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In re Estate of Starkey

Court of Appeals of Tennessee, Knoxville

March 21, 2018

In re THE ESTATE OF WANDA JEANNE STARKEY

          Session February 28, 2017

          Appeal from the Circuit Court for Hamilton County No. 15C422 L. Marie Williams, Judge

         Decedent's 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.

         Tenn. 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 Tennessee.

          Anthony A. Jackson, Chattanooga, Tennessee, for the appellee Gregory D. Willett, Administrator of the Estate of Wanda Jeanne Starkey.

          W. Neal McBrayer, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and John W. McClarty, J., joined.

          OPINION

          W. NEAL McBRAYER, JUDGE

         I.

         A.

         On June 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.

         On 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.

         Ms. Starkey died on March 14, 2013. Her husband predeceased her, leading to what would be the central dispute between Ms. Louck and the LLS.

         B.

         On 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.[1]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.

         On June 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 "Administrator").

         On 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 [2009] Will destroyed and indeed believed that the [2009] Will had been destroyed in her presence, thereby rendering, the Decedent intestate or, in the alternative, making an earlier will effective."

         The 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 the court.

         Ms. 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.

         On 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 Hamilton County.

         Once in 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 in ...


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