In re ESTATE OF Joseph Owen BOOTE, Jr.
No. M2002-02234-COA-R3-CV
Court of Appeals of Tennessee, at Nashville.
Oct. 21, 2005.
Opinion on Petition for Rehearing Dec. 20, 2005.
198 S.W.3d 699
Jan. 7, 2004 Session. Permission to Appeal Denied by Supreme Court April 24, 2006.
Walter W. Bussart and Lee Bussart Bowles, Lewisburg, Tennessee, for the appellant, Martha M. Boote.
OPINION
WILLIAM C. KOCH, JR., P.J., M.S., delivered the opinion of the court, in which PATRICIA J. COTTRELL and FRANK G. CLEMENT, JR., JJ., joined.
This appeal involves a dispute stemming from an effort to probate a will and two codicils in solemn form. The testator‘s widow filed a petition to probate these instruments in solemn form in the Chancery Court for Marshall County. Prior to the entry of an order admitting the will and two codicils to probate, the widow discovered that a third codicil she believed to have been destroyed had, in fact, not been destroyed by her late husband or in his presence and that her late husband‘s lawyer had made a copy of this codicil before destroying it himself. Accordingly, she filed a petition for declaratory judgment seeking to admit the third codicil to the probate in solemn form along with the will and the other two codicils. Thereafter, the trial court entered an order admitting the will and the first two codicils to probate in solemn form without mentioning the declaratory judgment petition. The testator‘s daughters moved to dismiss the declaratory judgment petition, and the testator‘s widow filed a motion for post-judgment relief from the order admitting the will and the first two codicils to probate in solemn form. Following a series of hearings, the trial court dismissed the declaratory judgment petition and denied the motion for post-judgment relief. The testator‘s widow appealed. We have determined that the order admitting the will and the first two codicils must be vacated and the case remanded for further proceedings regarding the third codicil.
I.
Martha McCaleb Lingner (“Ms. Boote“) married Joseph Owen Boote, Jr. on December 28, 1990 in Lewisburg, Tennessee. He was eighty-three years old, and she was seventy-four. Both had been previously widowed. Mr. Boote had two children from his first marriage, Helen B. Shivers and Linda B. Gerritsen. Ms. Boote had one child from a previous marriage, Pamela L. Smith. Ms. Boote and Mr. Boote each had several grandchildren. Both were well off financially, although Mr. Boote was far wealthier than Ms. Boote.2 Eleven days before the wedding, Ms. Boote and Mr. Boote entered into an antenuptial agreement that eliminated or
On July 16, 1991, Mr. Boote executed a new will conforming to the terms of the antenuptial agreement. The will was prepared by Michael D. Sontag of Bass, Berry & Sims in Nashville, the same attorney who had prepared the antenuptial agreement. The will established a $600,000 marital trust, the income from which was to be paid to Ms. Boote during her lifetime if Mr. Boote predeceased her. On Ms. Boote‘s death, the corpus of the marital trust was to be divided equally between Ms. Shivers and Ms. Gerritsen. The will established generation-skipping trusts in the names of Ms. Shivers and Ms. Gerritsen and directed that Mr. Boote‘s residuary estate and personal property be divided equally between them. The will nominated Ms. Shivers and Ms. Gerritsen to serve as co-executrices of the estate.
By all accounts, the marriage between Ms. Boote and Mr. Boote was an extraordinarily happy one. He adored her, and she adored him. Seven years into the marriage, Mr. Boote decided to make some changes in the distribution of his estаte. He was considering having the 1991 will rewritten entirely. He asked his Lewisburg attorney, Thomas A. “Drew” Davidson, to review it. Mr. Davidson evaluated the will for some time and then talked Mr. Boote out of rewriting it on the theory that doing so might destroy the tax-exempt status of the trusts. He advised Mr. Boote that he could make changes in the distribution of his estate by executing a codicil to his existing will. Although Mr. Davidson knew that Mr. Boote and Ms. Boote had entered into an antenuptial agreement, he did not review it before offering Mr. Boote legal advice regarding his estate.4
At Mr. Boote‘s direction, Mr. Davidson prepared a codicil to the will transforming the $600,000 marital trust into an outright bequest to Ms. Boote, adding a bequest of $300,000 to Mr. Boote‘s sister, and incorporating a no contest clause into the will.5
A little over a year later, Mr. Boote visited Mr. Davidson again. He had heard that a spouse could dissent from a will and take an elective share of a deceased spouse‘s estate. Mr. Davidson, again without reviewing the antenuptial agreement, advised Mr. Boote that if Ms. Boote dissented from his will, she would be entitled to a child‘s share, but no less than a third, of his estate. Mr. Davidson said that a dissenting spouse‘s share is taken “off the top” and that if Ms. Boote dissented from the will, Ms. Shivers and Ms. Gerritsen would have to pay all of the estate taxes and expenses out of their shares. Mr. Boote said such an arrangement would be unfair to his daughters and that he wanted to structure his will so that Ms. Boote and his two daughters would each receive a third of his estate after the payment of all estate taxes and expenses.
Mr. Davidson advised Mr. Boote that this division could be accomplished through the execution of a third codicil. At Mr. Boote‘s request, Mr. Davidson prepared a third codicil directing that Mr. Boote‘s residuary estate would be divided equally among Ms. Boote, Ms. Shivers, and Ms. Gerritsen after the payment of all estate taxes and expenses. The third codicil also nominated Mr. Davidson to serve as co-executor of the estate with Ms. Boote. Mr. Boote executed the third codicil on February 14, 2000.
Six to eight weeks later, Mr. Davidson received a telephone call from Ms. Smith, Ms. Boote‘s daughter. She said he had messed things up by dividing Mr. Boote‘s estate too much and persuading Mr. Boote to leave too much money to her mother. She said that Ms. Shivers and Ms. Gerritsen would be furious, that there would be an enormous fight over the estate, and that it would be all Mr. Davidson‘s fault. When Mr. Davidson suggested to Ms. Smith that she did not know what was in the third codicil, she responded that it was her understanding that under the third codicil, Mr. Boote‘s estate would be split three ways among her mother, Ms. Shivers, and Ms. Gerritsen. Mr. Davidson told Ms. Smith, somewhat disingenuously, that she did not have a full grasp of what was in the third codicil, that Mr. Boote had made some additional provisions for Ms. Boote, and that the third codicil was a well written document that would be enforceable.
In late April 2001, well over a year after the execution of the third codicil, Mr. Boote again visited Mr. Davidson at his office. By this time, Mr. Boote was ninety-three years old, and his health had been failing. He could barely walk on his own. He was accompanied by Ms. Boote and an assistant Ms. Boote hired to help her care for Mr. Boote. Ms. Boote and the assistant waited in the front room of Mr. Davidson‘s office out of earshot while Mr. Boote met with Mr. Davidson in a conference room. The only evidence in the record regarding what occurred at this meeting is the deposition testimony of Mr. Davidson.
According to Mr. Davidson, Mr. Boote was upset. He said that he had made a lot of people mad, that everyone was fussing at him, and that no matter what he did, he could not seem to pleаse everyone. He asked Mr. Davidson what would happen if Ms. Boote simply dissented from his will. Mr. Davidson did not answer Mr. Boote‘s question directly and instead told him that his wishes were covered by the third codi-
Mr. Davidson informed Mr. Boote that if he wanted to revoke the third codicil, he would have to tear it up himself.7 However, when Mr. Davidson offered to retrieve the third codicil from his office safe so that Mr. Boote could tear it up, Mr. Boote said that he did not want to tear it up, that Ms. Boote was coming down the hall, and that he did not have time to tear it up. Mr. Boote started to get up to leave, and as he did so, he exclaimed, “Just tear the damn thing up.” Mr. Boote then walked out of the conference room and left Mr. Davidson‘s office.
