07/25/2017

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs June 1, 2017

IN RE: ESTATE OF VIDA MAE MCCARTT

Appeal from the Chancery Court for Morgan County

No. P-6-12, 14-79 Frank V. Williams, III, Chancellor

___________________________________

No. E2016-02497-COA-R3-CV

___________________________________

Appellant brought this action challenging the settlement agreement reached by the 

contestants in a will contest. Appellant, the legitimated child of Decedent’s deceased 

son, filed suit to set aside the settlement agreement based on allegations that the will 

contestants, including Appellant’s half-siblings, i.e., Appellees, engaged in fraud and 

misrepresentation in an effort to exclude Appellant from her share of Decedent’s estate. 

Because Appellant had knowledge of the will contest, chose not to participate in the will 

contest, and there is no evidence that the Appellees acted in bad faith or fraudulently, we 

conclude that the trial court did not err in refusing to order a share of the Decedent’s 

estate to be distributed to Appellant. Affirmed and remanded.

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

Affirmed and Remanded

KENNY ARMSTRONG, J., delivered the opinion of the court, in which CHARLES D.

SUSANO, JR. and W. NEAL MCBRAYER, JJ., joined.

Robert W. Wilkinson, Oak Ridge, Tennessee, for the appellant, Sara Shannon Armes.

David H. Dunaway, LaFollette, Tennessee, for the appellees, Susan Collins, Nancy 

Wilson, and Joe McCartt.

OPINION

I. Background

This is the second appeal of this case involving an agreement among the heirs of 

Vida Mae McCartt (“Decedent”) regarding the distribution of assets of Decedent’s estate. 
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As set out in our first opinion, In re Estate of Vida Mae McCartt, No. E2014-02185-

COA-R3-CV, 2015 WL 5635114 (Tenn. Ct. App. Sept. 25, 2015) (“McCartt I”), on 

February 2, 2012, Decedent died testate at the age of 102. McCartt I,. at *1. Decedent 

had five children: Betty Jane McCartt Newman, Mary Elizabeth McCartt Sanders, G.M. 

McCartt, A.K. McCartt, and J.D. McCartt, Sr. Id. When Decedent executed her will, on 

May 18, 1994, her son, A.K. McCartt, was deceased. Id. Decedent’s will bequeathed 

$5,000 each to A.K. McCartt’s two children, Kelly McCartt and Ginger McCartt West. 

Id. To J.D. McCartt, Sr., who predeceased Decedent, but died after Decedent executed 

her will, Decedent bequeathed a mobile home and a truck. Id. The remainder of 

Decedent’s property, including real estate holdings of more than $1,000,000, was divided 

evenly among her three surviving children. Id. 

On February 23, 2012, a will contest was filed by Decedent’s five grandchildren: 

Kelly McCartt and Ginger McCartt West, children of the deceased A.K. McCartt; and 

Appellees, Susan Collins, Nancy Wilson, and Joe McCartt, the children of the deceased 

J.D. McCartt, Sr.. By their complaint, the grandchildren averred that the May 18, 1994 

“instrument is not the Last Will and Testament of Vida Mae McCartt . . . because she was 

. . . of unsound mind at the time said paper was executed and she was incompetent to 

make a valid Will.” The grandchildren further averred that Decedent was unduly 

influenced by G.M. McCartt. McCartt I, at *1. Thereafter, the parties participated in

court-ordered mediation, which culminated in a September 24, 2012 agreement, resolving 

all issues among them. Id. at *2. On November 20, 2012, the trial court entered an 

order, which incorporated the parties’ September 24, 2012 agreement. The November 

20, 2012 order divided Decedent’s real, personal, and residual property, awarding a onefifth share to each of Decedent’s three surviving children, one-fifth to the heirs of A.K. 

McCartt, and one-fifth to the heirs of J.D.McCartt, i.e., Appellees. The parties’ 

September 24, 2012 agreement further provides that

if any claims are filed by individuals asserting an interest as an illegitimate 

child of J.D. McCartt, then the heirs of J.D. McCartt agree to indemnify and 

hold harmless all other heirs of Vida Mae McCartt from any claims which 

may be pursued by purported heirs at law of J.D. McCartt.

