Mississippi’s court of appeals affirms the decision made by the Jackson County Chancery Court regarding the copy of a last will and testament naming a nonrelative beneficiary. In the Matter of Leonard Allen Harvey, deceased: Robin Chimento, appellant, v. Nina Janelle Schwark, Executrix, appellee (Miss. Ct. App. No. 2023-CA-00398-COA, January 7, 2025).
Leonard Harvey executed his last will and testament in January 2015. A few weeks later, he died alone in his home. In his will, he named a close friend, Nina Schwark, as his executrix and as the sole beneficiary of his estate.
Believing that Mr. Harvey had no surviving heirs, Ms. Schwark filed a petition for probate in early April 2015. Later that month, the Jackson County Chancery Court admitted the will to probate and granted letters testamentary.
In July 2015, the court entered an order declaring that there were no heirs-at-law. Months later, it was revealed that Mr. Harvey was survived by several nieces and nephews, including Robin Chimento.
Ms. Chimento and several other family members objected to the probate and contested the will. After a bench trial, the court found that Ms. Schwark overcame the presumption of revocation and that the will was valid.
On appeal, Ms. Chimento asserts five issues:
- Whether Ms. Schwark proved testamentary capacity,
- Whether Ms. Schwark overcame the presumption of undue influence,
- Whether the legal requirements for due execution were met,
- Whether Ms. Schwark proved by clear and convincing evidence the legal requirements needed to probate a lost will, and
- Whether Ms. Schwark proved that the will was lost or destroyed.
The court determines that Ms. Chimento failed to come forward with evidence disproving Mr. Harvey’s testamentary capacity. In fact, all testimony indicated that Mr. Harvey had never shown any signs of mental disability or decline. According to testimony, when he signed his will he exhibited a full understanding of what he was doing.
Ms. Chimento argues that Ms. Schwark was in a confidential relationship with Mr. Harvey. She further asserts that it is suspicious that Ms. Schwark’s daughter, Christine Herring, was involved with the execution of Mr. Harvey’s will. Based on testimony and lack of evidence from Ms. Chimento, the court finds there is no proof of undue influence.
Ms. Chimento claims that Ms. Herring and the other witness to Mr. Harvey’s will execution could not prove the due execution of the will. Through signed affidavits and witness testimony, the question of whether Mr. Harvey executed his will properly is satisfied.
Ms. Chimento contends that Ms. Schwark failed to prove the requirements needed to probate the will. One of the requirements is proof that the will was lost; therefore, the court combined issues four and five in its analysis. Though the original will could not be found there is no evidence that Mr. Harvey intended to revoke the will by destroying it. Indeed, there is no evidence that he destroyed the will. It was either lost or destroyed by accident.
After reviewing the record, the court finds that the chancellor did not err in admitting Mr. Harvey’s will for probate. The court affirms the judgment of the chancery court.
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