MISSISSIPPI LEGISLATURE

1997 Regular Session

To: Judiciary A

By: Representative Guice

AN ACT TO AMEND SECTION 1-3-59, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE TERM "WILL," WHENEVER USED IN ANY STATUTE OF THIS STATE, INCLUDES VIDEOTAPED WILLS; TO AMEND SECTIONS 9-5-137, 9-5-139 AND 9-5-141, MISSISSIPPI CODE OF 1972, TO CONFORM THE DUTIES OF CHANCERY CLERKS TO THE PROVISIONS OF THIS ACT REGARDING VIDEOTAPED WILLS; TO AMEND SECTIONS 41-39-35 AND 41-39-39, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT A PERSON MAY DONATE ALL OR ANY PART OF HIS BODY BY A VIDEOTAPED WILL; TO AMEND SECTIONS 91-5-1, 91-5-3, 91-5-11, 91-5-15 AND 91-5-19, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT A WILL MAY BE ESTABLISHED BY VIDEOTAPE; TO AMEND SECTIONS 91-7-7, 91-7-11, 91-7-15, 91-7-19, 91-7-23, 91-7-31, 91-7-33 AND 91-7-41, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE EXECUTION OF VIDEOTAPED WILLS; TO AMEND SECTION 97-9-77, MISSISSIPPI CODE OF 1972, TO PROHIBIT THE DESTRUCTION OF A VIDEOTAPED WILL WITHOUT THE CONSENT OF THE PARTY MAKING THE WILL; AND FOR RELATED PURPOSES. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 1-3-59, Mississippi Code of 1972, is amended as follows:

1-3-59. The term "will," when used in any statute, * * * includes codicils and wills made on videotape.

SECTION 2. Section 9-5-137, Mississippi Code of 1972, is amended as follows:

9-5-137. It shall be the duty of the clerk to preserve and keep all records, files, papers and proceedings belonging to his office, and to record all last wills and testaments, whether in writing or on videotape, which may be probated; all letters testamentary, of administration, and guardianship; all accounts allowed; all inventories, appraisements, and reports duly returned; all instruments which are duly proved, and which by law are required to be recorded in his office, in well-bound books to be kept for that purpose, each class in a separate book or books, or by means of electronic filing or storage or both in addition to or in lieu of any such physical records as provided in Sections 9-1-51 through 9-1-57, as the clerk may elect; all records shall be properly indexed. He shall issue all process which may be required of him by law or by order of the court, or the chancellor in vacation; and shall discharge all other duties which may be required of him by law, or which properly appertain to the duties of his office. The clerk shall be under the direction of the court in termtime, and of the chancellor in vacation.

SECTION 3. Section 9-5-139, Mississippi Code of 1972, is amended as follows:

9-5-139. In Harrison County, a county with two (2) judicial districts, it shall be the duty of the chancery clerk to keep in his office at Biloxi, suitable record books or electronic equipment for the purpose of recording deeds, deeds of trust and other conveyances, instruments and contracts required by law to be recorded, and all deeds, deeds of trust, mortgages, contracts, wills, whether in writing or on videotape, and other conveyances and contracts, and all muniments of title, documents and other papers required by law to be filed, enrolled or recorded relating to property situated in said second judicial district, shall be properly filed, enrolled or recorded in the office of said clerk at Biloxi, in books or by means of electronic filing or storage or both as provided in Sections 9-1-51 through 9-1-57, as he may elect, and to be kept for that purpose in his said office at Biloxi. All official bonds shall be recorded by said clerk as required by law in the offices of the said clerk at Gulfport and at Biloxi.