On November 4, 2013, Appellant Sara Shannon Armes filed a complaint, alleging, 

in relevant part, that:

On February 23, 2012 a Complaint to Contest Will was filed with 

this honorable Court in behalf of several of the decedent’s grandchildren. In 

the Complaint, it is asserted that J.D. McCartt, Sr., one of Vida Mae 

McCartt’s children, predeceased his mother and left surviving him three (3) 

children, Susan Collins, Nancy Wilson, and Joe McCartt. In fact, J.D. 

McCartt had four (4) children, one of whom is Sara Shannon Armes.

Pursuant to Final Order dated December 7, 2004, in the matter styled 
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In re: Estate of Joseph D. McCartt, docket number P–14–02, this 

honorable Court determined that Sara Hickman (now Sara Armes) is the 

daughter of Joseph D. McCartt. A copy of the Final Order is attached 

hereto and made a part hereof. Further, pursuant to Final Settlement of 

Administrator dated March 1, 2005, Sara Hickman (now Sara Armes) was 

entitled to a child’s share of the residuary estate of her father, equal to that 

of Susan V. Collins, Joseph D. McCartt, Jr., and Nancy K. McCartt.

On November 20, 2012 an Agreed Order was entered in this cause of 

action which approved and incorporated a mediated agreement. This 

Agreement resolved the issues between the parties relative to the will 

contest and determined that the heirs of J.D. McCartt should receive a 

twenty percent (20%) interest in certain liquid assets . . . and certain 

specified real property from the Estate of Vida Mae McCartt, deceased. The 

heirs of J.D. McCartt are listed as Joe McCartt, Susan Collins, and Nancy 

Wilson.

Sara Shannon Armes avers that she, by law, should be included as an 

heir of J.D. McCartt and therefore entitled to one-fourth (1/4) of the 

distribution of assets passing to the heirs of J.D. McCartt.

Sara Shannon Armes further avers that Joe McCartt, Susan Collins, 

and Nancy Wilson have perpetrated a fraud on this honorable Court by 

asserting that J.D. McCartt had only three (3) heirs-at-law when each and 

every one of them knew that J.D. McCartt had four (4) heirs-at-law.

PREMISES CONSIDERED, PETITIONER RESPECTFULLY 

REQUESTS

* * *

That upon a hearing in this cause, this Court determine that Sara 

Armes is entitled to receive an equal share of the distribution of assets 

passing to the heirs of J.D. McCartt from the estate of Vida Mae McCartt.

Further that the Court award damages to Petitioner as a result of the 

fraud of Joe McCartt, Susan Collins, and Nancy Wilson.

McCartt I, at *2-*3. Attached to the complaint was a copy of the December 8, 2004 final 

order of the Morgan County Chancery Court in the matter of J.D. McCartt’s estate, 

stating:

This cause came to be heard ... upon the Petition for Elective Share 

filed by [Armes], the Answer filed in behalf of the estate [of J.D. McCartt, 

Sr.], the testimony of witnesses, [and] the Parentage Testing Report from 

Molecular Pathology Laboratory Network, Inc., a copy of which is attached 

hereto and made a part hereof, and the record as a whole from all of which 
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the Court finds as follows:

Based on the proof introduced in this cause, the Court is of the 

opinion that [Armes] is the daughter of the decedent, J.D. McCartt.

The results of the DNA test referenced by the court’s order 

established a 99.9586% probability that Armes is the daughter of J.D. 

McCartt, Sr.

McCartt I, at *3. In response to Ms. Armes’ complaint, the Decedent’s grandchildren 

filed a Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss for failure to state a 

claim. As grounds for their motion, the grandchildren averred that:

The Complaint should be dismissed on the basis [of] Res Judicata. 

The original litigation is a will contest and an In Rem proceeding. A Final 

Order has been entered and it is a conclusive adjudication upon all heirs; 

and Sara Shannon Armes is bound[ ] by the ruling.

At best, any claim of Sara Shannon Armes is limited to the next of 

kin of J.D. McCartt and has no impact, whatsoever, and fails to state a 

claim as to any other heirs, other than Joe McCartt, Susan Collins and 

Nancy Wilson; and it fails to state a claim even as to those three heirs.

