IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 3, 2024

IN RE ESTATE OF JOE RICHARD ESTES

Appeal from the Probate Court for Wilson County

No. 2021PR91 A. Ensley Hagan, Jr., Judge

No. M2023-01742-COA-R3-CV

This appeal concerns the statute of limitations for a will contest. David Estes (“Petitioner”) 

filed a will contest in the Probate Court for Wilson County (“the Probate Court”) seeking 

to set aside the will of Petitioner’s father, Joe Richard Estes (“Decedent”). Jennifer Brooke 

Estes Little, Executrix of the Estate of Joe Richard Estes (“Respondent”), Petitioner’s 

sibling, filed a motion to dismiss arguing that the applicable two-year statute of limitations 

had expired by the time of day that Petitioner filed his will contest. The Probate Court

granted Respondent’s motion. Petitioner appeals to this Court. Petitioner’s will contest 

was filed two years from the date that Decedent’s will was admitted to probate; thus, it was 

timely filed. The exact hour and minute of the day the will contest was filed is immaterial. 

We, therefore, vacate the judgment of the Probate Court, and remand for this case to 

proceed.

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

Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which FRANK G.

CLEMENT, JR., P.J., M.S., and ARNOLD B. GOLDIN, J., joined.

David Estes, Pro Se.

Carolyn Christoffersen, Mount Juliet, Tennessee, for the appellee, Jennifer Brooke Estes 

Little, Executrix of the Estate of Joe Richard Estes.

10/04/2024
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MEMORANDUM OPINION1

Background

On March 3, 2021, the Probate Court entered an order admitting Decedent’s will to 

probate. Two years later, on March 3, 2023, Petitioner filed his “Complaint for Negligence, 

Undue Influence, Deceit, and Relationship Poisoning,” which he also described as his

“Complaint to Contest Will,” in the Probate Court. Petitioner alleged, in part, “that the 

instrument is not the last will and testament of the decedent in that at the time of the alleged 

execution of the instrument was under undue influence of the respondent, and suspicious 

circumstances.” Petitioner sought, among other things, that “[t]he order granting probate 

of the described instrument of Joe Richard Estes, deceased, be set aside, revoked and void.” 

The complaint included an oath by Petitioner that the allegations contained therein were 

true. 

In October 2023, Respondent filed a motion to dismiss for failure to state a claim. 

Respondent noted that the statute of limitations for a will contest in Tennessee is two years. 

See Tenn. Code Ann. § 32-4-108. Respondent pointed out that the order admitting 

Decedent’s will to probate was entered at 10:00 a.m. on March 3, 2021, and Petitioner’s 

will contest was filed at 11:45 a.m. on March 3, 2023. According to Respondent, the statute 

of limitations expired at 10:01 a.m. on March 3, 2023, and Petitioner’s will contest was 

untimely filed. Respondent also stated that Petitioner failed to serve summons within the 

two-year limitations period, only serving the estate on May 1, 2023.

In November 2023, following a hearing, the Probate Court entered an order granting 

Respondent’s motion to dismiss on grounds that Petitioner filed his complaint outside of 

the limitations period based on the exact time of day he filed.

2

 Petitioner then filed a 

“motion for reconsideration,” which the Probate Court denied in a December 2023 order. 

Petitioner timely appealed to this Court.

 

1 Rule 10 of the Rules of the Court of Appeals provides: 

This Court, with the concurrence of all judges participating in the case, may affirm, reverse 

or modify the actions of the trial court by memorandum opinion when a formal opinion 

would have no precedential value. When a case is decided by memorandum opinion it 

shall be designated “MEMORANDUM OPINION”, shall not be published, and shall not

be cited or relied on for any reason in any unrelated case.

2 Noting the exact times of day that the will’s admission to probate and the filing of the will contest occurred, 

the Probate Court also stated that “[t]he two (2) year Statute of Limitations under T.C.A. §32-4-108 for a 

Will Contest ran on March 1, 2023.” However, the Probate Court found that the will was admitted to 

probate on March 3, 2021. Two years from March 3, 2021, was March 3, 2023, not March 1, 2023. We 

cannot account for this discrepancy in the Probate Court’s order, which may be a typographical error. 
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Discussion

Petitioner raises multiple issues on appeal. However, because the Probate Court 

dismissed Petitioner’s will contest solely on statute of limitations grounds, the single 

dispositive issue is whether the Probate Court erred in holding that Petitioner’s will contest 

was untimely filed. Respondent has filed a “Statement of No Opposition to Remand for 

Will Contest” in which she says that “[i]f this Court views the Complaint filed by Mr. Estes 

as a proper Will Contest, then the Executrix has no opposition to the remand of this Case 

for a Will Contest.”

Regarding the standard of review on a motion to dismiss for failure to state a claim, 

our Supreme Court has stated:

A Tenn. R. Civ. P. 12.02(6) motion admits the truth of all the relevant 

and material factual allegations in the complaint but asserts that no cause of 

action arises from these facts. Accordingly, in reviewing a trial court’s 

dismissal of a complaint under Tenn. R. Civ. P. 12.02(6), we must construe 

the complaint liberally in favor of the plaintiff by taking all factual 

allegations in the complaint as true. We review the trial court’s legal 

conclusions regarding the adequacy of the complaint de novo without a 

presumption of correctness. 

