheila voluntarily chose to provide care f or Dorothy in her f

inal m onths, without knowledge of the
p o w e r o f attorney or content of the w ill. Finally , the r ecord indicates that the power of attorney w as delivered to Sheila without coercion and out of necessity as Dorothy ’s health began t o decline. W h ile in other jurisdictions, the presence o f a v a l i d power of attorney , alone, serves to create a conf idential relationship bet w e e n t h e p rincipal a n d agent, in Mississippi, “the existence of a p ower of attorney is but one f actor t o c o nsider in determ ining whether a conf

idential relationship exists.” M atter o f Estate of Grantham , 6 09 So. 2d 1220,
1223–24 (Miss. 1992) ( citing C ostello v. Hall , 506 So. 2d 293, 297 (Miss.1987)). Theref ore,

we l ook to the record to determ ine if Ron p roved the existence o f a conf idential relationship by clear and convincing evidence. ¶28. Following her f

ather’s d eath and through the spring o f 2010, Sheila visited her m other regularly

. W ith Sheila’s d aughter Jennif er living next d oor, the three generations of Johnson

wom en would f

r equently s ee one another, of ten having daily

conversations. As Dorothy ’s health declined, Sheila initially visited her m other daily af ter work but eventually

quit her job a nd m oved in with Dorothy t o p rovide twenty -f our-hour-care. J essica and Jennif er would visit of ten, and the three wom en testif ied that, through their interactions with Dorothy , she

rem ained alert, perceptive, and coherent during her f inal m onths. ¶29. W e strongly adhere to the holding “that a conf idential relationship i s not conf ined to

a n y s p e cif

ic a ssociation of persons but arises a ny tim e there appears on the one side a n

1 5overm astering inf luence or, on the other, weakness, d ependence, or trust, justif iably reposed.” Norris v. N

orris , 498 So. 2 d 8 0 9 , 8 12 (Miss. 1986). I n C ostello v. Hall

, we ref used t he conclusion that “a power of attorney , in itself , creates a conf

idential r elationship.

. . as a m atter of law.” C

ostello v. Hall

, 506 S o. 2d 293, 297 (Miss. 1987). W e determ ined

m or e e v i dence m

ust be established r egarding the relationship in question b ef ore the
presum ption of undue i nf

luence could b e raised. Id

. More recently , we reaf

f i rm ed Costello , holding that, “[ t]he person who allegedly i s taking advantage o f the conf idential relationship
‘.

. . m ust have used that relationship f or his p ersonal ga i n o r t o t h w a rt the intent of the
testator.’ ” Kim brough v. Estate of Kim brough , 134 So. 3d 281, 285 (Miss. 2 0 14) (citing
Costello , 506 So. 2d at 298). I n a d d i t i o n t o h olding the power of attorney , the agent m ust
exert inf luential control over the dependent principal, to the point of unm istakable reliance.
See Murray v. Laird , 446 So. 2d 575 (Miss. 1984). ¶30. Although the tight bond a daughter and m other inherently share is not enough to m ake

s u c h a r e l a t ionship “conf

idential,” the care and a ttention Sheila provided D o r o t h y e n g e n d e r e d

a specif ic sort of reliance and t rust which can only be considered t o b e i n f l uential. The parties described the relationship between D o r o t h y , Sheila, and her daughters in detail, through their pleadings and their testim ony at trial. The record provides that, prior to her f inal

m onths, D orothy f

requently looked af

ter Sheila b y g iving her m oderate t o l a r ge sum s of

mo ney . Because Sheila had gone through a divorce and then lost her second husband to a devastating brain hem o rrhage, Dorothy was concerned f or Sheila’s f

i n a n c i al well-being. Sheila suf

f ered f rom m i graines and struggled to m a in t a i n steady em ploy m ent, m aking it

1 6nearly im

possible f or her to m ake ends m eet. Sheila testif ied that her m other was aware of her f inancial dif

f iculties at the various stages of her l if e, and would give her m oney f or bills and other necessities as needed. She stated that she depended on her m other and relied on her f or f inancial help with any bills she could not cover. In f act, the court acknowledged that “Sheila and her two daughters a re poor, p o o r , p o o r , t hey n eed m oney ; they n eed help; and Sheila’s m other helped them .” ¶31. In return, Sheila w as very clos e w i t h h e r m o t h e r . L i n d a H a w k s

