IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

AUGUST 15, 2005 Session

VICKI LYNN GASS NICHOLS v. LYNN ALLEN SCHUBERT, ET AL.

Direct Appeal from the Probate Court for Davidson County

Nos. 03-3892-I & 02P-1470 Randy Kennedy, Judge

No. M2004-02567-COA-R3-CV- Filed December 28, 2005

The wife died in 1998, and her holographic will was admitted to probate and the estate closed. In

2002, the husband died, and his formally executed will was admitted to probate. Thereafter, his

executrix determined that a question existed concerning the ownership interest in the marital

residence held by the husband at his death. As a result, the executrix filed a declaratory judgment

action in the probate court to construe the wife’s holographic will. At trial, the wife’s daughter by

a previous marriage attempted to prove that the wife’s holographic will was a forgery. The trial court

determined that the daughter’s proof was not credible, and the court ruled that the wife’s holographic

will vested fee simple title of the marital residence in the husband following her death. The wife’s

daughter filed a motion for a new trial. While the motion was pending, the daughter filed an action

in the chancery court against the husband’s children from a previous marriage asserting, in essence,

the same allegations she raised in the probate court action. The probate court subsequently denied

the daughter’s motion for a new trial. In turn, the chancery court transferred the complaint to the

probate court, and the probate court entered an order dismissing the complaint. The daughter filed

an appeal to this Court raising numerous issues related to the declaratory judgment action and the

compliant filed in chancery court. As for the declaratory judgment action, we are without

jurisdiction to entertain issues related to that case since the daughter failed to file a timely appeal.

As for the complaint the daughter filed in chancery court, we find that it is, in essence, an action to

contest the validity of the holographic will of her mother. As such, it is barred by the applicable

statute of limitations. Therefore, the probate court was correct in dismissing the complaint.

Moreover, we remand this case to the trial court for the entry of an award of damages to the

Appellees for the Appellant’s filing of a frivolous appeal.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Probate Court Affirmed and

Remanded

ALAN E.HIGHERS,J., delivered the opinion of the court, in which W.FRANK CRAWFORD,P.J.,W.S.,

and DAVID R. FARMER, J., joined.

Dennis L. Tomlin, Hendersonville, TN, for Appellant
 Judge Clement was appointed to the Tennessee Court of Appeals in September of 2003 by Governor Phil 1

Bredesen. Tennessee Administrative Office of the Courts, http://www.tsc.state.tn.us/geninfo/Bio/Appeals/Biotca.htm

(last visited Oct. 24, 2005). 

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Andra J. Hedrick; Jennifer Orr Locklin, Nashville, TN, for Appellees

OPINION

I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Edsel R. Allen, Sr. (“Mr. Allen”) and Enola Marie Allen (“Mrs. Allen”) were married in July

of 1977. The couple never had any children of their marriage. However, Mr. Allen had two children

from a previous marriage, Edsel R. Allen, Jr. and Lynn Allen Schubert (“Ms. Schubert” or,

collectively with Edsel R. Allen, Jr., “Mr. Allen’s Children”), and Mrs. Allen had two children from

a previous marriage, Anthony Langley and Vicki Nichols (“Ms. Nichols” or, collectively with

Anthony Langley, “Mrs. Allen’s Children”). In November of 1977, Mr. Allen and Mrs. Allen

purchased a home located on Gaylemore Drive in Goodlettsville, Tennessee (hereinafter the

“Goodlettsville Property”) as tenants by the entirety. In 1990, Mr. Allen executed a quitclaim deed

conveying his interest in the Goodlettsville Property to Mrs. Allen. 

Mrs. Allen died in June of 1998. It was originally believed that Mrs. Allen died intestate.

Shortly after her death, Judge Frank Clement, Jr. of the Probate Court of Davidson County issued 1

an order providing as follows:

It appearing to the court . . . that the decedent left no will; that

petitioner is the husband of the decedent and is the person entitled to

serve as administrator; that decedent owned no real property at her

death and personal property in the approximate amount of

$50,000.00, which is subject to a court supervised administration by

this Court . . . .

IT IS, THEREFORE, ORDERED, ADJUDGED and

DECREED by the Court that the clerk be directed to issue letters of

administration to Edsel Ray Allen . . . .

(emphasis added). Not long after the probate court entered the order, Mr. Allen filed a petition

providing, in relevant part, as follows:

Recently petitioner visited a friend who presented him with a

document dated February 14, 1997, which appears to be in the

handwriting of Enola Marie Allen. It bears her signature and the

signature of [two witnesses].
 Apparently, Mrs. Allen was anticipating a settlement from a lawsuit against this company for complications

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related to her breast implants. 

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. . . . 

PREMISES CONSIDERED, petitioner prays:

1. That the document dated February 14, 1997, bearing

the signature of Enola Marie Allen and [the two witnesses] be

admitted to probate as the Last Will and Testament of Enola Marie

Allen.

Specifically, the handwritten document stated, in relevant part, that “I Enola Marie Allen in sound

mind request that my Husband Edsel R. Allen . . . to get my Dow Corning monies or estate he is the 2

one that has put up with and taken care of me when no one else would.”