SNPCO, Inc. v. City of Jefferson City, 363 S.W.3d 467, 472 (Tenn. 2012). “Whether a 

claim is barred by an applicable statute of limitations is a question of law.” Brown v. 

Erachem Comilog, Inc., 231 S.W.3d 918, 921 (Tenn. 2007). In Tennessee, the statute of 

limitations for a will contest is two years. See Tenn. Code Ann. § 32-4-108 (“All actions 

or proceedings to set aside the probate of any will, or petitions to certify a 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 adjudicated incompetent, at the time the cause of action accrues, the 

rights conferred by § 28-1-106.”) (West eff. July 1, 2011). Regarding when a civil action 

is commenced, Rule 3 of the Tennessee Rules of Civil Procedure states, in relevant part: 

“All civil actions are commenced by filing a complaint with the clerk of the court. An 

action is commenced within the meaning of any statute of limitations upon such filing of a 

complaint, whether process be issued or not issued and whether process be returned served 

or unserved.” 

We find no support for the proposition that whether a complaint is timely filed 

depends on the exact hour and minute of the day it was filed. Instead, Tennessee law deals 

in days when computing limitations periods. For instance, Tenn. R. Civ. P. 6.01 provides:
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In computing any period of time prescribed or allowed by these rules, by 

order of court, or by any applicable statute, the date of the act, event or default 

after which the designated period of time begins to run is not to be included. 

The last day of the period so computed shall be included unless it is a 

Saturday, a Sunday, or a legal holiday as defined in Tenn. Code Ann. § 15-

1-101, or, when the act to be done is the filing of a paper in court, a day on 

which the office of the court clerk is closed or on which weather or other 

conditions have made the office of the court clerk inaccessible, in which 

event the period runs until the end of the next day which is not one of the 

aforementioned days. When the period of time prescribed or allowed is less 

than eleven days, intermediate Saturdays, Sundays and legal holidays shall 

be excluded in the computation.

Hours or minutes do not enter the equation. In addition, Tenn. Code Ann. § 1-3-102 

provides: “The time within which any act provided by law is to be done shall be computed 

by excluding the first day and including the last, unless the last day is a Saturday, a Sunday, 

or a legal holiday, and then it shall also be excluded.” Again, the relevant inquiry is about 

the day, not the hour or minute. With respect to computing the limitations period for will 

contests specifically, this Court has stated: 

As for a will contest, it must be filed “within two years after the entry of the 

order admitting the challenged will to probate.” [Estate of] Brown, 402 

S.W.3d [193,] 200 [(Tenn. 2013)] (citing Tenn. Code Ann. § 32-4-108). 

Here, Decedent’s Will was admitted to probate on July 27, 2010, which 

means the action was time barred as of July 27, 2012.

In re Estate of Freeman, No. M2018-02131-COA-R3-CV, 2020 WL 4210936, at *8 (Tenn. 

Ct. App. July 22, 2020), no appl. perm. appeal filed.

In the present case, the Probate Court entered an order admitting Decedent’s will to 

probate on March 3, 2021, and Petitioner filed his will contest in the Probate Court on

March 3, 2023—exactly two years later. The hour and minute of the day did not matter 

for purposes of computing the limitations period. Petitioner’s will contest was timely filed

under the applicable two-year statute of limitations found at Tenn. Code Ann. § 32-4-108. 

Therefore, we vacate the judgment of the Probate Court, and remand for this case to 

proceed. We take no position on the merits of Petitioner’s will contest. We hold only that 

it was timely filed.
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As a final matter, Petitioner requests “reimbursement for legal expenses incurred 

during this appeal, totaling $1750.00.” Petitioner cites no authority for such an award.3 

We decline Petitioner’s request for legal expenses incurred on appeal.

Conclusion

The judgment of the Probate Court is vacated, and this cause is remanded to the 

Probate Court for collection of the costs below and for further proceedings. The costs on 

appeal are assessed against the Appellee, Jennifer Brooke Estes Little, Executrix of the 

Estate of Joe Richard Estes.

____________________________________

D. MICHAEL SWINEY, CHIEF JUDGE

 

3 Petitioner’s brief is deficient in legal citation. For example, Petitioner quotes the Tennessee Supreme 

Court as having held that “[t]he time of day when a complaint is filed is irrelevant.” While that is a correct 

statement of the law, Petitioner failed to cite the case he drew that specific statement from, nor have we 

found any case containing that statement. We disregard this quotation as well as any alleged legal authority 

Petitioner attempts to rely upon that is not properly cited or even traceable. See Rule 27(h) of the Tennessee 

Rules of Appellate Procedure (“Citation of cases must be by title, to the page of the volume where the case 

begins, and to the pages upon which the pertinent matter appears in at least one of the reporters cited.”).