ESTATE OF JOHN B. FERGUSON, JR., )
Deceased )
) Davidson Probate
JOHN and PATRICIA SYLAWA, ) No. 94P-736
)
Contestants/Appellees, )
)
VS. )
)
FILED
FIRST AMERICAN TRUST CO., N.A., ) Appeal No.
Executor, ) 01A01-9707-PB-00313 April 8, 1998
)
Proponent/Appellant. ) Cecil W. Crowson
Appellate Court Clerk
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
APPEAL FROM THE PROBATE COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
HONORABLE FRANK G. CLEMENT, JR., JUDGE
Fred W. Beesley, Jr., BPR #9892
Malcolm L. McCune, BPR #2660
Court Square Building
300 James Robertson Parkway
Nashville, TN 37201
ATTORNEYS FOR CONTESTANTS/APPELLEES
William L. Harbison, BPR #7012
Andree S. Blumstein, BPR #9357
424 Church Street
Nashville, TN 37219
ATTORNEYS FOR PROPONENT/APPELLANT
REVERSED AND REMANDED.
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
BEN H. CANTRELL, JUDGE
WILLIAM C. KOCH, JR., JUDGE
ESTATE OF JOHN B. FERGUSON, JR., )
Deceased )
) Davidson Probate
JOHN and PATRICIA SYLAWA, ) No. 94P-736
)
Contestants/Appellees, )
)
VS. )
)
FIRST AMERICAN TRUST CO., N.A., ) Appeal No.
Executor, ) 01A01-9707-PB-00313
)
Proponent/Appellant. )
OPINION
This is a will contest case involving a succession of wills, disputes as to the testamentary
capacity of the testator at the time of the making of each of the wills, and the standing of the
contestants. At the present stage of the proceedings, the contestants are in the position of
plaintiffs, because they initiated the contest.
On May 11, 1994, a will made by deceased on May 2, 1991, and a codicil made by him
on May 8, 1991, were probated in the Probate Court in common form.
On November 17, 1994, John and Patricia Sylawa filed in the same probate proceeding
a document entitled:
Petition to Contest Will
of John B. Ferguson, Jr.,
To seek return of assets from trusts and other entities,
and, to hear concurrently with both, separately-filed
related claim against the estate of Mabel H. Ferguson
Allegations of the petition material to this appeal were, in substance:
7. Deceased lacked testamentary capacity on May 2, and 8, 1991, when he executed
the above mentioned will and codicil.
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8. On July 22, 1986, when he possessed testamentary capacity, deceased executed
a will which is his true last will and testament and which provided a limited annual income to
the Sylawas for life.
A copy, but not the original, of the July 22, 1986, will was exhibited to the petition.
On the same date, November 23, 1994, the Sylawas’ filed a “complaint” virtually
identical to their “Petition,” except that they prayed that they be allowed to contest the May 2,
1991, will, and, in addition, alleged an additional will dated August 14, 1991.
Attached to the complaint was an affidavit of Robert Lee Perry, Jr., attorney, that he
prepared and saw the due execution of an August 14, 1986 will of John B. Ferguson which gave
the entire residue of his estate to the Sylawas if his wife predeceased him. (The wife did
predecease the testator.)
It appears that the Sylawas did not attempt to establish the July 22, 1986, will, but that
they devoted all of their efforts and proof to the August 14, 1986, will.
On December 12, 1994, the executor/proponent moved to dismiss the petition and
complaint of the Sylawas for lack of standing or, in the alternative that the contest be certified
to the circuit court for trial before a jury.
On January 20, 1995, the Sylawas filed an amended complaint requesting that the “lost
will” of August 14, 1986, be probated based upon a copy and affidavits.
Counsel for the parties filed a stipulation reading as follows:
The Court has ordered that a hearing be held on
December 17, 1996, for the purpose of determining whether
the plaintiffs, John and Patricia Sylawa, have standing to
maintain the will contest that they seek to bring in this matter.
