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In re Estate of Cook

Court of Appeals of Tennessee, Jackson

May 31, 2019

IN RE ESTATE OF GAYLE FRANKLIN COOK

          Session April 10, 2019

          Appeal from the Chancery Court for Dyer County No. 17-CV-434 Tony Childress, Chancellor

         This case involves an effort to admit a lost will to probate. In the proceedings below, the trial court held that the lost will should be accepted for probate. Having reviewed the record transmitted to us on appeal, we affirm the judgment of the trial court

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

          Jason R. Creasy, Dyersburg, Tennessee, for the appellants, Ania Carpenter, and Shana Mireles.

          John W. Palmer and Mark D. Butler, Dyersburg, Tennessee, for the appellees, Debra C. Jenkins, Dennis William Cook, and Dale Bradley Cook.

          Arnold B. Goldin, J., delivered the opinion of the Court, in which J. Steven Stafford, P.J., W.S., and Kenny Armstrong, J., joined.

          MEMORANDUM OPINION [1]

          ARNOLD B. GOLDIN, JUDGE

         BACKGROUND AND PROCEDURAL HISTORY

         On April 25, 2012, Gayle Franklin Cook ("the Decedent") executed a valid will at the office of attorney John Palmer. Although the Decedent's brother, John Cook ("Mr. Cook"), and Mr. Cook's daughter, Debra Jenkins ("Ms. Jenkins"), accompanied the Decedent to Mr. Palmer's office, neither Mr. Cook nor Ms. Jenkins was present in the room when the Decedent executed his will. It is undisputed, however, that Mr. Cook left Mr. Palmer's office with the original of his brother's will and that he took the original will to his home where he placed it in a drawer with other items of importance. According to the record, the Decedent later died in February of 2017.

         The present dispute arose when Ms. Jenkins filed a petition in December 2017 alleging that her uncle's original will had been lost. She expressed her belief that the "lost will" had not been revoked by the Decedent during his lifetime, and she attached a copy of the will to her petition, praying that it be recognized and admitted to probate. Although Ms. Jenkins' petition noted that there were two heirs at law of the Decedent, [2]the petition represented that there were three different beneficiaries under the Decedent's lost will: Ms. Jenkins and her two brothers, Dale and Dennis Cook. Indeed, according to the copy of the will that was attached, the Decedent had specifically declared that he was "not unmindful of the fact" that he had "children and grandchildren who are not included as beneficiaries under this Last Will and Testament." Although the Decedent's heirs at laws subsequently moved to dismiss Ms. Jenkins' petition, their motion was denied by order entered May 3, 2018.

         A trial on the issue of the "lost will" occurred on September 4, 2018, and following the conclusion of those proceedings, the trial court entered an order holding that "[the] April 25, 2012 [will] was simply lost and . . . should be accepted for probate." The Decedent's heirs at laws ("the Appellants") thereafter filed a timely notice of appeal in this Court.

         STANDARD OF REVIEW

         On appeal, we review the trial court's findings of fact de novo with a presumption of correctness, and we honor those findings unless the evidence preponderates to the contrary. In re Estate of Leath, 294 S.W.3d 571, 574 (Tenn. Ct. App. 2008). The trial court's conclusions of law ...


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