McCartt I, at *3. Betty Jane Newman and G.M. McCartt also filed a motion to dismiss, 

arguing that “Armes’ lawsuit is in the nature of a lawsuit to contest the will; or more 

specifically the probation of the will,” and because “Armes did not join in the original 

lawsuit to contest the will, (which she should have under the law), she is bound by the 

ruling in the previous lawsuit, and her current petition must fail, and must be dismissed.” 

Id. at *4.

The trial court granted the respective motions to dismiss by order of October 28, 

2014. In the order, the court states only that “the complaint is dismissed for failure to 

state a cause of action upon which relief can be granted.” Ms. Armes appealed. Id. at *4. 

In McCartt I, this Court vacated the trial court’s dismissal of Ms. Armes’ complaint; 

specifically, we held that:

In this case, the record contains no indication of when Armes 

became aware of the will contest or the settlement agreement. Thus, in the 

current posture of the case, it is impossible to say whether Armes had the 

opportunity to make any conscious decision whether to “join the contestant, 

join the proponent, or stand aloof.” More importantly, Petty observes that a 

settlement of a will contest must be done “in good faith,” and we believe 

that the allegations of the complaint raise a legitimate issue of whether the 

settling heirs acted in good faith.
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Armes’ complaint includes a claim that her siblings defrauded both 

her and the trial court by representing that J.D. McCartt had only three 

surviving children and heirs, and not four as Armes has alleged. Construing 

the complaint liberally, presuming all of Armes’ factual allegations to be 

true and giving her the benefit of all reasonable inferences, her complaint 

alleges, in effect, that the settling heirs deliberately concealed Armes’ 

existence and status as J.D. McCartt’s heir, in order to purposely cut her out 

of the settlement agreement, despite being fully aware that she was J.D. 

McCartt’s daughter and heir as established by a prior court order.

McCartt I, at *7 (citing Petty v. Call, 599 S.W.2d 791, 796 (Tenn. 1980)).

On remand, the trial court held a hearing on May 17, 2016. By order of November 

17, 2016, the trial court dismissed Ms. Armes’ complaint. The trial court’s order 

provides, in relevant part, that:

[T]he Court found that there was no evidence of any fraud or duress, undue 

influence or misrepresentation or anything else done toward [Appellant], 

and that each of the parties to the will contest were simply protecting their 

interest without any intent to misrepresent or defraud [Appellant] who

could have otherwise participated in the will contest had she chosen to do 

so.

The Court further finds that there is sufficient evidence that 

[Appellant] knew of the probate proceedings and the contents of the Will 

and that it is probable that [Appellant] knew of the existence of the lawsuit 

and could have participated in said lawsuit had she chosen to do so but 

elected not to do so.

Ms. Armes appeals.

II. Issues

As an initial procedural matter, we note that Appellant’s brief fails to set forth a 

statement of the issues presented as required under Tennessee Rule of Appellate 

Procedure 27(4) (“The brief of the appellant shall contain under appropriate headings and 

in the order here indicated . . . [a] statement of the issues presented for review.”). A 

party’s failure to comply with the Rules of Appellate Procedure and the rules of this 

Court constitutes waiver. See, e.g., Duchow v. Whalen, 872 S.W.2d 692 (Tenn. Ct. App.

1993). Although the Tennessee Supreme Court has held that it will not find this Court in 

error for not considering a case on its merits where a party did not comply with the rules 

of this Court, Crowe v. Birmingham & N.W. Ry. Co., 156 Tenn. 349, 1 S.W.2d 781 

(1928), for good cause, we may suspend the requirements or provisions of these rules in a 

given case. Bean v. Bean, 40 S.W.3d 52, 54 (Tenn. Ct. App. June 19, 2000), perm. app. 
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denied (Tenn. Feb. 26, 2001). In the interest of adjudicating this appeal on the merits, we 

have reviewed the argument section of Appellant’s brief, and we glean, from her 

arguments, that there are three dispositive issues, which we state as follows:

1. Whether the evidence preponderates against the trial court’s finding that Appellant 

had sufficient notice of the will contest such that she could have participated in the 

lawsuit.

2. Whether the trial court deviated from this Court’s mandate, in McCartt I, by not 

addressing the issue of whether Appellees acted in good faith.

