A recent Mississippi Court of Appeals decision (Chaney v. Chaney, No. 2015-CA-01613-COA, https://courts.ms.gov/Images/Opinions/CO120771.pdf) points out that a divorce by itself will not revoke one of the spouse’s earlier will.
Facts: James Chaney Jr. executed his last will and testament in 1962. At that time, he was married to Lillian Chaney. The will devised farmland, located in Crockett County, Tennessee, to Lillian. James and Lillian had one child, Alice Chaney. James and Lillian were divorced in 1969. As part of their divorce, they executed a joint property settlement agreement, and in it, they agreed that Lillian would “relinquish any right or claim to the farm in Crockett [County], Tennessee.” In 1971, James married Josephine Chaney. They moved to Olive Branch where they lived until James’ death in 2011. No children were born of this marriage, and James had only one child – Alice. In 2012, Lillian filed a petition to admit James’s purported will to probate.
Josephine contested the validity of the will and moved to transfer the farmland out of the
probate estate. The chancellor found that the will was revoked by implication, and the Court of Appeals upheld this ruling.
Lillian and her daughter, Alice, argue that the chancellor erred when he found that James’s will was revoked by implication. Section 91-5-3 pertaining to wills provides that “[a] devise so made, or any clause thereof, shall not be revocable [except] by the testator . . . destroying, canceling, or obliterating the [will], or causing it to be done in his or her presence, or by subsequent will, codicil, or declaration, in writing . . . .” The Supreme Court has held that a divorce with a property settlement agreement would not operate to impliedly revoke a will unless the settlement evidenced the willmaker’s intent to revoke the will.
Here, the chancellor determined that the express terms of the will and the provisions of the property settlement agreement were inconsistent. Here, the terms of the property-settlement agreement were unambiguous. Lillian, in exchange for consideration, relinquished any interest in the Tennessee farmland. With both James’s and Lillian’s signatures affixed to the document, James’s intention to remain the sole owner of the real property is apparent. The property settlement agreement speaks for itself, and James’s intentions are clear. Therefore, the chancellor did not err in finding that James’s will was revoked by implication.
If you have divorced and need a new will, call us today.
Check our experienced Divorce Attorney in New York for further help needed at the Law Firm of Courtney Elder Law Associates.