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Mississippi College Law Review

Hitt v. Hart: The Dangers of Minimizing a Testator's Video Testimony

Publication Date

Winter 12-1-2025

Abstract

An inherent issue in wills cases is that the person who could prove the validity of a will with absolute certainty – the testator – is dead by the time the will is contested.  In today’s technological age, a potential aid for this issue is a video of the testator explaining her dispositions.  However, in Hitt v. Hart, the Mississippi Court of Appeals largely ignored such a video and relied on testimony from other family members to invalidate a will for undue influence. The testator in Hitt approached her attorney and explained that she wanted to disinherit all but one of her children.  Knowing the strong likelihood that the disinherited children would contest the will, the attorney required a cooling-off period for the testator and created a video in which the testator explained her wishes.  I do not suggest that this video should have automatically validated the will, but rather, I propose that the video itself should be examined for undue influence first.  If no undue influence is found in the creation of the video, courts should demand that it be considered at all stages of the overall undue influence analysis or that the burden shifts back to the contesting party to prove undue influence.

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