In spite of Mr. Boote‘s extremely advanced age, declining health, and sizeable estate, as well as strong indications that there would be legal disputes over the distribution of the estate, Mr. Davidson failed to contact Mr. Boote for more than a month following the April 2001 meeting to obtain clarification regarding Mr. Boote‘s wishes and, if necessary, to schedule a meeting at which the third codicil could be revoked in accordance with the statutory requirements.8 The record on appeal provides no explanation for Mr. Davidson‘s extraordinary lapse of judgment in this regard. In addition, it appears from the record that Mr. Davidson did not document his conversation with Mr. Boote in any way, e.g., by sending Mr. Boote a confirming letter detailing the contents of their discussion and advising him of the proper procedures for revoking a will or codicil.
On June 1, 2001, Mr. Boote was admitted to the Marshall Medical Center. He had suffered several mini-strokes and was diagnosed with kidney failure. Three days later, he was transferred to Oakwood, a skilled nursing facility. Mr. Davidson visited Mr. Boote both at the Marshall Medical Center and at Oakwood. According to Mr. Davidson, he was hoping that Mr. Boote would say something about the third codicil along the lines of “You didn‘t tear it up, did you?,” or “If you did, let‘s redo it.” By the time of Mr. Davidson‘s first visit,
Approximately a month before Mr. Boote died, Mr. Davidson was told by Mr. Boote‘s family and the staff at Oakwood that Mr. Boote was not going to recover. Mr. Davidson contacted four local attorneys for advice regarding what he should do about the third codicil.9 He told them that a client had directed him to destroy a legal document that he had prepared, that he had not destroyed the document as directed, and that the client had since fallen into a coma and was unlikely to recover. He did not provide them with the details of the case. According to Mr. Davidson, all four told him that he should follow his client‘s last directive and destroy the document.10
Without consulting Ms. Boote or anyone else acting on Mr. Boote‘s behalf, Mr. Davidson retrieved the third codicil from his office safe, made a copy of it, and destroyed the original by feeding it into a paper shredder in his office. He placed the copy in his office safe along with Mr. Boote‘s other legal papers. By his own admission, he knew, at the time he shredded the original of the third codicil, that his actions did not comply with the statutory requirements for revoking a codicil by physical destruction. Mr. Davidson did not tell anyone what he had done.
The day after Mr. Boote died, Mr. Davidson began preparing а petition to have the will and the first and second codicils admitted to probate in solemn form. The third codicil was not mentioned at all in the petition, nor was a copy of it attached to the petition along with the will and the first two codicils. The petition estimated the value of Mr. Boote‘s estate to be approximately fifteen million dollars,11 requested a November 15, 2001 hearing at which the will and the first two codicils would be formally offered for probate in solemn form, and asked that letters testamentary be issued to Ms. Boote as the executrix nominated by the first codicil. The petition listed the other named beneficiaries and stated that Ms. Boote would provide them with notice of the hearing and their right to contest the will and first two codicils at that time.
The petition explicitly stated that Ms. Boote was “aware of no document(s) in existence that either revoke or alter the instruments being offered by her for probate in the Decedent‘s Last Will & Testament and two (2) Codicils thereto.” Ms. Boote knew that her husband had executed a third codicil to his will, but she had never seen it. She asked Mr. Davidson what had happened to the third codicil when she met with him on September 26, 2001 to sign a letter of engagement hiring him as the attorney for the estate and to discuss the probate petition. Mr. Davidson told her only that Mr. Boote had “revoked” it. He did not tell her that the third codicil had been revoked through physical destruction, nor did he tell her that he knew that it had not been destroyed in compliance with the statutory requirements for revoking wills and codi-
In mid-October 2001, Mr. Davidson met for the first time with the attorneys for Ms. Shivers and Ms. Gerritsen. Mr. Davidson told them that there had at one time been a third codicil to Mr. Boote‘s will that provided for an equal division of Mr. Boote‘s estate among Ms. Boote, Ms. Shivers, and Ms. Gerritsen. He said that Mr. Boote had revoked the third codicil but provided no further details. According to Mr. Davidson, he was careful to use the word “revoked” rather than “destroyed” or some other word. He did not mention that he had kept a copy of the third codicil.
During this meeting, the attorneys for Ms. Shivers and Ms. Gerritsen showed Mr. Davidson a copy of the antenuptial agreement that they had obtained from Bass, Berry & Sims. According to Mr. Davidson, this was the first time he had ever seen the agreement. He realized immediately that it purported to bar Ms. Boote from dissenting from Mr. Boote‘s will and taking an elective share of his estate. He obtained a copy of the agreement from Ms. Shivers and Ms. Gerritsen‘s attorneys, and later that day or the following day, he gave a copy to Ms. Boote. He did not tell her that it purported to bar her from dissenting from Mr. Boote‘s will. He did not disclose the circumstances surrounding the destruction of the third codicil given their renewed importance in light of the terms of the antenuptial agreement. Instead, he merely told her that it would have “some effect.”12
On November 2, 2001, the trial court entered an agreed order signed by counsel for Ms. Boote, Ms. Shivers, and Ms. Gerritsen in which they stipulated that the will, “sans Codicils,” should be admitted to probate in solemn form and waived the requirement that the witnesses who attested the will appear and testify at the November 15, 2001 hearing. The order stated that the agreement did not apply to the first and second codicils “at the present time.” Also on November 2, 2001, Mr. Bussart filed a notice of appearance as counsel of record for Ms. Boote in her individual capacity as a named beneficiary of the estate. Mr. Davidson told Mr. Bussart that there had been a third codicil at one time that would have divided the estate three ways among Ms. Boote, Ms. Shivers, and Ms. Gerritsen. Consistent with his pattern, Mr. Davidson told Mr. Bussart that Mr. Boote had “revoked” it but did not tell him any of the circumstances surrounding the destruction of the third codicil or inform him that he had a copy of it in his office safe.
Less than two weeks later, on November 15, 2001, the hearing to present the will and first two codicils for probate in solemn form proceeded as scheduled. Mr. Davidson appeared on behalf of Ms. Boote in her capacity as the nominated executrix, and Mr. Bussart appeared on her behalf in her capacity as a named beneficiary. The trial court acknowledged the agreed order stipulating to the validity of the will and heard testimony from the attesting witnesses to the execution of the first and
At the conclusion of the hearing, counsel for Ms. Shivers and Ms. Gerritsen offered to prepare a draft order admitting the will and the first two codicils to probate in solemn form and to submit it for the court‘s approval. The trial court instructed the parties to work together on the draft order. At Mr. Davidson‘s request, the trial court directed that the court clerk could issue letters testamentary to Ms. Boote on a provisional basis after the hearing but stated that they would be subject to the terms of the final order once it was entered. Over the next few weeks, counsel for the parties circulated several drafts of proposed orders but were unable to reach an agreement. They eventually filed competing versions of a final order for the court‘s approval.
In the meantime, Mr. Bussart discovered the circumstances surrounding the destruction of the third codicil.13 He asked Mr. Davidson if he had made a copy of the third codicil before destroying the original, and Mr. Davidson said that he had. Mr. Davidson had a copy of the third codicil hand-delivered to Mr. Bussart‘s office. On the envelope containing the third codicil, Mr. Davidson wrote the following note: “Walter: Martha has never seen this. She only knew it existed at one time. . . . She never knew any of the dеtails.” Mr. Davidson also sent a copy of the third codicil to counsel for Ms. Shivers and Ms. Gerritsen. In the accompanying cover letter, Mr. Davidson said that he could “no longer remain silent” about the third codicil and that he anticipated being deposed regarding the details surrounding the destruction of the original.