– D o r othy ’s niece–described Sheila as a “constant presence” in Dorothy ’s lif e , contacting her daily , and visiting her several tim es a we e k

. 3 T hrough the testim o ny provided, the chancellor recognized that Sheila had established a close bond with h er m other that n either her brother
Ron nor the other grandchildren had developed with Dorothy

. That close bond co n t i n u e d throughout the later m onths of Dorothy ’s l if e as S heila continued to be a constant presence in her l if e, m oving i nto her hom e , providing continuous c are, m onitoring her m edical needs, and ensuring her com f

o rt. ¶32. “W henev e r t h e r e i s a r elationship between two people in which one person is in a position to e xercise dom inant inf luence upon the other because of t he l a t t e r ’ s dependency
upon the f

orm er, arising either f

rom weakness o f t he m ind or body , or through trust, the law

3 Testim ony was given as to the extent of D orothy ’s relat i o n s h i p with Jennif er and Jessica as well. This testim ony –while not directly relevant to She i l a ’ s r e l ationship with D o r o t hy –provides support f

or Dorothy ’s propensity f

or generous gif

t-giving. S heila testifi e d that Dorothy and her husband he l p e d h e r daughters though c o llege and paid f or both Jennif er’s and Jessica’s weddings. W hile the daughters did not depend o n D o r o thy f inancially , the testim ony indicates that they rece ived s ubstantial gif ts f rom their grandm other. 1 7does n o t h esitate to characterize such a r e lationship as f iduciary in character. F

oster v. Ross , 804 So. 2d 1018, 1022-23 ( Miss. 2002) (citing Madden v. Rhodes , 6 26 So. 2 d a t 617 (Miss. 1993)). A m o r a l , p e r s o n al, or dom e stic relationship, which would im pose t he duties of a f iduciary also will be considered c onf idential under the appropriate circum stances. Mullins

v. Ratcliff

, 515 So. 2d 1 183, 1191 (Miss. 1987). Although the chancellor analy zed whether Sheila and her daughters shared a conf idential relationship with Dorothy as i t related to the apparent creation of inter vivos g if ts, the analy sis f

or the relationship S heil a s h a r e d w ith Dorothy w hen she exceeded the scope of the power of attorney is the sam e. T he court f ound that, in addition to de l i v e r i ng the power of a ttorney to Sheila, Dorothy was bedridden and reliant upon Sheila f

or her basic needs. Apply ing the above-quoted standards, we f ind that Dorothy relied upon, depended on, and trusted Sheila, creating a conf idential, f idu ciary relationship between Sheila a nd Dorothy , thereby raising a presum ption of undue inf

luence.
W e now turn to t he record to determ ine whether Sheila succe s s f u l l y r ebutted this
presum ption through clear and convincing evidence. C. Undue Influence ¶33. B e f

o r e w e e n g a ge in the applicable analy sis, we m ust acknowledge that the m er e
presence o f a conf

idential relationship does not, in and o f itself , create the presum

ption of undue i nf l uence. Rather, s om ething m o re is required

. S e e I n r e W i ll of Adam s; Sim m v. Adam s , 529 So. 2d 611, 6 1 5 (Miss.1988). The basis o f this rule is t hat there m ust be som e showing that t he agent abused “the relationship either by asserti n g dom inance over the [ principal] or by substituting her intent f o r that of [ the grantor].” Id. Here, we h a ve a

1 8conf

idential relationship between a daughter/caretaker/holder of power of a ttorney and her

m other. W e f

ind the record indicates t he use a n d possible abuse of said conf idential relationship/power of attorney to procure and execute transf ers of certif

icates of deposit f

or the benef i t of t he attorney -in-f

act and her daughters, suggesting that S heila substituted her intent f or Dorothy ’s. W e need not explore this analy sis any f urther. ¶34. H a v i n g e s t ablished that a conf idential relationship exi s t e d a n d t h a t S h e i l a