In light of this new document, the probate court entered an order on April 14, 1999 finding

as follows:

[I]t appearing to the Court . . . that said paper was written in the

lifetime of the deceased and signed by the witnesses in the presence

and at the request of the deceased and in the presence of each other

and as attesting witnesses thereto, and that said instrument was

executed by the deceased who was at the time of sound mind and

disposing memory . . . .

IT IS, FURTHER, ORDERED, ADJUDGED and DECREED

by the Court that said instrument is the true and Last Will and

Testament of the deceased, and the Clerk of this Court is hereby

directed to file and record the same, and that the said Edsel Ray

Allen, who was heretofore appointed administrator of the estate is

appointed Administrator, c.t.a. to serve and no additional bond shall

be required.

Mr. Allen subsequently submitted an “Estate Inventory” listing all of Mrs. Allen’s personal property

valued at $29,000, but the inventory did not reveal any real property owned by Mrs. Allen at her

death. In any event, Mrs. Allen’s estate was eventually closed, and her personal property was

distributed. However, the Goodlettsville Property remained titled in Mrs. Allen’s name following

the probate of her holographicwill. Mr. Allen continued to live at the Goodlettsville Property paying

double the mortgage payment each month, paying the property taxes, and paying for the maintenance

expenses on the property. Ms. Nichols began residing at the Goodlettsville Property with Mr. Allen

in January of 2002 following her release from prison. 

On August 22, 2002, Mr. Allen died a resident of Davidson County, Tennessee. Mr. Allen

left a formally executed “Last Will and Testament” which purported to name Ms. Schubert as his
 Section 29-14-105 of the Tennessee Code provides as follows:

3

Any person interested as or through an executor, administrator, trustee,

guardian, or other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui

que trust, in the administration of a trust, or of the estate of a decedent, an infant,

lunatic, or insolvent may have a declaration of rights or legal relations in respect

thereto to:

. . . . 

(3) determine any question arising in the administration of the estate or

trust, including questions of construction of wills and other writings.

Tenn. Code Ann. § 29-14-105(3) (2003).

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executrix and to devise to Mr. Allen’s Children any real property he owned at his death. Shortly

after Mr. Allen’s death, Ms. Schubert filed a “Petition to Probate Will and for Letters Testamentary”

in the Probate Court of Davidson County wherein she stated that, “[a]t the time of death, the

deceased owned no real property.” Ms. Schubert subsequently filed a motion seeking to have the

probate court construe Mrs. Allen’s holographic will. Therein, Ms. Schubert noted that the probate

court did not dispose of the Goodlettsville Property when it probated Mrs. Allen’s estate.

Specifically, she asked the probate court to determine ifMr. Allen owned the Goodlettsville Property

in fee simple at his death or if he merely held an interest in the property along with other persons.

The probate courtsubsequently ruled that a motion to construe Mrs. Allen’s holographic will

was not the proper pleading and that Ms. Schubert needed to file a complaint. In turn, Mr. Allen’s

Children filed a declaratory judgment action, pursuant to section 29-14-105(3) of the Tennessee

Code, against Mrs. Allen’s estate and Mrs. Allen’s Children seeking construction of Mrs. Allen’s 3

holographic will to ascertain the ownership interests in the Goodlettsville Property. On September

23, 2003, Judge Clement conducted a hearing on the declaratory judgment complaint filed by Mr.

Allen’s Children. No court reporter attended the trial, and we have no statement of the evidence

filed on appeal summarizing the evidence presented below. At the hearing, Ms. Nichols apparently

attempted to prove that the document admitted to probate as Mrs. Allen’s holographic will was a

forged instrument. Ms. Nichols presented her own testimony and that of Lois Marlene Sloan (“Ms.

Sloan”), one of the witnesses to the holographic will, in an effort to prove the document was a

forgery. According to Ms. Nichols, Mrs. Allen kept her “real will” behind a clock at the

Goodlettsville Property. The “real will” was never produced at trial. On October 6, 2003, Judge

Clement entered an order finding as follows:

2. The holographic will of Enola Marie Allen was properly 

admitted to probate by this Court . . . as the Last Will and Testament

of Enola Marie Allen; . . . and the time period in which any interested

party could contest such will has expired.
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3. Under the holographic will . . . Ms. Allen intended to devise

and bequeath, and did devise and bequeath, her entire estate,

including the [Goodlettsville Property], to her husband, Edsel R.

Allen, Sr. The Court’s determination as to the intention of Ms. Allen

is based on an examination of the four corners of Ms. Allen’s will, the

words used by Ms. Allen in her will, particularly the word “estate,”

and the terms of endearment used by Ms. Allen in her will relative to

the care that Ms. Allen received from her husband. In making such

determination, the Court also relied on the legal presumption against

intestacy.

4. At the death of Edsel R. Allen, Sr., all right, title, and interest

owned by Edsel R. Allen, Sr. passed under his Last Will and

Testament, which has been duly admitted to probate by this Court .

. . , to [Mr. Allen’s Children].

(emphasis added). 

On October 22, 2003, Ms. Nichols filed a “Motion for New Trial” in the probate court.

