In re Estate of Leath

• Decision Date: 03 March 2008
• Docket Number: No. E2007-00555-COA-R3-CV.,E2007-00555-COA-R3-CV.
• Citation: 294 S.W.3d 571
• Parties: In re ESTATE OF David R. LEATH.
• Court: Tennessee Court of Appeals

294 S.W.3d 571

In re ESTATE OF David R. LEATH.

No. E2007-00555-COA-R3-CV.

Court of Appeals of Tennessee, Eastern Section, at Knoxville.

December 3, 2007 Session.

March 3, 2008.

Permission to Appeal Denied by Supreme Court September 22, 2008.

James A.H. Bell and William D. Hood, Knoxville, Tennessee, for the appellant, Raynella Dossett Leath.

Dale C. Allen and Luis C. Bustamante, Knoxville, Tennessee, for the appellants Raynella M. Dossett Connatser and Nancy K. Dossett.

James S. MacDonald, Knoxville, Tennessee, for the appellee Cynthia L. Wilkerson.

OPINION

SHARON G. LEE, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and D. MICHAEL SWINEY, J., joined.

Decedent's will could not be located after his death, and decedent's widow and stepdaughters petitioned the trial court to recognize and establish a copy of such will as decedent's last will and testament. The trial court denied the petition upon determining that the petitioners failed to present sufficient evidence to overcome the strong presumption that the lost will was revoked by decedent. We affirm the judgment of the trial court and remand.

I. Background

On March 13, 2003, David Leath was shot and killed in a bedroom of his home in Knox County by an undetermined assailant. After his death, a dispute arose between Mr. Leath's wife, Raynella Dossett Leath, and Mr. Leath's daughter from a prior marriage, Cynthia L. Wilkerson. Both women, in court filings, accused the other of murdering Mr. Leath. The portion of their dispute that is involved in this appeal concerns a will Mr. Leath made in 1996 which could not be found after his death. Additional interested parties are Raynella M. Dossett Connatser and Nancy K. Dossett, the children of Raynella Dossett Leath.

David Leath and Raynella Dossett Leath were married in 1993. On August 12, 1996, the Leaths went to the law office of their attorney, Charles Child, and executed separate wills. Mr. Child gave the parties the originals of the wills and retained signed duplicate copies at his office. According to Mrs. Leath, she placed the original of her will in a safe deposit box at the bank and Mr. Leath placed the original of his will in his sock drawer in a chest of drawers located in their bedroom. After Mr. Leath's death, his will could not be found.

On June 29, 2006, Mrs. Leath filed a verified petition in the Knox County Chancery Court attesting that the original of Mr. Leath's 1996 will was not located after a thorough and diligent search and requesting that the trial court recognize and establish as the decedent's last will and testament an attached copy of such will and appoint her to serve as personal representative of the estate. Mr. Leath's daughter, Cynthia L. Wilkerson, answered and counterclaimed, alleging, among other things, that Mrs. Leath killed the decedent and asserting that the fact that the August 12, 1996 will was missing was evidence that the decedent had revoked the will and died intestate. Attached to this answer was a separate complaint that Ms. Wilkerson had previously filed in the Knox County Circuit Court wherein she attested that Mrs. Leath had feloniously shot and killed the decedent, and had thereby forfeited any right to the decedent's estate and was precluded from serving as personal representative of the estate. Mrs. Leath filed her answer to Ms. Wilkerson's counterclaim, alleging that, on the contrary, Ms. Wilkerson had feloniously shot and killed the decedent and that she had thereby forfeited any right to his estate or to serve as the estate's personal representative. Finally, Mr. Leath's two stepdaughters, Raynella M. Dossett Connatser and Nancy K. Dossett, filed an answer and cross claim to Ms. Wilkerson's counterclaim and requested, inter alia, that their mother's petition be approved by the trial court.

The competing interests in the disposition of Mr. Leath's estate may be summarized as follows. The 1996 will named Mrs. Leath as executrix of the estate and provided that the decedent's mother, Mayme Leath, (who survived her son) receive a life estate in 16.27 acres of land located in Knox County. The will further provided that Mrs. Leath receive the residue of Mr. Leath's estate unless she died before Mr. Leath or the two died in a common accident, in which event all of Mr. Leath's property would go to Ms. Wilkerson, with the exception that any property that had come to him as a result of the death of Mrs. Leath would go to her two daughters, Raynella M. Dossett Connatser and Nancy K. Dossett. Ms. Connatser and Ms. Dossett contend that, pursuant to this provision, if Mrs. Leath is precluded from participating in the distribution of Mr. Leath's estate, they are entitled to distribution of the estate as contingent beneficiaries. Upon a determination that the will was revoked, Mrs. Leath and Ms. Wilkerson would divide the estate equally in accord with state intestacy law. See Tenn.Code Ann. § 31-2-104.