Mr. Bussart received the copy of the third codicil on December 7, 2001. He filed a declaratory judgment petition in the Marshall County Chancery Court later that day on behalf of Ms. Boote in her individual capacity as a named beneficiary. The petition was filed under the same case number as the pending probate proceedings, and a copy of the third codicil was attached to the petition. The petition requested a hearing to determine whether the third codicil could be admitted to probate along with the will and the first two codicils. Mr. Bussart noticed the deposition of Mr. Davidson a few days later.
The trial court did not hold a hearing on the admissibility of the third codicil. Instead, on December 14, 2001, one week after the declaratory judgment petition was filed, the court entered an order admitting the will and the first two codicils to probate in solemn form. The order did not mention the third codicil or Ms. Boote‘s pending petition for declaratory judgment. Following the entry of the December 14, 2001 order, Ms. Shivers and Ms. Gerritsen filed a motion to dismiss the declaratory judgment petition on grounds of res judicata and judicial estoppel and requested that the trial court quash the deposition notice to Mr. Davidson to allow them more time to conduct discovery on the issues raised in the declaratory judgment petition.
The trial court held a hearing on Ms. Shivers and Ms. Gerritsen‘s motion on January 9, 2002. At the hearing, Mr. Bussart moved for a new trial. The trial court agreed to allow Mr. Bussart to reduce his motion to writing, took the motion to dismiss under advisement, and stayed Mr. Davidson‘s deposition pending a ruling on the motion to dismiss.
The trial court set a hearing for February 20, 2002 on Ms. Boote‘s motion for post-judgment relief. At the hearing, Ms. Boote complained that she had been unable to obtain evidence regarding the details surrounding the destruction of the third codicil because the trial court had stayed Mr. Davidson‘s deposition, and Mr. Davidson refused to discuss the matter unless he was deposed.14 The trial court refused to lift the stay on Mr. Davidson‘s deposition and took Ms. Boote‘s motion for post-judgment relief under advisement. The court discussed the motion to dismiss the declaratory judgment petition and the motion for post-judgment relief at another hearing on June 5, 2002.
On July 3, 2002, the trial court entered an order granting Ms. Shivers and Ms. Gerritsen‘s motion to dismiss the declaratory judgment petition and denying Ms. Boote‘s motion for post-judgment relief. The trial court acknowledged that Ms. Boote filed her declaratory judgment petition a week before the entry of the December 14, 2001 order but nevertheless held that the declaratory judgment petition was barred by principles of res judicata and judicial estoppel. The trial court said that Ms. Boote had been questioned specifically regarding whether the will and the first two codicils were the only instruments of Mr. Bootе‘s that needed to be admitted to probate and that it had placed “great weight” on Ms. Boote‘s testimony in response to these questions in deciding to admit them to probate in solemn form.15 With respect to the motion for post-judgment relief, the trial court held that it could not grant Ms. Boote‘s motion because probate in solemn form “trumps” the Tennessee Rules of Civil Procedure relating to post-judgment motions and Ms. Boote had not alleged fraud in the procurement of the December 14, 2001 order.
The trial court directed that its July 3, 2002 order be entered as a final order Estate of Boote v. Shivers, 2005 WL 1277867, at *1.
II.
MS. BOOTE‘S DECLARATORY JUDGMENT PETITION AND POST-JUDGMENT MOTION
Ms. Boote argues that the trial court erred in refusing to consider the third codicil by dismissing her declaratory judgment petition and denying her later motion for post-judgment relief. She notes that she filed a copy of the third codicil as an attachment to her declaratory judgment petition on December 7, 2001, a week before the trial court entered its December 14, 2001 order admitting the will and the first two codicils to probate in solemn form. She contends that because she filed her declaratory judgment petition prior to the entry of the order admitting the will and the first two cоdicils to probate in solemn form, the trial court was required to provide her with an opportunity to establish the validity of the third codicil and
Ms. Boote also argues that the trial court erred in denying her motion for post-judgment relief. She contends that the trial court applied an incorrect legal standard to her motion based on its erroneous conclusion that probate in solemn form “trumps” the Tennessee Rules of Civil Procedure relating to post-trial motions. If we conclude that the trial court erred in dismissing Ms. Boote‘s declaratory judgment petition without providing her with the opportunity to establish the validity of the third codicil and seek its admission to probate along with the will and the first two codicils, then we need not decide whether the trial court also erred in denying her later motion for post-judgment relief. Accordingly, we turn first to Ms. Boote‘s argument that the trial court erred in failing to provide her with an opportunity to establish the third codicil when she filed her declaratory judgment petition on December 7, 2001.
A.
A will or codicil17 has no legal effect until it has been admitted to probate. State v. Lancaster, 119 Tenn. 638, 651, 105 S.W. 858, 861 (Tenn.1907); Weaver v. Hughes, 26 Tenn.App. 436, 443, 173 S.W.2d 159, 162 (1943); 1 PRITCHARD §§ 35, at 55, 326, at 504. A person nominated by a will to serve as an executrix or
executor of a decedent‘s estate has a duty to institute legal proceedings to probate the will. Eslick v. Friedman, 191 Tenn. 647, 651-52, 235 S.W.2d 808, 810 (1951); Green v. Higdon, 870 S.W.2d 513, 520 (Tenn.Ct.App.1993) (Green I); 1 PRITCHARD §§ 35, at 55, 329, at 508-09; 3 WILLIAM J. BOWE & DOUGLAS H. PARKER, PAGE ON THE LAW OF WILLS §§ 26.33, at 92-93, 26.34, at 96 & n. 1 (rev. 2004) (“PAGE ON WILLS“). Proceedings to probate a will are instituted by the filing of a verified petition18 in the court that exercises probate jurisdiction over the county where the testator or testatrix resided at the time of his or her death.
There are two types of probate in Tennessee: probate in common form and probate in solemn form. Delaney v. First Peoples Bank of Johnson City, 214 Tenn. 355, 364, 380 S.W.2d 65, 69 (1964); 1 PRITCHARD § 325, at 502; see also
The clerk and master of the chancery court is statutorily authorized to probate wills in common form.
Probate in solemn form is a much more formal affair. All interested parties are entitled to receive notice of the proceedings and of their right to participate in them.
