Session February 28, 2017
from the Circuit Court for Hamilton County No. 15C422 L.
Marie Williams, Judge
daughter filed a notice of will contest, challenging a will
that disinherited her and her sisters. According to the
contestant, decedent attempted to revoke the will by
directing an unnamed person to destroy it in her presence.
But the unnamed person allegedly tricked decedent and
destroyed another document instead. A beneficiary under the
will and the administrator of the estate filed a joint motion
to dismiss the contest for failure to state a claim upon
which relief can be granted. The beneficiary and the
administrator argued that the statutes applicable to
revocation of wills required that the will actually be
destroyed for an effective revocation. The circuit court
granted the motion and dismissed the will contest. Upon
review, we conclude that the enactment of Tennessee Code
Annotated § 32-1-202 did not abrogate the common-law
rule that fraud will not defeat revocation of a will. So the
contestant did state a claim for relief.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Reversed and Case Remanded
Stephen S. Duggins, Chattanooga, Tennessee, for the
appellant, Drema S. Louck.
Christopher A. Wilson, Nashville, Tennessee, for the
appellee, The Leukemia and Lymphoma Society of Middle
Anthony A. Jackson, Chattanooga, Tennessee, for the appellee
Gregory D. Willett, Administrator of the Estate of Wanda
Neal McBrayer, J., delivered the opinion of the court, in
which D. Michael Swiney, C.J., and John W. McClarty, J.,
NEAL McBRAYER, JUDGE
21, 1991, Wanda Jeanne Starkey executed her last will and
testament. Under her will, Ms. Starkey left "all of
[her] clothing, all pictures of family members related to
[her] by blood, and all jewelry, with the exception of [her]
engagement ring and wedding ring" to her three living
children, Drema Dickinson, now Louck, Terri Scoggins, and
Charlotte S. Goe. Ms. Starkey left the remainder of her
estate to her husband. In the event that he predeceased her,
the three children would inherit everything.
September 28, 2009, Ms. Starkey executed a second will, which
explicitly revoked "all former wills and codicils to
wills heretofore made by [her]." Like her previous will,
under the 2009 Will, the bulk of Ms. Starkey's estate
went to her husband. But unlike the prior will, Ms. Starkey
disinherited all of her children, "as [she and they]
ha[d] not maintained a close, amicable bond." If her
husband predeceased her, the 2009 Will provided that the
Leukemia and Lymphoma Society of Middle Tennessee (the
"LLS") would inherit in place of her husband.
Starkey died on March 14, 2013. Her husband predeceased her,
leading to what would be the central dispute between Ms.
Louck and the LLS.
April 2, 2013, Ms. Louck filed a petition for probate of the
1991 Will and granting of letters testamentary in the
Chancery Court for Hamilton County, Tennessee.The petition
alleged that no later wills or codicils could be found and
that Ms. Louck was "not aware of any instrument revoking
the document or documents being offered for probate." On
the same day, the Clerk & Master entered an order
admitting the first will to probate and appointing Ms. Louck
to serve as executor of the estate.
21, 2013, the LLS filed its own petition for probate of the
2009 Will and granting of letters testamentary. The court
revoked the letters testamentary previously issued to Ms.
Louck, and because the executor named in the 2009 Will
declined to serve, the court appointed Gregory D. Willett as
administrator cum testamento annexo (the
August 4, 2014, Ms. Louck filed a notice of will contest,
challenging the 2009 Will. Despite previously asserting that
she was "not aware" of any instrument revoking the
1991 Will, Ms. Louck claimed to have information concerning
the fate of the 2009 Will. Specifically, Ms. Louck alleged
that Ms. Starkey "attempted to have the  Will
destroyed and indeed believed that the  Will had been
destroyed in her presence, thereby rendering, the Decedent
intestate or, in the alternative, making an earlier will
Administrator and the LLS filed responses in opposition to
the will contest. Both argued that Ms. Louck failed to allege
sufficient grounds for a will contest. As the Administrator
noted, Ms. Louck only alleged that Ms. Starkey had attempted
to destroy the 2009 Will, not that it had been destroyed in
the manner specified under the will revocation statute.
See Tenn. Code Ann. § 32-1-201(3) (2015). In
addition, the original of the 2009 Will had been submitted to
Louck later filed an amended notice of will contest, but the
amended notice only further highlighted the fact that the
2009 Will had not been destroyed. In the amended notice, Ms.
Louck alleged that Ms. Starkey instructed "another
person" to destroy the 2009 Will in her presence and, in
fact, believed that the 2009 Will had been destroyed. But
this unnamed person allegedly destroyed another document,
"trick[ing]" Ms. Starkey into believing that the
destroyed document was the 2009 Will.
November 20, 2014, the chancery court sustained Ms.
Louck's right to contest the 2009 Will. Id.
§ 32-4-101(a) (2015). And, at the request of Ms. Louck,
the court ordered that "the conduct of the trial upon
the validity of the will shall be in Circuit Court to be
heard with a jury." Id. § 32-4-109 (2015).
Thus, the matter was transferred to the Circuit Court for
the circuit court, the Administrator and the LLS filed a
joint motion to dismiss the will contest for "failure to
state a valid claim for relief." According to the
motion, Ms. Louck "fail[ed] to allege facts establishing
any of the statutory manners of will revocation as set forth