In re Estate of Boote, M2002-02234-COA-R3-CV.<SMALL><SUP>1</SUP></SMALL>

CourtCourt of Appeals of Tennessee
Citation198 S.W.3d 699
Docket NumberNo. M2002-02234-COA-R3-CV.&lt;SMALL&gt;&lt;SUP&gt;1&lt;/SUP&gt;&lt;/SMALL&gt;,M2002-02234-COA-R3-CV.&lt;SMALL&gt;&lt;SUP&gt;1&lt;/SUP&gt;&lt;/SMALL&gt;
PartiesIn re ESTATE OF Joseph Owen BOOTE, Jr.
Decision Date21 October 2005

Page 699

198 S.W.3d 699
In re ESTATE OF Joseph Owen BOOTE, Jr.
No. M2002-02234-COA-R3-CV.1
Court of Appeals of Tennessee, at Nashville.
January 7, 2004 Session.
October 21, 2005.
Opinion on Petition for Rehearing December 20, 2005.
Permission to Appeal Denied by Supreme Court April 24, 2006.

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COPYRIGHT MATERIAL OMITTED

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Andrée Sophia Blumstein and William L. Harbison, Nashville, Tennessee, for the appellees, Helen Boote Shivers and Linda Boote Gerritsen.

Walter W. Bussart and Lee Bussart Bowles, Lewisburg, Tennessee, for the appellant, Martha M. Boote.

OPINION

WILLIAM C. KOCH, JR., P.J., M.S., delivered the opinion of the court, in which PATRICIA J. COTTRELL and FRANK G. CLEMENT, JR., JJ., joined.


This appeal involves a dispute stemming from an effort to probate a will and two codicils in solemn form. The testator's widow filed a petition to probate these instruments in solemn form in the Chancery Court for Marshall County. Prior to the entry of an order admitting the will and two codicils to probate, the widow discovered that a third codicil she believed to have been destroyed had, in fact, not been destroyed by her late husband or in his presence and that her late husband's lawyer had made a copy of this codicil before destroying it himself. Accordingly, she filed a petition for declaratory judgment seeking to admit the third codicil to the probate in solemn form along with the will and the other two codicils. Thereafter, the trial court entered an order admitting the will and the first two codicils to probate in solemn form without mentioning the declaratory judgment petition. The testator's daughters moved to dismiss the declaratory judgment petition, and the testator's widow filed a motion for post-judgment relief from the order admitting the will and the first two codicils to probate in solemn form. Following a series of hearings, the trial court dismissed the declaratory judgment petition and denied the motion for post-judgment relief. The testator's widow appealed. We have determined that the order admitting the will and the first two codicils must be vacated and the case remanded for further proceedings regarding the third codicil.

I.

Martha McCaleb Lingner ("Ms. Boote") married Joseph Owen Boote, Jr. on December 28, 1990 in Lewisburg, Tennessee. He was eighty-three years old, and she was seventy-four. Both had been previously widowed. Mr. Boote had two children from his first marriage, Helen B. Shivers and Linda B. Gerritsen. Ms. Boote had one child from a previous marriage, Pamela L. Smith. Ms. Boote and Mr. Boote each had several grandchildren. Both were well off financially, although Mr. Boote was far wealthier than Ms. Boote.2 Eleven days before the wedding, Ms. Boote and Mr. Boote entered into an antenuptial agreement that eliminated or

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dramatically restricted their respective statutory rights to the assets or estate of the other in the event of divorce or death.3

On July 16, 1991, Mr. Boote executed a new will conforming to the terms of the antenuptial agreement. The will was prepared by Michael D. Sontag of Bass, Berry & Sims in Nashville, the same attorney who had prepared the antenuptial agreement. The will established a $600,000 marital trust, the income from which was to be paid to Ms. Boote during her lifetime if Mr. Boote predeceased her. On Ms. Boote's death, the corpus of the marital trust was to be divided equally between Ms. Shivers and Ms. Gerritsen. The will established generation-skipping trusts in the names of Ms. Shivers and Ms. Gerritsen and directed that Mr. Boote's residuary estate and personal property be divided equally between them. The will nominated Ms. Shivers and Ms. Gerritsen to serve as co-executrices of the estate.

By all accounts, the marriage between Ms. Boote and Mr. Boote was an extraordinarily happy one. He adored her, and she adored him. Seven years into the marriage, Mr. Boote decided to make some changes in the distribution of his estate. He was considering having the 1991 will rewritten entirely. He asked his Lewisburg attorney, Thomas A. "Drew" Davidson, to review it. Mr. Davidson evaluated the will for some time and then talked Mr. Boote out of rewriting it on the theory that doing so might destroy the tax-exempt status of the trusts. He advised Mr. Boote that he could make changes in the distribution of his estate by executing a codicil to his existing will. Although Mr. Davidson knew that Mr. Boote and Ms. Boote had entered into an antenuptial agreement, he did not review it before offering Mr. Boote legal advice regarding his estate.4

At Mr. Boote's direction, Mr. Davidson prepared a codicil to the will transforming the $600,000 marital trust into an outright bequest to Ms. Boote, adding a bequest of $300,000 to Mr. Boote's sister, and incorporating a no contest clause into the will.5

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The codicil also nominated Ms. Boote to serve as the sole executrix for the estate. Mr. Boote executed the codicil on June 18, 1998. A few months later, Mr. Boote decided to add a bequest of $100,000 to the First Presbyterian Church of Lewisburg. Mr. Davidson prepared a second codicil adding this bequest, and Mr. Boote executed it on December 29, 1998.

