In re Will of Moses
227 So. 2d 829 (Miss. 1969)


Facts: Fannie Taylor Moses (T), during her second marriage, became friends with Clarence Holland, an attorney. After the death of T's third husband, Holland became T's lover, as well as her attorney. Before her death, T suffered from heart trouble, had a breast removed because of cancer, and became an alcoholic. Three years prior to her death, she made a will devising virtually all of her property to Holland. This will was drafted by a lawyer who had no connection with Clarence Holland, nor did Holland know about the will. T's eldest sister (P) attacked the will on the ground of undue influence. The trial court found for P. Holland appeals.

Issue: Does a presumption of undue influence exist where a sexual relationship between attorney and client coexists with the attorney-client relationship?

Holding: Yes. The Supreme Court, Smith, J., held that evidence that, inter alia, attorney had been representing testatrix since several years before her death and that there was intimate personal relationship between testatrix and attorney supported finding that there was subsisting and continuing confidential or fiduciary relationship, attended by suspicious circumstances and augmented by personal relationship, which gave rise to presumption of undue influence in preparation of will, and that such presumption was not overcome, where such independent counsel who drafted will asked no questions and engaged in no discussion of any kind as to attorney being preferred to exclusion of blood relatives, nor as to possible attorney-client relationship, and that, where attorney represented testatrix when she purchased land which was conveyed to her and attorney as tenants in common, attorney took title to half interest in the land as trustee for testatrix, and not otherwise.

Analysis: It is argued that even if Holland, T's attorney, occupied a fiduciary relationship on the date of execution of the will, the presumption of undue influence is overcome since T had the independent advice and counsel of an attorney. We disagree. The evidence here shows that the attorney who drafted the will was little more than a scrivener, and that there was no meaningful independent advice or counsel touching upon the area in question. Further, the intimate nature of this relationship is relevant to the question of undue influence to the extent that its existence warranted an inference of undue influence, extending and augmenting that which flowed from the attorney-client relationship. This is particularly true when it is considered that Holland will personally benefit from the will as drafted.