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In re Elizabeth Beck Hoisington Living Trust

Court of Appeals of Tennessee, Jackson

October 19, 2017

IN RE ELIZABETH BECK HOISINGTON LIVING TRUST

          Session September 18, 2017

         Appeal from the Probate Court for Shelby County No. PR-004617 Karen D. Webster, Judge

         Appellant appeals the trial court's determination that settlor's holographic notations on her trust agreement did not operate to modify the original trust. Specifically, the trial court held that settlor neither satisfied the requirements for modification of the trust as set out in the trust agreement, nor manifested a clear intent to amend the trust under Tennessee Code Annotated Section 35-15-602(c)(2)(B). Discerning no error, we affirm.

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

          Edward Thomas Autry, Memphis, Tennessee, for the appellant, Elizabeth Bozeman Atchley.

          John Kevin Walsh and Tricia M.Y. Tweel, Memphis, Tennessee, for the appellee, Carol Gish.

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

          OPINION

          KENNY ARMSTRONG, JUDGE.

         I. Background

         On November 6, 2001, Elizabeth Hoisington ("Settlor") executed her Last Will and Testament and the original version of the Elizabeth Beck Hoisington Living Trust (the "Trust"), which is the subject of this appeal. Under the Trust, Settlor was named and served as the initial Trustee, and Appellee Carol Gish was named as Successor Trustee of Settlor's Trust. At some unknown date, Settlor made handwritten notations on Articles V and VI of the Trust document, to-wit:

         (Image Omitted)

         Settlor died on May 11, 2015, leaving the following beneficiaries under her will: (1) Appellant Elizabeth Bozeman Atchley, daughter; (2) Robert G. Bozeman, son; (3) Shirley B. Hoisington Moody, daughter; (4) James Beck Bozeman, Jr., grandson; and (4) Ashley Beck Bozeman, granddaughter. On August 10, 2015, Appellant filed a petition to open Settlor's estate. In September 2015, Shirley Moody provided Carol Gish, the Successor Trustee, with the Trust document that contained Settlor's handwritten notations. On October 7, 2015, Appellant withdrew her petition to open the estate, and the Successor Trustee filed a petition for declaratory judgment, requesting a determination regarding whether the Settlor's handwritten notations constituted a valid modification of the Trust document. On the same day, Appellant filed a petition for declaratory judgment requesting the trial court to hold that Settlor's handwritten notations constituted a valid modification of the Trust. On April 15, 2016, Ms. Moody filed a Tennessee Rule of Civil Procedure 12.02 motion to dismiss Appellant's petition for declaratory judgment. Prior to the hearing on the petitions and the motion to dismiss, the parties stipulated that: (1) the holographic notations on the Trust document were entirely in Settlor's handwriting; and (2) any challenge to the Settlor's competency, at the time the notations were made, was reserved.

         Following a hearing on May 17, 2016, the trial court held that Settlor's holographic notations did not comply with the mandates of the Tennessee Uniform Trust Code ("TUTC"), which was enacted in 2004 to govern trusts in Tennessee. As such, the trial court held that the trust res would be distributed in compliance with the original unannotated Trust document. The trial court denied Ms. Moody's motion to dismiss, although it noted that the motion was rendered moot by its ruling on the holographic notations. Ms. Atchley appeals.

         II. ...


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