In re Estate of Pierce

• Decision Date: 22 July 2016
• Docket Number: No. E2016–00013–COA–R3–CV,E2016–00013–COA–R3–CV
• Citation: 511 S.W.3d 520
• Parties: IN RE: ESTATE OF Joan Uhl PIERCE
• Court: Tennessee Court of Appeals

511 S.W.3d 520

IN RE: ESTATE OF Joan Uhl PIERCE

No. E2016–00013–COA–R3–CV

Court of Appeals of Tennessee, AT KNOXVILLE.

May 26, 2016 Session

Filed July 22, 2016

Application for Permission to Appeal Denied by Supreme Court November 16, 2016

J. Scott Griswold, Knoxville, Tennessee, for the appellants, Kim A. Soper, Shauna Andrus, Marlin V. Andrus, Graydon H. Andrus, and Shane H. Andrus.

Willis B. Jackson and Thomas G. Slaughter, Knoxville, Tennessee, for the appellees, Joshua Andrus and Lexi Staley.

D. Michael Swiney, C.J., delivered the opinion of the court, in which John W. McClarty and Thomas R. Frierson, II, JJ., joined.

OPINION

D. Michael Swiney, C.J.

This appeal arises from a dispute over purported wills. Joan Uhl Pierce ("Decedent") died and was survived by five living children ("Petitioners"). Another of Decedent's children, Brock Andrus, predeceased her, and he was survived by two adult children of his own ("Respondents"). The Administrator of Decedent's estate filed a petition for declaratory judgment in the Chancery Court for Knox County ("the Trial Court") seeking a determination as to whether Decedent died testate or intestate. Petitioners filed a verified petition seeking to admit a purported holographic will of Decedent's to probate, under which Respondents did not inherit. Respondents asserted that the document, a completed questionnaire, was not a valid holographic will. After a hearing, the Trial Court entered an order in which it held that the questionnaire was not a holographic will, and instead entered into probate an earlier purported will and codicil of Decedent's in which Respondents did inherit. Petitioners appeal. We hold that the questionnaire is not a valid holographic will. However, we hold also that the Trial Court erred in admitting the putative will and codicil into probate when there was no verified petition before the Trial Court seeking their admission. We vacate the admission of the putative will and codicil and remand for the Trial Court to address the lack of a verified petition. The judgment of the Trial Court is affirmed, in part, and, vacated, in part, and this cause is remanded for further proceedings consistent with this opinion.

Background

Decedent died on October 14, 2013. In 2007, Decedent had signed a typewritten document called her last will and testament in which she bequeathed her assets to her living children and, if any of her children did not survive her, to that child's children. In 2010, Decedent handwrote a purported holographic codicil to the 2007 document in which, among other things, she clarified that her son Brock had given up his own livelihood to become her caregiver. Decedent's other children lived outside of Tennessee. Decedent's son, Brock, was to receive her home under the purported holographic codicil. Brock died eleven months before Decedent. On October 9, 2013, mere days before she died, Decedent completed a three-page document she had obtained from an attorney titled "Confidential Estate Planning Questionnaire." This document ran contrary to the 2007 and 2010 will and codicil in that, this time, no mention was made of any distribution to her grandchildren. The issue in this case and on appeal between the surviving children, Petitioners, and the grandchildren, Respondents, is whether the 2007 and 2010 documents should be admitted to probate and whether the 2013 purported holographic will serves to revoke and replace those earlier documents even if they were otherwise appropriate to be admitted to probate.

In November 2013, the Trial Court appointed Steve Sams as Administrator of Decedent's estate.¹ In the wake of confusion over which document, if any, disposed of Decedent's assets, the Administrator filed a petition for declaratory judgment in February 2014. In March 2015, Petitioners filed a verified petition seeking to admit the purported holographic will to probate. Respondents filed their response in opposition to the petition. In October 2015, this matter was tried. Kim Soper ("Soper"), a Petitioner and one of Decedent's adult children, was the only witness. Soper testified to a falling out between Decedent and Respondents around the time of Brock's death. According to Soper, it was Decedent's desire that Respondents not inherit any of her assets.