Prior to the entry of an order admitting a will to probate in common form or in solemn form, the will can be challenged directly by means of a will contest. 1 PRITCHARD §§ 358, at 550, 396, at 591. However, because of the procedural and evidentiary distinctions between the two types of probate proceedings, the conclusiveness of an order admitting a will to probate differs depending on whether it was admitted to probate in common form or in solemn form. 1 PRITCHARD § 325, at 503-04. Historically, orders of both types have been immune from attack in all collateral proceedings absent allegations of fraud in the procurement of the order itself. Ledbetter v. Ledbetter, 188 Tenn. 44, 49-50, 216 S.W.2d 718, 721 (1949); Murrell v. Rich, 131 Tenn. 378, 403, 175 S.W. 420, 427 (1914); Ex parte Williams, 69 Tenn. 529, 530-31, 1878 WL 4406, at * 1 (1878); 1 PRITCHARD §§ 45, at 73, 325, at 503-04, 327, at 505, 335, at 515-16, 337, at 517-18.21 However, even after an order
The purpose of a will contest is to determine once and for all who is entitled to inherit the decedent‘s property. In re Estate of Barnhill, 62 S.W.3d 139, 143 (Tenn.2001); Jones v. Witherspoon, 182 Tenn. 498, 505, 187 S.W.2d 788, 791 (1945); Green v. Higdon, 891 S.W.2d 220, 222 (Tenn.Ct.App.1994) (Green II); 1 PRITCHARD § 351, at 537-38. The primary question to be decided in a will contest is whether or not the decedent left a valid will. In re Estate of Barnhill, 62 S.W.3d at 140 n. 1; In re Estate of Eden, 99 S.W.3d 82, 88 (Tenn.Ct.App.1995). Everyone who claims an interest in the decedent‘s estate has a right to become a party to the will contest, Petty v. Call, 599 S.W.2d 791, 793 (Tenn.1980); Lillard v. Tolliver, 154 Tenn. 304, 323, 285 S.W. 576, 582 (1926); 3 PAGE ON WILLS § 26.52, at 144-47, and to demand a jury trial on disputed questions of fact,
The initiation of a will contest temporarily divests the probate court of its authority to enter an order admitting a will to probate in solemn form. In re Estate of King, 760 S.W.2d at 212; Lowder v. Anderson, 4 Tenn. Civ. App. 620, 628-29 (Tenn.Ct.Civ.App.1914); 1 PRITCHARD §§ 367, at 561, 377, at 569-71. As soon as the probate court is made aware of a contest, it must halt the in solemn form probate proceedings and determine whether the person seeking to contest the will has standing to pursue a will contest. In re Estate of King, 760 S.W.2d at 211-12; In re Will of Ambrister, 205 Tenn. 737, 744-46, 330 S.W.2d 330, 334-35 (1959); Jenkins v. Jenkins, 168 Tenn. 292, 296-98, 77 S.W.2d 805, 806-07 (1935); Murrell v. Rich, 131 Tenn. at 398, 175 S.W. at 425; 1 PRITCHARD §§ 354, at 543-44, 364, at 556-57, 377, at 569-71. Standing to pursue a will contest is limited to those who would benefit under the terms of another will or codicil or the laws of intestate succession if the will contest is successful. Jennings v. Bridgeford, 218 Tenn. at 290-92, 403 S.W.2d at 290-91; Cowan v. Walker, 117 Tenn. 135, 148, 96 S.W. 967, 970 (1906); 1 PRITCHARD § 354, at 540, 369, at 562.
If the probate court sustains the contestant‘s right to pursue a will contest, it must require the contestant to enter into a $500 bond and cause a certificate of contest and the originals of all wills and codicils at issue to be filed in thе court chosen for the will contest.
B.
The central issue in this appeal is whether Ms. Boote‘s December 7, 2001 declaratory judgment petition amounted, in substance, to a notice of contest. If it did, the trial court had no authority to enter the December 14, 2001 order admitting the will and the first two codicils to probate in solemn form. Determining whether the course of proceedings in the trial court amounted to the initiation of a will contest is a question of law which this court reviews de novo. In re Will of Ambrister, 205 Tenn. at 743-46, 330 S.W.2d at 333-35; Jenkins v. Jenkins, 168 Tenn. at 297, 77 S.W.2d at 806. As explained below, we have concluded that Ms. Boote‘s declaratory judgment petition, with a copy of the third codicil attached, was sufficient to initiate a will contest. Accordingly, the trial court erred in entering the December 14, 2001 order admitting the will and the first two codicils to probate in solemn form and ignoring the third codicil.
There are no formal requirements for the initiation of a will contest. Jenkins v. Jenkins, 168 Tenn. at 297, 77 S.W.2d at 806; 1 PRITCHARD § 360, at 554. As the Tennessee Supreme Court has ex-
Judged by these standards, it is abundantly clear that Ms. Boote‘s Dеcember 7, 2001 declaratory judgment petition amounted, in substance, to the initiation of a will contest. Ms. Boote filed her petition in the court presiding over the in solemn form probate proceedings, and she filed it under the same case number. A copy of the third codicil was attached to the petition, and it appeared, on its face, to have been validly executed. If admitted to probate, the third codicil would unquestionably have operated as a partial revocation of the will and first two codicils by providing Ms. Boote with a much larger share of Mr. Boote‘s estate.25 Ms. Boote explained
In reaching this conclusion, we find the Tennessee Supreme Court‘s decision in In re Will of Ambrister, 205 Tenn. 737, 330 S.W.2d 330 (1959), to be particularly instructive.26 In Ambrister, the testatrix executed two wills in the month before she died. The second will purported to revoke the first. On the day the testatrix died, the beneficiaries under the second will presented it to the county court clerk for probate in common form. The clerk followed the standard procedure for admitting a will to probate in common form but neglected to enter an order admitting it to probate. Three days later, the primary beneficiary under the first will filed a petition to have the first will admitted to probate in solemn form. The county court set a hearing date, and notice of the hearing was provided to all interested parties.
What followed was a procedural morass. The beneficiaries under the second will did not think they should have to assume the posture of will contestants. So instead of filing a notice of contest to the first will in the in solemn form proceedings, they filed a petition on the date set for the in solemn form hearing requesting that the county court enter an order nunc pro tunc admitting the second will tо probate in common form as of the day it was originally presented to the county court clerk. The county court proceeded with the in solemn form hearing as scheduled. At the hear-
At the conclusion of the hearing, the court indicated that it would admit the first will to probate in solemn form and directed counsel for the proponent of the first will to prepare an order for the court‘s approval. However, a few minutes later, the court announced that it would also enter an order admitting the second will to probate in common form but that the order would not be nunc pro tunc. The court entered an order admitting the second will to probate in common form later that day, and three days later, it entered an order admitting the first will to probate in solemn form. The proponent of the first will filed a petition to contest the second will, and the county court certified the contest to the circuit court for trial. The circuit court concluded that the first will had not been contested, refused a request to declare the county court‘s order admitting the first will to probate in solemn form void, and held that it lacked jurisdiction to entertain a contest of the second will because an order entering the first will to probate in solemn form had already been entered.
The Tennessee Supreme Court reversed the circuit court‘s order. The court observed that the case would have been greatly simplified had the beneficiaries un-
The Ambrister decision stands for the proposition that when a court conducting proceedings to probate a will in solemn form is made aware of a later will or codicil, the court cannot simply ignore it and proceed with the entry of an order admitting an earlier will to probate in solemn form without first making an inquiry into the validity of the later instrument. This rule arises from the very nature of probate proceedings. Under Tennessee law, every person of sound mind over the age of eighteen has the right, within the limits of law and public policy, to direct how his or her property will be distributed at death through the execution of wills and codicils.
Proceedings to admit a will to probate are in rem proceedings. Jennings v. Bridgeford, 218 Tenn. at 294-95, 403 S.W.2d at 292; Reaves v. Hager, 101 Tenn. at 718, 50 S.W. at 762; 1 PRITCHARD § 45, at 73; 3 PAGE ON WILLS § 26.51, at 141. Their function is to provide the court with the information it needs to decide the proper distribution of the res, i.e., the estate. Fransioli v. Podesta, 175 Tenn. 340, 347, 134 S.W.2d 162, 165 (1939); Lillard v. Tolliver, 154 Tenn. at 312-13, 285 S.W. at 578-79; 1 PRITCHARD § 45, at 73. In making this determination, the court‘s polestar is the intent of the testator or testatrix. In re Dye‘s Estate, 565 S.W.2d 219, 221 (Tenn.Ct.App.1977). The proceedings are designed not to advance the interests of the living parties but rather to vindicate the right of the decedent to dispose of his or her property as he or she saw fit. Jennings v. Bridgeford, 218 Tenn. at 293-94, 403 S.W.2d at 291-92; Hodges v. Bauchman, 16 Tenn. (8 Yer.) 186, 188-90, 1835 WL 929, at *1-2 (1835). Because the rule of Ambrister is designed to vindicate the rights of the decedent rather than the rights of the living parties to the probate proceedings, it applies even where the parties have been less than forthcoming about whether they are intent on pursuing a will contest. In re Estate of King, 760 S.W.2d at 209-212; In re Will of Ambrister, 205 Tenn. at 740-43, 330 S.W.2d at 332-33.
