Amendments that Materially Change Interest Terms Are New, Time‑Barred Claims Under Mississippi Probate Law (§ 91-7-151)

Case: In Re The Estate of Herbert Bernard Ivison, Jr.: Malouf & Malouf, PLLC v. The Estate of Herbert Bernard Ivison, Jr. and Rebecca Case Ivison

Court: Supreme Court of Mississippi

Date: September 18, 2025

Disposition: Affirmed. The later “amended” probated claim seeking compound interest was a new claim and untimely under Miss. Code Ann. § 91-7-151.

Panel: RANDOLPH, C.J., KING and COLEMAN, P.JJ., MAXWELL, CHAMBERLIN, ISHEE, SULLIVAN and BRANNING, JJ., concur.

Introduction

This decision resolves whether a creditor to a decedent’s estate may, years after filing a timely probated claim, “amend” that claim to demand interest on materially different terms—here, shifting from a simple/one‑time service charge rate to monthly compounded interest under a retainer agreement not disclosed with the original filing. The Mississippi Supreme Court holds that such a shift is not a permissible amendment under the probate statute; it is a new claim, untimely under the ninety‑day deadline in Mississippi Code Section 91‑7‑151.

The dispute arose from attorney Malouf & Malouf, PLLC’s efforts to collect fees and interest following the death of its former client, Herbert Bernard Ivison, Jr., in the context of an estate sale in which the decedent’s widow, Rebecca Case Ivison, agreed to “pay off the claims that were timely probated” in exchange for the estate’s assets. After this Court (in a 2023 appeal) directed the Estate to pay Malouf’s original probated claim, Malouf later sought additional compound interest based on a retainer provision it had not attached or disclosed with its original probate filing. The chancery court denied the request as untimely, usurious, and judicially estopped; the Supreme Court affirms on the dispositive ground of untimeliness, clarifying the scope of permissible amendments to probated claims.

Summary of the Opinion

The Court affirms the chancery court’s denial of Malouf’s Motion for Payment of Past Due Interest. It concludes that Malouf’s second probated claim—filed nearly four years after the original claim, and more than a year after the chancellor accepted Rebecca’s asset-purchase offer—was not a proper amendment. Applying Central Optical Merchandising Co. v. Estate of Lowe, the Court holds the second claim materially changed the “character and identity” of the claim by introducing a different interest methodology (monthly compounding at 1.5% per month) not referenced or disclosed in the original filing, and by substantially and unrelatedly increasing the amount sought. As a result, the later filing was a new claim, subject to § 91‑7‑151’s ninety-day bar. Because that deadline had long passed, the claim was untimely. The Court does not reach the chancery court’s additional rulings on usury and judicial estoppel.

Factual and Procedural Background

• Representation and fee terms: The decedent, Herbert Bernard Ivison, Jr., retained Malouf in a divorce matter and signed a retainer requiring a “service charge of one and one-half percent (1½%) per month on any bill not paid within thirty (30) days.”

• Original probated claim: After Ivison’s death and estate opening, Malouf probated an $86,480.01 claim for unpaid legal services. The filing included a simple interest component reflected as a fixed 1.5% charge on the then outstanding balance, but it did not apply the retainer’s 1.5% per month compounded interest, and the retainer agreement was not attached.

• Estate asset sale: To avoid litigation, Ivison’s widow (Rebecca) and his sons submitted purchase offers for estate assets. The chancellor accepted Rebecca’s offer to “payoff the claims that were timely probated against the Estate” in exchange for the assets. Malouf’s claim was listed for $86,480.01.

• The late “amended” filing: Almost four years after the original claim (and over a year after Rebecca’s offer was accepted), Malouf filed a second probated claim for $176,720.62, seeking interest compounded monthly per the retainer. Again, the retainer was not attached, and its existence was not disclosed until more than three years after Rebecca’s offer.

• First appeal (2023): After the chancellor initially found Malouf’s original claim time-barred (and the interest request moot), the Supreme Court reversed and remanded, directing the Estate to pay Malouf’s original claim from the sale proceeds. Malouf represented to the Court at that time that it was seeking the amount of its original claim, not additional compound interest. The Estate (using funds from Rebecca’s purchase) then paid the original $86,480.01 claim.

• The current motion: Malouf thereafter moved for “Payment of Past Due Interest,” seeking compound interest from Rebecca and/or the substitute executor and/or the Estate. The chancellor ruled the filing was a new, untimely probated claim, and additionally usurious and barred by judicial estoppel. On this appeal, the Mississippi Supreme Court affirms solely on the untimeliness ground.