– t h e benef iciary

– potentially abused this relationship,“a p resum ption of undue inf

luen c e a r i ses which m ay b e rebutted only upon proof by the grantee/benef iciary arising to the dignity

of clear and convincing evidence.” Norris v. N orris , 498 So. 2d 809, 8 13 ( Miss. 1986) (citing Kelly v. Shoem ake , 460 So. 2d 811, 819-20 (Miss. 1984)). I n Matter of Will of Wasson , this Court discussed undue inf luence at length. There, we determ ined t hat “undue inf luence is the substitution of the will and intent of the benef iciary f or that of the testator.” Matter of
Will o f Wasson , 562 So. 2d 74, 7 9 (Miss. 1990). The C o u rt c ontinued that “the ‘polestar consideration’ in our review of a will contest [ i s] to give e f f e ct t o the intent of the testator.”
Id. (citing Tinnin v. First Ba n k o f Mississippi

, 502 So. 2 d 659 (Miss. 1987)). In m atters like those we review today , “ the ef f ect of a charge of undue inf luence is t o suggest” that the changes to the CDs ref

lect the intent of

the benef iciary (i.e., Sheila and her daughters) and

not that of the testator. I d. The ef

f ect of such changes results in the “substitution of another’s will f

or the w i l l o f the [ grantor].” Barnett v . Barnett , 124 So. 498, 500 (Miss. 1929).

1 9¶35. As we determ ined in Wasson , we continue to recognize that those cases which raise

“ the p resum

ption of undue inf

luence present f

actual scenarios w here t here was m ore than j u s t

a l egal or d om estic r elationship between the testator and t he benef iciary .” Costello v. Hall , 506 So. 2d 293, 297–98 (Miss. 1 9 87). There m ust also be an abuse o f t h a t r e l a t i o n ship in which the benef

iciary used that relationship f or her “personal gain o r to thwart the intent of
testator.” Id. “Suspicious circum stances, along with t he c onf idential relationship, [ will] also give rise to a presum

p t ion of undue inf

luence.” M

a tter of Will o

f Fankboner

, 638 So. 2d 493, 495 (Miss. 1994). Here, we f ind the presum

ption e st a b l i s h ed in that the conf idential relatio n s h i p e x i s ted and Sheila’s use of the power of attorney to am end the CDs was both suspicious and resulted in personal gain f or herself and her daughters. ¶36. Once established, t his Court em p loy s a three-pronged test to determ ine whether the
presum ption of u ndue inf

luence h a s been successf

ully rebutted. F irst, we review whether the grantee/benef

iciary acted in good f

aith. Next we determ i ne i f t he g rantor had f ull knowledge and deliberation of his actions and the consequences of those actions. Finally , we consider whether the gra n t o r e x h i b ited independent consent a nd action through the a dvice of a

c o m p etent person, disconnected f r om the grantee and w h olly devoted to the grantor/t e s t a t o r ’ s interest. Murray v

. Laird , 4 4 6 S o. 2d 575, 578 (Miss. 1 984). T h e d e f e n ding p arty m

ust prove each of

these by clear and convincing evidence to rebut the presum ption. Id. 1. Good Faith

2 0¶37. The Court in Murray v . Laird outlined the elem ents of the good-f a i th test t hrough f

ive
f actors, each “to be considered as s ignif icant to overcom e the inf

erence of the presum

ption.”
Id. (1) the identity of the initiating party in seeking preparation o f t he instrum e nt; (2) the place of

the execution of

the instrum ent and in whose presence; (3) the consideration and f ees paid, if

any ; (4) by whom they were paid; and (5) the secrecy

and openness of

the execution of

the instrum ent. Id. T herein, the court a cknowledged that–while not required–the g rantee/attorney -in-f act’s disclosure of intent m ade prior t o the transf er of p roperty “ helps dilute the undue inf luence
presum ption.” Murray , 446 So. 2d at 579. ¶38. Apply ing t hese f

actors to the case a t hand, Sheila f ailed to show that her use of the
p ower of attorney to am end t he c ertif i cates of deposit m et the elem ents of “ g o o d f a i t h

. ” First, Sheila adm its she changed the owners of the CDs using the power of attorney , as if she

were Dorothy m aking the changes herself

. Sheila stood in the shoes of Dor o thy when she executed the transf

ers, s igning Dorothy ’s nam e and using Dorothy ’s Social Security num ber
f or i dentif ication. In def

ense of her actions, Sheila adm its that if she or her daughters wanted

to am end the certif

icates, they all could have e ntered the lock box at any tim e and changed their n am es on the r e spective CDs. However, rather than ef f ecting the changes through their

own signatures, Sheila u s ed the power of at t o r n e y a n d initiated the transf ers through Dorothy ’s nam e. The independent authority on which Sheila relies is of no m om ent. ¶39. Add i t i o n a lly , the changes to the CDs–whether approved or not–seem to have been

m ade in secrecy without disclosure to any of the other nam ed parties. Sheila claim s that the

