Session September 5, 2019
from the Probate Court for Davidson County No. 17P74 David
Randall Kennedy, Judge.
issue on appeal is whether a codicil to the decedent's
will was effective to revoke or amend two revocable trusts.
Just hours prior to his death, the decedent got married and
executed a fifth codicil to his will that purportedly devised
two residential properties to his new wife. However, the
decedent previously conveyed the properties to revocable
trusts by deeds that were properly recorded. Therefore, the
decedent did not own either of the properties at the time of
his death. The principal beneficiary of each trust was the
decedent's minor son from a previous marriage. After the
will and five codicils were admitted to probate, the
court-appointed guardian ad litem for the decedent's
minor child filed a motion in the probate court to determine
the ownership of the two properties. Following briefing of
the parties and a hearing, the probate court determined that
the method for amendment or revocation of the trusts as
specified in the trusts was the exclusive method, and the
fifth codicil failed to substantially comply with the method
required by the trusts. Therefore, acting pursuant to Tenn.
Code Ann. § 35-15-602(c), which does not allow a codicil
or any other method to revoke or amend a revocable trust if
the terms provide an exclusive method, the court ruled that
the codicil was ineffective to amend or revoke either trust.
Accordingly, the properties were owned by and remained
subject to the terms of each trust. We affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Probate
Blakeley D. Matthews and John D. Kitch, Nashville, Tennessee,
for the appellant, Nuhad Khoury. Jennifer C. Surber,
Nashville, Tennessee, Guardian Ad Litem for the appellee,
N. Elbert, Stephen M. Montgomery, J. Isaac Sanders, James S.
Higgins, Benjamin J. Miller and Donald K. Byrd, Nashville,
Tennessee, for amicus curiae, Leann Smith, mother of J.H.H.
H. Smith and Ryan Lee, Nashville, Tennessee, for the
appellee, Pendleton Square Trust Company, LLC.
G. Clement Jr., P.J., M.S., delivered the opinion of the
Court, in which Andy D. Bennett and Richard H. Dinkins, JJ.,
G. CLEMENT JR., P.J., M.S.
Ronald Hunter ("Mr. Hunter") died of cancer on
January 6, 2017. On the day before his death and while
receiving in-home hospice care, Mr. Hunter married Nuhad
Khoury ("Ms. Khoury") and executed the Fifth
Codicil to his Last Will and Testament (the "Fifth
Codicil"). The Fifth Codicil purportedly devised to Ms.
Khoury two pieces of real property: a residential property on
Cargile Lane in Nashville, Tennessee (the "Cargile
Property") and a residential property on Mercedes Drive
in Fort Lauderdale, Florida (the "Mercedes
time of Mr. Hunter's death, however, neither property was
owned by Mr. Hunter. Instead, title to each property had
previously been conveyed by deed to two trusts, of which Mr.
Hunter was the sole Grantor and the sole Trustee. The owner
of record of the Cargile Property was the J.H.H. Cargile
Trust (the "Cargile Trust"), and the owner of
record of the Mercedes Property was the James Ronald Hunter
Trust (the "Hunter Trust") (collectively, the
"Trusts"). Mr. Hunter's 11-year-old son,
J.H.H., was a primary residual beneficiary of each trust.
after Mr. Hunter died, Ms. Khoury filed a petition in the
Juvenile Court of Davidson County to obtain custody of J.H.H.
Shortly thereafter, J.H.H.'s mother, Leann Smith, filed a
counter petition for custody, and the Juvenile Court
appointed attorney Aderonke Kehinde as J.H.H.'s guardian
ad litem for the custody proceedings.
week later, on January 13, 2017, Carolyn Faye Hunter Lampley,
attorney Mary Frances Rudy, and Ms. Khoury filed a Petition
to Probate the Will and Codicils in the Probate Court of
Davidson County and to be appointed Co-Executors of the
estate.By order entered on February 1, 2017, Mr.
