Session March 14, 2018
from the Chancery Court for Franklin County No. 2016-PR-133
Don R. Ash, Senior Judge
appeal arises from a declaratory judgment action seeking to
determine whether the decedent died intestate. The decedent
executed a will in 2005 and executed another will in 2011,
which expressly revoked all prior wills and codicils.
Following the decedent's death in 2016, the original of
the 2011 will could not be located; however, the original of
the 2005 will was found in the decedent's personal filing
cabinet. The decedent's children then filed a Petition to
Open Estate and [for] Declaratory Relief, seeking a
declaration that the decedent died intestate. The
decedent's live-in companion of approximately 30 years,
and a beneficiary under both wills, filed an answer,
contending that the decedent died testate under either the
2005 or the 2011 will. At the trial, the decedent's
companion conceded that she did not have evidence to overcome
the presumption that the decedent revoked the 2011 will;
thus, the trial focused on whether the decedent intended to
revive his 2005 will upon revoking the 2011 will. The trial
court found "there is no proof Decedent revoked the 2011
Will with the intent to execute a later will, " and
"[g]iven the preservation and nearby-safekeeping of the
2005 Will following revocation of the 2011 Will and the lack
of evidence indicating a contrary intent, the Court concludes
Decedent intended to revive his 2005 Will." We affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
L. Stewart, Winchester, Tennessee, for the appellants, Teresa
S. Payne, William T. McKelvey, and Trudy McKelvey Edwards.
H. Baker, III, Murfreesboro, Tennessee, for the appellee,
G. Clement Jr., P.J., M.S., delivered the opinion of the
court, in which J. Steven Stafford, P.J., W.S., and W. Neal
McBrayer, J., joined.
G. CLEMENT JR., P.J., M.S.
Tyler McKelvey ("Decedent") died in Winchester,
Tennessee on March 24, 2016, at age 77. He was survived by
three adult children, Teresa S. Payne, William T. McKelvey,
and Trudy McKelvey Edwards (collectively,
"Decedent's children") and his live-in
companion of approximately 30 years, Rebecca Dudley, all of
whom are beneficiaries under both the 2005 and 2011 wills.
Decedent's children filed the petition to contest both
wills and Ms. Dudley filed her answer insisting that one or
both of the wills was valid, the trial court opened the
estate and issued letters of administration pendente
lite to Decedent's son, William McKelvey. The order
also recited that "a dispute exists as to whether John
Tyler McKelvey died leaving a proper Will and thus, a
determination must be made as to the validity of the Wills
attached to the Petition."
May 9, 2005 will, which was prepared by Decedent's
daughter, Trudy Edwards, a licensed attorney, Decedent
designated his son, William, as the executor of his estate.
The 2005 will bequeathed a portion of his real and personal
property to each of his three children and granted Ms. Dudley
a life estate in "the house, vehicle, garage, and yard .
. . provided no other male resides with her, " with the
entire residuary estate going to his son William. The parties
do not dispute that the 2005 will was validly executed and
stored in a personal filing cabinet located in Decedent's
later will, executed on March 21, 2011, expressly
"revoke[d] and render[ed] null and void any and all
other [prior] wills, codicils and testamentary
instruments." It also designated his son, William, as
the executor of his estate, and it bequeathed a portion of
Decedent's real and personal property to each of his
three children. Also similar to the 2005 will, the 2011 will
granted Ms. Dudley a life estate "in [Decedent's]
home, well house, garage and chicken coop" along with an
easement to access those structures. However, unlike his 2005
will, the 2011 will divided the residuary estate equally
among his children. Although the original of the 2011 will
was never located, the law firm that prepared the 2011 will
filed a signed copy with the court.
trial, it was undisputed that the original of the 2011 will
could not be found, and the parties stipulated that the
original 2005 will was found at the bottom of Decedent's
personal filing cabinet underneath some papers. Because Ms.
Dudley conceded that there was no evidence to rebut the
presumption that Decedent revoked his 2011 will, the trial
focused on whether Decedent intended to revive the 2005 will
upon revoking the 2011 will.
three children, his granddaughter, and Ms. Dudley testified
at trial. Ms. Dudley stated that Decedent expressed his
intent to revive the 2005 will by preserving it in his
personal filing cabinet. Decedent's children stated that
Decedent kept his most important papers in his safe, not in
his personal filing cabinet; Decedent frequently expressed
dissatisfaction with the 2005 will; and Decedent expressed
the intent to make a new will after 2011.
conclusion of the trial, the trial court held that the
presumption that Decedent destroyed the 2011 will, which
arose from the inability to locate the original will, was not
overcome and that the 2011 will was of no effect. The court
found that the original 2005 will was located "in a safe
in Decedent's home beneath other papers" and ruled:
At trial, scant evidence was submitted regarding
Decedent's intent. To be sure, destroying a second will
with the intent to execute a third will does not revive the
first will. However, there is no proof Decedent revoked the
2011 Will with the intent to execute a later will. Our
Supreme Court has held "when the older will is in
existence, and is carefully preserved by the testator after
the destruction of the later, and no other facts appear,
there can be but little question that it was the intention of
the testator to republish the former will." Given the
preservation and nearby-safekeeping of the 2005 Will
following revocation of the 2011 Will and the lack of
evidence indicating a contrary intent, the Court concludes
Decedent intended to revive his 2005 Will. Accordingly, the
Court finds Decedent did not die intestate, but under the
revived Last Will and Testament of John Tyler McKelvey
executed May 9, 2005.