2 1am endm ents were m a de pursuant to D orothy ’s direction a nd that, prior to Sheila’s trip to the

bank, Dorothy called her People’s Bank consultant–Eugenia Parson–to discuss the transf ers. Furtherm o re, Sheila testif i ed that Dorothy

had been unhappy with the structure of the CDs since 2005 but could not m ake the changes until 2010 when they m atured. S heila asserts that by the tim e they m atured, Dorothy could not m ake these changes herself , so she asked that Sheila transf

er their ownership using the recently -delivered power of attorney

. ¶40. Nothing m ore than Sheila’s testim ony was p rovided to support these claim s. Eugenia
Parson p assed away prior to trial a n d was unable to corroborate Dorothy ’s intentions. Sheila’s attorney s f

ailed to arrange testim o ny f rom a ny other e m

ploy ee at the bank, and no

e v i d e n ce or testim ony regarding t he transaction at the bank, no conversations which too k
p l a c e , nor any identif

y ing inf orm ation regarding Dorothy ’s intent, was provided. No evidence w as presented docum enting Dorothy ’ s unhappiness with t he structure of the CDs, and–other than Jennif

er’s testim ony regardin g h e r em ploy m ent at People’s B ank and the b ank’s p olicies on withdrawing CD f unds prem a turely 4 –no inf orm ation was pro v i d e d regarding the penalties D orothy would have pro v o k e d had s he t ransf erred the ownership

sooner. Finally , when prom pted, Sheila adm i tted that she had discussed the transf ers with

4 Jen n if er testif ied th at s h e h ad w o r

k ed at P eo p le’s B an k f

o r s e v en y e a rs. In th at tim e, sh e w o r k ed in “ N ew A cco u n ts” h an d l in g C D s an d th eir ren ew als. S h e w o rk ed d irectly w ith P arso n s an d testif

ied t o h er w o rk h isto ry an d ex p erien ce. Jen n if er testif i ed th at C D h o ld ers co u ld n o t ch an g e th eir i n v estm en ts p rio r to m atu rity w ith o u t in cu rrin g a p en alty , u n less th e b an k au th o r ized s u ch an am en d m en t. A f ter so m e q u estio n in g f

r o m th e co u rt , it w as d eterm in ed t h e b an k co u ld m ak e su ch an ad j u stm e n t, at its d iscretio n , b u t t h e clien t m ay n o t b e ab le to k eep h er in terest rate. 2 2Dorothy and Jennif er but gav e n o n o t i c e to Ron or his c h ildren. The only individuals providing any evidence of Dorothy ’s intent appear to be those who benef i t directly f

rom it. ¶41. Finding t hat S heila d id not m eet t he n ecessary f actors i n t h e C o u r t ’ s g o o d

- f a ith analy sis, she f

a iled to rebut the presum

ption on this prong. H owever, we continue with the analy sis in the spirit of

being thorough.
2. Knowledge ¶42. W e have established f our n ecessary f

a ctors to address t he grantor’s knowledge, at the tim e o f e xecution of any instrum ent. These guidelines “suggest that the [ ] grantor should give a thoughtf

ul deliberation to all o f these f actors. No set a m ount of tim e is

. . . required, but a positive f

actor to overcom e the undue inf luence presum

ption i s a m a t

ure and thoughtf

ul weighing of the legal consequences of a grantor’s[ ] action.” Murray , 446 So. 2d at 579. The
f actors we consider are (a) the grantor’s awareness of her total assets and their general value, (b) her understanding of the persons who would be t he n atural inheritors o f her bounty under the laws of d escent and distributi o n o r u n d er a prior will, and how the p roposed change would legally a f f ect that prior will or natural distribution, (c) whether nonrelative benef iciaries would be excluded or included and, (d) knowledge of who controls her f inances and business and by what m ethod, and if controlled by another, how depen d e n t is the grantor[ ]on her a nd h ow susceptible to her inf

luence.
Id. Addressing t he f

i rst f actor, am ple testim ony and evidence was provided indicating that Dorothy rem ained in f

ull control of her f

inances through h er f

inal d a y s . S h e was a sharp

w o man a nd a keen investor, who kept in constant contact with her representatives a t

