Handwritten Alteration, After-Born Child, and Ademption in Hinds County
Wilma, a Hinds County resident, executed a typed will in 2015. It left her estate to 'my children, Ann and Ben, share and share alike,' and named Ann as executrix. In 2019, Wilma wrote on the margin of the will, 'I leave my 1967 Mustang to my grandson Tate,' and signed and dated the note; no witnesses signed. In 2020, Wilma gave birth to Sam. In 2022, she sold the Mustang and bought a Corvette. Wilma died in 2023 survived by Ann, Ben, Sam, and Tate. Her estate consists of the Corvette, a house, and $200,000 in cash. Tate claims the Corvette, arguing the handwritten note shows Wilma's intent to give him her car. Sam claims a share, arguing he was omitted from the will. Ann and Ben argue the will controls and that Sam's birth does not change it. Assume Wilma's husband predeceased her and no other wills exist.
1. What effect, if any, does the handwritten note have?
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The handwritten note has no effect as a will or codicil. Mississippi requires a will to be in writing, signed by the testator, and attested by at least two credible witnesses. Miss. Code Ann. § 91-5-1. Mississippi does not recognize holographic wills, so the fact that Wilma wrote and signed the note herself does not cure the absence of witnesses. The note is not a valid codicil for the same reason. A handwritten alteration to a typed will can be effective only if the will is re-executed with the statutory formalities or if the alteration is properly attested. Because neither happened, the 2015 will remains valid as originally written, and the note is disregarded.
Tate has no gift of the Mustang or the Corvette under the will. If the note were treated as evidence of Wilma's intent, it could not override the statute. The result is the same even if the note is considered a separate instrument.
2. Is Sam a pretermitted heir? What share, if any, does he take?
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Sam is a pretermitted heir. Mississippi's pretermitted-child statute, Miss. Code Ann. § 91-5-3, protects a child born after the execution of a will who is not named or provided for in the will. Sam was born in 2020, five years after the 2015 will, and the will names only Ann and Ben. There is no evidence that Wilma intentionally omitted Sam; the will predates his birth.
The will is therefore partially intestate as to Sam, and he takes the share he would have received if Wilma had died intestate. Because Wilma's husband predeceased her, Sam and his two siblings each take one-third of the intestate estate. The will's gift to Ann and Ben is reduced to make room for Sam's share. Ann and Ben cannot argue that the class gift to 'my children' includes Sam, because the will names them specifically and does not use a general class formula. Sam is entitled to an intestate share.
3. Does Tate have any claim to the Corvette under the doctrine of ademption?
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Tate's claim to the Corvette fails under ademption. A specific devise of property that the testator no longer owns at death is adeemed, and the beneficiary takes nothing unless a statute provides otherwise. Wilma specifically devised the 1967 Mustang, then sold it in 2022 and bought a different car, the Corvette. The Corvette is not the subject of the gift and is not proceeds of the Mustang.
Mississippi follows the common-law ademption rule, which focuses on the identity of the property rather than the testator's intent. Tate cannot argue that Wilma intended him to have 'her car' because the will identifies a specific vehicle. If the handwritten note were valid, it would suffer the same fate. The Corvette passes under the residuary clause to Ann and Ben, subject to Sam's pretermitted share. Tate takes nothing.