Detailed Analysis

Precedents Cited and Their Influence

• Strickland v. Estate of Broome, 179 So. 3d 1088 (Miss. 2015), and In re Estate of Lingle, 822 So. 2d 320 (Miss. Ct. App. 2002): These authorities supply the standard of review. The chancery court’s determination that probated claims do or do not meet legal requirements is reviewed de novo.

• Central Optical Merchandising Co. v. Estate of Lowe, 249 Miss. 61, 160 So. 2d 673 (1964): The seminal Mississippi precedent on amendments to probated claims. Central Optical permits amendments after the filing deadline only if they “improve or perfect” a timely claim without changing its “character and identity,” without unrelated increases in the amount, and in harmony with the probate statutes and curative/jeofails principles. Conversely, amendments that increase the amount, assert a new cause of action, or materially change the basis are not allowed; they are treated as new claims and are time-barred if filed after the statutory window. The Court here closely tracks and applies these criteria.

• Farrell v. McCutchon, 183 Miss. 50, 183 So. 386 (1938): In Farrell, the Court required the estate to pay interest where the original note “bore interest on its face,” even though the probate affidavit did not expressly include that interest. The present case is distinguished: Malouf’s original probate filing neither attached the retainer nor referenced the monthly compounding term; the claim instead reflected a fixed 1.5% simple charge to a particular date. Therefore, Farrell’s logic—where the underlying instrument itself gives clear notice of the interest—does not carry over.

• Malouf & Malouf, PLLC v. Estate of Ivison (In re Estate of Ivison), 371 So. 3d 172 (Miss. 2023): The Court’s 2023 decision (in this same estate) is important in two respects. First, it confirms the original Malouf probate filing was valid and payable from the sale proceeds—satisfying Central Optical’s first prong that a valid, seasonably filed claim can be “improved or perfected.” Second, the Court notes that Malouf represented in that appeal that it sought payment of the original claim amount, not the later compound interest now demanded. While the 2025 decision does not rely on judicial estoppel (the chancery court’s ruling on that ground is not reached), this backdrop underscores the reliance interests and finality concerns central to probate administration.

Statutory Framework and Legal Reasoning

Miss. Code Ann. § 91‑7‑151 requires creditors to probate claims within ninety days after the first publication of notice to creditors. The statute contains a limited allowance for amendments to cure defective or insufficient affidavits “at any time before the estate is finally settled,” but Central Optical makes clear that post-deadline amendments must be non-substantive in the sense that they do not change the “character and identity” of the claim or introduce unrelated increases in the amount.

Applying that framework, the Court’s reasoning proceeds in four steps:

• Step 1 — Valid original claim: The Court acknowledges (consistent with the 2023 decision) that Malouf’s original probate filing stated a valid claim for unpaid fees with a fixed/simple interest component to a certain date. Thus, an amendment could in theory be “predicated” upon that valid claim.
• Step 2 — Character and identity changed: The second filing sought interest “compounded monthly” at 1.5% per month under the retainer—a different interest methodology than the original fixed simple charge. This change alters the character and identity of the claim. Moreover, Malouf did not attach or disclose the retainer agreement with the original claim, so the estate and the court had no notice that monthly compounding would be claimed.
• Step 3 — Unrelated increase in amount: By changing the interest basis and compounding over years, the second filing substantially and unrelatedly increased the amount sought—from the listed $86,480.01 to $176,720.62. Central Optical prohibits such unrelated increases after the deadline.
• Step 4 — Result: Because the second filing failed Central Optical’s standards, it is treated as a new claim. As it was filed well beyond § 91‑7‑151’s ninety‑day period, it is untimely and barred.

The Court further distinguishes Farrell because in Farrell the underlying instrument itself bore interest on its face and the executors had notice; here, the original probate filing neither attached the retainer nor claimed the monthly compounding term—so the later invocation of the undisclosed interest provision cannot be shoehorned into an “amendment.”

Distinguishing Prior Authorities and Practical Boundaries

• What would count as a permissible amendment? Corrections that “improve or perfect” a timely claim—e.g., curing a defective affidavit, correcting an arithmetic error in an interest computation already claimed, or attaching a copy of an instrument already identified and incorporated in the original filing—generally satisfy Central Optical. The key is that the amendment must not change the interest theory or cause-of-action nature of the claim and must not introduce an unrelated increase in amount.

