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In re Estate of McKelvey

Court of Appeals of Tennessee, Nashville

May 17, 2018

IN RE ESTATE OF JOHN TYLER McKELVEY

          Session March 14, 2018

          Appeal from the Chancery Court for Franklin County No. 2016-PR-133 Don R. Ash, Senior Judge

         This 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.

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

          David L. Stewart, Winchester, Tennessee, for the appellants, Teresa S. Payne, William T. McKelvey, and Trudy McKelvey Edwards.

          John H. Baker, III, Murfreesboro, Tennessee, for the appellee, Rebecca Dudley.

          Frank 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.

          OPINION

          FRANK G. CLEMENT JR., P.J., M.S.

         John 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.

         After 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."

         In the 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 home.

         The 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.

         At 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.

         Decedent's 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.

         At the 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.

(Citations omitted).

         Decedent's children appealed.

         Standard ...


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