Hodges v. Callaway

The decedent could revoke the 1974 will she made jointly with her husband, since there was no express language or contract stating that the parties intended for their will to be mutual.

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

In 1974 Patrick H. and Lucille Jones, husband and wife, jointly executed a will styled “Mutual Last Will and Testament of P.H. Jones and Mrs. Lucille C. Jones.” The will designated the survivor as executor, and devised all personal property to the survivor, his or her heirs and assigns.1 The relevant provision devised all real property owned by the testators to the survivor for life, with the right to sell or dispose of the property “if necessary for their his or her maintenance and support, without any limitations or restrictions.” After the death of the survivor, the remainder of the real property was to be divided one-half to the siblings of Mr. Jones and one-half to the siblings of Mrs. Jones. Mr. Jones died in 1986. The will was not offered for probate, and his estate was never administered. Within two weeks of Mr. Jones’ death, Mrs. Jones executed a codicil solely for the purpose of naming an executor upon her death; she designated her husband’s nephew, appellant Linton Hodges. In 1999 Mrs. Jones executed a “Deed of Gift,” conveying a 150-acre tract of land to her second cousin, appellee William Callaway; this property was owned by the testators at the time of Mr. Jones’ death. Mrs. Jones then executed a general power of attorney, appointing Callaway as her attorney-in-fact. Her signature on both documents was witnessed and notarized by State Court Judge Ronald W. Hallman and Probate Judge Darin McCoy.

Upon the death of Mrs. Jones in 2001, Hodges offered the will and codicil for probate. Hodges, thereafter, filed an action in his capacity as executor against Callaway seeking to set aside the deed of gift on grounds that 1 Mrs. Jones was precluded by the terms of the “mutual” will from disposing of the property; 2 the deed is null and void because Mrs. Jones was not competent to execute it; 3 Callaway exercised undue influence over her; and 4 Callaway breached his fiduciary duty as attorney-in-fact by accepting it.

Hodges v. Callaway

The decedent could revoke the 1974 will she made jointly with her husband, since there was no express language or contract stating that the parties intended for their will to be mutual.

Share with Email

Thank you for sharing!

Trending Stories

More From ALM

Subscribe to Daily Report