A little over a year later, Mr. Boote visited Mr. Davidson again. He had heard that a spouse could dissent from a will and take an elective share of a deceased spouse's estate. Mr. Davidson, again without reviewing the antenuptial agreement, advised Mr. Boote that if Ms. Boote dissented from his will, she would be entitled to a child's share, but no less than a third, of his estate. Mr. Davidson said that a dissenting spouse's share is taken "off the top" and that if Ms. Boote dissented from the will, Ms. Shivers and Ms. Gerritsen would have to pay all of the estate taxes and expenses out of their shares. Mr. Boote said such an arrangement would be unfair to his daughters and that he wanted to structure his will so that Ms. Boote and his two daughters would each receive a third of his estate after the payment of all estate taxes and expenses.

Mr. Davidson advised Mr. Boote that this division could be accomplished through the execution of a third codicil. At Mr. Boote's request, Mr. Davidson prepared a third codicil directing that Mr. Boote's residuary estate would be divided equally among Ms. Boote, Ms. Shivers, and Ms. Gerritsen after the payment of all estate taxes and expenses. The third codicil also nominated Mr. Davidson to serve as co-executor of the estate with Ms. Boote. Mr. Boote executed the third codicil on February 14, 2000.

Six to eight weeks later, Mr. Davidson received a telephone call from Ms. Smith, Ms. Boote's daughter. She said he had messed things up by dividing Mr. Boote's estate too much and persuading Mr. Boote to leave too much money to her mother. She said that Ms. Shivers and Ms. Gerritsen would be furious, that there would be an enormous fight over the estate, and that it would be all Mr. Davidson's fault. When Mr. Davidson suggested to Ms. Smith that she did not know what was in the third codicil, she responded that it was her understanding that under the third codicil, Mr. Boote's estate would be split three ways among her mother, Ms. Shivers, and Ms. Gerritsen. Mr. Davidson told Ms. Smith, somewhat disingenuously, that she did not have a full grasp of what was in the third codicil, that Mr. Boote had made some additional provisions for Ms. Boote, and that the third codicil was a well written document that would be enforceable.

In late April 2001, well over a year after the execution of the third codicil, Mr. Boote again visited Mr. Davidson at his office. By this time, Mr. Boote was ninety-three years old, and his health had been failing. He could barely walk on his own. He was accompanied by Ms. Boote and an assistant Ms. Boote hired to help her care for Mr. Boote. Ms. Boote and the assistant waited in the front room of Mr. Davidson's office out of earshot while Mr. Boote met with Mr. Davidson in a conference room. The only evidence in the record regarding what occurred at this meeting is the deposition testimony of Mr. Davidson.

According to Mr. Davidson, Mr. Boote was upset. He said that he had made a lot of people mad, that everyone was fussing at him, and that no matter what he did, he could not seem to please everyone. He asked Mr. Davidson what would happen if Ms. Boote simply dissented from his will. Mr. Davidson did not answer Mr. Boote's question directly and instead told him that his wishes were covered by the third codicil.

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Mr. Boote replied that the third codicil was causing him a lot of trouble and that he wanted Mr. Davidson to tear it up. Mr. Boote said that his family was going to fight no matter what he did and that Ms. Boote could simply dissent from the will. Mr. Davidson claims he attempted to persuade Mr. Boote not to revoke the third codicil. However, he admits that he did not mention the antenuptial agreement or warn Mr. Boote that it could prevent Ms. Boote from dissenting from the will and taking an elective share of the estate.6

Mr. Davidson informed Mr. Boote that if he wanted to revoke the third codicil, he would have to tear it up himself.7 However, when Mr. Davidson offered to retrieve the third codicil from his office safe so that Mr. Boote could tear it up, Mr. Boote said that he did not want to tear it up, that Ms. Boote was coming down the hall, and that he did not have time to tear it up. Mr. Boote started to get up to leave, and as he did so, he exclaimed, "Just tear the damn thing up." Mr. Boote then walked out of the conference room and left Mr. Davidson's office.

In spite of Mr. Boote's extremely advanced age, declining health, and sizeable estate, as well as strong indications that there would be legal disputes over the distribution of the estate, Mr. Davidson failed to contact Mr. Boote for more than a month following the April 2001 meeting to...

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