Therein she argued that the court erred in admitting Mrs. Allen’s will into probate because it was a

forgery. Ms. Nichols asserted that she had newly discovered evidence of the alleged forgery. In

support of her motion, Ms. Nichols submitted her own affidavit which, in essence, recounted her

testimony at trial. She pointed to the fact that, since she was incarcerated in 1999, she was unable

to contest the allegedly forged holographic will until her release from prison. Ms. Nichols also

recounted in her motion the testimony of Ms. Sloan offered at trial. In addition to her own affidavit,

Ms. Nichols submitted the affidavit of Rebecca Swift (“Ms. Swift”), Mrs. Allen’s sister, stating that

the handwriting on the holographic will was not that of her sister. Ms. Swift indicated that she had

obtained certain writings of her sister which could be used to prove the holographic will was a

forgery. When Ms. Nichols filed her “Motion for New Trial,” Judge Mary Ashley Nichols was

sitting as a substitute probate court judge until the vacancy created by Judge Clement’s appointment

to the Tennessee Court of Appeals could be filled. Judge Nichols, being unfamiliar with the

particulars of the case, continued the hearing on the motion. 

On October 27, 2003, counsel for Ms. Nichols sent “post-judgment interrogatories” to

counsel for Mr. Allen’s Children. In the interrogatories, counsel for Ms. Nichols sought information

regarding, among other things, the facts surrounding the location of the holographic will when it was

discovered, who discovered it, the individual who presented it to Mr. Allen, who traced Mrs. Allen’s

signature on the probated holographic will, and who destroyed Mrs. Allen’s personal papers. 

Counsel for Ms. Nichols also sent a letter to counsel for Mr. Allen’s Children stating that he “need[s]

to know the identity of the man who allegedly gave the alleged Will to Mr. Allen so I can find out

who printed the alleged Will.” Enclosed in the letter was a request that Mr. Allen’s Children

“produce all documents or Wills you, your agents, representatives or Attorneys have which are

different than the one filed for probate.” Counsel for Mr. Allen’s Children responded to the

discovery requests by sending a letter to counsel for Ms. Nichols stating that they would “not be
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answering the Interrogatories as they are untimely and are wholly unwarranted at this time as this

matter is no longer in front of the Court due to the judgment in favor of my clients.” 

While Ms. Nichols’s motion for a new trial was pending in the probate court, she filed a

complaint against Mr. Allen’s Children in theChanceryCourt of Davidson County on December 31,

2003 asserting, in essence, the same legal arguments raised in her motion for a new trial filed in the

probate court. In support of her complaint, Ms. Nichols submitted the affidavit of a potential

handwriting expert stating that the holographic will was not in the handwriting of Mrs. Allen. Ms.

Nichols asked the chancery court to award her damages and to set aside the orders of the probate

court. Thereafter, counsel for Mr. Allen’s Children sent a “Rule 11 Notice Letter” to counsel for Ms.

Nichols asking Ms. Nichols to either provide support for the allegations in her complaint or dismiss

the complaint. Counsel for Ms. Nichols submitted a letter in response asserting the he complied with

Rule 11 of the Tennessee Rules of Civil Procedure. On February 10, 2004, counsel for Mr. Allen’s

Children sent a letter to Judge Clement, a judge on the Tennessee Court of Appeals at the time,

asserting that, since no transcript of the trial of the declaratory judgment action filed by Mr. Allen’s

Children existed, all of the attorneys were requesting that Judge Clement hear Ms. Nichols’s motion

for a new trial as a special judge pursuant to section 17-2-109 of the Tennessee Code. 

On February 19, 2004, Judge Clement entered an order addressing Ms. Nichols’s “Motion

for New Trial,” providing as follows:

Since the undersigned presided over the trial at issue, it is incumbent

upon the undersigned to rule upon the Motion For New Trial. The

Davidson County Local Rules of Court permit the Court to waive oral

arguments. Finding oral arguments would be of no benefit, the Court

elects to rule on the motion without oral arguments.

The issue is basically a question of whether the allegations of

forgery and fraud alleged by Ms. Nichols, which were raised

previously and testimony for which was presented at the trial at issue,

justifies granting a new trial pursuant to Tenn. R. Civ. P. 60.02.

Following the trial, the Court made numerous findings

including without limitation that the proof was insufficient to

substantiate the allegations of forgery or fraud. Particularly, the

Court found that the testimony of Ms. Nichols and Lois Marlene

Sloan, who were the principal witnesses providing testimony

concerning the allegations of forgery or fraud, to be less than

credible and wholly inadequate to substantiate the allegations of

forgery or fraud. The Court has reviewed the Motion For a New

Trial, the affidavits in support thereof and find them insufficient to

justify granting a new trial. 

After consideration of all relevant factors, and recalling the

pertinent testimonypresented at trial, theCourtfinds that the movants
 By the time the probate court entered the order, Judge Randy Kennedy had been appointed to fill the vacancy

4

created when Judge Clement was elevated to the Tennessee Court of Appeals.