3. Whether the evidence preponderates against the trial court’s finding that Appellees 

had not engaged in fraud or misrepresentation.

III. Standard of Review

Because this case was tried by the court sitting without a jury, we review the trial 

court’s findings of fact de novo with a presumption of correctness, unless the evidence 

preponderates against those findings. McGarity v. Jerrolds, 429 S.W.3d 562, 566 (Tenn. 

Ct. App. 2013); Wood v. Starko, 197 S.W.3d 255, 257 (Tenn. Ct. App. 2006). For the 

evidence to preponderate against a trial court’s finding of fact, the weight of the evidence 

must “demonstrate... that a finding of fact other than the one found by the trial court is 

more probably true.” Williams v. City of Burns, 465 S.W.3d 96, 108 (Tenn. 2015); The 

Realty Shop, Inc. v. R.R. Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App. 

1999). This Court conducts a de novo review of the trial court’s resolutions of question of 

law, with no presumption of correctness. Kelly v. Kelly, 445 S.W.3d 685, 691-92 (Tenn. 

2014); Armbrister v. Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013).

IV. Analysis

A. Whether Appellant had Notice of the Will Contest Proceedings

It is undisputed that the trial court entered its order on the settlement agreement on 

November 20, 2012. Ms. Armes did not file her lawsuit until almost a year later, on 

November 4, 2013. In her appellate brief, Ms. Armes argues that, from her testimony, “it 

is difficult to comprehend how the Chancellor determined that Ms. Armes ‘probably 

knew of the existence of the lawsuit . . . .’” Concerning when she learned of the will 

contest and, specifically, the settlement agreement, Ms. Armes testified, in pertinent part, 

that she was aware that Decedent had died, and she was also aware that she was not 

named as a beneficiary under Decedent’s will. Ms. Armes also acknowledged that she 

was aware that she was, in fact, Decedent’s heir-at-law pursuant to the adjudication of

paternity in the Estate of J.D. McCartt, Sr.. Nonetheless, Ms. Armes testified that she 

was not aware of the will contest until after the settlement agreement was entered:
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Q. And you are now aware that the parties to the Will contest participated 

in mediation September 24, 2012?

A. Aware of it now, not at the time.

Q. Did anyone call to invite you that there was going to be a meeting—that 

there was going to be a mediation to discuss the Will contest?

A. No.

Q. How did you learn of it?

A. I called to find out if there was anything had come up—had been taken 

care of at the courthouse, and they told me that everything had all been 

settled and cleared. And I said, “Wait.” Okay. So I came to the 

courthouse and I got the paperwork that would be beneficial to me and 

found out that they had came [sic] . . . to an agreement and settled together. 

Basically . . . I feel like they went behind my back and came to an 

agreement, purposely excluding me . . .

Ms. Armes’ direct testimony, however, differs from her testimony on cross-examination. 

On cross, Ms. Armes explained:

Q. Did you ever sit down to actually read the Will that had been published 

and placed through the Probate Court . . .

A. I tried to read—and didn’t understand it.

Q. And, so—and when you did that, could you understand it?

A. Well, parts of it.

Q. Okay. So parts of it. You knew that by that Will, that—that there were 

certain heirs. . .did you not understand that?

***

A. Yes.

Q. All right. Now—so, the fact that you came to the courthouse to see what 

had happened as a result of the mediation, why did you do that?

A. Just to see if anything had been settled or . . . if I needed to move

forward . . . And I came to learn that they had came [sic] to an agreement.

Q. All right. Well, why didn’t you get your lawyer before that? If you 

knew where to go and you knew they were doing all of this, and you knew 

that the proceeding was here, why did you wait until after the mediation 

agreement, and then not only after that, a year after?

A. I wasn’t listed in the Will. And, then, time just went by, and then I came 

to—

***
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Q. So . . . you’re aware that they went and got a lawyer to contest the Will 

and chose to be represented, and there was a dispute going on with regard 

to whether or not the Will was to be set aside. You were aware of that, 

there was a Will contest, correct?

A. I didn’t file the contest, though.

Q. Yes. And, so, what happened is that knowing that, you elected not to 

participate. You were just going to wait the outcome and see what 

happened; is that what I understand? And, then, you came up here and 

checked to see what had happened to your interest?