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For purposes of the standing hearing to be held on December
17, 1996, and only for purposes of that hearing and not for
any other purpose, the parties have agreed, as evidenced by
the signatures of their respective counsel, that certain facts
may be assumed by the Court in making its determination on
the issue of standing. The facts to which the parties stipulate
for purposes of the standing hearing are as follows:
1. On August 14, 1986, John B. Ferguson, Jr., properly
executed a will drafted by Robert Perry. An unexecuted copy
of that August 14, 1996, will is attached hereby as Exhibit A.
2. On August 14, 1986, John B. Ferguson, Jr., was
mentally competent to make a will.
3. The unexecuted copy of Mr. Ferguson’s August 14,
1986, will in Exhibit A represents accurately the contents of
that will as executed by Mr. Ferguson
4. John B. Ferguson, Jr., made and executed the August
14, 1986, will in accordance with the forms and requirements
of law.
5. The original of the will executed by Mr. Ferguson on
August 14, 1986, cannot be found even after due and proper
search.
6. From and after October 1990, John B. Ferguson
lacked the mental capacity legally necessary to revoke a will.
7. John B. Ferguson, Jr., died on April 21, 1994. The
will and codicil that Mr. Ferguson executed, respectively, on
May 2, and May 8, 1991, have been probated in this Court.
The parties further acknowledge and agree that the
issue of standing is, under Tennessee law, a separate matter
from the will contest itself and that a judgment on the issue of
standing is appealable as of right. Each party understands and
agrees that the other party will appeal any adverse ruling on
the standing issue and that neither party will claim on appeal
that the other party has waived the right to raise an argument
on appeal simply because that party may have agreed to a
certain procedure for the purpose of facilitating the hearing.
In contemplation of appeal, the parties also agree that, with
the permission of the Court, the presently scheduled trial date
of February 10, 1997, should be postponed pending the
completion of the appeals process on the standing issue.
On December 13, 1996, the Probate Judge entered the following order:
ORDER OF PARTIAL SUMMARY JUDGMENT
Plaintiffs have moved the Court for an Order of Partial
Summary Judgment establishing for the purpose of this
litigation that John B. Ferguson, Jr. has testamentary capacity
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at all times up to and including August 14, 1986. This
Motion was not opposed. After examination of Plaintiff’s
Memorandum and Exhibits and the record as a whole, the
Court finds the Motion is well-taken, therefore,
IT IS ORDERED ADJUDGED AND DECREED for
the purpose of this litigation that John B. Ferguson, Jr. had
testamentary capacity at all times up to and including August
14, 1986.
On February 24, 1997, the Probate Judge entered the following order:
AGREED ORDER AMENDING THE ORDER OF 12/23/96
This matter came to be heard on the 17th day of
January, 1997, before the Honorable Frank G. Clement,
Probate Judge, upon the motion of First American Trust
Company to alter or amend the order entered December 23,
1996, on the issue of standing. It appearing that there is no
opposition to the motion and that proper notice has been
given to all parties, this Court is of the opinion that the
motion is well taken and should be granted.
It is accordingly ORDERED that the motion of First
American Trust Company to alter or amend the order entered
December 23, 1996, on the issue of standing is hereby granted
and that this Court’s Order of December 23, 1996, is amended
to read in its entirety as follows:
On motion by the Defendant for this Court to hear
evidence and determine whether Plaintiffs possess standing to
bring a will contest, this matter came on to be heard on
Tuesday, December 17, 1996. Upon the Court’s
consideration of the parties’ Memoranda of Law, the
Stipulations filed by the parties, the testimony of witnesses,
the Plaintiffs’ designated portions of certain depositions of
witnesses, the argument of counsel and the record as a whole,
this Court finds that Plaintiffs have standing to bring a will
contest and, therefore,
It is ORDERED, ADJUDGED, and DECREED that
Plaintiffs have established their standing and may proceed
with their will contest. This order is final and appealable as
of right. Pritchard on Wills, 5th ed., §354. Trial of the will
contest is presently set for February 10, 1997. Since the
parties agreed in their stipulations, filed on December 12,
1996, that the issue of standing is, under Tennessee law, a
separate matter from the will contest itself and that a
judgment on the issue of standing is appealable as of right and
that the non-prevailing party will appeal from this Court’s
order on the standing controversy, it is further ORDERED
that the trial of the will contest presently set to begin on
February 10, 1997, is postponed pending the completion of
the appeals process on the standing controversy.
