Full Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2025-CA-00371-COA IN THE MATTER OF THE ESTATE OF LAMAR APPELLANT DELOACH, DECEASED: FRANK DELOACH v. LARRY DELOACH AND RODNEY DELOACH APPELLEES DATE OF JUDGMENT: 10/02/2024 TRIAL JUDGE: HON. KILEY CATLEDGE KIRK COURT FROM WHICH APPEALED: CARROLL COUNTY CHANCERY COURT, FIRST JUDICIAL DISTRICT ATTORNEYS FOR APPELLANT: JOSHUA A. TURNER CHARLIE GAINES BAKER ATTORNEY FOR APPELLEES: L.N. CHANDLER ROGERS NATURE OF THE CASE: CIVIL - WILLS, TRUSTS, AND ESTATES DISPOSITION: AFFIRMED - 11/10/2026 MOTION FOR REHEARING FILED: BEFORE WILSON, P.J., LAWRENCE AND WEDDLE, JJ. WEDDLE, J., FOR THE COURT: ¶1. Lamar DeLoach executed a last will and testament on July 18, 2003. He died on January 23, 2023. On February 28, 2023, Larry DeLoach and Rodney DeLoach, Lamar’s cousins, filed a petition to probate Lamar’s 2003 will. On March 13, 2023, the chancery court entered an order admitting the 2003 will to probate and appointed Larry and Rodney as co-executors. ¶2. Frank DeLoach, Lamar’s brother, contested the 2003 will, alleging that Lamar had revoked that will and executed a subsequent will in 2012. Frank also argued that the 2012 instrument was destroyed, which would mean that Lamar died intestate and that the entire estate would have passed to Frank as Lamar’s sole heir. Following discovery, on March 22, 2024, Larry and Rodney filed a motion for summary judgment, arguing that Frank could not overcome the prima facie evidence of the validity of the 2003 will and could not show that the 2003 will was revoked by the “undated, unwitnessed, and unattested” 2012 instrument. ¶3. The chancellor ultimately granted summary judgment in Larry and Rodney’s favor, ruling that the question of whether the 2012 instrument revoked the 2003 will was moot because the more fundamental problem was that Frank had failed to demonstrate that the later instrument was legally viable. Frank appealed, arguing that the chancellor erred by granting summary judgment and that his ruling was in error under the facts of the case. Finding no error, we affirm. FACTS ¶4. After Lamar’s death, a search began for his 2003 will. Larry sought appointment as temporary administrator to obtain access to Lamar’s safety-deposit box and a safe located in Lamar’s home to locate the will. The 2003 will was ultimately found in Lamar’s home on February 24, 2023. The will had been prepared by attorney Phil Embry, and he and his secretary, Teena Newton, signed as witnesses. The 2003 will named Rodney and Larry as co- executors, devised $100,000 to Garner Jo Myers, and left the remainder of the property to Rodney and Larry. On March 13, 2023, the chancery court entered an order admitting the 2003 will to probate and appointed Larry and Rodney as co-executors. ¶5. On May 9, 2023, Audrea Lynn Hood, who provided meals for Lamar, helped him pay his bills, and cleaned his house before he died, submitted an affidavit attesting to the fact that 2 Lamar had another will that “had done away with all other wills.” She stated that while she was cleaning Lamar’s house, she found a document that Lamar asked her to read. She further stated that the will left everything Lamar owned to Larry and Rodney, and it was signed by Lamar, Embry, and Embry’s assistant. Although she could not remember the exact date it was signed, she knew the will was signed after 2003. ¶6. On June 1, 2023, Frank filed a will contest and motion for injunctive relief, arguing that the subsequent will expressly revoked the 2003 will and that Lamar later destroyed the 2012 will and later died intestate. If Lamar died intestate, the entire estate would have passed to Frank. ¶7. On November 6, 2023, Joe Hall, Lamar’s cousin and neighbor, submitted an affidavit alleging that he also read a will that left everything to Larry and Rodney with Lamar and Embry’s signatures. He also stated that there was another signature on the will that he did not recognize. He contended that on the day he saw the will, Lamar told him that he was upset with Larry and Rodney and intended to tear up the will. Joe advised Lamar that he should burn the will so it could not be put back together. Joe assumed that Lamar burned the 2012 instrument as they discussed, but Joe did not witness him destroy it. ¶8. Embry later discovered the unexecuted “subsequent will” on his law firm’s computer. The document was a draft will for Lamar in 2012. The document on Embry’s computer contained no signatures or dates. During depositions, when Embry was asked about the 2012 instrument, he responded that he did not remember signing it or witnessing anyone else sign 3 it, and he did not recall Lamar picking up the document from his office.1 The 2012 instrument did not include Garner Jo Myers, but the instrument did name Rodney and Larry as co-executors and left them the remainder of Lamar’s property. ¶9. William Earl DeLoach, Frank’s son, testified that on the night before Lamar died, Lamar told him that he had another will. William Earl stated that he expected to find the will and understood that the will would have been drafted between 2010 and 2015. ¶10. On