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In re Estate of Espy

Court of Appeals of Tennessee, Nashville

August 29, 2019

IN RE ESTATE OF JERRY BRADLEY ESPY

          Session July 10, 2019

          Appeal from the Probate Court for Rutherford County No. 62233 Tolbert Gilley, Judge

         The only child of the decedent contests the validity of her father's will on the grounds that the decedent lacked testamentary capacity, and the will was the result of his stepdaughter's undue influence. When the step-daughter, who was designated as the executrix and sole beneficiary, filed a petition to admit the will to probate, the daughter filed a will contest. Following discovery, the step-daughter filed a motion for summary judgment to dismiss the will contest. The motion was properly supported by a statement of undisputed facts that principally relied on the affidavit of the attorney who prepared the decedent's will and attended the execution of the will. The attorney's affidavit stated that the decedent was of sound mind when he executed his will and that the stepdaughter, who was the sole beneficiary of the will, was not involved in the preparation of the will and was not present when the will was executed. The motion for summary judgment was also supported by the affidavit of a nurse who cared for the decedent at the veterans' home and who also witnessed the execution of the will. The nurse testified that he was responsible for the day to day care of the decedent for three years and interacted with him on a daily basis. He also testified that he witnessed the genuine love and affection the decedent and his step-daughter shared, that the decedent wanted to leave everything to her, and that the decedent "was of sound mind and memory when he signed his Will in my presence." The daughter filed a response to the motion; however, she failed to make specific citations to the record, as Tenn. R. Civ. P. 56.03 requires, of facts that would support her contentions of lack of testamentary capacity or undue influence. She also filed medical records concerning the decedent's medical history; however, the records were not authenticated. The trial court granted the motion for summary judgment based on the finding that there was no genuine dispute of material facts and the stepdaughter was entitled to judgment as a matter of law. We affirm.

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

          Daniel Lyn Graves, II, Murfreesboro, Tennessee, for the appellant, Cynthia Rush.

          Tusca R.S. Alexis, Nashville, Tennessee, for the appellee, Freda Espy.

          Frank G. Clement Jr., P.J., M.S., delivered the opinion of the Court, in which Andy D. Bennett, J., and J. Steven Stafford, P.J., W.S., joined.

          OPINION

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

         Jerry Bradley Espy ("Decedent") executed a will (the "Will") in the presence of two witnesses and his attorney on October 30, 2013. The Will identified Freda Espy and Marqulita McClain, who were Decedent's step-daughters, as Decedent's only "biological" children and named his step-daughter, Freda Espy ("Ms. Espy"), as Decedent's sole beneficiary. The Will also named his wife, Emma Espy, from whom he had been separated for many years, as the alternate beneficiary in the event Freda Espy predeceased Decedent. Decedent's only biological child, Cynthia Rush ("Ms. Rush"), was not mentioned in the Will.

         Decedent died three and a half years later in May 2017. Ms. Espy filed a petition to probate the Will in July 2017.[1] Shortly thereafter, Ms. Rush filed a petition to contest the Will asserting, inter alia, that she was the sole biological child of Decedent, and the Will "was facilitated by the undue influence over Testator by Freda Espy, and in the alternative that Testator lacked capacity to properly formulate his correct biological succession and thereby the will is void on its face." On September 28, 2017, Ms. Espy, in her capacities as Respondent to the will contest and Executrix of the estate, filed a response in which she admitted that Ms. Rush was Decedent's only biological daughter but asserted that Decedent raised Ms. Espy and Ms. McClain as his daughters.

         On May 11, 2018, Ms. Espy filed a Motion for Summary Judgment and Statement of Undisputed Facts. Ms. Espy asserted there was no evidence to contradict (1) Decedent's stated intention in the Will to leave his entire estate to Ms. Espy and (2) Mr. Johnson's and Ms. Hubbard's affidavits, which stated that Decedent was of sound mind when he signed the Will. The Statement of Undisputed Facts, which was based on the affidavit of Decedent's attorney, Susan Hubbard, stated in pertinent part:

2. The Last Will and Testament on page four (4), lists Kenneth Johnson and Danyell Carter as the witnesses and Susan H. Hubbard as the Notary.
3. On page two (2), of the Last Will and Testament of Jerry Espy, it states "I bequeath to my child, Freda Espy, all of my tangible personal property. If she predeceases me, I bequeath all of my tangible personal property to Emma Espy".
4. The Decedent, Jerry Espy did not have Freda Espy present with him when he met with his Attorney regarding his Will and when he signed his Will. See attached Affidavit of Susan H. Hubbard, Attorney at law, paragraph 5.
5. Jerry Espy was of sound mind and disposing memory. See attached Affidavit of Susan H. Hubbard, Attorney at law, paragraph 10 and page one of the Original Will of Jerry Espy.
6. Jerry Espy was aware that Freda Espy was his Step-daughter. See attached Affidavit of Susan H. Hubbard, Attorney at law, page 6.
7. The Decedent, Jerry Espy made it clear that he wanted his entire estate to pass to Freda Espy. See attached Affidavit of Susan H. Hubbard Attorney at law, paragraph 8.
8. Jerry Espy called Freda Espy his daughter. See attached Affidavit of Susan H. Hubbard, Attorney at law.
9. The word biological was not a term used by the Testator but the drafter of the Will. See attached Affidavit of Susan H. Hubbard, ...

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