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had more than ample opportunity to present their case on September

23, 2003, the evidence presented at the trial was wholly insufficient

to sustain the allegations of forgery or fraud, and the grounds set forth

in the motion and the facts set forth in the affidavits in support thereof

fail to convince the Court that the trial should be set aside or a new

trial should be granted. The movants simply want a second bite at the

apple but have failed to provide a justification for another bite.

(emphasis added). 

Thereafter, Mr. Allen’s Children filed a motion in the chancery court seeking Rule 11

sanctions against Ms. Nichols and her counsel asserting that the complaint filed in chancery court

was “factually frivolous and/or presented for an improper purpose.” Mr. Allen’s Children also filed

a motion seeking to have the complaint dismissed pursuant to Rule 12.02(6) of the Tennessee Rules

of Civil Procedure for failure to state a claim upon which relief could be granted. Ms. Nichols

subsequently filed a motion in the probate courtseeking to amend her motion for a new trial, despite

the fact that Judge Clement had already issued an order denying the motion. In any event, the

chancery court entered an order transferring Ms. Nichols’s complaint to the probate court pursuant

to the agreement of the judges of the probate and chancery courts. 

Once the case was returned to the probate court, counsel for Ms. Nichols filed a response to

the motion for Rule 11 sanctions filed by Mr. Allen’s Children, wherein he asserted that it was

permissible to file the complaint in chancery court seeking to set aside the probate court’s orders.

Ms. Nichols also filed an amended complaint in the probate court alleging that Mrs. Allen wrote a

holographic will (the “real will”) leaving her entire estate to Ms. Nichols, she saw the “real will”

behind the clock at the Goodlettsville Property and read the will, and recounted her prior arguments

that the will submitted to probate was a forgery and that Mr. Allen’s Children had engaged in fraud

by probating the will. In response to the amended complaint, Mr. Allen’s Children filed a motion

to dismiss the amended complaint pursuant to Rule 12.02(6) of the Tennessee Rules of Civil

Procedure. On October 8, 2004, the probate court entered an order granting the motion to dismiss 4

filed by Mr. Allen’s Children, stating:

1. The facts and causes of action alleged in the 

Plaintiff’s “Amended and Substituted Complaint” have been

previously heard and adjudicated by this Court. When this Court

issued its previous Order . . . denying the Plaintiff’s “Motion for New

Trial,” the Plaintiff could have elected to appeal the Court’s ruling.

However, the Plaintiff chose not to appeal the Court’s ruling but,

instead, filed a second lawsuit . . . in the Chancery Court (which was

subsequently transferred to this Court) in an attempt to re-litigate the
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matters previously adjudicated by this Court. As the matters at issue

are substantially identical to those previously adjudicated by the

Court, the Court finds that the relief sought by the Plaintiff is barred

under the legal doctrine of collateral estoppel.

2. The handwritten last will and testament of Enola 

Marie Allen, dated February 14, 1997, was admitted to probate by

this Court on April 14, 1999, at which time the Plaintiff admittedly

received notice of same and a copy of said last will and testament.

Tennessee Code Annotated Section 32-4-108 imposes a two year

statute of limitations on the bringing of will contests which, with

respect to the last will and testament of Enola Marie Allen, expired

on April 14, 2001. To the extent that the Plaintiff’s “Amended and

Substituted Complaint” is an attempt to contest the last will and

testament of Enola Marie Allen, such attempt is untimely and barred

as the applicable statute of limitations has expired.

(emphasis added). In response to the order dismissing her complaint, Ms. Nichols filed an appeal

to this Court.

II.

DISCUSSION

On appeal, Ms. Nichols has raised nineteen (19) separate issues to contest various aspects

of the aforementioned procedural history of this case. Many of the issues raised by Ms. Nichols

address the propriety of certain actions taken by Judge Clement in adjudicating the declaratory

judgment action filed by Mr. Allen’s Children in the probate court to construe Mrs. Allen’s

holographic will. The remainder of the issues raised by Ms. Nichols on appeal address the

disposition of the complaint she filed in the chancery court following the resolution of the

declaratory judgment action. We find each of the issues raised by Ms. Nichols on appeal to be

without merit.

Regarding the jurisdiction of the courts of this state to hear probate matters, the legislature

enacted the following statute:

In all counties where not otherwise specifically provided by

public, private, special or local acts, all jurisdiction relating to the

probate of wills and the administration of estates of every nature . . .

is hereby vested in the chancery court of the respective counties. The

chancery court in such counties shall have exclusive jurisdiction over

the probate of wills and the administration of estates of every nature

. . . .
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Tenn. Code Ann. § 16-16-201(a) (2003) (emphasis added). “Expressly excluded from the

application of the [statute] conferring probate jurisdiction on the chancery court are counties having

probate courts otherwise provided by general law, or special, local, or private acts.” 1 Jack W.

Robinson, Sr. and Jeff Mobley, Pritchard on the Law of Wills and Administration of Estates § 39,

at 65 (5th ed. 1994). In 1963, the Tennessee General Assembly created, by private act, the Probate

Court of Davidson County. 1963 Tenn. Priv. ch. 124, § 1. Thus, the Probate Court of Davidson

County properly had jurisdiction over the probate of Mr. Allen’s and Mrs. Allen’s estates.