March 22, 2024, Rodney and Larry filed a motion for summary judgment arguing that Frank could not overcome the prima facie evidence of the validity of the 2003 will and could not show the 2003 will was revoked. On October 2, 2024, the chancellor entered an order granting summary judgment, finding that the 2003 will was the last testamentary device of Lamar. The chancellor emphasized that the 2003 will satisfied the statutory formalities because Lamar signed it, two witnesses subscribed it, and Embry and Newton executed proofs of will stating that Lamar signed, published, and declared the instrument to be his will in their presence and was of sound and disposing mind. The chancellor added that the affidavits did not support probate of the 2012 instrument, and “if Lamar intended to revoke the 2003 will, his efforts must [have] compl[ied] with the requisite statute and Mississippi jurisprudence.” STANDARD OF REVIEW ¶11. The grant or denial of summary judgment is reviewed de novo. In re Est. of Yoakum, 311 So. 3d 686, 689 (¶9) (Miss. Ct. App. 2021). “The moving party bears the burden to show 1 Newton also testified that she did not recall witnessing or signing the draft instrument. 4 that no genuine issue of material fact exists, and the evidence must be viewed in the light most favorable to the nonmovant.” Id. We must affirm a trial court’s judgment “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” In re Est. of High, 19 So. 3d 1282, 1286 (¶12) (Miss. Ct. App. 2009); M.R.C.P. 56(c). DISCUSSION ¶12. Frank argues that the sworn statements of Audrea and Joe supported that Lamar revoked his 2003 will, destroyed the 2012 “will,” and died intestate.2 Frank specifically contends that when Lamar later signed the 2012 instrument, which was never found, he revoked all prior wills. “A testator who wishes to revoke a will may do so by either: (1) destroying, canceling, or obliterating the will, or (2) by subsequent will, codicil, or declaration, in writing, made and executed.” In re Est. of Woodfield, 968 So. 2d 421, 428 (¶16) (Miss. 2007) (quoting Miss. Code Ann. § 91-5-3 (Rev. 2004)). ¶13. Here, Frank failed to prove the “due execution and attestation of the revocation instrument.” See Kennard v. Evans, 218 Miss. 176, 65 So. 2d 285, 291 (1953) (finding that because the purported revocation instrument failed to comply with statutory requirements for execution and attestation, it was ineffective to revoke the will). Even accepting Frank’s evidence as true, the chancery court did not err in granting Larry and Rodney’s motion for 2 We agree with the chancellor’s determination that the issue of the 2012 instrument being revoked or destroyed is moot because Frank failed to prove that the 2012 instrument was properly executed. 5 summary judgment because Frank failed to produce a valid subsequent will, codicil, or written declaration that revoked Lamar’s 2003 will. ¶14. “An instrument propounded as a revocation, if it be in form a will, must be perfect as such, and be subscribed and attested as required by the statute. Hence, an instrument intended to be a will, but failing of its effect as such, on account of some imperfection in its structure, or for want of due execution, cannot be set up for the purpose of revoking a former will.” In re Woodfield, 968 So. 2d at 430 (¶17). Frank failed to produce and establish that the subsequent will itself was validly executed. The only document produced that fulfilled the requirements of Mississippi Code Annotated section 91-5-3 was the probated 2003 will. The chancellor noted that the affidavits of Audrea and Joe fell short of establishing what is required by Mississippi jurisprudence. Our Supreme Court has held that if the subsequent will containing the revocation clause was not validly made and executed, the revocation clause has no effect, and the prior will should be probated. Id. at (¶20). ¶15. Frank also argues that the chancellor erred by relying on Christmas v. Christmas (In re Will of Beard), 334 So. 3d 1154 (Miss. 2022). In In re Will of Beard, our Supreme Court held that because there was no testimony to prove the handwriting of at least two subscribing witnesses, the chancellor did not err by dismissing the petition to probate the purported will. Id. at 1160 (¶27). In the case before us, the chancellor stated that neither affidavit confirms that either person was familiar with the handwriting of those identified as subscribing to the will, and they did not state that they witnessed the 2012 instrument being signed. In reliance on In re Will of Beard, the chancellor found that the requirements for properly executing and 6 authenticating a will had not been satisfied. Therefore, the 2003 will should be upheld as the decedent’s last valid will and testament. CONCLUSION ¶16. For the foregoing reasons, we find that the chancery court correctly granted Larry and Rodney’s motion for summary judgment because Frank failed to produce a valid subsequent will revoking Lamar’s 2003 will. ¶17. AFFIRMED. BARNES, C.J., CARLTON AND WILSON, P.JJ., WESTBROOKS, McDONALD, LAWRENCE, McCARTY, EMFINGER AND LASSITTER ST. PÉ, JJ., CONCUR. 7