IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs August 3, 2020

IN RE ESTATE OF DAWSON LEWIS

Appeal from the Chancery Court for Gibson County

No. 23190-P George R. Ellis, Chancellor

___________________________________

No. W2019-01839-COA-R3-CV

___________________________________

The petitioners filed a petition to probate the will of the decedent. The will offered for 

probate had markings on the provisions concerning the appointment of executors to the 

will and the payment of the head stone. The petitioners filed an affidavit stating that they 

had no knowledge concerning who made the markings on the decedent’s will. The Trial 

Court entered an order denying the petition to probate the will, finding that the markings 

on the will “negated it from being accepted to Probate” and that the decedent had, therefore, 

died intestate. The petitioners appealed. We reverse the judgment of the Trial Court and 

remand for the decedent’s will to be admitted to probate.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court 

Reversed; Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which ANDY D. BENNETT

and CARMA DENNIS MCGEE, JJ., joined.

Floyd S. Flippin, Humboldt, Tennessee, for the appellants, Gail Forte and Freda Lewis.1

OPINION

Background

In January 2018, Dawson Lewis (“Decedent”) executed a last will and testament. 

Decedent subsequently died in May 2019. In June 2019, Decedent’s daughters, Gail Forte 

and Freda Lewis (“Petitioners”), filed a petition seeking to probate Decedent’s last will and 

testament. Petitioners filed an affidavit certifying that they had provided notice to 

 

1 The appellees, Anna Anderson-Lewis, Don Anderson, James A. Lewis, Dennario Carr, Antwaun Carr, 

Crystal Hayes, and Tauvi Carr, declined to file a responsive appellate brief in this matter.

10/28/2020
- 2 -

Decedents’ surviving heirs that they were beneficiaries of the estate by sending them a 

copy of Decedent’s will. The petition and affidavit identified Anna Anderson-Lewis, Freda 

Lewis, Gail Forte, Don Anderson, James A. Lewis, Bonnie Leshoure, Dennario Carr, 

Antwaun Carr, Crystal Hayes, and Tauvi Carr as beneficiaries to the estate. 

Decedent’s last will and testament appointed Gail Forte and Freda Lewis as the 

executors of the will. The document contains markings on the will drawing a line through 

the part of the will appointing Gail Forte as an executor and a line through the sentence 

directing the funds from which the expense for his head stone was to be taken. There was 

no evidence on the face of the document concerning who made the markings. The last will 

and testament was signed by Decedent, as well as two witnesses. The date on the will 

reflects the document was executed in January 2018. The two witnesses also executed an 

affidavit declaring in part that they witnessed the execution of Decedent’s last will and 

testament, that Decedent signed the will in their sight and presence, that they attached their 

signatures to the will at the request of Decedent, that they signed the will in the presence 

of Decedent and each other, and that Decedent appeared to be of sound mind at the time of 

the will’s execution.

Petitioners also filed a joint affidavit with their petition for probate stating as 

follows:

Comes now Affiants, Freda Lewis and Gail Forte, and after being duly 

sworn, make oath as follows:

1. Neither Affiant knows who marked through Gail Forte’s name as CoExecutor of the Will of Dawson Lewis, deceased, nor do they know who 

marked through the language regarding the expense of the head stone to come 

out of the funds of Gail Forte and Freda Lewis.

2. Your Affiants have no problem with Freda Lewis serving alone as 

Executor or Gail Forte serving. If the Court deems appropriate for Gail Forte 

to resign, she will.

3. Your Affiants would show that the expense for the head stone was prepaid 

prior to the death of Dawson Lewis, and therefore, that expense would not 

be needed.

The foregoing would be the testimony of the Affiants if called upon to give 

evidence at trial.

Both Petitioners signed the joint affidavit, and their signatures were notarized.
- 3 -

The Trial Court subsequently entered an order in September 2019 denying the 

petition for probate, which provided as follows in its entirety:

This matter came on to be heard upon the Petition for Probate, the 

Affidavits of [Petitioners], the statements of counsel for Petitioners, and upon 

the entire record of this cause from all of which the Court denied the Petition 

for Probate and specifically found the markings on said Will negated it from 

being accepted to Probate and therefore [Decedent] died intestate.