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Moreover, the Court expressly finds and determines
that it is appropriate to direct the entry of a final judgment as
to the standing issue because, for the reasons set forth below,
there is no just reason for delay. Accordingly, it is further
ORDERED, ADJUDGED, and DECREED that, there being
no just reason for delay, this Court’s order that the Plaintiffs
have established standing to maintain a will contest is final,
and the Court hereby directs the entry of a final judgment on
that issue.
From the quoted order, the executor has prosecuted this appeal.
The Chancery Court has exclusive jurisdiction to set up a will which
has been lost, destroyed or suppressed. Wall v. Millsaps, 199 Tenn. 241, 286
S.W.2d 343 (1956). Warmath v. Smith, 198 Tenn. 257, 279 S.W.2d 257.
The Probate Court of Davidson County, Tennessee has all the powers
of a chancery court in respect to wills and estates. Chapter 366, Sec. 2 Private
Acts of 1974.
Will contests filed in Probate Court are tried in Circuit Court as
provided by TCA § 32-4-101. However, its chancery powers include
jurisdiction to establish lost wills.
Before a contest can be certified to the circuit court, the Probate Court
must find that the contestant has standing to pursue the contest. That is the
contestant(s) must show that he or they would take a share (or larger share) of
decedent’s estate if the contest is successful; but if standing rests upon a prior
will which is lost, the prior will must be established in chancery court before
a legatee under the prior will has standing to contest the later will. It would
not be proper to certify both wills to circuit court before establishment of the
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lost will in chancery. In Re Estate of West, Tenn. App. 1987, 729 S.W.2d
676.
In order to establish a lost will in chancery, the following facts must
be established by clear and convincing evidence:
(1) The instrument was duly executed. (This was stipulated.)
(2) The instrument cannot be found. (This was stipulated.)
(3) The substance of the instrument. (This was stipulated.)
(4) The beneficiaries of the will. (This was stipulated.)
(5) The will has not been revoked. (This has not been shown by
clear and convincing evidence.)
Shrum v. Powell, Tenn. App. 1980, 604 S.W.2d 869, and authorities cited
therein. These requirements are stringent. Haven v. Wrinkle, 29 Tenn. App.
1995, 1995 S.W.2d 787 (1945).
Absent evidence of possession of the will by someone other than the
testator, it must be presumed that it was in his possession until its
disappearance.
If a will is traced into the hands of the testator and cannot be found
after his death, there is a presumption that the testator destroyed the will,
thereby revoking it. Hickey v. Beeler, 180 Tenn. 31, 171 S.W.2d 277 (1942);
Allen v. Jeter, 74 Tenn. (6 Lea) 1881). The burden of rebutting this
presumption is upon the person seeking to establish the will. Sanders v.
McClanahan, 59 Tenn. App. 590, 442 S.W. 668 (1969).
The stipulated fact that the will cannot be found placed the burden
squarely upon the contestants/appellees to prove by “stringent, clear and
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convincing evidence” that the will which they seek to establish was not
revoked by destruction by the testator.
The contestants have not satisfied the requirement of proving by
“stringent, clear and convincing evidence” that Mr. Ferguson did not revoke
the August 14, 1986, will upon which the contestants rely for standing and
which they sought to establish in equity.
The Probate Court heard the evidence without a jury and entered a
final judgment that the contestants have standing. This Court respectfully
disagrees for the reason above stated, that the contestants failed to offer
“stringent, clear and convincing evidence” that the lost will upon which they
rely for standing was not revoked by the testator.
The judgment of the Probate Court is reversed and vacated and the
petitioners’ petition to contest is dismissed. Costs of this appeal, and of the
proceedings upon the petition in Probate Court are taxed against the
contestants. The cause is remanded to the Probate Court for entry of the
judgment of this Court and for further appropriate proceedings.
REVERSED AND REMANDED.
___________________________________
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
____________________________
BEN H. CANTRELL, JUDGE
____________________________
WILLIAM C. KOCH, JR., JUDGE
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