Session Date: February 23, 2017
from the Chancery Court for Bedford County No. 28900 James B.
appeal arises from the probate administration of an estate.
The principal issues concern a certificate of deposit and the
trial court's approval of attorney fees paid from the
estate to the estate's first attorney. The trial court
awarded the certificate of deposit to the decedent's son,
finding that the certificate of deposit passed to the son as
the surviving joint tenant. With respect to attorney fees
paid to estate's first attorney, the trial court approved
fees in the amount of $12, 400 and disapproved fees in the
amount of $7, 600. The decedent's daughter appealed.
Finding no error, we affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Kennerly Burger, Murfreesboro, Tennessee, for the appellant,
Kingree Trott, Shelbyville, Tennessee, for the appellee,
William S. Bingham.
G. Clement Jr., P.J., M.S., delivered the opinion of the
Court, in which Andy D. Bennett and W. Neal McBrayer, JJ.,
G. CLEMENT, JR., P.J., M.S.
Adcock Bingham ("the decedent") died on July 14,
2011, at the age of 92. She was survived by her two children,
Peggy Bingham Artley ("Petitioner") and William S.
Bingham. In her Last Will and Testament, the decedent divided
her estate equally between her children and appointed Mr.
Bingham the executor ("Executor"). Executor hired
attorney Wayne Bomar to assist with the probate of the
estate. Executor's contract with Mr. Bomar, dated July
20, 2011, included a list of the services Mr. Bomar would
provide for the estate at a fee of 5% of the gross estate as
determined by the Tennessee Department of Revenue Inheritance
Tax Return. The contract also listed services that would not
be included at the agreed percentage fee but rather at his
hourly fee of $200, including, inter alia, contested
lawsuits by any beneficiary or representative of any
22, 2011, the decedent's will was admitted to probate in
the Bedford County Chancery Court. Executor filed his initial
inventory and accounting ("Original Accounting") in
February 2012. Among the assets listed in the Original
Accounting was a certificate of deposit in the amount of $80,
000 that the decedent acquired from Regions Bank in 2003.
Three months later, Petitioner commenced this action by
filing a Petition to Remove Executor, Seek Accounting, Object
to Inventory, and to Inspect Estate. Executor filed an answer
to the petition, denying that he had defaulted in his duties
as Executor. Following a hearing on the petition, the trial
court granted Petitioner access to the estate. Thereafter,
substantial discovery ensued.
November 1, 2012, Petitioner filed a motion to disqualify Mr.
Bomar as the attorney for the estate, alleging that Mr. Bomar
had assumed an adversarial role for Executor's individual
interests and that he had taken actions on behalf of Executor
that were adverse to the obvious interests of Petitioner. Mr.
Bomar subsequently submitted an order voluntarily
withdrawing. On November 9, 2012, Ralph McBride Jr. entered
an appearance as the attorney for the estate and Andrew C.
Rambo entered an appearance on behalf of the individual
interests of Executor.
protracted proceedings, Executor filed his "Interim
Accounting" on July 23, 2014, in which Executor had
omitted the certificate of deposit. Executor explained the
omission of the certificate of deposit as follows: "The
[Original Accounting] in this cause included as an asset a
Regions Bank time deposit/IRA . . . in the amount of $80,
000. Further investigation indicates that this account was
jointly owned by the decedent and [Executor]. This account is
therefore not included in this Interim Accounting."
filed an objection to the Interim Accounting in which, as
relevant on appeal, she objected to Executor's failure to
include the certificate of deposit as an asset of the estate
and an expense of $20, 000 in attorney fees paid from the
estate to Mr. Bomar. A hearing on Petitioner's objections
was held on January 22, 2015, at which Petitioner, Executor,
and Mr. Bomar testified.
respect to the certificate of deposit, it was undisputed that
the account was jointly held by the decedent and Executor.
Executor argued that, following the death of the decedent,
the certificate of deposit passed to Executor by right of
survivorship and was not an asset of the estate. In support
of his position, Executor presented the documents the bank
utilized in establishing the account. The following documents
were admitted into evidence: (1) Time Certificate of Deposit,
(2) Regulation CC Funds Availability Disclosure, (3) Deposit
Account Agreement and Disclosure, and (4) an untitled,
one-page document that the parties referred to as the
Time Certificate of Deposit states that the "account
name" is "Bessie A. Bingham or Billy Bingham."