• What crosses the line? Shifting from a simple interest claim to a new claim for high-rate monthly compounding under a contract never disclosed with the original filing materially changes the claim’s character and identity and produces an unrelated increase. Under this decision, such a change is a new claim, and it is time-barred if filed after ninety days.

Procedural Posture: Issues Not Reached (Usury and Judicial Estoppel)

The chancery court also ruled that Malouf’s second claim was usurious and barred by judicial estoppel. The Supreme Court does not reach those questions because untimeliness under § 91‑7‑151 is dispositive. Still, the opinion notes two contextual facts relevant to those doctrines:

• Usury: The retainer’s 1.5% per month service charge (compounded monthly) potentially raises usury concerns. The Court leaves this unresolved.
• Judicial estoppel: In the 2023 appeal, Malouf represented it sought the original claim amount (not the compound interest later pursued). Although the Court does not decide estoppel, this history underscores why the probate system protects reliance and finality.

Impact and Implications

• Clear rule for probate practice: This decision cements a practical and predictable boundary: a post-deadline “amendment” that swaps out the interest methodology (e.g., from simple to compound interest, or to a new contractual rate not previously disclosed) is a new claim and is time-barred. Practitioners must disclose and support interest terms, with the underlying instrument, in the original probate claim.

• Reliance and finality in estate administration: The ruling protects estates and third-party purchasers. Here, Rebecca agreed to pay “timely probated claims” to acquire the estate’s assets. Allowing a creditor later to multiply its claim via a different interest calculus would destabilize these transactions and prolong administration.

• Guidance for creditors (especially attorneys): If interest is sought under a fee agreement or note, attach the instrument and explicitly claim the applicable rate and method (simple vs. compound) in the timely probate filing. Do not assume an undisclosed term can be added later by amendment.

• Litigation strategy: Creditors should treat arithmetic updates or continuation of a disclosed interest basis as potentially correctable by amendment; shifting theories or undisclosed contract terms are not. Estate fiduciaries can rely on this decision to resist late, material expansions of probated claims.

Complex Concepts Simplified

• Probate claim: A formal claim a creditor files in the decedent’s estate to be paid from estate assets. In Mississippi, it must be filed within ninety days of first publication of notice to creditors (§ 91‑7‑151).

• Amendment vs. new claim: An amendment can cure technical defects and clarify or “perfect” what was already asserted; it cannot introduce a new cause of action, change the essential nature of the claim, or tack on unrelated increases. If it does, it is treated as a new claim and must meet the original filing deadline.

• Character and identity of the claim: The core basis and contours of the demand—what the creditor is asking for and why. Changing from a simple interest charge to a different contractual rate with monthly compounding is a change in character and identity.

• Simple vs. compound interest: Simple interest applies the rate to principal only. Compound interest applies the rate to principal plus previously accrued interest, causing the amount owed to grow faster, especially at higher periodic rates (e.g., 1.5% per month compounded).

• Jeofails statutes: Curative rules permitting courts to disregard or correct technical pleading defects so cases are decided on the merits. In probate, such curative principles cannot be used to smuggle in new, substantive claims after the deadline.

• Judicial estoppel (not reached here): A doctrine preventing a party from taking a position inconsistent with one previously asserted and accepted by a court, to protect the integrity of the judicial process.

Key Takeaways and Practitioner Tips

• Disclose and attach interest-bearing instruments (retainers, notes) with the original probate claim, and state the rate and method clearly.
• Use amendments only to correct defects or calculations consistent with the original claim’s theory; do not change interest methodology or increase the amount on unrelated grounds.
• Expect courts to protect reliance on “timely probated claims” in estate sale arrangements; late, material increases are disfavored and generally barred.
• If the original instrument “bears interest on its face” and is incorporated in the claim (Farrell), post-filing computations that simply carry forward that disclosed interest are more likely to be permissible.
• Remember the ninety-day clock in § 91‑7‑151 is strict. Substantive expansions after that window are almost certainly time-barred.

Conclusion

The Mississippi Supreme Court’s decision provides a sharp, administrable boundary for probate practice: a creditor cannot use a late “amendment” to materially alter the basis of a timely probated claim—especially by changing the interest methodology and substantially increasing the amount—without running afoul of § 91‑7‑151’s ninety‑day bar. Anchored in Central Optical’s long-standing framework and carefully distinguished from Farrell’s interest-on-the-face scenario, the ruling strengthens finality and predictability in estate administration and instructs creditors to fully disclose interest-bearing terms at the outset. For practitioners, the message is clear: attach the contract, state the rate and method, and get it right the first time.