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In re Last Will & Testament of Erde

Court of Appeals of Tennessee, Jackson

December 28, 2017


          Session November 15, 2017

         Appeal from the Chancery Court for Fayette County No. PR-1058 William C. Cole, Chancellor.

         This is a will contest. The trial court denied Appellant's motion to set aside its order admitting Decedent's will to probate and, subsequently, struck Appellant's motion to amend his counter-petition because such amendment would be futile. The trial court additionally found that Decedent possessed testamentary capacity to execute a holographic will, and that although there was a confidential relationship between Decedent and Beneficiary, Beneficiary provided clear and convincing evidence to rebut the presumption of undue influence. Discerning no error, we affirm.

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

          Gordon B. Olswing and Mitchell Lansky, Memphis, Tennessee, for the appellant, Carl Barton.

          A. Blake Neill, Somerville, Tennessee, for the appellee, Deborah Lawson.

          J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which Arnold b. Goldin, J., and Joe G. Riley, Sp. J., joined.




         This case involves the holographic will of Mary Theresse Erde ("Decedent"). The facts are largely undisputed for purposes of this appeal. Throughout her life, Decedent was characterized as a strong-willed, independent woman. After her marriage and the birth of her children, Decedent left her family for approximately fifteen years to live in Ireland and Portugal before returning to the United States in 2011. She resided in Collierville, Tennessee, for two years, near her only surviving son, Intervening Petitioner/Appellant Carl Barton ("Appellant") and his wife, Connie Barton ("Daughter-in-law"), and then moved to Oakland, Tennessee, in 2013.

         In July 2015, Decedent and Appellant's relationship became strained. Specifically, on July 4, 2015, Decedent and Appellant had a disagreement regarding Appellant's mother-in-law living with Appellant and his wife. This was the last time Appellant saw his mother. Prior to this disagreement, Appellant visited his mother regularly, and they had regular phone conversations. On July 16, 2015, Appellant called Decedent; however, Decedent expressed that she did not want to speak with Appellant, and the conversation ended in under a minute. This was the last contact between Decedent and Appellant. Appellant's wife, Connie Barton, and Decedent, however, continued to have a relationship. The two went to eat lunch on August 10, 2015, which was Decedent's birthday. At lunch, Decedent informed Daughter-in-law that she had hired Petitioner/Appellee Debbie Lawson ("Beneficiary") as a housekeeper.

         On August 20, 2015, Decedent drove herself to visit a friend in Alabama for four days. Decedent returned from her trip on August 24 and was admitted to the hospital soon thereafter on August 28. While at the hospital, Decedent was diagnosed with Stage IV lung and liver cancer. She returned home on September 8, 2015. Appellant was unaware his mother was in the hospital and, therefore, did not visit her. Daughter-in-law called Decedent on September 10, to inform her that she and Appellant were going on vacation. Decedent did not inform Daughter-in-law that she had been diagnosed with cancer. This was the last contact Daughter-in-law had with Decedent.

         In the meantime, in June 2015, Beneficiary began working as a housekeeper for Decedent. Beneficiary also ran errands for Decedent, took care of Decedent's pets, and even sat with Decedent on a regular basis. Decedent would also occasionally give Beneficiary checks or her debit card to buy groceries and other things needed around Decedent's home. Beneficiary stayed at Decedent's home while she was visiting in Alabama. Beneficiary also took Decedent to the hospital on August 28, visited her every day, and eventually brought her home from the hospital on September 8. Beneficiary testified that while Decedent was in the hospital, Decedent informed her that she wished to leave Beneficiary her house and personal property. Decedent also requested that Beneficiary stay with her at her house until she died because she did not want to be alone.

         On September 9, Nurse Samantha Walters ("Nurse Walters") became Decedent's home health nurse. At this time, Decedent asked Nurse Walters if she knew any estate planning attorneys, as Decedent wanted to prepare a will to leave Beneficiary her home and personal property. Nurse Walters suggested William Rhea ("Attorney Rhea"), one of Nurse Walters's close friends and an experienced estate attorney. Attorney Rhea interacted with Decedent four times in September 2015 before Decedent's death.

         First, on September 10, 2015, Decedent contacted Attorney Rhea to request that he meet with her at her home to prepare a will because she wanted to leave Beneficiary her entire estate and did not want her son to have anything or be a beneficiary of hers. Attorney Rhea met with Decedent at her home on September 14. In this meeting, Attorney Rhea and Decedent discussed her testamentary wishes, with Decedent telling Attorney Rhea that she wanted "everything" to go to Beneficiary. When Attorney Rhea told her that without a will everything would go to Appellant, Decedent replied with "can I vomit now?" Attorney Rhea advised her to hand-write a will until the formal will was executed. On September 16, Decedent called Attorney Rhea and requested that he help her prepare the will that day. He advised her that he was unavailable to do so until September 18 and again advised her to hand-write a will until the formal will could be executed.