2 3People’s Bank. W itnesses testif ied that sh e f

r e q u e n t ly shopped interest rates and checked her balances to ensure her m oney was working f or h er. She u ndoubtedly was f ully aware of her total assets and their general value at the tim e Sheila ef f ected the transf

ers. ¶43. Likewise, looking to the f ourth f actor, Doroth y u n d e rstood that–through the power of attorney

–Sheila was responsible f or her day -to-day f

inancial responsibilities. By granting her t h a t p o w e r, Dorothy relied heavily on Sheila, m aking her highly susceptible to her daughter’s inf

luence. ¶44. Regarding the second and t hird f actors, we f

i nd that Sheila f

ailed to carry her burden of p roo f

. No testim ony was provided regarding Dorothy ’s knowledge t hat rem oving Ron and his children f

rom the CDs would exclude them f rom a substantial portion of their inheritance. Many statem ents w ere m ade indicating that Dorothy understood Ron a nd his children to be well-of f a nd without need f

or f inancial support. Testim ony a l so was presented t o show that Sheila and her daughters needed t he assistance and that Dorothy w anted to be sure they were cared f or. H o wever, none of these statem ents tipped the scales to show that Dorothy intended Ron and his children to be entirely e xcluded f rom the CDs. Likewise, u nder prong two, Sheila f

ailed to show that Dorothy understood she, Jennif

er, and Jessica would be the “natural inheritors of her bounty ,” to the exclusion o f Ron, Brad, and Melanie, af f ecting the original distribution under her will. Sheila theref o re f a iled to rebut the presum

p tion under this elem ent. 3. Advice

2 4¶45. Turning now to t he last f actor under the test, we determ ine whether Dorothy exhibited independent consent and action through the advice of a c om petent person, disconnected f rom Sheila and wholly devoted to Dorothy ’ s interest. Our caselaw requires this “advisor to have conf erred with the grant o r [ ] p r i o r to the docum e nt draf ting.” Murray , 446 So. 2d at 579 (citing McDowell v. Pennington, 394 So. 2 d 323 ( M iss.1981)). “[ A]dvice in this sense

m eans advice separate a nd apart f rom the benef

iciary , both in t he i nitiation and execution of the instrum ent.” Id. ¶46. W e have required that

a n advisor m

ust have (a) knowledge u pon which to base advice

. . . ( b ) k n o w [ l e d g e ] o f t h e r e l a t i o n s h i p o f the grantor/testator to a n y be n e f iciary /grantee a nd the purpose or reason of an unequal division or distribution to donees/heirs of the sam e c lass,

. . . (d) the r elationship, o r lack of relationship, to kinsm en, (e) knowledge o f t ax consequences[ , ] (f ) inf orm ation as to the m arital background, age, p hy sical and m ental health of a grantor/testator. (g) Inquiry by the advisor into whether t he disposition is the f ree and voluntary act o f an independent thinking, strong willed individual or whether t he decision i s im p osed by the dom inance of an over-reaching person will help him r ender better advice. All these f actors will help the advisor learn of antecedent agencies that gave rise to the presum ption of undue inf

luence. Murray , 446 So. 2d at 579 (Miss.1984). Again, S heila f ailed to p resent clear and convincing evidence t hat Dorothy conf erred with an a d visor prior to instructing Sheila on the transf ers. Sheila testif

ied that Dorothy contacted the b ank to inf orm it that Sheila would be visiting that af ternoon to m ake changes to the CDs in the lockbox. However, Sh e i l a did not hear the conversation and could not c onf irm its details. No one f

rom People’s Bank could conf irm that this conversation occurred, nor was there a record that a c all was m ade that day

. Presum ptively , Dorothy spoke with Eugenia Parsons, though no evidence was p resented to

2 5corroborate that presum ption. M oreover, t he only testim ony presented regarding the discussion of any f

inancial m atters derived f ro m Jennif

er–another benef

iciary of the transf ers. W e f ind that this evidence f

ails to m eet the requirem ents under this prong. ¶47. “[ A]f

t er all testim o ny relating to the [ above]-nam e d f actors are received, it is still to the trier of f

act to judge the credibility of the witnesses and t he worth o f their testim ony .” Id