SECTION 4. Section 9-5-141, Mississippi Code of 1972, is amended as follows:

9-5-141. The clerk or his deputy may at any time receive and file all bills, petitions, motions, accounts, inventories, reports, or other papers offered for that purpose, and may issue all process authorized by law and proper in any matter or proceeding. He may also at any time, in termtime or vacation, perform the following functions; issue warrants of appraisement to appraise the personal estate of decedents; allow and register claims against estates being administered in the court of which he is clerk; make all orders and issue all process necessary for the collection and preservation of estates of decedents, minors, and persons of unsound mind; appoint some person to collect and preserve the estate of any decedent in the state in any case provided for; grant letters of administration to the husband or wife, or other person entitled thereto; take the proof of wills, whether in writing or on videotape, admit wills to probate, in common form, grant letters testamentary, letters of administration with the will annexed, and de bonis non; appoint guardians for minors, persons of unsound mind, and convicts of felony; grant letters of administration; institute suits in cases provided for, and, whenever an appeal shall be taken from the grant of letters testamentary, of administration, or guardianship, appoint some fit person to discharge the duties pending the appeal. He may do all such other acts as are provided by law and by the Mississippi Rules of Civil Procedure.

SECTION 5. Section 41-39-35, Mississippi Code of 1972, is amended as follows:

41-39-35. (a) Any individual who is eighteen (18) years of age or over and who is competent to execute a written or videotaped will may give all or any part of his body for any one or more of the purposes specified in Sections 41-39-31 through 41-39-51, the gift to take effect after death.

(b) Unless he has knowledge that contrary directions have been given by the decedent, the following persons, in the order of priority stated, may give all or any part of a decedent's body for any one or more of the purposes specified in Sections 41-39-31 through 41-39-51:

(1) The spouse, if one survives.

(2) An adult son or daughter.

(3) Either parent.

(4) An adult brother or sister.

(5) The guardian of the person of the decedent at the time of his death.

(6) Any other person or agency authorized or under obligation to dispose of the body.

If there is no surviving spouse and an adult son or daughter is not immediately available at the time of death of a decedent, the gift may be made by either parent.

If a parent of decedent is not immediately available, the gift may be made by an adult brother or sister of decedent. If there is known to be a controversy within the class of persons first entitled to make the gift, the gift will not be accepted. The persons authorized herein to make the gift may execute the document of gift either after death or during a terminal illness. The decedent may be a minor or a stillborn infant.

If the gift is made by a person designated above, it shall be by written or telegraphic consent.

SECTION 6. Section 41-39-39, Mississippi Code of 1972, is amended as follows:

41-39-39. (1) A gift of all or part of the body for purposes of Sections 41-39-39 through 41-39-51 may be made by written or videotaped will, in which case the gift becomes effective immediately upon death of the testator without waiting for probate. If the will is not probated, or if it is declared invalid for testamentary purposes, the gift, to the extent that it has been acted upon in good faith, is nevertheless valid and effective.

(2) A gift of all or part of the body for purposes of Sections 41-39-31 through 41-39-51 may also be made by document other than a will. The document must be signed by the donor in the presence of two (2) witnesses who, in turn, shall sign the document in the donor's presence. If the donor cannot sign in person, the document may be signed for him, at his direction and in his presence, and in the presence of two (2) witnesses who, in turn, shall sign the document in the donor's presence. The gift becomes effective immediately upon death of donor.

Delivery of the document of gift during the donor's lifetime is not necessary to make the gift valid. The document may consist of a properly executed card carried on the donor's person or in his effects. The document and/or card shall conform substantially to the following form:

I, the undersigned, this ____ day of ____, 19_, desiring that my ____ be made available after my demise for:

(1) Any licensed hospital, surgeon or physician, for medical

education, research, advancement of medical science, therapy or

transplantation to individuals;

(2) Any accredited medical school, college or university engaged in medical education or research, for therapy, educational research or medical science purposes or any accredited school of mortuary science;

(3) Any person operating a bank or storage facility for blood, arteries, eyes, pituitaries, or other human parts, for use in medical education, research, therapy or transplantation to

individuals;

(4) The donee specified below, for therapy or transplantation needed by him or her, do hereby donate my ________ for said purpose to ________ (Name) at _________ (Address).