When Ms. Boote filed her December 7, 2001 declaratory judgment petition with the third codicil attached, the trial court had not yet entered an order admitting the will and the first two codicils to probate in solemn form. Once the trial court was made aware of a later testamentary instrument that purported to revoke portions of the will and the first two codicils, it had an obligation to bring the in solemn form proceedings to an immediate halt and conduct an inquiry into whether Ms. Boote had standing to pursue a will contest based on the third codicil. The trial court had no authority to enter the December 14, 2001
C.
Ms. Shivers and Ms. Gerritsen argue that the trial court correctly dismissed Ms. Boote‘s declaratory judgment petition based on principles of res judicata and judicial estoppel. In its July 3, 2002 order, the trial court acknowledged that Ms. Boote filed her declaratory judgment petition prior to the entry of the order admitting the will and the first two codicils to probate in solemn form. However, the trial court found that it could apply principles of res judicata and judicial estoppel to the November 15, 2001 hearing rather than the resulting December 14, 2001 order. The trial court expressly stated that its decision to apply principles of res judicata and judicial estoppel to the hearing rather than the resulting order rested largely on Ms. Boote‘s testimony in response to questioning. According to the trial court, it “gave great weight to the testimony of [Ms. Boote] as it relates to what she knew when questioned about whether the testamentary documents presented to the Court were all of the documents to be probated,” and “[i]n reliance on her testimony, the Court probated the documents presented at that time.”
The primary defect in the trial court‘s reasoning is that the record contains no indication that the question-and-answer session to which the court alluded ever took place. The hearing transcript shows clearly that Ms. Boote was not questioned at the November 15, 2001 hearing regarding whether the will and the first two codicils were the only testamentary instruments of Mr. Boote that needed to be admitted to probate in solemn form. In fact, the transcript shows that Ms. Boote did not testify at the hearing at all.27 Nevertheless, if the trial court were correct in its ultimate conclusion that the declaratory judgment petition was barred based on principles of res judicata and judicial estoppel, we would affirm its decision dismissing the petition in spite of the court‘s reliance on a faulty factual premise.28 As explained below, however, neither res judicata nor judicial estoppel was a sound basis for the trial court‘s dismissal of the declaratory judgment petition and refusal to consider the third codicil.
Principles of res judicata have no application to this case. Res judicata is a claim preclusion doctrine that promotes finality in litigation. Moulton v. Ford Motor Co., 533 S.W.2d 295, 296 (Tenn.1976); Jordan v. Johns, 168 Tenn. 525, 536-37, 79 S.W.2d 798, 802 (1935). It bars a second suit between the same parties or their privies on the same cause of action with respect to all the issues which were or could have been litigated in the former suit. Richardson v. Tenn. Bd. of Dentist-
ry, 913 S.W.2d 446, 459 (Tenn.1995); Brown v. Brown, 29 S.W.3d 491, 495 (Tenn.Ct.App.2000); Collins v. Greene County Bank, 916 S.W.2d 941, 945 (Tenn. Ct.App.1995). In order for the doctrine of res judicata to apply, there must be a prior judgment concluding the rights of the parties on the merits. Goeke v. Woods, 777 S.W.2d 347, 349 (Tenn.1989); Lewis v. Muchmore, 26 S.W.3d 632, 637 (Tenn.Ct. App.2000). A trial court‘s decision that a subsequent lawsuit is barred by principles of res judicata presents a question of law which this court reviews de novo. Tareco Props., Inc. v. Morriss, No. M2002-02950-COA-R3-CV, 2024 WL 2636705, at *12 n. 20 (Tenn.Ct.App. Nov.18, 2004) (No
Parties asserting a res judicata defense must demonstrate that: (1) a court of competent jurisdiction rendered the prior judgment; (2) the prior judgment was final and on the merits; (3) the same parties or their privies were involved in both proceedings; and (4) both proceedings involved the same cause of action. Young v. Barrow, 130 S.W.3d 59, 64 (Tenn. Ct.App.2003); Lee v. Hall, 790 S.W.2d 293, 294 (Tenn.Ct.App.1990). A prior judgment or decree does not prohibit the later consideration of rights that had not accrued at the time of the earlier proceeding or the re-examination of the same question between the same parties when the facts have changed or new facts have occurred that have altered the legal rights and relations of the parties. White v. White, 876 S.W.2d 837, 839-840 (Tenn.1994); State ex rel. Cihlar v. Crawford, 39 S.W.3d 172, 178 (Tenn.Ct.App.2000).
In this case, the most basic requirement of a res judicata defense—i.e., the existence of a prior judgment—is missing. See Tenn. Dep‘t of Children‘s Servs. v. Hoffmeyer, No. M2002-00076-COA-R3-JV, 2003 WL 1092779, at *8 (Tenn.Ct.App. Mar.13, 2003) (No
The doctrine of judicial estoppel likewise has no application in this case. Judicial estoppel is an equitable doctrine designed to prevent parties from “gaining an unfair advantage” in judicial proceedings by making inconsistent statements on the same issue in different lawsuits. Marcus v. Marcus, 993 S.W.2d 596, 602 (Tenn. 1999) (quoting Carvell v. Bottoms, 900 S.W.2d 23, 30 (Tenn.1995)). As the Tennessee Supreme Court has warned, “[o]ne cannot play fast and loose” with the courts. Fidelity-Phenix Fire Ins. Co. of N.Y. v. Jackson, 181 Tenn. 453, 464, 181 S.W.2d 625, 630 (1944); accord Webber v. Webber, 109 S.W.3d 357, 359 (Tenn.Ct.App.2003); Woods v. Woods, 638 S.W.2d 403, 406 (Tenn.Ct.App.1982). A trial court‘s application of the doctrine of judicial estoppel presents a question of law which this court reviews de novo. Carvell v. Bottoms, 900 S.W.2d at 30; Terrell v. Terrell, 200 Tenn. 289, 295-96, 292 S.W.2d 179, 182 (1956); Bubis v. Blackman, 58 Tenn.App. 619, 632-33, 435 S.W.2d 492, 498 (1968).
The doctrine of judicial estоppel does not apply to “anything short of a
Ms. Boote did not, as the trial court erroneously stated in its order, offer any testimony at the November 15, 2001 hearing. Thus, the only prior statement by Ms. Boote that is at issue is her assertion in the original petition to admit the will and the first two codicils to probate in solemn form that she was “aware of no document(s) in existence that either revoke or alter the instruments being offered by her for probate in the Decedent‘s Last Will & Testament and two (2) Codicils thereto.”29 Ms. Boote verified the petition, and she was therefore fully responsible for the accuracy of the statements contained in it.
However, this statement does not provide an appropriate basis for the application of judicial estoppel because the record does not show that it was willfully false. To the contrary, the undisputed evidence in the record points overwhelmingly to the conclusion that Ms. Boote fully believed this statement to be true at the time she made it. Mr. Boote and Mr. Davidson were the only people who had first-hand knowledge of the details surrounding the destruction of the third codicil. By the time Ms. Boote filed her original petition, Mr. Boote had passed away, and Mr. Davidson had not, by his own admission, provided Ms. Bоote with a copy of the third codicil, informed her that a copy of the third codicil still existed, or given her any reason to believe that the attempted revocation of the third codicil was anything other than fully effective. It was eminently reasonable for Ms. Boote to rely on her late husband‘s attorney to provide her with the documents and information she needed to have her husband‘s will and codicils admitted to probate. Thus, her prior statement was not willfully false.