. I n his witnesses’ questioning during trial, the chancellor used language indicating his

s k e p t i c i s m of the evidence Sheila presented. In response to Sheila’s answer regarding whether the bank could m ake a house call to a longtim e, hom e-bound clie n t , t h e c o u r t interjected, “W ell, I’m going t o be h o n e s t w i t h y o u, I sm ell a rat som ewhere, and I’m wanting t o see if I can get that odor gone.” H is concern was f urther indicated in his com m ent
to the witnesses that it was highly unlikely t hat People’s Bank–a bank “ f o r the people”–would have penalized Dorothy f or changing the C Ds prior to m a t urity

. He later

cam e to the conclusion that the CDs “could have been c hanged” without penalty , bef ore he dism issed Sheila as a witness. He also com m ented that h e was shocked “[ a] wom a n that has been stroked out, has b een i n hospital af ter h ospital af

t er h ospital, rehabilitation af ter rehabilitation af

t er r ehabil i t a tion,” rem ained “sharp as ever,” as Sheila repeatedly alleged. ¶48. The chancellor f

ound that a conf

identia l r e l a t i o n s h ip existed between Sheila and Dorothy , and the transcript shows that the court f ound the witnes s e s p r e s e n t ed did not establish t he requisite evidence t o rebut the presum ption of undue inf

luence. “ The chancellor has t he sole responsibility to determ ine t he credibility of witnesses and evidence, and the weight to be given e ach.” Lee v. Lee , 798 So. 2d 1284, 1288 (Miss. 2001). Yielding to this

2 6discretion and f inding that t he chancellor’s analy sis was s ound, we hol d t h a t S h e ila and Dorothy m aintained a conf idential relationship, t hat Sheila f ailed to rebut the presum

ption of undue i nf

luence by clear and convincing evidence, a nd she abused her authority under the durable power of attorney

. III. Supersedeas Bond ¶49. B o t h p a rties acknowledge this issue is m oot, as there i s nothing the Court c a n d o retroactively to solve t his issue. The appellants, however, ask that the Court address whether the chancellor abused his d iscretion by f ailing to a pprove a supersedeas bond and ordering the im m ediate distribution of the CDs f or the p urposes o f f

uture litigation. T hey claim that,

even if t h e p oint is m oot, the Court should consider this issue f or the good o f the public interest. ¶50. This Court as a general rule will not adjudicate m oot questions unless t hey f all within the purview of t he “capable of repetition but evading rev i e w ” d o c t r i n e or are a “m atter of public interest.” A llred v . W ebb , 641 So. 2d 1 218 (Miss. 1 994). Two elem ents m ust be m et
to apply the “capable of repetition but evading review” doctrine: ( 1 ) the challenged action was in its duration too short to be f ully litigated prior to its cessation or expiration; and (2) there was a reasonable e xpectation that the sam e c om plaining party would be s ubject to the

sam e action again. Id

. As t h e a p p e l lees concede is likely , this i ssue was in its duration too short t o be f

ully l i t igated p r ior to its cessation. There is not, however, a r easonable expectation that the sam e com plaining party

would be subject to the sam e action again.

2 7¶51. The appellants rely on Sartin v. Barlow to dem onstrate there is a public-interest need

to address this issue. Sartin states in part that “[ t]here is an exception to t he general rule as respects m oot cases, w hen the question concerns a m atter of

. . . public interest[ .]” Sartin v. Barlow ex rel. S

m ith , 1 6 So. 2d 372, 376 (Miss. 1944). There, t his Court determ ined that the exception a p p l i e s to any “question [ which] c oncerns a m atter of such a nature that it should be distinctly detrim ental to the public interest,” and t hat d ism issal of the issue would be a f ailure “to declare and enf o rce a rule f

or f uture conduct.” Id

. ¶52. M i s sissippi law has not established a steadf ast r ule a l l o w i n g o r d i s a l l o w i n g a supersedeas bond to be posted with the property at issue. The rule is that “a s upersedeas or stay w ill not be granted

