Locke v. Estate of Locke

• Decision Date: 30 June 2014
• Docket Number: No. M2012-02508-COA-R3-CV,No. M2012-02504-COA-R3-CV,No. M2012-01314-COA-R3-CV,M2012-02508-COA-R3-CV,M2012-01314-COA-R3-CV,M2012-02504-COA-R3-CV
• Citation: Locke v. Estate of Locke, No. M2012-01314-COA-R3-CV, No. M2012-02504-COA-R3-CV, No. M2012-02508-COA-R3-CV (Tenn. App. Jun 30, 2014)
• Parties: MIKE LOCKE AND CVAN AVIAN v. THE ESTATE OF DAVID ROSE MIKE LOCKE AND CVAN AVIAN v. THE ESTATE OF THOMAS W. SCHLATER, ET AL.
• Court: Tennessee Court of Appeals

MIKE LOCKE AND CVAN AVIAN v. THE ESTATE OF DAVID ROSE

MIKE LOCKE AND CVAN AVIAN v. THE ESTATE OF THOMAS W. SCHLATER, ET AL.

No. M2012-02508-COA-R3-CV

No. M2012-01314-COA-R3-CV

No. M2012-02504-COA-R3-CV

COURT OF APPEALS OF TENNESSEE AT NASHVILLE

July 9, 2013 Session

Filed: June 30, 2014

Appeal from the Circuit Court for Davidson County

Nos. 10P-869and12P-291

David Randall Kennedy, Judge

Appeal from the Circuit Court for Davidson County

No. 11P-756

David Randall Kennedy, Judge

After the death of David Rose, his two putative non-marital sons became involved in three separate lawsuits related to the proper distribution of his property.When Mr. Rose's Executrix filed to probate his Will in solemn form, the putative sons, who were named residuary beneficiaries, objected, but later withdrew their objection.They then filed suit to set aside a 2006 Trust Agreement in order to reinstate prior trusts, the assets of which were to be distributed to Mr. Rose's issue at his death.They also filed a separate lawsuit to establish Mr. Rose as their biological father.Their attempts to obtain some of their father's assets were all unsuccessful.In all three cases, the trial court held that they were barred from establishing a father-son relationship because their attempts were time barred.We affirm the trial court's dismissal of the sons' petition to establish paternity filed in the probate case two years after the order admitting the will to probate.However, we reverse the trial court's dismissal of the petitioners' complaint challenging the validity of the 2006 Trust Agreement because they have standing to attempt to establish that they are "issue" of Mr. Rose.The deadline imposed by the trial court applied only "for purposes of intestate succession," and the trust case did not involve inheritance through the statute regarding heirs of a person dying without a will.Mr. Rose had a will, which was probated.Any assets to be distributed to Mr. Locke and Mr. Avian from the preexisting trust(s) would be pursuant to the terms of the trust document(s), notpursuant to intestate succession.For the purpose of establishing their interest in the prior trust(s), the purported children were entitled to present proof that they were the children of Mr. Rose and were not time barred.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed inNos. M2012-02508-COA-R3-CV and M2012-01314-COA-R3-CV, Reversed in No.

M2012-02504-COA-R3-CV

PATRICIA J. COTTRELL, P.J., M.S., delivered the opinion of the Court, in which FRANK G. CLEMENT, JR. and ANDY D. BENNETT, JJ., joined.

Angello L. Huong, Lebanon, Tennessee, for the appellants, Mike Locke and Cvan Avian.

Andra J. Hedrick, Robert J. Hazard, Nashville, Tennessee, for the appellee, Louise R. Herbert, Executor of the Estate of David Rose.

OPINION

David Hughes Rose died at the age of sixty-three on April 15, 2010.After his death, Mike Locke and Cvan Avian became involved in three separate cases in which they asserted interests in his property.Mr. Locke and Mr. Avian are the adult putative children of Mr. Rose, born out of wedlock to two different mothers.Mike Locke's mother, Deborah Grace Harding, was never married to David Rose.Mr. Locke's birth certificate names Grover Joe Locke as his father.Cvan Avian's mother, Mary Sue Upchurch, was married to David Rose for a time, but they divorced before Cvan Avian was born, and the mother married Christopher Van Brown, who is listed on Mr. Avian's birth certificate as his father.

Mike Locke and Cvan Avian insist that they are the biological children of David Rose, that DNA evidence confirms that relationship, and that Mr. Rose treated them as his children during the later years of his life.However, neither they nor Mr. Rose took any steps to establish Mr. Rose's paternity prior to his death, and the common thread running through all three cases discussed in this opinion is the question of establishing paternity.