We first address our ability to entertain issues raised by Ms. Nichols relating to the

declaratory judgment action filed by Mr. Allen’s Children in the probate court to construe Mrs.

Allen’s holographic will. Shortly after Mr. Allen’s “Last Will and Testament” was admitted into

probate, Mr. Allen’s Children filed a declaratory judgment action in the probate court to construe

the meaning of Mrs. Allen’s holographic will. Judge Clement held a hearing on the declaratory

judgment action on September 23, 2003, and he issued an order in favor of Mr. Allen’s Children on

October 6, 2003. Ms. Nichols filed her “Motion for New Trial” on October 22, 2003, which the

probate court denied on February 19, 2004. Ms. Nichols did not file the instant appeal until October

13, 2004. 

“This Court may sua sponte review the record on appeal to determine if we properly have

jurisdiction.” Huntington Nat’l Bank v. Hooker, 840 S.W.2d 916, 922 (Tenn. Ct. App. 1991)

(citing Tenn. R. App. P. 3(a)); see also Tenn. R. App. P. 13(b) (2005) (“The appellate court shall

also consider whether the trial and appellate court have jurisdiction over the subject matter, whether

or not presented for review[.]”)). When creating the Probate Court of Davidson County, the

legislature provided “[t]hat all appeals from the Probate Court shall lie to the Court of Appeals or

Supreme Court in the same manner as appeals from chancery courts.” 1963 Priv. Acts ch. 124, §

5. “In an appeal as of right to the . . . Court of Appeals . . . the notice of appeal required by Rule 3

shall be filed with and received by the clerk of the trial court within 30 days after the date of entry

of the judgment appealed from[.]” Tenn. R. App. P. 4(a) (2005). “In a civil action, if a timely motion

under the Tennessee Rules of Civil Procedure is filed in the trial court by any party . . . under Rule

59.02 for a new trial . . . the time for appeal for all parties shall run from the entry of the order

denying a new trial or granting or denying any other such motion.” Tenn. R. App. P. 4(b) (2005).

“The thirty-day time limit set out in Rule 4 is jurisdictional in civil cases.” Binkley v. Medling, 117

S.W.3d 252, 255 (Tenn. 2003).

Ms. Nichols did not file a notice of appeal in this case until well over thirty days after the

probate court entered the order denying her “Motion for New Trial.” Accordingly, this Court is

without jurisdiction to entertain any of the issues presented by Ms. Nichols relating to the probate

court’s actions in disposing of the declaratory judgment action filed by Mr. Allen’s Children.

We now turn our attention to the remaining issues presented by Ms. Nichols on appeal.

Dissatisfied with the result she received in the probate court, Ms. Nichols filed a complaint against

Mr. Allen’s Children in the Chancery Court of Davidson County on December 31, 2003, just prior

to the entry of the order by the probate court denying her “Motion for New Trial.” In her complaint,
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Ms. Nichols sought to have the probate of Mrs. Allen’s holographic will set aside. Specifically, she

asserted that Mr. Allen, Mr. Allen’s Children, and their attorneys committed fraud (1) in procuring

the probate of the wills by failing to disclose Mrs. Allen’s ownership of the Goodlettsville Property

and (2) in their attempt to probate Mrs. Allen’s allegedly forged holographic will. Thereafter, the

chancery court transferred the case to the probate court. The probate court ultimately entered an

order dismissing Ms. Nichols’s complaint on October 8, 2004, and Ms. Nichols filed her notice of

appeal to this Court on October 13, 2004. Thus, this Court has jurisdiction to entertain those issues

related to the dismissal of her complaint since she filed her appeal within the thirty day period

allowed under the Tennessee Rules of Appellate Procedure. See Tenn. R. App. P. 4(a) (2005).

On appeal, Ms. Nichols raises numerous issues surrounding the disposition of her complaint

against Mr. Allen’s Children. However, we need only address two of these issues in order to

properly dispose of this case:

1. Did the chancery court err in transferring Ms. Nichols’s complaint to the probate court; and

2. Whether the probate court erred in dismissing her complaint once it had been transferred to

the probate court.

For the following reasons, we affirm the probate court’s decision to dismiss Ms. Nichols’s complaint

against Mr. Allen’s Children.

“After a will has been admitted to probate, only a will contest can present any question of the

validity of the will.” 95 C.J.S. Wills § 497 (2001). The purpose for a will contest action can be

stated as follows:

The purpose of a will contest is to show that a testator was

mentally incapable of entering into the will or that the will is not

really the testator’s last will and testament because it was procured by

undue influence or fraud, such that the will should be declared void

and the testator’s estate should be administered under the laws of

descent and distribution.