. . . unless it appears to be necessary to prevent i rreparable injury or

m iscarriage of justice

. . . . Nor will it be granted

. . . where it would perm it such a change of status o f the subject m atter as to render f urther proceedings inef

f ectual or d estroy the subject m atter of litigation.” Sartin , 16 So. 2d at 376. In re Estate of Taylor explains the use and discretion of

granting a supersedeas bond: The trial court is em

powered, sub

j e c t t o r eview b y the appellate c ourt, to require security in any am ount or f orm t he c o urt “deem s p roper.” The purpose of the supersedeas bond is to protect t he j u d g m ent creditor pending review, sustaining the status quo post judgm ent.
In re Estate of Taylor , 539 So. 2d 1 029 (Miss. 1989), overruled on other grounds by Stewart v. Prudential Life Ins. Co. of Am erica , 44 So. 3d 953 (Miss. 2010). ¶53. The law as it currently stands af f ords t rial courts p roper d iscretion so they m ay protect appellees in these and sim ilar situations. Finding it will not b e “distinctly detrim ental to the public interest,” we will not address this m atter f urther.

2 8CONCLUSION

¶54. W e have h eld “if the judgm ent o f a [ trial cou r t ] can be s ustained f or any reason, it

m ust be af f irm ed, a nd even though the trial judge b as e d i t upon the wrong legal reason.”
Patel v. Telerent Leasing C orp. , 574 So. 2d 3, 6 (Miss. 1990). Here, the c hancellor properly
f ou n d a conf

idential relationship and a n abuse of t hat relationship am ounting to undue
inf luence. He em

p l oy ed the proper analy sis and concluded that the b enef iciary had f

ailed to rebut the presum

ption of undue inf

luence by the necessary b urden of clear and convincing evidence. Although the c hancellor reached the “ r i g h t r e sult f or the wrong reason,” the court’s f indings are consistent with the judgm ent and a re af f irm ed. F innie v. Lee Cty. Bd. of Supervisors , 186 So. 3d 831, 834 (Miss. 2016). ¶55. AFFIRMED. WALLER, C.J., RANDOLPH AN D K I T C H E NS, P .JJ., KING, CHAMBERLIN AND I SHEE, JJ., C ONCUR. MAX W ELL, J., CONCURS IN PART A ND IN RESULT W I T HOUT SEPARATE WRITTEN OPINI O N . C O L E M A N , J . , C O N C U R S I N P A R T AND D ISSENTS I N PART WITH SEPARATE WRITTEN OPINION JOINED IN PART BY MAX WELL, J. COLEMAN, JUSTICE, CONCURRING IN PART, DISSENTING IN PART: ¶56. I agree with the m ajority opinion’s determ ination that t here was not an inter vivos gif t in the instant case; I also a gree with the m ajority opinion that “[ w]hether Sheila abused her authority under t he power of attorney by r e m oving Ron, B rad, and Melanie f rom the original CDs, and replacing their nam es w ith Jennif er, Jessi c a , a n d h e r s e lf

, r em ains an issue

. . . .” (Maj. Op. ¶ 21). However, I cannot join t he m ajority ’s analy sis as it relates to the power of attorney i ssue, and I respectf ully dissent f

r om the m ajority opinion’s d ecision to act as a trial

2 9court in deciding that Sheila abused her p ower of attorney

. Instead, I would rem and f or the chancery court to provide the appropriate analy sis of the power of

attorney issue. ¶57. The m ajority acknowle d g e s t h a t “ t h e c h a n cellor did not approach the issue [ the possible a buse of the power of attorney ] head-on.” I subm it that the chancery court should review the issue “head-on,” instead of having the Court attem pt t o discern its o wn analy sis
f rom the present record. The Cour t ’ s established standard of r eview o f chancery court decisions leaves the w eight and credibility of evidence and witnesses to the chancery court and “it is not this Court’s province to underm ine the chancellor’s authority by replacing the chancel l o r ’ s j u d g m ent with our own.” In re Estate of Carter , 912 So. 2d 138, 143 (¶ 18) (Miss. 2005). ¶58. W h ile the ma

jority , in weighing the evidence, m ay believe there is an abuse of the
power of attorney , t he chancery court on rem and, when reviewing the appropriate statutes and law a n d apply ing t he relevant f acts in the proper context, m ay reach a dif f erent conclusion t han the one the m a jority is attem

pting to ma k e f

o r the chancery court. 5 The
f oregoing is particularly true because the m ajority f ocuses its analy

ti c a l e f f orts and conclusion u

pon a straw m an. Dorothy Johnson was not the decision-m aker who changed the nam es on the c ertif

icates of d eposits. Sheila W est was. Accordingly , any inf luence over Dorothy Johnson’s decision-m aking is not relevant u nless it is evidence that pertains to her decision to give W est power of attorney in the f i rst p l a c e . I n other words, the b asis of the

