Session July 10, 2019
from the Probate Court for Rutherford County No. 62233
Tolbert Gilley, Judge
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.
R. App. P. 3 Appeal as of Right; Judgment of the Probate
Lyn Graves, II, Murfreesboro, Tennessee, for the appellant,
R.S. Alexis, Nashville, Tennessee, for the appellee, Freda
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.
G. CLEMENT JR., P.J., M.S.
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.
died three and a half years later in May 2017. Ms. Espy filed
a petition to probate the Will in July 2017. 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.
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
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, ...