I hereby authorize a licensed physician, surgeon or certified

technician or the state anatomy board to remove and preserve for

use my _________ for said purpose.

Witnessed this ____ day of _________, 19 __.

_____________________________

(Donor)

_____________________________ _____________________________

(Name and Address) (Address)

_____________________________ _____________________________

(Name and Address) (Telephone)"

(3) The gift may be made either to a named donee or without the naming of a donee. If the latter, the gift may be accepted by and utilized at the discretion of the attending physician at or

following death.

If the gift is made to a named donee who is not readily available at the time and place of death, and if the gift is evidenced by a properly executed card or other document carried on the donor's person or in his effects, the attending physician at or following death may, in reliance upon the card or other document, accept and utilize the gift in his discretion as the agent of the donee. The agent possesses and may exercise all of the rights and is entitled to all of the immunities of the donee under Sections 41-39-31 through 41-39-51.

If the gift is made to a named donee, the will or other document or an attested true copy thereof may be delivered to him to expedite the appropriate procedure immediately after death, but such delivery is not necessary to validity of the gift. Upon request of the named donee or his agent on or after the donor's death, the person in possession shall produce for examination the will or other document of gift.

(4) The donor may designate in his will or other document of gift the surgeon, physician or technician to carry out the appropriate procedures. In the event of the nonavailability of such designee, or in the absence of a designation, the donee or other person authorized to accept the gift may employ or authorize any licensed physician, licensed surgeon or technician for the purpose.

(5) A document of gift executed in another state and in accord with the laws of that state thereunto pertaining, or executed in a territory or possession of the United States under the control and dominion of the federal government exclusively and in accord with a federal law thereunto pertaining, shall be deemed valid as a document of gift within the State of Mississippi, notwithstanding that said document does not substantially conform to the requirements of this section.

SECTION 7. Section 91-5-1, Mississippi Code of 1972, is amended as follows:

91-5-1. Every person eighteen (18) years of age or older, being of sound and disposing mind, shall have power, by last will and testament or codicil, in writing or on videotape, to devise all the estate, right, title and interest in possession, reversion, or remainder, which he or she hath, or at the time of his or her death shall have, of, in, or to lands, tenements, hereditaments, or annuities, or rents charged upon or issuing out of them, or goods and chattels, and personal estate of any description whatever, provided such last will and testament, or codicil, be signed by the testator or testatrix, or by some other person in his or her presence and by his or her express direction. Moreover, if not wholly written and subscribed by himself or herself, it shall be attested by two (2) or more credible witnesses in the presence of the testator or testatrix.

SECTION 8. Section 91-5-3, Mississippi Code of 1972, is amended as follows:

91-5-3. A devise so made, or any clause thereof, shall not be revocable but by the testator or testatrix destroying, canceling, or obliterating the same, or causing it to be done in his or her presence, or by subsequent will, codicil, or declaration, in writing or on videotape, made and executed. Every last will and testament made when the testator or testatrix had no child living, wherein any child he or she might have is not provided for or not mentioned, if at the time of his or her death he or she have a child, or if the testator leave his wife enceinte of a child who shall be born, shall have no effect during the life of any such after-born child and shall be void unless the child die without having been married, or without leaving issue capable of inheriting, and before he or she shall have attained twenty-one (21) years. The estate, both real and personal, so devised shall descend to such child in the same manner as if the testator or testatrix had died intestate, subject, nevertheless, to the bequests made in the last will and testament in case of the

death of such child before marriage, or without issue capable of

inheriting, and under the age of twenty-one (21) years. When a testator shall leave children born and his wife enceinte, the posthumous child or children, if unprovided for by settlement and neither provided for nor disinherited, but only pretermitted, by the last will and testament, shall succeed to the same portion of the father's estate as such child or children would have been entitled to if the father had died intestate, towards raising which portion the devisees and legatees shall contribute proportionably out of the parts devised and bequeathed to them by the same will and testament.