Id.; see also In re Estate of Eden, 99 S.W.3d 82, 87 (Tenn. Ct. App. 1995) (discussing the

differences between a will contest action and a will construction action). The allegations set forth

in Ms. Nichols’s complaint clearly establish that it is an action to contest the validity of Mrs. Allen’s

holographic will. “It is well settled that such persons only as would be entitled to share in the real

or personal estate of the deceased if there were no will, or if the will were set aside, are entitled to

impeach its validity.” Gore v. Howard, 30 S.W. 730, 731 (Tenn. 1894) (citation omitted). As a

person entitled to share in Mrs. Allen’s real property if her holographic will were declared invalid,

Ms. Nichols was entitled to attempt to impeach the validity of the will by filing a will contest action.
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“The probate and contest of wills are basically statutory rights and statutory proceedings,

derived not from common law, but from the ecclesiastical courts of England.” Green v. Higdon, 870

S.W.2d 513, 520 (Tenn. Ct. App. 1993); see also 95C.J.S. Wills § 497 (2001)(“The right to contest

a will is not a right existing at common law, but a right conferred solely by statute which affords the

exclusive mode of setting aside a will.”). Regarding an action to contest the validity of a probated

will, the legislature provides as follows:

If the validity of any last will or testament, written or

nuncupative, is contested, then the court having probate jurisdiction

over such last will or testament must enter an order sustaining or

denying the contestant’s right to contest the will.If the right to contest

the will is sustained, then the court must:

(1) Require the contestant to enter into bond, with surety, in

the penal sum of five hundred dollars ($ 500), payable to the executor

mentioned in the will, conditioned for the faithful prosecution of the

suit, and in case of failure therein, to pay all costs that may accrue

thereon; and

(2) Cause a certificate of the contest and the original will to

be filed with the appropriate court for trial.

As used in this section, the term “the appropriate court for trial”

means the court elected by the contestant, in the notice of contest, to

conduct a trial upon the validity of the will.

Tenn. Code Ann. § 32-4-101 (2003) (emphasis added); see also 1 Jack W. Robinson, Sr. and Jeff

Mobley, Pritchard on the Law of Wills and Administration of Estates § 368, at 562 (5th ed. 1994)

(“The action is commenced by a complaint addressed to and filed in the probate court in which the

will was admitted to probate.”). 

Based on the clear directive in section 32-4-101 of the Tennessee Code, Ms. Nichols initially

filed her complaint in an incorrect court. See 95 C.J.S. Wills § 497 (2001) (“The statute [permitting

an action to contest a will], being in derogation of common law, must be strictly construed, and a

proceeding initiated under a governing statute must comply exactly with the requirements of that

statute.”). The Probate Court of Davidson County, pursuant to the private act promulgated by the

legislature, was the court that probated Mrs. Allen’s holographic will. Therefore, Ms. Nichols was

required to file her complaint with the probate court and give the court the opportunity to sustain or

deny her right to contest Mrs. Allen’s holographic will. Rule 3.04 of the Davidson County Local

Rules of Practice provides as follows:

The Presiding Judge may transfer a case from one court to

another or from one division to another. The Judges and Chancellors

of the 20th Judicial District may transfer cases among themselves by

mutual consent except in cases of recusal. It is not necessary that the

parties or their counsel consent to such a transfer.
 There is no indication in the record before this Court that Ms. Nichols suffered from any disability which 5

would toll the running of the statute of limitations applicable to her will contest action.

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(emphasis added). Accordingly, we find that the chancery court did not err by transferring Ms.

Nichols’s complaint to the probate court.

Next, we examine whether the probate court erred in dismissing Ms. Nichols’s complaint

following the transfer. After Ms. Nichols filed her amended complaint in the probate court, Mr.

Allen’s Children filed a motion to dismiss pursuant to Rule 12.02(6) of the Tennessee Rules of Civil

Procedure for failure to state a claim upon which relief could be granted, which the probate court

subsequently granted. As counsel for Ms. Nichols conceded at oral argument, the correctness of the

probate court’s decision to dismiss her complaint is the crux of this appeal. When reviewing the

correctness of a trial court’s decision to dismiss a complaint pursuant to Rule 12.02(6), we employ

the following standard of review:

A Rule 12.02(6) motion tests the legal sufficiency of the plaintiff’s

complaint and not the strength of the plaintiff’s evidence. Riggs v.

Burson, 941 S.W.2d 44, 47 (Tenn. 1997). In ruling on such a motion,

courts must construe the complaint in favor of the plaintiff, accept the

allegations of fact as true, and deny the motion unless it appears that

the plaintiff can establish no facts supporting the claim that would

warrant relief. Id. When the trial court’s grant of a Rule 12.02(6)

motion to dismiss is appealed, we must take the factual allegations

contained in the complaint as true and review the lower courts’ legal

conclusions de novo without a presumption of correctness. Stein v.

Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn. 1997).

Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn. 1999); see also In re Estate of Ramey, No. E2003-

00544-COA-R3-CV, 2004 Tenn. App. LEXIS 8, at *4–5 (Tenn. Ct. App. Jan. 8, 2004). 

Actions to contest the validity of a probated will must also be filed within the time allowed

by statute. See 1 Jack W. Robinson, Sr. and Jeff Mobley, Pritchard on the Law of Wills and

Administration of Estates § 366, at 559 (5th ed. 1994). The legislature directs that actions to contest

the validity of a probated will must comply with the following statute of limitations:

All actions or proceedings to set aside the probate of any will,

or petitions to certify such will for an issue of devisavit vel non, must

be brought within two (2) years from entry of the order admitting the

will to probate, or be forever barred, saving, however, to persons

under the age of eighteen (18) years or of unsound mind, at the time

the cause of action accrues, the rights conferred by § 28-1-106.5
 The precursor to section 32-4-108 of the Tennessee Code contained a seven (7) year statute of limitations.