Ms. Shivers and Ms. Gerritsen seek to circumvent the willful falsity requirement for the application of judicial estoppel based on the argument that Mr. Davidson knew the circumstances surrounding the attempted revocation of the third codicil and that his knowledge is imputed to Ms. Boote as a matter of law. As Ms. Shivers and Ms. Gerritsen correctly note, knowledge obtained by an attorney during the course of his or her representation of a client is conclusively imputed to the client. Moody v. Moody, 681 S.W.2d 545, 546 (Tenn.1984); DeLong v. Vanderbilt Univ., No. M2002-02655-COA-R3-CV, 2005 WL 1981793, at *3 (Tenn.Ct.App. Aug.15, 2005). However, this rule applies only if the attorney gained the information during the course of his or her representation of the particular client to whom the knowledge is to be imputed. Bellar v. Baptist Hosp., Inc., 559 S.W.2d 788, 789 (Tenn. 1978); Neilson v. Weber, 107 Tenn. 161, 165, 64 S.W. 20, 21 (1901) (“a client is not affected with notice, because his attorney may know facts which he has obtained from outside sources, and not in the matter and course of his employment for such client“). Mr. Davidson learned the facts surrounding the destruction of the third codicil through his personal participation in them. At that time, he was representing Mr. Boote, not Ms. Boote. Thus, there is no more basis for imputing Mr. Davidson‘s knowledge of the circumstances surrounding the attempted revocation of the third codicil to Ms. Boote than there would be for imputing it to Ms. Shivers and Ms. Gerritsen. Accordingly, we reject Ms. Shivers and Ms. Gerritsen‘s attempt to sustain the trial court‘s application of the doctrine of judicial estoppel based on imputation.30
III. THE ATTEMPTED REVOCATION OF THE THIRD CODICIL
[28] From our initial review of this case in preparation for oral argument, it appeared that we might be ablе to conclude that the circumstances surrounding the destruction of the third codicil amounted to a valid revocation as a matter of law. If so, any deficiencies in the procedures followed by the trial court would have amounted to nothing more than harmless error, and we would be able to affirm the trial court‘s judgment on this alternative ground. Accordingly, at oral argument, we directed the parties to provide supplemental briefing regarding this possible alternative ground for affirming the trial court‘s order dismissing Ms. Boote‘s declaratory judgment petition and denying her motion for post-judgment relief.
The supplemental briefs revealed that the parties are in agreement regarding the facts surrounding the attempted revocation of the third codicil. Both sides agree that Mr. Boote met with Mr. Davidson in late April 2001 and directed him to tear up the third codicil with the purpose of revoking it and that Mr. Davidson offered to retrieve the original of the third codicil from his office safe so that Mr. Boote could tear it up himself. Both sides agree that Mr. Boote declined to tear up the codicil himself, that he left Mr. Davidson‘s office without tearing it up, and that his last statement to Mr. Davidson on the subject was, “Just tear the damn thing up.” Finally, both sides agree that Mr. Davidson did not destroy the third codicil until several months later when Mr. Boote was in the hospital and that the third codicil was not destroyed in Mr. Boote‘s presence. The parties disagree only on whether these undisputed facts were sufficient, as a matter of law, to revoke the third codicil. This disagreement presents solely a question of law which this court reviews de novo. Jones v. Jones, 143 Tenn. 596, 597, 228 S.W. 405, 405 (1921); Smiley v. Gambill, 39 Tenn. (2 Head) 164, 168, 1858 WL 3003, at *2 (1858); 1 PRITCHARD § 280, at 446.
Tennessee law recognizes three types of wills: (1) attested wills; (2) holographic wills; and (3) nuncupative wills.
The revocation of wills and codicils is also governed by statute.
Ms. Shivers and Ms. Gerritsen offer two main arguments to avoid this result. First, they claim that the statute does not mean what it says. According to Ms. Shivers and Ms. Gerritsen, “[t]his, then, is the law that is codified in
These sources fall far short of establishing the proposition for which Ms. Shivers and Ms. Gerritsen have cited them. The two older Tennessee Supreme Court cases do not directly address the requirement of the testator‘s presence for valid revocation through physical destruction by someone other than the testator. In Ford v. Ford, a document the testator believed to be his will was destroyed in his presence and at his direction. In Smiley v. Gambill, the testatrix herself burned a document she thought was her will. In both cases, another document had been surreptitiously substituted for the will. The Tennessee Supreme Court held that the destruction of a document the testator or testatrix believes to be his or her will is sufficient to revoke it as long as the document is destroyed by the testatrix herself or by another in the testator‘s presence and at the testator‘s direction. Ford v. Ford, 26 Tenn. at 102-05, 1846 WL 1497, at *6-7;
In later cases, the Tennessee Supreme Court expressly limited the rule of Ford v. Ford and Smiley v. Gambill to cases in which the testator was prevented by force or fraud from destroying the original of the will or in which the testator destroyed or caused to be destroyed a document that the testator mistakenly believed to be his will. Gregory v. Susong, 185 Tenn. 232, 238, 241, 205 S.W.2d 6, 9, 10 (1947); Jones v. Jones, 143 Tenn. at 600-601, 228 S.W. at 406. Ms. Shivers and Ms. Gerritsen do not claim that Mr. Boote destroyed or caused to be destroyed a document he mistakenly believed to be the third codicil, nor do they argue that Ms. Boote, Mr. Davidson, or anyone else used force or fraud to prevent Mr. Boote from tearing up the third codicil or having it torn up in his presenсe. Thus, assuming arguendo that the rule of Ford v. Ford and Smiley v. Gambill remains good law following the enactment of the revocation statute in 1985, that rule has no application to the present case.39
Ms. Shivers and Ms. Gerritsen‘s second argument is that even if the revocation statute means what it says, we should give effect to Mr. Boote‘s attempted revocation of the third codicil because Mr. Davidson was acting as Mr. Boote‘s agent at the April 2001 meeting, and he therefore had a duty to destroy the third codicil as instructed by his client. Simmons v. O‘Charley‘s, Inc., 914 S.W.2d 895, 902 (Tenn.Ct.App.1995). This argument is unpersuasive.
All fifty states have revocation statutes, most of which are modeled after two English statutes, the 1677 Statute of
Whether the testator‘s presence is an irreducible requirement for a valid revocation depends entirely on the language used in the revocation statute. 2 PAGE ON WILLS § 21.31, at 404; J.P.M., Annotation, Necessity that Physical Destruction or Mutilation of Will Be Done in Testator‘s Presence in Order to Effect Revocation, 100 A.L.R. 1520, 1520 (1936). In states such as Tennessee where the revocation statute expressly requires the destructive act to be performed in the testator‘s presence, the courts have uniformly held that the destruction of a will or codicil at the testator‘s express direction but outside the testator‘s presence is insufficient to revoke the instrument as a matter of law. 2 PAGE ON WILLS § 21.31, at 404; J.P.M., Annotation, Necessity that Physical Destruction or Mutilation of Will Be Done in Testator‘s Presence in Order to Effect Revocation, 100 A.L.R. at 1520.43 The courts have explicitly rejected attempts to circumvent the presence requirement through the application of agency principles,44 evеn where the person directed to destroy the will was the testator‘s attorney.45
IV.
The trial court‘s December 14, 2001 order admitting the will and the first two codicils to probate in solemn form is vacated and the case is remanded to the trial court for a hearing on whether the third codicil was validly executed.47 On remand, Ms. Boote must elect whether to have the will contest tried in the trial court or in the circuit court. If the trial court determines that Mr. Boote validly executed the third codicil, it must enter an order sustaining Ms. Boote‘s right to contest the will, require Ms. Boote to enter into a statutory bond, and cause a certificate of the contest and the will and all three codicils to be filed in the court elected by Ms. Boote for the trial of the will contest. We tax the costs of this appeal to Helen Boote Shivers and Linda Boote Gerritsen and their surety for which execution, if necessary, may issue.