I.PETITION TO PROBATE WILL

Mr. Rose had executed a last will and testament that named his sister, Louise Rose Herbert, as his executrix.Ms. Herbert was a named beneficiary of several specific bequests, including a grandfather clock, a Longines watch, and "[a]ny condominium I may own at the time of my death."Mr. Locke and Mr. Avian were named as beneficiaries as well, and were bequeathed in equal shares, "all the rest of my clothing, jewelry, automobiles, and all other tangible personal property (except cash on hand or on deposit, which is devised later) owned by me at the time of my death."

The will also named Mr. Locke and Mr. Avian as Mr. Rose's residuary beneficiaries.However, the residuary clause had a specific exclusion: "this devise does not include the assets of an irrevocable trust; Thomas Schlater, Mary Schlater Stumb and Louise Rose Herbert, Co-Trustees for my benefit."

On June 4, 2010, Louise Herbert filed a petition in the Seventh Circuit (Probate) Court of Davidson County to admit Mr. Rose's Will to Probate in Solemn Form.The petition listed all of Mr. Rose's beneficiaries under the will and his heirs at law, and identified the relationship between Mr. Rose and each individual.Mr. Locke and Mr. Avian were listed as Mr. Rose's putative sons.Ms. Herbert was listed in the same document as Mr. Rose's sister, Mary Schlater Stumb as his half-sister, and Thomas Schlater as his half-brother.The case was given the docket number 10P-869.

Mr. Locke and Mr. Avian responded to the petition on July 13, 2010 by filing an "Objection to Probate in Solemn Form and Complaint to Contest/Construe Will."In their objection, each respondent referred to himself as "the biological son of the deceased David Rose."That specific reference in their objection is central to their arguments on appeal.Mr. Locke and Mr. Avian did not allege that the will itself was invalid, but only that the provision excluding the trust "was procured by undue influence, breach of confidential relationship, self-dealing, and/or at a time when the deceased was of unsound mind."

The hearing on the probate petition was conducted on September 2, 2010.The evidence established that all formalities for execution of the Will were observed and that there was no indication that Mr. Rose had been coerced to sign it or was not of sound mind.

At the conclusion of testimony, the trial court asked the attorney for Mr. Locke and Mr. Avian if he wanted the court to certify the case as a will contest.The attorney declined and withdrew his request to have the will probated in common form.He explained that he only wanted to preserve his clients' right to contest the validity of the trust referenced in the will and that he intended to file a separate suit to revoke the trust and bring its assets back into the estate.The trial court stated that as beneficiaries of the will, Mr. Locke and Mr. Avian had standing to ask the court to construe its meaning, but that because the trust was established as a separate entity, its validity could not be challenged in a will contest.The court then entered an order on the same day admitting Mr. Rose's will to probate in solemn form and appointing Ms. Herbert as the personal representative of the estate.

II.CHALLENGE TO TRUST AND ACTION TO ESTABLISH PATERNITY

The next action to be filed by Mr. Locke and Mr. Avian was a complaint filed February 25, 2011, in which they asked the court to set aside the David Rose Trust Agreement of 2006 and to declare it null and void.The named defendants were the trustees, Thomas Schlater, Mary Schlater Stumb and Louise Rose Herbert, as well as six other beneficiaries under the trust.On motion of the defendants, the case was transferred to the Seventh Circuit (Probate) Court of Davidson County and was given the case number 11P-756.

In the complaint, the Plaintiffs recited once again that they were the biological children of David Rose, that D avid Rose had been the beneficiary of at least two trusts left to him by his parents, and stated "upon information and belief" that they were the contingent beneficiaries of those trusts in the event that David Rose passed away.They further stated that the execution of the David Rose Trust Agreement of 2006 deprived them of their interests in the prior trusts and transferred those interests to Ms. Herbert and to the children of Ms. Stumb and Mr. Schlater.The plaintiffs alleged that Mr. Rose was coerced by the defendants into signing the 2006 trust agreement, that because of numerous mental, psychological and health problems, he lacked the mental capacity to execute the document, and that the defendants were guilty of self-dealing, breach of a confidential relationship and/or undue influence.

The defendants filed an answer and an amended answer in which they denied that Mr. Locke or Mr. Avian had any interest in the two prior trusts.They also denied that David Rose lacked the capacity to execute the 2006 conveyance or that they were guilty of any wrongdoing in regard to its execution.They additionally asserted as affirmativedefenses that neither plaintiff was the legal issue of David Rose, that no legal parent-child relationship had ever been established between him and them, and therefore that Mr. Locke and Mr. Avian lacked standing to pursue their claims, and that their claims were barred by the statute of limitations and by laches.

With the trust case still pending, Mike Locke and Cvan Avian filed a Petition to Establish Paternity on February 21, 2012, naming the Estate of David Rose as defendant.The Petition was given the case number 12P-291.It set out in some detail the history of the relationship between Mr. Rose and their mothers, including the roles of the other men who were named as their fathers on their birth certificates.It alleged that at various points in his life, Mr. Rose had publicly held out the two men as his sons and it described some incidents where other family members appeared to acknowledge the relationship.It also asserted that DNA testing...