6

In 1985, the legislature changed the limitations period to two (2) years. See 1985 Tenn. Pub. Acts ch. 228, § 2.

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Tenn. Code Ann. § 32-4-108 (emphasis added). As previously noted, the probate court entered an

order admitting Mrs. Allen’s holographic will to probate on April 14, 1999, and Ms. Nichols filed

her complaint in the chancery court to contest the validity of the will on December 31, 2003.

Our resolution of this issue is governed by our supreme court’s decision in Phillips v.

Phillips, 526 S.W.2d 439 (Tenn. 1975). In Phillips, our supreme court was asked to decide whether

an action to set aside the probate of a decedent’s will was barred by the aforementioned statute of

limitations. Id. at 439. The decedent died in 1965, and her will was probated that same year. Id.

The decedent left her entire estate to one of her brothers. Id. In 1973, the brother died leaving his

entire estate, including the property he acquired from his sister, to his wife. Id. In May of 1974, the

decedent’s other siblings filed an action against their deceased brother’s wife, his executor, and his

estate alleging that the probated will of their sister was a forgery. Id. The siblings alleged that, after

the death of their brother, they inquired into the ownership of their sister’s property and discovered

that her will had been probated. Id. The siblings secured the services of a handwriting expert who

opined that the signature on their sister’s will was a forgery. Id.

Turning to the precursor of section 32-4-108 of the Tennessee Code, the supreme court noted 6

that the siblings’ action to contest the validity of the decedent’s will was filed well beyond the time

statutorily allowed for filing such actions. Id. at 440. In resolving the issue presented for review,

the supreme court held as follows:

No exception is made where the probate of a will is sought to be set

aside on the ground that the will is not the true will of the testatrix,

with the allegation being that the will was a result of either fraud or

forgery as is charged in this case.

The present action was filed more than seven years after the

will of [the decedent] was probated. Further, the record shows that

none of the plaintiffs comes within the exception stated in T.C.A.

32-410 as each was of sound mind and was more than twenty-one

years of age when the will was probated. The question is do they

come within an exception implicit in T.C.A. 32-410?

In considering general statutes of limitation, this court has

recognized an exception not voiced in the statutes and which tolls the

statute where, due to fraudulent concealment, a plaintiff is unaware

of his cause of action. Woodfolk v. Marley, 98 Tenn. 467, 40 S.W.

479; Porter’s Lessee v. Cocke, 7 Tenn. 29; Shelby’s Heirs v. Shelby,

3 Tenn. 179. However, while fraudulent concealment of a cause of

action will toll a general statute of limitations, fraud in and of itself

will not.
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“It is not the fraud, but its concealment by the

party perpetrating it, unmixed with fault or negligence

on the part of him who complains, which works this

result.” Woodfolk v. Marley, 98 Tenn. 467, 471, 40

S.W. 479, 480 (1896).

We know of no basic reason why the fraudulent concealment

exception should not be applicable to the special statute of limitations

voiced in T.C.A. 32-410. However, in this case no facts are alleged

which would support a finding of fraudulent concealment. To the

contrary, the record shows there was no concealment of the will of

[the decedent] or of the signature on the will. The will was of public

record for more than nine years before plaintiffs filed this action.

Being of public record, the will was available at all times for

examination by the plaintiffs or any handwriting expert chosen by

them. The plaintiffs, however, elected not to make inquiry into the

authenticity of the will until after the death of their brother . . . who

was the principal beneficiary of the will of [the decedent]. By then,

the seven year limitation on the bringing of actions to set aside the

probate of a will had passed and plaintiffs’ action was barred.

Id. (emphasis added).

As in Phillips, the record in the instant case is devoid of any evidence showing that Mr.

Allen, Mr. Allen’s Children, or their attorneys sought to conceal Mrs. Allen’s holographic will. To

the contrary, the will was admitted into probate in April of 1999 and remained a public record at all

times thereafter. In fact, Ms. Nichols admitted in an affidavit filed with the probate court that she

“did receive a copy of the aforesaid Will of [her] mother in 1999 while [she] was in the State Pen.

[She] did not have any money to retain an attorney to contest the Will and at that time [she] did not

realize [her] mother’s Will had to be totally in her handwriting.” Moreover, Ms. Swift, Mrs. Allen’s

sister and the principal witness Ms. Nichols now relies on to prove that the holographic will is a

forgery, also submitted an affidavit stating that she “was previously sent a copy of the alleged Will

of Ms. Allen as a part of the probate of her alleged Will in 1999 and at that time [she] did not realize

that all of her Will had to be written totally in her own handwriting or printing and that is the reason

[she] did not object to same in 1999.” The justifications for the delay in bringing the action to

contest the validity of Mrs. Allen’s will put forth by Ms. Nichols and Ms. Swift do not warrant the

application of the narrow exception for tolling the applicable statute of limitations enunciated by our

supreme court in Phillips. Pursuant to the two (2) year limitations period set forth in section 32-4-

108 of the Tennessee Code and our supreme court’s holding in Phillips, we affirm the probate

court’s decision to dismiss Ms. Nichols’s complaint.