         Nurse Walters came to Decedent's home on September 16 to administer care. While there, Decedent asked Nurse Walters for a pen and paper, at which time it was evident to Nurse Walters that Decedent intended on making her will. Decedent was quickly deteriorating at this point and in a considerable amount of pain. In order to facilitate the execution of the holographic will, Nurse Walters propped Decedent up against her body so Decedent could hand write the will. Decedent again stated to Nurse Walters that she wanted Beneficiary to have everything. After the will was written, Beneficiary placed the completed will in Decedent's desk drawer. Attorney Rhea visited Decedent for the last time on September 20. At this meeting Decedent confirmed to Attorney Rhea that the handwritten will was her express wishes and that she did not want her son to receive anything. Decedent passed away the next day, September 21, 2015. Decedent's will expressly left "everything [she] own[ed] to Debbie Lawson." In addition to her probate assets, Decedent also owned a payable on death savings account totaling approximately $100, 000; Daughter-in-law had previously been designated the beneficiary of this account and it passed to Daughter-in-law upon Decedent's death.


         Beneficiary filed a petition to admit handwritten will to probate on October 2, 2015. In this petition, Beneficiary asked the trial court to appoint her as administratrix of Decedent's estate. Appellant subsequently filed an answer to the petition to admit the will to probate along with a counter-petition to contest the handwritten will and for appointment of administrator on October 5, 2015. The counter-petition alleged that (1) the Decedent lacked capacity to execute the handwritten will; (2) the alleged handwritten will was procured by fraud, duress, and coercion; (3) Decedent was unduly influenced to make the alleged handwritten will by Beneficiary and others on her behalf; and (4) Appellant be named as administrator of Decedent's estate. The trial court had an evidentiary hearing on this matter on November 19, 2015. The trial court entered its order on November 25, 2015, finding that (1) three witnesses verified the writing in the will submitted by Beneficiary as Decedent's; (2) the instrument be admitted to probate; and (3) Beneficiary be appointed as administratrix of Decedent's estate.

         Over the next year, the parties filed various other pleadings concerning the unresolved issues of testamentary capacity and undue influence. On October 19, 2016, nearly a year from the entry of the trial court's order admitting the holographic will to probate, Appellant filed an amended counter-petition additionally alleging that the will was not in Decedent's handwriting. Beneficiary then filed a motion to strike the amended counter-petition on the grounds that the amendment was futile because the handwriting had been previously verified and submitted to probate on November 25, 2015, that the amended counter-petition was not filed in accordance with Rule 15.01 of the Tennessee Rules of Civil Procedure, and that there was undue delay by Appellant in filing the amended petition.

         On October 26, 2016, Appellant filed a motion citing Rule 60.02 of the Tennessee Rules of Civil Procedure to set aside the November 25, 2015 order admitting the will to probate. The motion averred that the testimony of the witnesses as to Decedent's handwriting was fraudulent and, thus, the order should be set aside. Beneficiary responded in opposition to Appellant's motion arguing that (1) Appellant failed to plead with particularity the allegations of fraud; (2) Appellant failed to raise and preserve the handwriting issue; and (3) the alleged fraud was that of a witness, not a party, thus, Rule 60.02 does not apply.

         The trial court denied Appellant's Rule 60.02 motion on January 24, 2017 on two grounds. First, the trial court found that the motion did not meet the particularity requirements of Rule 9.02 because it failed to plead specific allegations of fraud. Secondly, the trial court found that even accepting Appellant's attack to the credibility of one witness to Decedent's handwriting, the testimony of the remaining two witnesses went unchallenged. Because Tennessee Code Annotated § 32-1-105 requires only two witnesses to testify as to handwriting, the trial court therefore determined that sufficient evidence was presented that Decedent wrote the holographic will notwithstanding Appellant's proffered evidence. Additionally, the trial court struck Appellant's amended counter-petition because "the [c]ourt [] deni[ed] the Rule 60.02 Motion that would [have made] the Amended Counter-Petition possible."

         The trial court held a two-day trial on January 24 and 25, 2017, on the issues of testamentary capacity and undue influence. The court entered its memorandum opinion on February 14, 2017, finding that (1) Decedent possessed testamentary capacity when she executed her will on September 16, 2015; (2) a confidential relationship existed between Beneficiary and Decedent; but (3) the presumption of undue influence was rebutted by ...

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