A. Yeah. I mean—

Q. All right. Now, then after that happened, can you tell me why it was that 

you waited over a year after Chancellor Williams had entered this order to 

file anything either in this court or this separate proceeding that you’ve 

alleged that they tried to defraud you?

A. Because I wasn’t aware that they had gotten together and agree[d] . . . to 

the mediat[ion].

Q. [But if you had] read the court documents, you would know that, would 

you not? They were public knowledge, you would know that, if you had 

gone in and read, just as you told me you had read the Will. You read the 

will, didn’t you?

A. I looked over it . . .

The foregoing testimony conflicts with Ms. Armes’ assertion, in her appellate brief, that 

“she was not aware of the will contest or a settlement of the will contest until after the 

trial court had entered an Order adopting the settlement agreement.” From the record, 

Ms. Armes was aware of Decedent’s death, and she was aware that Decedent’s will had 

been admitted to probate. Furthermore, at the time of Decedent’s death, Ms. Armes had 

been adjudicated to be J.D. McCartt, Sr.’s biological child, and she was aware that she 

had not been included as a beneficiary under Decedent’s will. Moreover, at the time of 

the will contest, Ms. Armes was still represented by Attorney Robert W. Wilkinson, who 

had filed her paternity action in the matter of J.D. McCartt, Sr.’s probate. Nonetheless, 

Ms. Armes testified that she chose not to participate in the will contest:

Q. Now all during this time, Mr. Wilkinson had been your lawyer?

A. Uh-huh.

***

Q. He’s been your lawyer since 2004?

A. Uh-huh.

***
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Q. And if anybody knew that you were an heir, he certainly knew you were 

an heir, didn’t he?

A. uh-huh, yes.

Q. And did you ever talk to Mr. Wilkinson when the Will contest came up 

to say, “I want you to represent . . . my interest in a Will Contest”?

A. Yes, I talked to him.

Q. Why didn’t he proceed further?

A. I don’t remember. . . .

To corroborate the fact that Ms. Armes’ attorney, Mr. Wilkinson, knew about the will 

contest proceedings, Appellees’ elicited the testimony of Attorney Joseph VanHook, who

represented the heirs, G.M. McCartt and Betty Jane McCartt Newman, in the will contest. 

Mr. VanHook testified that he called Mr. Wilkinson early in the will contest litigation to 

see if Mr. Wilkinson would be interested in substituting as counsel to represent the 

personal representative of Decedent’s estate because the original counsel was 

withdrawing due to a conflict. To this end, Mr. VanHook discussed, with Mr. Wilkinson, 

the will contest:

Q. So did you call Wilkinson?

A. Yes, I called Mr. Wilkinson and outlined the problem and asked if he 

could serve as personal representative . . . and Mr. Wilkinson indicated that 

he probably would end up with a conflict of interest because he had 

represented Ms. Armes in a legitimation case involving the family, and I 

believe he had talked to [Ms. Armes]. . . and that it would be some 

likelihood that if he got involved with the case, he’d have a conflict.

***

Q. Did he tell you that he was going to represent [Ms. Armes] . . . .

A. He did not say that he would represent her. He basically said that she 

was going to wait and see how [the will contest] developed or see what 

happened.

***

Q. But he did tell you he was going to wait and see what happened?

A. Yes.

Q. Now at that time, the Will Contest had been filed?

A. Yes, it had been pending for . . . at least three months.

Although Appellant states that it is “obvious logic” that she would have participated, if 

she had known the parties were mediating an agreement to include J.D. McCartt, Sr.’s 

heirs, the foregoing testimony belies this assertion. From the totality of the 
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circumstances, it appears that Ms. Armes had actual knowledge of the probated will and 

the fact that it did not provide for J.D. McCartt, Sr.’s heirs. As an adjudicated heir of J.D. 

McCartt, Sr., Ms. Armes could have contested Decedent’s will in an independent action.

