Winningham v. Winningham

• Decision Date: 30 March 1998
• Parties: William A. WINNINGHAM, Executor of the Estate of Alston Winningham, Plaintiff-Appellant, v. Tammy K. WINNINGHAM, Defendant-Appellee.
• Court: Tennessee Supreme Court

Page 48

966 S.W.2d 48

William A. WINNINGHAM, Executor of the Estate of Alston

Winningham, Plaintiff-Appellant, v. Tammy K. WINNINGHAM, Defendant-Appellee.

Supreme Court of Tennessee,

at Knoxville.

March 30, 1998.

Harry D. Sabine, Sabine & Douglas, P.C., Crossville, for Plaintiff-Appellant.

John R. Officer, Livingston, for Defendant-Appellee.

OPINION

LYLE REID, Special Justice.

This is a suit to enforce the provision in a will which forbade contest upon penalty of forfeiture. The trial court declared a forfeiture; the Court of Appeals remanded the case for further proof. This Court finds that the trial court erred and holds that the circumstances found by the trial court do not justify a forfeiture under Tennessee law. The suit is accordingly dismissed.

I

In 1981, the testator, Alston Winningham, and his wife, Reba Winningham, executed mutual reciprocal wills, in which they named their two children, the plaintiff, William A. Winningham and the defendant, Tammy K. Winningham, as substantially equal beneficiaries under the survivor's will. Reba Winningham died in 1986 and her will was probated. Thereafter, Alston Winningham executed a new will, in which the portion of the estate devised to Tammy K. Winningham was reduced substantially to the benefit of William A. Winningham and his daughter. This will was executed on March 12, 1992, and the testator, who was terminally ill at the time, died four months later. The will contains the following provision:

If any beneficiary hereunder shall contest the probate or validity of this will or any provision thereof, or shall institute or join in any proceeding to contest the validity of this will or to prevent any provision thereof from being carried out in accordance with its term (regardless of whether such proceedings are instituted in good faith and with probable cause), then all benefits provided for such beneficiary are revoked and such benefits shall pass to the residuary beneficiaries of this will.... Each benefit conferred herein is made on the condition precedent that the beneficiary shall accept and agree to all of the provisions of this will and the provisions of this Article are an essential part of each and every benefit.

The case before the Court is the third suit filed in connection with the testator's estate. The first suit was filed by William A. Cunningham, as executor. In that suit, he sought the correction of several errors in the will regarding the identification of the testator's property. As an example of the errors in the will corrected in that case, one devised tract of land was identified as being the property conveyed by deed recorded in Deed Book 80, page 136 and Deed Book 71, page 459, while the tract intended was that described in Deed Book 307, page 398.

Tammy K. Winningham discussed with an attorney the advisability of filing a suit to contest the will. The attorney advised that, in his opinion, there were no grounds on which the will could be successfully contested. However, the attorney told Ms. Winningham that her father's 1981 will could not be revoked after her mother's death. Relying upon this advice, Ms. Winningham authorized the attorney to file suit to have the 1981 will declared to be the testator's last will and testament. The complaint charged, "Decedent did not have the right to dispose of all of the above property, in that he had made a joint and mutual will with his wife, Reba Winningham, on February 13, 1981." The suit did not allege that the testator was incompetent to make a will in 1992, or that he was unduly influenced in making the will, or that the will was not properly executed.

A short time after the suit was filed, Ms. Winningham's attorney advised her that he had been mistaken regarding the law, and he recommended that the suit be dismissed immediately. The attorney's original advice to file the suit was based upon his understanding of the state of the law prior to the enactment of Tenn.Code Ann. § 32-3-107 ¹ in 1978, some 15 years earlier. Prior to the enactment of that statute, the execution of reciprocal wills by a husband and wife raised the presumption that the wills had been executed pursuant to an agreement.

"Where ... the wills are identical in language, witnessed by the same persons, at the same time and place, and the contracting parties are husband and wife, it is will nigh conclusive that such wills were executed in accordance with their mutual contract to dispose of their property in this manner."

In Re Estate of Bright, 482 S.W.2d 555, 556 (Tenn.1972), cert. denied, 409 U.S. 915, 93 S.Ct. 237, 34 L.Ed.2d 177 (1972) (quoting Church of Christ Home for Aged, Inc. v. Nashville Trust Co., 184 Tenn. 629, 202 S.W.2d 178 (1947)). The record shows that Ms. Winningham's counsel, prior to advising her to file the suit, made no investigation regarding the status of the law on that point and became aware of the statute while discussing another case with an attorney. The suit was dismissed approximately three weeks after it was filed.