IT IS, THEREFORE, CONSIDERED AND ORDERED BY THE 

COURT that the Petition for Probate be and the same is hereby denied. Costs 

are assessed against Petitioners.

Petitioners timely appealed to this Court. Pursuant to Tennessee Rule of Appellate 

Procedure 24(d), Petitioners filed a notice with the Trial Court that they would not be filing 

a transcript of the proceedings or statement of evidence, stating that no evidence had been 

presented to the Trial Court “other than the contents of the record, upon which the Court 

summarily dismissed the Petition for the reasons stated in the Order entered September 17, 

2019.”

Discussion

Although not stated exactly as such, Petitioners raise the following as an issue for 

our review on appeal: whether the Trial Court erred by denying the petition for probate 

upon its finding that the markings on Decedent’s last will and testament negated its 

acceptability for probate. This Court has stated regarding probate proceedings:

Proceedings to admit a will to probate are in rem proceedings. 

Jennings v. Bridgeford, 218 Tenn. [287,] 294-95, 403 S.W.2d [289,] 292

[(1966)]; Reaves v. Hager, 101 Tenn. [712,] 718, 50 S.W. [760,] 762

[(1899)]; 1 PRITCHARD § 45, at 73; 3 PAGE ON WILLS § 26.51, at 141. 

Their function is to provide the court with the information it needs to decide 

the proper distribution of the res, i.e., the estate. Fransioli v. Podesta, 175 

Tenn. 340, 347, 134 S.W.2d 162, 165 (1939); Lillard v. Tolliver, 154 Tenn. 

[304,] 312-13, 285 S.W. [576,] 578-79 [(1926)]; 1 PRITCHARD § 45, at 73. 

In making this determination, the court’s polestar is the intent of the testator 

or testatrix. In re Dye’s Estate, 565 S.W.2d 219, 221 (Tenn. Ct. App. 1977). 

The proceedings are designed not to advance the interests of the living parties 

but rather to vindicate the right of the decedent to dispose of his or her 

property as he or she saw fit. Jennings v. Bridgeford, 218 Tenn. at 293-94, 

403 S.W.2d at 291-92; Hodges v. Bauchman, 16 Tenn. (8 Yer.) 186, 188-90, 

1835 WL 929, at *1-2 (1835).
- 4 -

In re Estate of Boote, 198 S.W.3d 699, 717 (Tenn. Ct. App. 2005). 

Concerning the applicable standard of review for probate proceedings, this Court 

has stated:

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). 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. In re

Estate of Cook, No. E2001-02062-COA-R3-CV, 2002 WL 1034016 at *2 

(Tenn. Ct. App. May 23, 2002) (citing Scott v. Atkins, 44 Tenn.App. 353, 314 

S.W.2d 52, 56 (Tenn. Ct. App. 1957)). A review of findings of fact by a trial 

court is de novo upon the record, accompanied by a presumption of 

correctness; we must affirm findings of fact unless the preponderance of the 

evidence is otherwise. Tenn. Rule App. P. 13(d); Brooks v. Brooks, 992 

S.W.2d 403, 404 (Tenn. 1999). Review of questions of law is de novo,

without a presumption of correctness. See Nelson v. Wal Mart Stores, Inc.,

8 S.W.3d 625, 628 (Tenn. 1999).

In re Estate of Ward, No. W2010-00287-COA-R3-CV, 2010 WL 2712530, at *2 (Tenn. 

Ct. App. July 9, 2010). 

In this case, Decedent executed his last will and testament in January 2018 in the 

presence of two witnesses as required by Tennessee Code Annotated § 32-1-104 (Supp. 