OPINION ON PETITION FOR REHEARING
On October 21, 2005, this court issued an opinion vacating the trial court‘s December 14, 2001 order admitting Joseph Owen Boote, Jr.‘s will and first two codicils to probate in solemn form. In re Estate of Boote, 198 S.W.3d 699, 726 (Tenn.Ct.App. 2005). We instructed the trial court on
I. EFFECT OF THE LETTERS TESTAMENTARY
Ms. Shivers and Ms. Gerritsen present four arguments in support of their petition. First, they assert that we erred by concluding that the trial court‘s December 14, 2001 order was the order that admitted Mr. Boote‘s will and first two codicils to probate in solemn form. According to Ms. Shivers and Ms. Gerritsen, the clerk and master of the chancery court admitted the will and first two codicils to probate in solemn form on November 15, 2001 when it issued letters testamentary to Ms. Boote, and the court‘s December 14, 2001 order which purported to admit the will and first two codicils to probate in solemn form merely “reaffirm[ed]” the clerk and master‘s earlier order.1 This argument places substantially more weight on the letters testamentary than they can bear.
An executor or executrix serves as a court-appointed receiver to collect and preserve the decedent‘s assets during the pendency of the probate proceedings, to pay the claims of creditors, and to recommend to the court an appropriate final distribution of the decedent‘s estate. In re Estate of Barnhill, 62 S.W.3d 139, 144 (Tenn. 2001); In re Estate of Barnwell, No. 01A01-9711-PB-00656, 1998 WL 755011, at *1, 4-5 (Tenn.Ct.App. Oct. 30, 1998) (No Tenn. R.App. P. 11 application filed); 1 JACK W. ROBINSON, SR. & JEFF MOBLEY, PRITCHARD ON THE LAW OF WILLS AND ADMINISTRATION OF ESTATES §§ 36, at 58-61, 63, at 105-06, 64, at 108-09 (5th ed. 1994 & Supp. 2004) (“PRITCHARD“). The letters testamentary evidence the executor or executrix‘s appointment by the court. 1 PRITCHARD § 37, at 61. The executor or executrix presents copies of the letters to banks, creditors, insurance companies, and others to demonstrate his or her legal authority to enter into binding transactions relating to the decedent‘s property. 2 PRITCHARD § 602, at 113-14. Thus, the appointment of an executor or executrix through the issuance of letters testamentary is a mere equitable remedy that is ancillary to the underlying probate proceedings.
At the conclusion of the November 15, 2001 hearing, the trial court directed the clerk and master of the chancery court to issue letters testamentary to Ms. Boote with the proviso that they would be subject to a later order from the court itself. The clerk and master complied with the court‘s direction and issued letters testamentary to Ms. Boote on November 15, 2001. The court did not direct the clerk and master to enter an order admitting the will and first two codicils to probate in solemn form, and the letters testamentary issued by the clerk and master did not purport to do so. While a clerk and master of the chancery court has express statutory authority to grant letters testamentary, to appoint executors and executrices,
Ms. Shivers and Ms. Gerritsen also argue that “the appointment of an executrix to administer an estate necessarily implies that the will has been admitted to probate.”2 This argument overlooks the possibility that the trial court erred by prematurely authorizing the issuance of letters testamentary to Ms. Boote. Letters testamentary cannot be issued until the will on which they are based has been admitted to probate. 1 PRITCHARD § 36, at 58-59. Thus, the trial court should not have authorized the clerk and master of the chancery court to issue letters testamentary to Ms. Boote even on a provisional basis until after the court had entered an order admitting the will and first two codicils to probate in solemn form. Premature issuance of letters testamentary cannot serve tо conjure up out of thin air a prior order admitting a will to probate in solemn form when no such order exists.
The December 14, 2001 order admitted the will and first two codicils to probate in solemn form. The trial court did not direct the clerk and master to enter an order of probate in solemn form on November 15, 2001, and the clerk and master had no independent authority to enter such an order. Accordingly, we disagree with Ms. Shivers and Ms. Gerritsen‘s assertion that the clerk and master of the chancery court admitted the will and first two codicils to probate in solemn form by issuing letters testamentary to Ms. Boote on November 15, 2001.
II. FILING OF THE DECLARATORY JUDGMENT PETITION AND THE THIRD CODICIL AS THE FUNCTIONAL EQUIVALENT OF A NOTICE OF CONTEST
Ms. Shivers and Ms. Gerritsen‘s second argument is that this court erred by concluding that the filing of the declaratory judgment petition with a copy of the third codicil attached was the functional equivalent of a notice of contest depriving the trial court of authority to enter its December 14, 2001 order of probate in solemn form.3 This argument rests on three flawed premises: (1) that a petition for declaratory judgment cannot be used to initiate a will contest; (2) that we erred in relying on the Tennessee Supreme Court‘s decision in In re Will of Ambrister, 205 Tenn. 737, 330 S.W.2d 330 (1959); and (3) that we applied the wrong standard of review in deciding whether the trial court erred when it entered the December 14, 2001 order of probate in solemn form.
Ms. Shivers and Ms. Gerritsen have cited no authority for the proposition that a petition for declaratory judgment cannot be used to draw a trial court‘s attention to the existence of a later will or codicil, thereby triggering a will contest. This proposition does not comport with the Tennessee Supreme Court‘s pronouncements
Ms. Shivers and Ms. Gerritsen contend that this case does not fit within the rule of In re Will of Ambrister. In that case, a later will expressly and completely revoked an earlier will; while in this case, the third codicil does not challenge the validity of the will and first two codicils but instead merely seeks to “amend” or “modify” them. These are distinctions without a difference. The decision in In re Will of Ambrister states plainly that a will can be revoked by a later instrument “either expressly or impliedly,” In re Will of Ambrister, 205 Tenn. at 746, 330 S.W.2d at 334 (emphasis added), and that the rule being adopted applies with equal force to both wills and codicils, In re Will of Ambrister, 205 Tenn. at 745, 330 S.W.2d at 334 (“The grounds of contest are not, it has been held, limited to issues going to the execution of the probated will, but the complainant may set up as a ground of contest a later will or codicil.“) (emphasis added).
Ms. Shivers and Ms. Gerritsen‘s assertion that the third codicil would not operate as a partial revocation of the will and first two codicils if it were admitted to probate along with them understates the impact of the third codicil on the distribution of Mr. Boote‘s estate. An implied revocation exists whenever a later will or codicil provides for a distribution of the decedent‘s estate that directly contradicts the scheme of distribution contained in an earlier instrument. Third Nat‘l Bank v. Scribner, 175 Tenn. 14, 31, 130 S.W.2d 126, 133 (1939); Seilaz v. Seilaz, 24 Tenn.App. 611, 614-15, 148 S.W.2d 23, 26 (1940). Under the will and first two codicils, Ms. Boote would receive a $600,000 marital trust from the estate, and Ms. Shivers and Ms. Gerritsen would take equal shares of a residuary estate worth well over $30 million before the payment of estate taxes and expenses. By contrast, under the third codicil, Ms. Boote would receive not only the $600,000 marital trust, but also a one-third share of the residuary estate, thereby reducing Ms. Shivers and Ms. Gerritsen‘s shares from one-half to one-third. A later instrument that reduces the shares of two beneficiaries by $5 milliоn each and increases a third beneficiary‘s share by $10 million does not merely “amend” or “modify” the earlier instruments. It operates as an implied partial revocation of the earlier instruments that fits well within the rule of In re Will of Ambrister.
