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In re Estate of Waller

Court of Appeals of Tennessee, Nashville

November 30, 2017


          Assigned on Briefs August 1, 2017

         Appeal from the Probate Court for Davidson County No. 16P1690 David Randall Kennedy, Judge

         In this interlocutory appeal involving a will contest, the trial court determined that Appellant did not have standing to contest the will at issue. In light of the Tennessee Supreme Court's recent decision in In re Estate of Brock, No. E2016-00637-SC-R11-CV, 2017 WL 5623526 (Tenn. Nov. 22, 2017), we reverse and remand for further proceedings.

         Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Probate Court Reversed and Remanded

          Cathryn Armistead, Nashville, Tennessee, for the appellant, Juan A. Horsley.

          J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Andy D. Bennett, J., joined.




         John Jefferson Waller, Jr. (Decedent) died on September 24, 2016.[2] On October 6, 2016, Petitioner Annie Burns filed a petition to admit will to probate. The petition alleged that Decedent had executed a Last Will and Testament on August 23, 2016, which will bequeathed all of Decedent's property to Ms. Burns ("the 2016 Will"). The petition also alleged, erroneously, that Ms. Burns was related to Decedent and that she was his next of kin. On the same day, Ms. Burns filed a petition for a temporary restraining order alleging that the "unknown relatives" of Decedent had taken control over his real property, preventing Ms. Burns from accessing the home. On October 7, 2016, the trial court granted the temporary restraining order and directed that "John Doe" was restrained from living in the Decedent's real property. The trial court did not require any bond relative to the temporary restraining order.

         On October 14, 2016, Appellant/Intervening Petitioner Juan A. Horsley ("Appellant") filed an intervening petition to probate a will. Therein, Appellant alleged that he was the great nephew of Decedent and therefore was Decedent's heir at law, along with two others, a nephew and another great nephew, Tyrone C. Horsley (together with Appellant, "Great Nephews"). Appellant further alleged that Decedent executed a Last Will and Testament on November 26, 2008 ("the 2008 Will"), naming Appellant and Mr. Horsley as co-executors and bequeathing property to the Appellant and Decedent's other Great Nephew. [3]

         The intervening petition further alleged that Ms. Burns's initial petition contained misrepresentations regarding Ms. Burns's consanguinity with Decedent. Appellant also contended that the 2016 Will was procured by undue influence, as Ms. Burns held a power of attorney over Decedent. Appellant contended that Ms. Burns, using this power of attorney, misappropriated funds from the estate. As such, Appellant asked that the 2008 Will be admitted to probate and that an inventory and accounting of the estate be ordered. Appellant attached to his petition the 2008 Will and an affidavit alleging that Great Nephews and Decedent's nephew were the only intestate heirs of Decedent.

         On October 25, 2016, yet another Last Will and Testament was filed with the trial court. This will, dated December 10, 2015 ("the 2015 Will"), left all property to Intervening Petitioners George Doyle Kendrick, Sr., and O'Liluard Lepez Kendrick, Decedent's neighbors ("Neighbors"). Shortly thereafter, on November 1, 2016, the trial court vacated the temporary restraining order. On November 15, 2016, the trial court entered an order noting that because of the three competing wills in this case, issues of standing were required to be resolved. In the intervening time, the trial court appointed a third-party to administer the estate.

         On December 13, 2016 Appellant filed a brief in support of his standing to contest the wills. Therein, Appellant alleged that both the 2015 and 2016 Wills were invalid. On December 16, 2016, Neighbors filed a petition to admit the 2015 Will to probate and a will contest regarding the 2016 Will. Therein, Neighbors alleged that, inter alia, the 2016 Will was procured through undue influence and that Decedent did not have testamentary capacity to execute the 2016 Will. On January 4, 2017, the trial court entered an order declaring that Appellant lacked standing to contest the 2016 Will and dismissing Appellant's petition. The trial court, however, granted Neighbors' petition to contest the 2016 Will.

         Upon request of Appellant, the trial court subsequently granted an interlocutory appeal regarding its decision to dismiss Appellant's will contest on the basis of lack of standing. In its order, the trial court noted its reluctance to dismiss Appellant's petition where there was a basis to believe that both the 2015 and 2016 Wills may have been procured by "nefarious characters" using "undue influence from a blind, illiterate, ninety-five year old decedent." The trial court's order granting the interlocutory appeal expressly stayed all trial court proceedings related to the will contest pending resolution of this appeal. This Court likewise granted Appellant's application for an interlocutory appeal on March 14, 2017. While this appeal was pending, this Court determined that the Tennessee Supreme Court had granted permission to appeal in the case relied upon by the trial court to support dismissal of Appellant's will contest. See In re Estate of Brock, No. E2016-00637-COA-R3-CV, 2016 WL 6503696 ...

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