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In re Estate of Hunter

Court of Appeals of Tennessee, Nashville

November 13, 2019

IN RE ESTATE OF JAMES RONALD HUNTER

          Session September 5, 2019

          Appeal from the Probate Court for Davidson County No. 17P74 David Randall Kennedy, Judge.

         The 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.

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

          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, J.H.H. [1]

          Philip 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.

          Blaine H. Smith and Ryan Lee, Nashville, Tennessee, for the appellee, Pendleton Square Trust Company, LLC.

          Frank G. Clement Jr., P.J., M.S., delivered the opinion of the Court, in which Andy D. Bennett and Richard H. Dinkins, JJ., joined.

          OPINION

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

         James 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 Property").

         At the 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.

         The day 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.[2]

         One 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.[3]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.

         The 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.

         The 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 the Trusts.

         The 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.

         In its 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 forth above.

         This appeal by Ms. ...


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