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In re Estate of Malugin

Court of Appeals of Tennessee, Nashville

May 29, 2015

IN RE ESTATE OF LEONARD MALUGIN

April 08, 2015 Session

Appeal from the Chancery Court for Hickman County No. 13CV5064 Michael Binkley, Judge

David H. King and Jacob A. Vanzin, Franklin, Tennessee, for the appellant, Wanda Garland Bradley.

William E. Porter, Nashville, Tennessee, for the appellee, Billy Joe Malugin.

Kenny Armstrong, J., delivered the opinion of the Court, in which Arnold B. Goldin, J. and Brandon O. Gibson, J., joined.

OPINION

KENNY ARMSTRONG, JUDGE

I. Background

In 1995, Leonard Malugin ("the Decedent") and his wife, Mildred Irene Malugin (together, "the Malugins"), executed reciprocal wills. The Malugins had five children: Carolyn Ann Potts, Harold Wayne Malugin, Lloyd Allen Malugin, Wanda Bradley ("Appellant"), and Billy Joe Malugin ("Appellee"). The Malugins' respective wills provided that four-fifths of their estate would be divided equally among Carolyn Potts, Harold Malugin, Lloyd Malugin, and Billy Joe Malugin, and one fifth of the estate was to be placed in trust for Wanda Bradley. Because the Malugins did not approve of Mrs. Bradley's husband, their wills required that Mrs. Bradley divorce, separate from, or otherwise leave her husband before she could receive the assets in the trust.

Sometime in 2004, Mrs. Malugin's mental condition began to deteriorate, and Mrs. Potts was appointed as her conservator. Mrs. Potts also assumed the duty of writing checks for her father. Prior to her incapacity, Mrs. Malugin had written all the checks on the Malugins' behalf because Mr. Malugin was illiterate. Mrs. Potts testified that Mr. Malugin could read and write his "kids" names, and some of his friends' names, and he could recognize those names in writing. Mr. Malugin could also read numbers, but he could not read any words he did not recognize by sight.

Although Mr. Malugin did not write checks, he continued to disburse funds with Mrs. Potts's help. On August 15, 2006, Mr. Malugin disbursed $10, 000 to Billy Joe Malugin ("Appellee"). On August 17, 2006, Mr. Malugin disbursed the same amount to Lloyd Malugin and Harold Malugin, and he gave $10, 100 to Carolyn Ann Potts. Mrs. Bradley, however, did not receive a disbursement from Mr. Malugin at that time, ostensibly because she still refused to leave her husband.

On August 22, 2006, Mr. Malugin executed a new Last Will and Testament, specifically revoking any and all of his previous wills. This will was prepared by Donald W. Schwendimann, an attorney practicing in Hohenwald, Tennessee. The will bequeathed $1, 000 to Mrs. Bradley and directed that the remainder of the Decedent's estate be divided equally among his other children. Despite the fact that Mrs. Malugin was still alive at the time, the will makes no mention of her. Mrs. Malugin passed away on March 10, 2009.

On August 21, 2012, Mr. Malugin executed a codicil to his will, amending his will to state that the Appellee would be the sole executor of his estate and naming Harold Wayne Malugin as alternate executor. The codicil also stated that, other than removing Mrs. Potts as co-executor of the estate, "I [Mr. Malugin] ratify and confirm all of the provisions of my said will dated August 22, 2006." The codicil was prepared by Melanie Cagle, an attorney practicing in Hickman County. Also, on August 21, 2012, Mr. Malugin revoked Mrs. Potts's power of attorney.

On September 21, 2012, Billy Joe Malugin filed a "Petition to Appoint Conservator, " alleging that the Decedent's "health has diminished to the point…where he can no longer take care of his business affairs or his own personal needs." Attached to Appellee's petition for conservatorship was a letter dated September 4, 2012 written by Dr. Hrishi M. Kanth, stating that "[The Decedent] is deteriorating with his mentation. He is in his late 80s and…would not be able to make medical or financial decisions." Another letter accompanying the petition, also dated September 4, 2012, written by James R. Kirkpatrick, M.D., stated that Mr. Malugin had a "history of diabetes mellitus, Alzheimer's, anxiety, hypertension, atrial fibrillation with previous embolic event to his left leg, osteoarthritis, depression and hearing loss." This letter also stated that the Decedent "really needs 24 hour a day caregiver [sic], " that the Decedent "really cannot take care of himself, " and that "with [the Decedent's] dementia, he seems not able to follow instructions given orally as well."

On October 11, 2012, Mrs. Bradley and Mrs. Potts filed a petition to be named co-conservators over the Decedent. This petition alleged that Mr. Malugin had "Alzheimer's Dementia, " that he could not "prepare food for himself, " that he suffered from "memory loss and forgetfulness, " and that "he is confused and many times does not make sense." The petition included a report by Dr. Hrishi Kanth, dated September 24, 2012, recommending that a ...


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