Furthermore, Mr. VanHook’s uncontested testimony reveals that Ms. Armes’ 

attorney had knowledge of the will contest proceedings while these proceedings were still

pending. We glean from Mr. VanHook’s testimony that, although Mr. Wilkinson was in 

contact with Ms. Armes, she chose to “wait and see” what happened in the will contest 

rather than joining the lawsuit. It is a well settled Maxim of Equity that “[e]quity aids the 

vigilant, not those who sleep upon their rights.” William H. Inman, Gibson’s Suits in 

Chancery § 25 (7th ed. 1988). From our review of the record, the evidence does not 

preponderate against the trial court’s conclusion that Ms. Armes was sufficiently aware 

of the will contest proceedings, either through her own inquiry at the courthouse or 

through her attorney, such that she could have participated in the lawsuit (or filed her 

own lawsuit) had she chosen to do so. 

B. Whether the Appellees Acted in Good Faith

In McCartt I, this Court cited the case of Petty v. Call, 599 S.W.2d 791 (Tenn. 

1980), in which the Tennessee Supreme Court stated:

A will contest may be brought by any one interested party, and all other 

interested parties are free to join the contestant, join the proponent, or stand 

aloof. Those who are cast in the litigation may settle, if they do so in good 

faith, but any compromise of the contest will not inure to the benefit of the 

non-participating heirs, but on the other hand, if trial of the issue results in 

an adjudication that the will is invalid, the non-participating heirs take their 

respective shares of the intestate decedent’s estate.

Petty, 599 S.W.2d at 796 (emphasis added). On appeal, Ms. Armes argues that the trial

court did not make a specific finding that the Appellees acted in good faith in 

participating in mediation and settlement of the will contest. Accordingly, Ms. Armes 

contends that the trial court deviated from this Court’s mandate in McCartt I. We 

disagree. Although we concede that the trial court did not specifically find that the 

parties to the mediation acted in good faith, the trial court’s determination that the 

participants had not subverted the will contest proceedings from Appellant, gives rise to a 

reasonable inference of good faith. Our independent review of the evidence supports this 

inference. 

Ms. Armes argues that she “didn’t participate [in the settlement agreement] 

because she was not invited.” The fact, however, remains that Ms. Armes had sufficient 

knowledge of the proceedings (see discussion supra), but chose not to participate in the 

will contest. As such, she was never a party to that lawsuit and was, therefore, not 
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entitled to notice of the substantive proceedings in the case, including the trial court’s 

order requiring the will contest participants to mediate. Nonetheless, Ms. Armes 

contends that the language, stating that “if any claims are filed by individuals asserting an 

interest as an illegitimate child of J.D. McCartt, then the heirs of J.D. McCartt agree to 

indemnify and hold harmless all other heirs of Vida Mae McCartt from any claims which 

may be pursued by purported heirs at law of J.D. McCartt,” was intentionally included in 

the settlement agreement in an attempt to preclude Ms. Armes from her rightful share of 

Decedent’s estate. We disagree. In the first instance, the disputed language does not 

preclude Ms. Armes from participation in the will contest, nor does it preclude her from 

filing her own lawsuit. The language merely states that Appellees will indemnify 

Decedent’s other heirs from any claims made by any of J.D. McCartt, Sr.’s unknown 

heirs. Ms. Armes also argues that the heirs of J.D.McCartt, Sr. are specifically set out in 

the settlement agreement to include only the Appellees despite the fact that the 

contestants knew that Ms. Armes had been adjudicated as J.D.McCartt, Sr.’s biological 

child. Again, Ms. Armes was not a party to the will contest; accordingly, only those heirs 

of J.D.McCartt, who chose to participate in the will contest, were specifically listed in the 

settlement agreement, to which they were parties. In her testimony, Susan Collins 

explained:

Q. And, so, in this agreement when the heirs of J.D.McCartt were identified 

as Joe McCartt, Susan Collins, and Nancy Wilson, why does it not include 

Sara Shannon Armes?

A. Because she did not participate in the original Will Contest. We paid a 

lawyer to represent us. She could have done the same.

In view of our conclusion that Ms. Armes had opportunity to participate in the will 

contest, but chose not to do so, we cannot infer, from the fact that her name was 

specifically omitted from the enumerated list of J.D. McCartt Sr.’s heirs, that Appellees 

were intentionally excluding Ms. Armes from Decedent’s estate. Under Petty, Ms. 