The instant suit, an action to enforce the forfeiture provision in the will, was also filed by William A. Winningham. In this case, he asserts his interest as a residuary beneficiary under the will. The trial court found the suit was filed in good faith but without probable cause and declared that the forfeiture provision should be enforced. The Court of Appeals, in a divided opinion, held that the good faith reliance upon the advice of counsel may establish probable cause for initiating a will contest provided the advice follows full and fair disclosure of all material facts. The Court of Appeals remanded the case for proof regarding the sufficiency of the disclosure. The dissenting judge would enforce the clearly stated intent of the testator and affirm the trial court's declaration of a forfeiture.

II

The general issue presented is the extent to which a forfeiture provision conditioned upon a contest of the will or any provision therein is enforceable. The prohibition in this case goes beyond a contest of the due execution of the will and includes any contest of the validity or implementation of any provision in the will. "Each benefit conferred herein is made on the condition precedent that the beneficiary shall accept and agree to all of the provisions of this will...." The prohibition extends to proceedings "instituted in good faith and with probable cause." The forfeiture provision of the will is unambiguous and unequivocal. The intent expressed in the forfeiture provision is clear. Under the law, that intent is of paramount importance. "The cardinal rule for interpreting and construing a last will and testament is the ascertainment of the intent of the testator. That intent, when known, will be given effect unless prohibited by some rule of law or public policy." In Re Walker, 849 S.W.2d 766, 768 (Tenn.1993); Cowden v. Sovran Bank/Central South, 816 S.W.2d 741, 744 (Tenn.1991). So, the clear intent of the testator will govern unless it is "prohibited by some rule of law or public policy." Id.

The plaintiff points to other jurisdictions which hold that forfeiture clauses shall be enforced without exception and represented in oral argument that the majority of jurisdictions follow that rule. See Commerce Trust Co. v. Weed, 318 S.W.2d 289, 301-302 (Mo.1958); In re Howard's Estate, 68 Cal.App.2d 9, 155 P.2d 841, 842 (1945). Though perhaps historically correct, it is questionable whether the majority of jurisdictions still enforce forfeitures where the contest is brought in good faith and with probable cause. One Court has stated that "a majority of jurisdictions have declined to enforce in terrorem clauses where challenges to testamentary instruments are brought in good faith and with probable cause." See Haynes v. First Nat'l State Bk. of N.J., 87 N.J. 163, 432 A.2d 890, 903-904 (1981) (and cases cited therein). That Court notes that New Jersey, along with fourteen other states, has adopted the Uniform Probate Code § 3-905, 8II U.L.A. 272 (1998) which provides, "A provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings." See also Restatement (Second) of Property, Donative Transfers § 9.1 (1983) (forfeiture clause valid "unless there was probable cause for making the contest or attack"); Annotation, Validity and Enforceability of Provision of Will or Trust Instrument for Forfeiture or Reduction of Share of Contesting Beneficiary, 23 A.L.R.4th 369, 376-81 (1983). The conclusion is, that the jurisdictions are split as to the enforceability of a forfeiture clause in the face of probable cause for contesting the will, but there is strong support for an exception for good faith and probable cause. See Claudia G. Catalano, Annotation, What Constitutes Contest or Attempt to Defeat Will Within Provision Thereof Forfeiting Share of Contesting Beneficiary, 3 A.L.R. 5th, 590 (1992).

This Court has recognized that a forfeiture provision in a will is not void as against public policy. Tate v. Camp, 147 Tenn. 137, 149, 245 S.W. 839, 842 (1922); Thompson v. Gaut, 82 Tenn. 310, 314 (1884). However, it has been the rule since Tate v. Camp, that a forfeiture provision will not be enforced where a contest is pursued "in good faith and upon probable cause." After considering decisions from other jurisdictions, the Court in Tate v. Camp approved the following from South Norwalk Trust Co. v. St. John, 92 Conn. 168, 101 A. 961, 963 (1917), " 'Where the contest has not been made in good faith, and upon probable cause and reasonable justification, the forfeiture should be given full operative effect. Where the contrary appears, the legatee ought not to forfeit his legacy.' " Tate v. Camp, 147 Tenn. at 155-56, 245 S.W. at 844. In Tate v. Camp, the will provided:

[I]f any person or persons to whom I have herein made bequests...