2020). Pursuant to Tennessee Code Annotated § 32-2-110 (2015), those two witnesses 

executed an affidavit certifying that Decedent signed the will in their sight and presence, 

that they signed the will as witnesses at the request of Decedent and in the presence of 

Decedent and each other, and that Decedent appeared to be of sound mind when executing 

the will. Tennessee Code Annotated § 32-2-110 provides an avenue for a party to prove 

the requirements in section 32-1-104 without the need for live testimony from the witnesses 

to the will. See In re Estate of Harris, No. W2016-01768-COA-R3-CV, 2018 WL

6444136, at *3 (Tenn. Ct. App. Dec. 10, 2018). Tennessee Code Annotated § 32-2-110 

provides that an affidavit containing the sworn statements of the witnesses to the will 

stating the facts for which they would testify in court in order to prove the will “shall be 

accepted by the court of probate when the will is not contested as if it had been taken before 

the court.” No one challenged the will’s compliance with Tennessee Code Annotated § 

32-1-104 during the probate proceedings.

The issue on appeal concerns the markings on the last will and testament after its 

execution. Lines had been drawn over one provision in the will appointing Gail Forte as 

an executor of the will but Freda Lewis’s name in that same provision remained untouched. 
- 5 -

A line also had been drawn through a sentence directing the funds for Decedent’s head 

stone to be paid from Petitioners’ share of the estate. As a result of these markings, the 

Trial Court denied Petitioners’ request to admit Decedent’s will to probate, finding the 

entire will to be unacceptable for probate and determining that Decedent died intestate.

The Trial Court stated in its order that its ruling was based on “the Petition for 

Probate, the Affidavits of Gail Forte and Freda Lewis, the statements of counsel for 

Petitioners, and upon the entire record of this cause.” This is consistent with Petitioners’ 

appellate brief which states that no evidence was presented at the time of the hearing. The 

record before us reflects no evidence of any contest to the will or its validity. The only 

sworn statements before the Trial Court concerning the markings were by Petitioners in 

their joint affidavit. In such affidavit, Petitioners denied that they had any knowledge of 

the identity of the individual who made the markings on the will. There was no other 

evidence presented as to these markings. Following this hearing, the Trial Court’s order 

stated only that “the markings on [Decedent’s] Will negated it from being accepted to 

Probate” and that Decedent had died intestate, without providing further explanation. 

We note that markings on a will do not necessarily mean that the entire will has 

been revoked by the testator. Tennessee Code Annotated § 32-1-201 (2015) provides as 

follows concerning the revocation of a will:

A will or any part thereof is revoked by:

(1) A subsequent will, other than a nuncupative will, that revokes the prior 

will or part expressly or by inconsistency;

(2) Document of revocation, executed with all the formalities of an attested 

will or a holographic will, but not a nuncupative will, that revokes the 

prior will or part expressly;

(3) Being burned, torn, cancelled, obliterated or destroyed, with the intent 

and for the purpose of revoking it, by the testator or by another person in 

the testator’s presence and by the testator’s direction; or

(4) Both the subsequent marriage and the birth of a child of the testator, but 

divorce or annulment of the subsequent marriage does not revive a prior 

will.

This Court has held that a testator can revoke by physical act specific provisions of 

a will, while leaving the remaining provisions intact. See In re Estate of Warren, 3 S.W.3d 

493, 495 (Tenn. Ct. App. 1999); In re Estate of Dye, 565 S.W.2d 219, 221 (Tenn. Ct. App. 

1977). “For a revocation to be valid, concurrence of an intention to revoke and some act 
- 6 -

by the testator manifesting that intention is required.” In re Estate of Dye, 565 S.W.2d at

221. In cases regarding revocation of a will, the key is the intent of the testator. See id.; 

Cozart v. Jones, 1986 WL 624, at *3 (Tenn. Ct. App. Jan. 3, 1986). 