Hunter's will and five codicils were admitted to probate
and Ms. Lampley, Ms. Rudy, and Ms. Khoury (the
"Co-Executors") were appointed Co-Executors of the
Estate of Mr. Hunter.
petition to probate Mr. Hunter's will did not request the
appointment of a guardian ad litem to protect J.H.H.'s
interests in the estate proceedings. However, on May 2, 2018,
upon the motion of Ms. Kehinde, J.H.H.'s guardian ad
litem, the Juvenile Court entered a restraining order against
Ms. Khoury, preventing her from disposing of any assets
listed in the Fifth Codicil until the Juvenile Court received
notice that the Probate Court appointed a guardian ad litem
to protect J.H.H.'s interests.
Probate Court appointed attorney Jennifer Surber to serve as
the guardian ad litem for J.H.H. in the probate proceedings.
Shortly thereafter, Ms. Surber initiated this proceeding by
filing a Motion for an Order Declaring Ownership of Certain
Real Estate, asking the Probate Court to determine the
ownership of the Cargile and Mercedes Properties. At issue
was whether the Fifth Codicil effectively revoked or amended
evidence presented to the Probate Court proved the Trusts
were revocable and amendable until Mr. Hunter's death;
however, each of the Trusts specified that "[a]ny
amendment to this Trust shall be made by written instrument
signed by both me, as Grantor, and the Trustee, and any
revocation of this Trust shall be made by me in writing to
the Trustee." Additionally, it was proven that months
prior to the execution of the Fifth Codicil, Mr. Hunter
amended the Hunter Trust three times, and each amendment was
in compliance with the foregoing requirements.
Order Declaring Ownership of Certain Real Estate entered on
December 13, 2018, the Probate Court made the following
pertinent findings and rulings:
8. There are no written amendments signed by the Decedent in
both his capacity as the Grantor and the Trustee of the
Trusts that give the Florida Property or the Cargile Property
to Nuhad Khoury outright. Nowhere in the Fifth Codicil does
the Decedent sign in his capacity as both the Grantor and the
Trustee of the James Ronald Hunter Trust and the Grantor and
the Trustee [of the] J.H.H. Cargile Trust. There is no
revocation of the Trusts made in writing by the Settlor to
the Trustee. The Court, therefore, finds that the Decedent
did not substantially comply with the method for modification
set out in the terms of the Trusts, as required by Tenn. Code
Ann. § 35-15-602(c)(1).
9. Tenn. Code Ann. § 35-15-602(c) does not allow a
codicil or any other method to revoke or amend a revocable
trust if the terms provide an exclusive method. Tenn. Code
Ann. § 35-15-602(c) provides the following:
The settlor may revoke or amend a revocable trust: (1) By
substantial compliance with a method provided in the terms of
the trust; or (2) If the terms of the trust
do not provide a method or the method provided in the terms
is not expressly made exclusive, by:
(A) A later will or codicil that expressly refers to the
trust or specifically devises property that would otherwise
have passed according to the terms of the trust; or
(B) Any other method manifesting clear and convincing
evidence of the settlor's intent. (emphasis added)
10. The Court finds that when an exclusive method for
modification is provided for in a revocable trust instrument,
the Court is required to look to and follow the terms of that
instrument and the Court finds it cannot revoke or amend the
instrument in any other way, other than is provided in the
revocable trust instrument. Both the James Ronald Hunter
Trust and the J.H.H. Cargile Trust have terms that provide an
exclusive method for trust amendments, and a codicil is not
the method specifically provided for revocation or amendment
in the revocable trust instruments. In the Fifth Codicil, the
Decedent does not expressly revoke or set aside the terms of
the revocable trust instruments in the manner required by the
instruments, and therefore, the Fifth Codicil does not
operate to amend or revoke the James Ronald Hunter Trust or
the J.H.H. Cargile Trust.
11. The Court, therefore, finds that:
(a) the Cargile Property is owned by the J.H.H. Cargile
Trust, and is subject to administration under the terms of
the J.H.H. Cargile Trust; and
(b) the Florida Property is owned by the James Ronald Hunter
Trust, and is subject to administration under the terms of
the James Ronald Hunter Trust.
12. The Court finds that the Decedent did not own the Cargile
Property or the Florida Property at the time of his death,
and therefore, could not devise those properties to Nuhad
Khoury through the Fifth Codicil, based upon the existence of
the respective quitclaim deeds and all of the reasons set
appeal by Ms. ...