Ms. Shivers and Ms. Gerritsen‘s third premise is that we applied an incorrect standard of review in deciding whether Ms. Boote‘s declaratory judgment petition was the functional equivalent of a notice of contest. They assert that we should have applied the “abuse of discretion” standard of review because the case involves the denial of a petition for declaratory judgment. This claim misperceives the basic framework of our decision. We did not conclude that the trial court committed
III. THE NOVEMBER 15, 2001 HEARING AS A WILL CONTEST
Ms. Shivers and Ms. Gerritsen‘s third argument involves the idea that the November 15, 2001 hearing was itself a will contest. Thus, at least according to Ms. Shivers and Ms. Gerritsen, there had already been one will contest by the time Ms. Boote filed her declaratory judgment petition on December 7, 2001, and Ms. Boote could not initiate a second will contest without alleging fraud or perhaps newly discovered evidence. They claim that becаuse Ms. Boote never alleged fraud in the trial court, and because the third codicil does not satisfy the requirements for newly discovered evidence, the trial court properly refused to entertain her attempt to initiate a second will contest.
The defect in this argument is its first premise. A hearing in a proceeding to probate a will in solemn form is not a will contest. To be sure, there are similarities in the procedures and conclusiveness of will contests and proceedings to probate a will in solemn form. In addition, both this court and the Tennessee Supreme Court have frequently analogized the two types of proceedings in prior decisions, several of which have been cited by Ms. Shivers and Ms. Gerritsen in support of their argument. Petty v. Call, 599 S.W.2d 791, 793 (Tenn.1980); Bearman v. Camatsos, 215 Tenn. 231, 385 S.W.2d 91, 94 (1964); Lillard v. Tolliver, 154 Tenn. 304, 576, 579, 285 S.W. 576, 579 (1926); Green v. Higdon, 891 S.W.2d 220, 222 (Tenn.Ct.App.1994). In each of the cited cases, the court highlighted the similarities or dissimilarities between the two types of proceedings on its way to making a larger point regarding the legal questions at issue in that particular case. None of these cases stands for the proposition that an in solemn form probate proceeding that has not yet been concluded bars the initiation of a will contest. To the contrary, the authorities are clear that if a will contest is to be maintained at all, it must be initiated prior to the entry of the order of probate in solemn form. See, e.g., Murrell v. Rich, 131 Tenn. at 397-99, 175 S.W. at 425-26.
IV. DENIAL OF MS. BOOTE‘S PETITION FOR POST-JUDGMENT RELIEF
Ms. Shivers and Ms. Gerritsen‘s fourth argument is that the trial court properly denied the portion of Ms. Boote‘s motion for post-judgment relief that requested a
V. SCOPE OF PROCEEDINGS ON REMAND
Finally, Ms. Shivers and Ms. Gerritsen express concern that our October 21, 2005 opinion unduly restricts the scope of the proceedings on remand. They ask us to broaden the scope of the remand in two respects: (1) to allow them to investigate more fully how and when Ms. Boote and her attorney, Walter M. Bussart, discovered the circumstances surrounding the destruction of the original of the third codicil by Mr. Boote‘s attorney, Thomas A. “Drew” Davidson; and (2) to provide them with an opportunity to contest all three codicils.
The remand order in our October 21, 2005 opinion dealt only with the issues raised in the case and nothing more. Its purpose was to put the parties in precisely the same position they would have been in had the trial court properly held that the filing of the declaratory judgment petition and third codicil was the functional equivalent of a notice of contest to the will and first two codicils. While the opinion expressly authorizes Ms. Boote to proceed with a contest if she chooses to do so, nothing in the opinion prevents Ms. Shivers and Ms. Gerritsen from also contesting the will and all three codicils if that is their desire. In the context of these proceed-
VI.
Ms. Shivers and Ms. Gerritsen‘s petition for rehearing is denied. We tax the costs related to this petition to Helen Boote Shivers and Linda Boote Gerritsen and their surety for which execution, if necessary, may issue.
Martha M. BOOTE
v.
Helen Boote SHIVERS et al.
No. M2003-00560-COA-R3-CV.1
Court of Appeals of Tennessee, at Nashville.
Jan. 7, 2004 Session.
Oct. 21, 2005.
Permission to Appeal Denied by Supremе Court April 24, 2006.
Petition to Rehear Denied May 30, 2006.
Notes
Mr. Davidson‘s account of his actions strains credulity. He knew that Bass, Berry & Sims prepared Mr. Boote‘s will and other legal documents that were executed shortly after Mr. Boote married Ms. Boote. A simple telephone call to Bass, Berry & Sims would have enabled Mr. Davidson to obtain a copy of the antenuptial agreement for his files. From the record on appeal, Mr. Davidson‘s actions appear to be more consistent with Ms. Boote‘s explanation for Mr. Davidson‘s failure to review the antenuptial agreement. According to Ms. Boote, both she and her husband asked Mr. Davidson about the antenuptial agreement, but he told them that antenuptial agreements are unenforceable in Tennessee, that their antenuptial agreement was not worth the paper it was written on, and that it was therefore unnecessary for him to review it before drafting testamentary instruments for Mr. Boote and providing him with estate planning advice.
As explained in our original opinion, deciding whether the course of proceedings in the trial court amounted to the initiation of a will contest is a question of law whiсh this court reviews de novo. In re Estate of Boote, 2005 WL 2739287, at *11 (citing In re Will of Ambrister, 205 Tenn. at 743-46, 330 S.W.2d at 333-35; Jenkins v. Jenkins, 168 Tenn. at 297, 77 S.W.2d at 806).We do not customarily consider evidence that has neither been presented to nor considered by the trial court unless it has been made part of the record in accordance with
not decide in the present case whether the historical rule—that orders admitting wills to probate could not be collaterally attacked on any ground other than fraud in the procurement of the order—has been supplanted by the adoption of
Four discrete functions have been attributed to the formalities—the evidentiary, cautionary, protective, and channeling functions. The evidentiary function requires solid evidence of the existence and content of the decedent‘s directions. The cautionary function requires some indication that the decedent arrived at these directions with adequate awareness. The protective function attempts to assure that the contents and the execution of the will were the product of the decedent‘s free choice. The channeling function is meant to facilitate a substantial degree of standardization in the organization, language, and content of most wills, so that they can be prepared and administered in a fairly routine manner.
RESTATEMENT (THIRD) OF PROP.: WILLS & OTHER DONATIVE TRANSFERS § 3.3 cmt. a, at 217 (1999).Bohleber v. Rebstock, 255 Ill. 53, 99 N.E. 75, 76-77 (1912).[T]he courts of this country have practically uniformly held, and text-book writers also lay down the rule, that the mere intention to revoke a will, unaccompanied by any act of the testator to execute that intention, will not be sufficient to revoke the will, even though the execution of the intention was frustrated by the fraud and improper conduct of other persons....
In section 255 of Page on Wills the author discusses the question whether the prevention of the revocation of a will by fraud of the beneficiaries is sufficient to justify a court in declaring a revocation under statutes providing what acts will be sufficient for that purpose, and says the weight of authority is that, in the absence of any of the acts specified in the statute, a will cannot be revoked by the intention of the testator alone, no matter by what deceit he was prevented from manifesting his intention. According to the author but threе states (Connecticut, Georgia, and Tennessee) have decided a contrary view, but in some, if not all, of these states there was at the time of the decisions no statute specifying what acts were necessary to revoke a will. Mr. Page expresses the view that there ought to be provided by law some remedy in a case where the testator was prevented from revoking his will by actual coercion. Any such remedy, however, would have to be provided by statute.