SECTION 9. Section 91-5-11, Mississippi Code of 1972, is amended as follows:

91-5-11. (1) A devise or bequest in a will duly executed pursuant to the provisions of Section 91-5-1 may be made to the trustee of a trust which is evidenced by a written or videotaped instrument in existence when the will is made and which is identified in the will. Such devise or bequest shall not be invalid because the trust is amendable or revocable, or both, by the settlor or any other person or persons; nor because the trust instrument or any amendment thereto was not executed in the manner required for wills; nor because the trust was amended after execution of the will. Unless the will provides otherwise, such devise or bequest shall operate to dispose of the property under the terms and provisions of the instrument creating the trust, including any amendments or modifications in writing or on videotape made at any time before or after the making of the will and before the death of the testator, and the property shall not be deemed held under a testamentary trust. An entire revocation of the trust prior to the testator's death shall invalidate the devise or bequest.

(2) The provisions of this section shall apply to all devises or bequests made in any will duly executed according to said section of any testator dying after May 6, 1958, whether the will is executed before or after that date.

(3) The term "will" in this section shall include and refer

to the term "codicil."

SECTION 10. Section 91-5-15, Mississippi Code of 1972, is amended as follows:

91-5-15. A nuncupative will shall not be established unless it be made in the time of the last sickness of the deceased at his or her habitation or where he or she hath resided for ten (10) days next preceding the time of his or her death, except when such person is taken sick from home and die before his or her return to such habitation, nor where the value bequeathed exceeds One Hundred Dollars ($100.00) unless it be proved by two (2) witnesses that the testator or testatrix called on some person present to take notice or bear testimony that such is his or her will, or words to that effect. A nuncupative will may be made on videotape.

SECTION 11. Section 91-5-19, Mississippi Code of 1972, is amended as follows:

91-5-19. After six (6) months have elapsed from the time of speaking the alleged testamentary words, testimony shall not be received to probate a nuncupative will unless the words, or the substance thereof, shall have been reduced to writing within six (6) days after speaking the same or videotaped during the speaking of the alleged testamentary words.

SECTION 12. Section 91-7-7, Mississippi Code of 1972, is amended as follows:

91-7-7. The due execution of the will, whether in writing or on videotape, and whether heretofore or hereafter executed, must be proved by at least one (1) of the subscribing witnesses, if alive and competent to testify. If none of the subscribing witnesses can be produced to prove the execution of the will, it may be established by proving the handwriting of a testator and of the subscribing witnesses to the will, or of some of them. The execution of the will may be proved by affidavits of subscribing witnesses. The affidavits may be annexed to the will or may be a part of the will, and shall state the address of each subscribing witness. Such affidavits may be signed at the time that the will is executed.

SECTION 13. Section 91-7-11, Mississippi Code of 1972, is amended as follows:

91-7-11. When any will shall be exhibited for probate and any witness who attested the will shall reside out of the state or be not found, either of the following methods may be used to prove the execution of the will, to wit:

(a) A commission may issue to take his or her deposition, as in other cases of nonresident witnesses, to which the will shall be attached. Before such original will shall be sent abroad for proof, the clerk shall make and certify to a true copy thereof and file the copy in his office, and such certified true copy shall have the same legal force and effect of the original will and may be substituted for the original will should the original will be lost. Provided, however, where there is no contest, the affidavit of such nonresident subscribing witness may be made before any officer competent to administer oaths in the state where such nonresident witness may be found.

(b) Or, in lieu of sending the original will abroad for such proof, the clerk may have made a photostatic copy of the original will, or a copy of the videotape if the will is on videotape, and certify to same as being a photostatic copy of the original will and send the certified photostatic copy or copy of a videotape of the original will abroad, instead of the original will; and in which case, the clerk shall file the original will in his office.