5 My position s hould not be construed as to im ply that Sheila’s actions w ere or were not an abuse of her power of attorney , I sim ply contend that the chan c e r y c o u r t i s the appropriate court to f

irst m ake the decision. 3 0m ajority ’s op i n ion is that Sheila unduly inf l uenced Dorothy i n having the CDs changed; however, the m ajority f

ails to t ake into consideration that D orothy was no longer a decision

m aker t o be inf

l u e n c e d , due to the invocation of the undisputedly valid p ower of attorney

. ¶59. Further, a closer loo k a t t h e s t a t u t e and case relied upon by the m ajority f or its standard is c oncerning as neither is at a ll related t o whether one holding a p ower of attorney has abused the power. T o begin, the m ajority c ites Section 8 1

- 5

- 6 3 , w h i ch is a general banking statute t hat is designed to protects banks f rom liability f

o r pay ing a person listed on

a joint deposit. 6 The m a

jority o pinion then c ites Foster v . Ross , 80 4 S o . 2 d 1018 (Miss. 2012), which relies on Section 81-5-63 f or the principle t hat “the creation of a certif icate of deposit creates an autom a tic presum ption of ‘intent’ to give ownership t o the persons nam es

on the CD, whether living or as survivors[ , and s]uch presum ptive t itle m ay be def

eated upon proof of f

orgery , f raud, duress, or . . . unrebutted presum p tion of undue inf

luence.”

6 T h e tex t o f th e statu te is as f

o llo w s: Wh en a d ep o sit h as b een m ad e o r is h ereaf ter m a d e in th e n am e o f tw o (2 ) o r m o re p e rso n s, p ay ab le to an y o n e (1 ) o f th o se p erso n s, o r p ay ab le to an y o n e (1 ) o f t h o se p erso n s o r t h e su rv iv o r, o r p ay ab le to a n y o n e (1 ) o f th o se p erso n s o r to th e su rv iv o r o r

su rv iv o rs, o r p ay ab l e to th e p erso n s a s j o in t ten an ts, th e d ep o sit o r an y p a rt th ereo f o r in terest o r d iv id en d s th ereo n m ay b e p aid to an y o n e (1 ) o f th o se p erso n s, w ith o u t liab ility w h eth er o n e o r m o re o f th o se p erso n s is liv in g o r n o t , a n d th e receip t o f acq u ittan ce o f t h e p erso n so p aid sh all b e a v a l i d a n d su f f icien t release a n d d isch arg e to th e b an k f o r an y p ay m en t so m ad e. T h e m ak in g o f a d ep o sit in th a t f o rm , o r th e m a k in g o f ad d itio n s th ereto , sh al l c r e a t e a p resu m p t io n i n an y a ctio n o r p ro ceed in g to w h i c h eith er th e b a n k o r an y su rv iv o r is a p arty o f th e in t en t io n o f all t h e p erso n s n am ed o n t h e d ep o sit to v est title to t h e d ep o sit an d th e ad d itio n s th ereto an d all in t erest o r d iv id en d s th ereo n in th e su rv iv o r o r su rv iv o rs. M iss. C o d e A n n . § 8 1 -5 -6 3 (1 ) (R ev . 2 0 1 5 ). S u b sectio n tw o is n o t relev a n t to th e m aj o rity o p in i o n ’s an aly sis; th eref o re, it is n o t in clu d ed

.

3 1However, the m a jority o pinion does not explain that i n Fos t e r , n o power of attorney docum ent was utilized at any point by a ny one. W e should n ot apply to today ’ s case a legal standard f rom a statute and case t h a t d o n o t involve the question of whether the power of attorney was abused. ¶60. I join the m ajority ’s analy sis f inding there was no inter vivos gif t in the present case. Because it is the better course f o r the Court, as an appellate court, to rem and the case to the chancery court f

or the chancery court to perf orm t h e a p p r o p r iate analy sis, f ocused on the correct actor and law, I respectf ully dissent.
MAX WELL, J., JOINS THIS OPINION IN PART.

3 2