Regulation CC Funds Availability Disclosure states that the
"account holder" is "Bessie A. Bingham or
Deposit Account Agreement and Disclosure states at the top of
page one that the depositor is "Bessie A. Bingham or
Billy Bingham." On the middle of page two, the Deposit
Account Agreement and Disclosure reads as follows:
MULTIPLE-PARTY ACCOUNTS. This section pertains to multiple
(A) Joint Account Ownership. An account with two or more
Account Holders is a joint account. Unless you designate
otherwise on the Signature Card, joint Account Holders will
be considered joint tenants with right of survivorship.
(1) Joint Tenants With Right of Survivorship. If your Account
is a joint account with right of survivorship, upon the death
of one of the joint Account Holders, that person's
ownership interest in the Account will be immediately pass to
the other joint Account Holder(s).
(2) Joint With No Right of Survivorship. If your Account is a
joint account with no right of survivorship (Joint as Tenants
in Common), upon the death of one of the joint Account
Holders, that person's proportionate ownership interest
will pass to the estate of the deceased Account Holder.
(Emphasis in original).
Signature Card states that the account holders are
"Bessie A. Bingham or Billy Bingham" and designates
the account's "ownership type" as "Joint
(Right of Survivorship)." (Emphasis in original). The
Signature Card provides a space for the signature of the
decedent and a space for the signature of Executor, neither
of which contain a signature. In clarifying the absence of
their signatures, Executor testified that, although he was
not present when the decedent purchased the certificate of
deposit, the decedent and he signed the Signature Card and
returned it to the bank. Executor further testified that when
he attempted to obtain a copy of the signed Signature Card,
the bank informed him that it "[didn't] keep
anything over seven years . . . ."
argued that the account documents clearly and unambiguously
state that the funds were held by the decedent and Executor
as joint tenants with right of survivorship. Executor further
argued that the account's designation of right of
survivorship is "conclusive evidence . . . of the
intentions of all named that title vests in the survivor,
" pursuant to Tenn. Code Ann. § 45-2-703(e)(1).
Thus, Executor insisted that the funds were not part of the
decedent's estate and did not pass under the will.
argued that Executor could not rely on the conclusive
presumption established in Tenn. Code Ann. §
45-2-703(e)(1) because the Signature Card was not signed by
the decedent. According to Petitioner, the decedent was
mentally alert and physically capable of executing the
paperwork related to the certificate of deposit; thus, the
absence of the decedent's signature on the Signature Card
evinces that the decedent did not agree with the manner in
which the account was established, that being a joint account
with right of survivorship. Petitioner further argued that,
without any signed documents designating that the account
carried a right of survivorship, there is a rebuttable
presumption that the "property held under the title,
joint tenancy, carries no right of survivorship, "
pursuant to Tenn. Code Ann. § 45-2-703(e)(4). Petitioner
contended that Executor failed to overcome that presumption.
Thus, she insisted that the funds were part of the
decedent's estate and should pass under the will rather
than to Executor.
the issue of attorney fees, Executor testified that the
estate paid Mr. Bomar $20, 000 for legal services he provided
to the estate. Executor stated that he was satisfied with the
services provided by Mr. Bomar, that the services rendered
were of value to the estate, and that he believed the $20,
000 fee was reasonable.
part, Mr. Bomar testified at length as to the difficulty of
the case. Specifically, Mr. Bomar testified that Petitioner
employed four different attorneys while he represented the
estate, which caused his work to increase because it was
necessary to repeat work following the employment of each new
attorney. In addition to Petitioner's frequent changes of
attorneys, Mr. Bomar testified that he also had to expend
time to deal with Petitioner's unauthorized removal of
personal property from the decedent's house. He further
noted that there were numerous unsuccessful attempts to
settle the estate during his representation. Mr. Bomar
provided an itemization of his time spent on the case,
showing that he spent 72 hours defending this action. With
respect to the itemization, Mr. Bomar testified ...