The case came on for trial without a jury on August 17, 2006, and on December 15, 2006, the trial court entered its order and memorandum opinion denying Mrs. Leath's petition to establish the lost will upon its determination that Mrs. Leath had failed to present sufficient proof to overcome the strong presumption under applicable law that a will that cannot be located has been revoked by the testator. Mrs. Leath and her daughters, Ms. Connatser and Ms. Dossett, appeal this ruling.

II. Issue

The sole issue we address in this case is whether the trial court erred in ruling that the appellants failed to submit sufficient proof to overcome the presumption that the decedent revoked his lost will.

III. Analysis

A. Standard of Review

In a non-jury case such as this one, we review the record de novo with a presumption of correctness as to the trial court's determination of facts, and we must honor those findings unless the evidence preponderates to the contrary. Tenn. R.App. P. 13(d); Union Carbide v. Huddleston, 854 S.W.2d 87, 91 (Tenn.1993). When a trial court has seen and heard witnesses, especially where issues of credibility and weight of oral testimony are involved, considerable deference must be accorded to either as to the trial court's factual findings. Seals v. England/Corsair Upholstery Mfg. Co., Inc., 984 S.W.2d 912, 915 (Tenn.1999). The trial court's conclusions of law are reviewed de novo and are accorded no presumption of correctness. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn.1996); Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn.1993).

B. Proof Required to Establish a Lost Will

A party seeking to establish a lost will must satisfactorily demonstrate 1) that the testator made and executed a valid will and that the testator is no longer living; 2) the substance and contents of the missing will; 3) that the will cannot be found after diligent search; and 4) that the will was not revoked by the decedent. Pritchard on Wills and Administration of Estates, 5th Ed., § 51; Shrum v. Powell, 604 S.W.2d 869, 871 (Tenn.Ct.App. 1980). In the case at bar, the only element in dispute is whether the decedent revoked his will.

A party seeking to establish a lost will has a heavy burden of proof. Pritchard on Wills and Administration of Estates, ibid., describes this burden of proof as follows:

When a will cannot be found after the death of the testator, there is a strong presumption that it was destroyed or revoked by the testator himself, and this presumption stands in the place of positive proof. One who seeks to establish a lost or destroyed will assumes the burden of overcoming this presumption by adequate proof. It is not sufficient to show that persons interested to establish intestacy had an opportunity to destroy the will. One must go further and show by facts and circumstances that the will actually was lost or destroyed fraudulently or accidentally against, and not in accordance with, the wishes and intention of the testator.

The presumption that the will was destroyed by the testator, animo revocandi, may be rebutted, and its loss or destruction by other means may be shown, by circumstantial as well as positive evidence, [s]uch as: by showing that the testator did not have the custody and control of the instrument after its execution; that he had lost his testamentary capacity for a period before his death; that the will was in existence at the time the mental alienation occurred. The declarations of the testator, before or after making the will, are admissible in evidence to support or destroy the presumption of revocation.

In order to overcome the presumption of revocation, the proponent of a lost will is not required to overcome the "almost impossible barrier" of proving absolutely, rather than circumstantially, that the will was not revoked. In re Estate of Brown, No. 01A01-9809-PB-00471, 1999 WL 802718, at *11 (Tenn.Ct.App. M.S., filed Oct. 7, 1999). However, as we have heretofore indicated, the requirements for overcoming the presumption of revocation are, with good reason, quite exacting:

Where a will has been lost or destroyed, the person seeking to set it up labors under a severe handicap. Doubtless this is due to the fear that a more elastic rule might bring about more fraud than it would prevent.

Sanders v. McClanahan, 59 Tenn.App. 590, 442 S.W.2d 664, 667 (1969) (citing Haven v. Wrinkle, 29 Tenn.App. 195, 195 S.W.2d 787, 793 (1946)). As noted by this Court in Shrum v. Powell, 604 S.W.2d 869, 871 (Tenn.Ct.App.1980), a person seeking to show that a lost will was not revoked by the testator must do so by presenting "the clearest and most stringent evidence" or "clear, cogent and convincing proof."

The appellants in the instant matter argue that the circumstances, as demonstrated by "the clearest and most stringent evidence" or "clear, cogent, and convincing proof," rebut the presumption that the decedent revoked or destroyed the lost will. Arguments advanced by the appellants include that they proved that...