In The Matter of The Estate of Lamar DeLoach, Deceased: Frank DeLoach v. Larry DeLoach and Rodney DeLoach
CourtCourt of Appeals of Mississippi
Date FiledNovember 10, 2026
Docket2025-CA-00371-COA
StatusPublished
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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the 2003 will was revoked by the “undated, unwitnessed, and unattested” 2012 instrument.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
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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
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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
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Newton also testified that she did not recall witnessing or signing the draft
instrument.
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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.
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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
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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.
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