In December 2015, the Trial Court entered its final judgment in which it admitted the 2007 and 2010 documents to probate. The Trial Court held that the Questionnaire was not a valid holographic will. The Trial Court stated as follows:

This cause having come on the [sic] be heard before this Honorable Court on the 13th day of October, 2015, upon Verified Petition to Admit Holographic Will to Probate in Solem[n] Form. After testimony of sworn witnesses, introduction of exhibits and argument of respective counsel and a review of the records as a whole, the Court finds as follows: Decedent Joan Uhl Pierce passed away on October 14, 2014, at which time she was survived by five children and predeceased by one child, Brock Andrus, who died approximately eleven months before the Decedent. At the time of Brock Andrus' death, he was living with the Decedent and left two surviving children of his own. Collective Exh. No. 1, which was admitted into evidence, is a set of three separate documents:

a) Last Will and Testament of Joan Uhl Pierce dated January 3, 2007;

b) Amendment/Addendum to Last Will and Testament of Joan Uhl Pierce, which had a handwritten date of February 1, 2010; and

c) Confidential Estate Planning Questionnaire, which had a hand written date of October 9, 2013.

The parties stipulated that the handwriting and signatures on the 2007, 2010 and 2013 documents were those of the Decedent. The parties further stipulated that the originals of the 2007, 2010 and 2013 documents were authentic. The 2007 Last Will and Testament was found in the Decedent's bedside table. The 2013 estate planning "Questionnaire" was found on the Decedent's desk in her office. Decedent obtained the Confidential Estate Planning Questionnaire from Knoxville Attorney Keith Burroughs. Decedent completed the "Questionnaire" on October 13, 2015. The "Questionnaire" is a multi-page document and on page 2, in response to question No. 3, "Estate Planning Goals", the Decedent wrote the following in her own handwriting: "Bequeath all money and home + contents to 5 children. Shauna, Marlin, Graydon, Kim and Shane." The "Questionnaire" was never returned to Attorney Keith Burroughs and a new will was never prepared. The five surviving children of the Decedent are asking this Court to find the "Questionnaire" to be a holographic will. The authenticity of and the handwriting on the 2013 "Questionnaire" offered as the Decedent's holographic will is not in question as both have been stipulated to by the parties.

The question for this Court is whether the Decedent intended the "Questionnaire" to be a holographic will, revoking Decedent's previous will. The construction of wills is a question of law for the court. Presley v. Hanks , 782 S.W.2d 482, 487 (Tenn. Ct. App. 1989). While the validity of a will is a question of fact, as determined from all the evidence, intrinsic or extrinsic, as to whether the testatrix intended the writing to operate as a will. Tenn. Code Ann. § 32–4–107(a) ; In re: Estate of Cook , 2002 WL 1034016 at 2 (Tenn. Ct. App. 2002), citing Scott v. Atkins , 44 Tenn.App. 353, 314 S.W.2d 52, 56 (1957). Evidence presented at trial showed that the Decedent was at one point upset with the children of Brock Andrus nearly one year prior to her death, but no evidence was presented at trial showing that Decedent's testamentary intent was for the "Questionnaire" to be her new will.

This Court considers the "Questionnaire" to be merely notes or memorandum in preparation of making a new will and not a new will. Therefore, this Court finds that the 2007 Will and the 2010 Codicil executed by the Decedent are authentic and signed by the decedent and that the original 2007 Will and the 2010 Codicil is controlling in this case, and is hereby admitted to Probate for administration.

(Format modified). Petitioners appealed to this Court.

Discussion

Although not stated exactly as such, Petitioners raise the following two issues on appeal: 1) whether the Trial Court erred in holding that the proffered 2013 Questionnaire was not a holographic will; and 2) whether the Trial Court erred in admitting two earlier putative testamentary instruments to probate when there was no verified petition seeking their admission and no proof of due execution.

We first address whether the Trial Court erred in holding that the proffered 2013 Questionnaire was not a holographic will. This Court previously has discussed the requirements for holographic wills as follows:

At the outset of our analysis, we note that it is immaterial whether a testatrix necessarily understands that by executing a particular document she is making a will, so long as the document demonstrates it was her clear intention to dispose of her property after her death, and the statutory formalities are satisfied. Smith v. Smith , 33 Tenn.App. 507, 232 S.W.2d 338, 341 (1949) ; Carver v. Anthony , 35 Tenn.App. 306, 245 S.W.2d 422, 424 (1951).

A holographic will need not be dated or name an executor to be valid. Nicley v. Nicley , 38 Tenn.App. 472, 276 S.W.2d 497, 500 (1954) ; Pulley [v. Cartwright ], 137 S.W.2d [336] at 340 [ (1939) ]. The statutory requirements for a holographic will are that the document's provisions be entirely in the testator's handwriting, and authenticated by 2 witnesses. Tenn. Code Ann. § 32–1–105 . In this case, the parties have stipulated that the handwritten document is the decedent's handwriting and that the requirements of the statute are met.

When the statutory requirements are met, a holographic will is of the same dignity as a will attested by subscribing witnesses. Campbell v. Henley , 172 Tenn. 135, 110 S.W.2d 329 (1937), and a properly proven holographic will supercede a formal

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