Finally, Mr. Allen’s Children ask this Court to award them damages pursuant to section 27-1-

122, which provides as follows:
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When it appears to any reviewing court that the appeal from

any court of record was frivolous or taken solely for delay, the court

may, either upon motion of a party or of its own motion, award just

damages against the appellant, which may include, but need not be

limited to, costs, interest on the judgment, and expenses incurred by

the appellee as a result of the appeal.

Tenn. Code Ann. § 27-1-122 (2003). “Successful parties should not have to bear the cost and

vexation of baseless appeals.” Jackson v. Aldridge, 6 S.W.3d 501, 504 (Tenn. Ct. App. 1999)

(citations omitted). An appeal is frivolous when it “has no reasonable chance of success,” Davis v.

Gulf Ins. Group, 546 S.W.2d 583, 586 (Tenn. 1977), or is “so utterly devoid of merit as to justify

imposition of a penalty,” Combustion Eng’g, Inc. v. Kennedy, 562 S.W.2d 202, 205 (Tenn. 1978).

The decision as to whether to award damages for the filing of a frivolous appeal lies solely within

the discretion of this Court, see Banks v. St. Francis Hosp., 697 S.W.2d 340, 343 (Tenn. 1985), and

we exercise such discretion sparingly so as not to discourage legitimate appeals, see Davis, 546

S.W.2d at 586. A legitimate factual or legal dispute will preclude an award of damages for the filing

of a frivolous appeal. In re Estate of Filyaw, No. 03A01-9810-PB-00360, 1999 Tenn. App. LEXIS

706, at *13 (Tenn. Ct. App. Oct. 18, 1999) (citing Anderson v. Dean Truck Line, Inc., 682 S.W.2d

900, 902 (Tenn. 1984)). Conversely, failure to even cite to or argue for a justifiable extension of the

law controlling the resolution of a given case is an indication that an appeal may be frivolous. See

Jackson, 6 S.W.3d at 504 (citing Wells v. Sentry Ins. Co., 834 S.W.2d 935, 938–39 (Tenn. 1992)).

In the instant case, Ms. Nichols attempts to argue that the allegations of fraud contained in

her complaint constitute a distinct cause of action which allow her to proceed with her lawsuit

against Mr. Allen’s Children. Our supreme court has clearly stated that, “while fraudulent

concealment of a cause of action will toll a general statute of limitations, fraud in and of itself will

not.” Phillips v. Phillips, 526 S.W.2d 439, 440 (Tenn. 1975) (emphasis added). Ms. Nichols fails

to cite to or even attempt to distinguish the supreme court’s decision in Phillips on appeal.

Moreover, despite the probate court’s reliance on the statute of limitations found in section 32-4-108

of the Tennessee Code when dismissing her complaint as untimely filed, Ms. Nichols fails to even

cite to the statute in her brief or attempt to argue how the facts in the present case warrant a tolling

of the statute. See Davis, 546 S.W.2d at 586 (finding an appeal to be frivolous where it presented

no debatable question of law); Taylor v. City of Chattanooga, No. E2004-00701-COA-R3-CV, 2005

Tenn. App. LEXIS 16, at *5–6 (Tenn. Ct. App. Jan. 13, 2005) (awarding damages for a frivolous

appeal when “there is compelling and well-settled case law adverse to appellant’s positions”); Sharp

v. Allstate Ins. Co., No. 02A01-9204-CV-00107, 1992 Tenn. App. LEXIS 860, at *6–7 (Tenn. Ct.

App. Oct. 16, 1992) (ruling that damages for frivolous appeal were warranted when the appellant

failed to distinguish the controlling legal authority or cite to any authority modifying or overruling

such authority). Instead, amajorityofMs.Nichols’s arguments on appeal focus upon the correctness

of the trial court’s actions when adjudicating the declaratory judgment action filed by Mr. Allen’s

Children to construe Mrs. Allen’s holographic will. The probate court found all of the evidence

presented by Ms. Nichols in that proceeding to be lacking in credibility, and she never filed an appeal

to this Court contesting the trial court’sjudgment in that case. We find that the arguments put forth
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by Ms. Nichols in the instant appeal constitute nothing more than an attempt to re-litigate issues over

which we have no jurisdiction or are barred by the applicable statute of limitations.

Accordingly, we find that Mr. Allen’s Children are entitled to damages for Ms. Nichols’s

actions in filing a frivolous appeal. We remand this case to the trial court for the entry of an award

of damages in favor of the Appellees pursuant to section 27-1-122 of the Tennessee Code.

III.

CONCLUSION

For the foregoing reasons, we affirm the probate court’s decision to dismiss the

Appellant’s complaint. Costs of this appeal are to be taxed to the Appellant, Vicki Nichols, and

her surety, for which execution may issue if necessary. Moreover, we find this appeal to be

frivolous. As such, we remand this case to the trial court for the entry of an award of damages to

the Appellees.

___________________________________ 

ALAN E. HIGHERS, JUDGE