Session September 18, 2017
from the Probate Court for Shelby County No. PR-004617 Karen
D. Webster, Judge
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.
R. App. P. 3 Appeal as of Right; Judgment of the Probate
Court Affirmed and Remanded
Thomas Autry, Memphis, Tennessee, for the appellant,
Elizabeth Bozeman Atchley.
Kevin Walsh and Tricia M.Y. Tweel, Memphis, Tennessee, for
the appellee, Carol Gish.
Armstrong, J., delivered the opinion of the court, in which
Arnold B. Goldin and Brandon O. Gibson, JJ., joined.
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
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.
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.