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Parker v. Parker

Court of Appeals of Tennessee, Nashville

January 26, 2017

TIMOTHY PARKER et al.
v.
JAMES MARK PARKER et al.

          Session: January 17, 2017

         Appeal from the Chancery Court for Bedford County No. 28633 J.B. Cox, Chancellor

         This appeal arises from a will contest. The witnesses to the will failed to sign the body of the will, but they signed the self-proving affidavit in the presence of the testator. After the will was admitted to probate in common form, the contestants filed a complaint challenging the validity of the will. The contestants later filed a motion for summary judgment, arguing that the decedent did not comply with the execution requirements of Tenn. Code Ann. § 32-1-104, because the witnesses did not sign the body of the will. The trial court granted the motion based on In re Estate of Bill Morris, No. M2014-00874-COA-R3-CV, 2015 WL 557970 (Tenn. Ct. App. Feb. 9, 2015), holding that a will is not validly executed if the witnesses sign only the self-proving affidavit. The executor appealed. While this appeal was pending, the General Assembly passed an amendment to Tenn. Code Ann. § 32-1-104, which states that wills executed prior to July 1, 2006, satisfy Tennessee's due execution requirements if the witnesses to the will signed the self-proving affidavit. In this appeal, both parties ask this Court to determine whether the newly enacted amendment applies and, if so, whether it comports with Tennessee's constitutional prohibition against retrospective laws. But for a few exceptions, we will not consider issues the parties did not present to the trial court. Because the General Assembly enacted this amendment while this appeal was pending, the trial court has not had the opportunity to consider these issues. In order to afford the trial court that opportunity, we vacate the judgment declaring the will invalid. Further, we remand to the trial court with instructions to reinstate the petition to admit the will to probate and to reinstate the amended complaint challenging the will, which will give the parties the opportunity to present these issues to the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Vacated and Remanded.

          J. Murray Milliken, Shelbyville, Tennessee, for the appellant, James Mark Parker.

          Richard L. Dugger, Shelbyville, Tennessee, for the appellees, Timothy Parker and Dolly P. Robbins.

          Frank G. Clement, Jr., P.J., M.S., delivered the opinion of the Court, in which Andy D. Bennett and Richard H. Dinkins, JJ., joined.

          MEMORANDUM OPINION [1]

          FRANK G. CLEMENT, JR., P.J., M.S.

         Homer D. Parker ("Decedent") executed his will on June 3, 1996. The will and the self-proving affidavit consist of three pages. Decedent signed his will near the bottom of page two, and then followed his signature with a declaration which reads:

I, Homer D. Parker, do publish and declare this to be my Will, in the presence of each and all the subscribing witnesses who I have requested to act as such, by signing the attesting clause and affidavit below, pursuant to the provisions of TCA § 32-2-111.

         Decedent then signed a second time directly below the foregoing declaration near the top of page three. Immediately thereafter, the standard self-proving affidavit appears, followed by the signatures of the two attesting witnesses and a notary public. Additionally, each of the three pages bear Decedent's initials, "H.D.P.", both handwritten and typed at the bottom left of the page.

         Decedent died on November 21, 2010. His son, James Mark Parker, whom Decedent nominated as the executor ("Executor"), petitioned the Chancery Court for Bedford County, Tennessee, to admit the will to probate in common form. The court issued letters testamentary to Executor that same day.

         On May 25, 2011, Decedent's other two children, Dolly P. Robbins and Timothy Parker ("Contestants"), filed a petition to contest the will.[2]

         While this case was pending in the trial court, the Tennessee Court of Appeals filed In re Estate of Bill Morris, No. M2014-00874-COA-R3-CV, 2015 WL 557970 (Tenn. Ct. App. Feb. 9, 2015). The facts of that case parallel the facts of this case in that the witnesses to the Morris will signed the self-proving affidavit but did not sign the body of the will. Id. at *2. Because the witnesses did not sign the body of the will, the Morris ...


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