On appeal, Petitioners argue that the trial court erred by finding that Decedent had 

died intestate due to the lack of evidence demonstrating an intent by Decedent to revoke 

his will and Tennessee’s presumption against intestacy. As early as 1875, the Tennessee 

Supreme Court in Hearn v. Alexander, 3 Tenn. Cas. (Shannon) 224 (1875), applied a 

presumption against intestacy when construing the meaning of a will. Since then, 

Tennessee courts have recognized a presumption against intestacy, which provides that

“when a person makes a will there is a presumption that the person did not intend to die 

intestate as to any part of his or her property.” In re Estate of McFarland, 167 S.W.3d 299, 

303 (Tenn. 2005); see also Tenn. Code Ann. § 32-3-101 (2015) (codifying the common 

law presumption against intestacy). This presumption has been consistently utilized when 

construing the meaning of a will so as to prevent either partial or full intestacy when the 

testator has executed a will so long as “‘the words used, by any fair interpretation, will 

embrace the property not otherwise devised, unless a contrary intention appears from the 

context.’” In re Walker, 849 S.W.2d 766, 768 (Tenn. 1993) (quoting McDonald v. Ledford,

140 Tenn. 471, 475, 205 S.W. 312, 313 (1917); see also In re Estate of McFarland, 167 

S.W.3d at 303; In re Estate of Milam, 181 S.W.3d 344, 355 (Tenn. Ct. App. 2005); In re

Tipler, 10 S.W.3d 244, 249 (Tenn. Ct. App. 1998).

In Cozart v. Jones, this Court applied that presumption to a case concerning whether 

a testator had revoked his will by marking changes onto the face of the will. 1986 WL 624, 

at *4, 7 (Tenn. Ct. App. Jan. 3, 1986). In that case, the trial court ultimately concluded that 

the testator had not intended to revoke his existing will but that he had only intended to 

make changes to the will in the future, leaving his existing will in effect until he executed 

a new will. Id. at *1. In affirming the trial court’s decision, the Cozart Court applied the 

presumption against intestacy, determining the existing will remained valid and had not 

been revoked. Id. at *7. We hold that the common law presumption against intestacy is 

relevant to the present case concerning whether Decedent intended to revoke his last will 

and testament by drawing lines through two provisions in the will if indeed it was Decedent 

who drew the lines.

In the present case, Decedent had not destroyed the last will and testament or written 

anything on it to reflect that he intended to revoke his last will and testament, nor had he 

executed a subsequent document revoking the January 2018 will. The markings on the 

will, which consisted of lines drawn through only two provisions, do not demonstrate an 

intent by Decedent to revoke his will in its entirely. Although a testator’s action of drawing 

through provisions of a will can support a revocation of those provisions, there is no 

evidence in this case that Decedent was the person who made the markings on the will or 

that he intended to revoke portions of the will. The only proof in the record is Petitioners’ 
- 7 -

joint affidavit stating that they are unaware who made the markings on the will. This was 

not challenged during the probate proceedings. We note that no initials were located near

the markings to demonstrate the identity of the person making the markings. Additionally, 

no evidence was presented of any individual witnessing Decedent make any markings on 

the will, of any person identifying the markings on the will as those of Decedent, or 

concerning whether Decedent made comments prior to his death regarding revision of his 

will. Moreover, no one was present contesting the will in its entirety or any provisions 

within the will. The record lacks evidence demonstrating an intent by Decedent to revoke 

any portions of his will, only the presence of unexplained lines drawn through two 

provisions in the will that had not been attributed to Decedent.

As such, there is insufficient evidence to support that Decedent made the markings 

on the will or that he intended to revoke those portions of the will, much less a revocation 

of the entire will. We, therefore, reverse the Trial Court’s order denying the petition to 

probate Decedent’s will. Upon remand, the Trial Court is instructed to enter an order 

admitting Decedent’s last will and testament to probate. 

Conclusion

The judgment of the Trial Court is reversed, and this cause is remanded to the Trial 

Court for further proceedings consistent with this Opinion. The costs on appeal are 

assessed against the appellants, Gail Forte and Freda Lewis, in their capacity as executors 

of the estate.

_________________________________

D. MICHAEL SWINEY, CHIEF JUDGE