SECTION 14. Section 91-7-15, Mississippi Code of 1972, is amended as follows:

91-7-15. In addition to the manner in which wills may be proved and admitted to probate in the State of Mississippi under other laws, any will executed by any member of the Armed Forces of the United States during the Korean War, or any other war, may be proved and admitted to probate, and letters testamentary thereon granted, by the chancery court or the chancellor in vacation of the county in which such testator lived when he became a member of such Armed Forces, or by the chancery court or the chancellor in vacation of the county in which such testator owned land at the time of his death, on the affidavit of any reliable person or persons sufficient to satisfy the chancellor that the testator is dead, that the writing or videotape propounded for probate was signed by the testator as his last will and testament, that the affidavit or testimony of the subscribing witnesses to such will cannot reasonably be obtained, and that there is good reason for such will to be then probated.

SECTION 15. Section 91-7-19, Mississippi Code of 1972, is amended as follows:

91-7-19. Any proponent of a will for probate may, in the first instance, make all interested persons parties to his application to probate the will, and in such case all who are made parties shall be concluded by the probate of the will. At the request of either party to such proceeding, an issue shall be made up and tried by a jury as to whether or not the writing or videotape propounded be the will of the alleged testator.

SECTION 16. Section 91-7-23, Mississippi Code of 1972, is amended as follows:

91-7-23. Any person interested may, at any time within two (2) years, by petition or bill, contest the validity of the will probated without notice; and an issue shall be made up and tried as other issues to determine whether the writing or videotape produced be the will of the testator or not. If some person does not appear within two (2) years to contest the will, the probate shall be final and forever binding, saving to infants and persons of unsound mind the period of two (2) years to contest the will after the removal of their respective disabilities. In case of concealed fraud, the limitation shall commence to run at, and not before, the time when such fraud shall be, or with reasonable diligence might have been, first known or discovered.

SECTION 17. Section 91-7-31, Mississippi Code of 1972, is amended as follows:

91-7-31. All original wills, whether in writing or on videotape, after probate thereof, shall be recorded and remain in the office of the clerk of the court where they were proved, except during the time they may be removed to any other

court under proper process, from which they shall be duly returned

to the proper office. Authenticated copies of such wills may be

recorded in any county in this state.

SECTION 18. Section 91-7-33, Mississippi Code of 1972, is amended as follows:

91-7-33. Authenticated written or videotaped copies of wills proven according to the laws of any of the states of the Union, of the territories, of the District of Columbia, or of any foreign country, and affecting or disposing of property within this state, may be admitted to probate in the proper court. Such will may be contested as the original might have been if it had been executed in this state, or the original will may be proven and admitted to record here.

SECTION 19. Section 91-7-41, Mississippi Code of 1972, is amended as follows:

91-7-41. Every executor or administrator with the will annexed, at the time of obtaining letters testamentary or of administration, shall take and subscribe the following oath, viz.:

"I do swear that the writing (or videotape) exhibited by me is the true last will and testament of _________, as far as I know and believe, and that I, as executor, will well and truly execute the same according to its tenor, and discharge the duties required by law."

He will also give bond in such penalty as will be equal to the full value of the estate, and with such sureties as may be approved of by the court or by the clerk, payable to the state, with the following conditions, viz.:

"The condition of this bond is, that if the above bound _________, as executor of the last will and testament of _________, shall well and truly execute the will as far as the same may be consistent with law, and faithfully discharge all the duties required of him by law, then this obligation shall be void." If the obligor be administrator with the will annexed, then say "the above bound _________, as administrator with the will of _________ annexed, will," etc.

SECTION 20. Section 97-9-77, Mississippi Code of 1972, is amended as follows:

97-9-77. If any person shall wilfully alter or destroy any written or videotaped will or codicil without the consent of the party making the same, or shall wilfully secrete the same after the death of the testator shall be known to him, the person so offending, on conviction, shall be fined, or imprisoned in the Penitentiary not exceeding two (2) years.

SECTION 21. This act shall take effect and be in force from and after its passage.