Armes’s decision to “wait and see” could have worked to her advantage had the will been 

invalidated; in that scenario, she would have taken as an heir at law. However, because

the contestants were able to reach an agreement, the benefit of that agreement did not 

inure to Ms. Armes’ benefit because she was a “non-participating heir[],” having chosen 

not to participate in the contest of Decedent’s will. Petty, 599 S.W.2d at 796.

From the totality of the circumstances, it appears that the parties to the will contest 

acted in good faith in reaching their settlement. There is no evidence to suggest that the 

contestants’ inclusion of a list of participating heirs, or their inclusion of the 

indemnification language was done for any purpose other than to protect their interests in 

Decedent’s estate.
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C. Fraud or Misrepresentation

The trial court determined that Appellees had not perpetrated any fraud or 

misrepresentation on Ms. Armes. In the first instance, the contestants did not unilaterally 

decide to mediate their lawsuit behind Ms. Armes’ back. Rather, the trial court entered 

an order, on September 21, 2012, requiring mediation between the parties to the will 

contest. Again, Ms. Armes’ was not a party to the will contest. As such, the contestants 

were not required to include Ms. Armes in the mediation, which was exclusively by and 

between the will contestants. Each of the Appellees testified that they had done nothing 

to intentionally deceive or defraud Ms. Armes. Their testimony is corroborated by 

Attorney VanHook, who testified, in relevant part, that “[a]s opposing counsel, I did not 

see anything that [Appellees] said or did that would amount to some type of 

misrepresentation or other types of direct or indirect fraud, active or passive 

misrepresentation as far as Ms. Armes might be concerned.” Mr. VanHook explained 

that the Appellees were not all of the heirs of J.D. McCartt, Sr., but were the ones that 

had chosen to participate in the will contest. He further stated that had Ms. Armes chosen 

to participate in the will contest, she would have received the same notices that the 

contestants’ received. Nonetheless, Ms. Armes maintains that she was entitled to notice 

of the mediation and that Appellees intentionally excluded her by not providing her with 

this notice. In Tennessee, a will contest is a proceeding in rem and the res is the 

decedent’s estate. All persons who have a claim in the event of testacy or intestacy have

a right to become parties. If they fail to do so, they are bound by the result. “In 

Tennessee, the right to intervene in a Will Contest is not accompanied by the right to 

notice of its filing.” Petty, 599 S.W.3d at 793; In re Estate of Sutton, No. E2013-00245-

COA-R3-CV, 2013 WL 6669385, *5 (Tenn. Ct. App. Dec. 17, 2013), perm. app. denied

(Tenn. May 15, 2014) (“[B]ecause a will contest is an in rem proceeding, its adjudication 

is conclusive upon all heirs and . . . therefore the probate court is not required to join all 

heirs in a will contest proceeding.”). 

The burden to show fraud is on Ms. Armes. Specifically, Ms. Armes must show 

that Appellees made representations of material facts that were false, that Appellees knew 

the representations were false, and that she was damaged by the misrepresentations. See

Walker v. Sunrise Pontiac-GMC Truck, Inc., 249 S.W.2d 301 (Tenn. 2008); Haynes v. 

Cumberland Builders, Inc., 546 S.W.2d 228 (Tenn. Ct. App. 1976). From our review of 

the record, Ms. Armes has failed to meet her burden of proof concerning her allegations 

of fraud. The logical explanation for the lack of notice of the will contest and settlement 

negotiations is simply that Ms. Armes was not a party to the lawsuit. As such, she was 

not entitled to notice. Therefore, the lack of notice, without more, cannot form the basis 

for a finding of fraud on the part of Appellees. From the totality of the circumstance, the 

evidence does not preponderate against the trial court’s finding that “each of the parties to 

the Will Contest were simply protecting their own interest, without any intent to 

misrepresent or defraud Sara Armes, who could have participated in the Will Contest, if 

she had chosen to do so. . . .”
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V. Conclusion

For the foregoing reasons, we affirm the order of the trial court. The case is 

remanded for such further proceedings as may be necessary and are consistent with this 

opinion. Costs of the appeal are assessed against the Appellant, Sara Shannon Armes and 

her surety, for all of which execution may issue if necessary.

_________________________________

KENNY ARMSTRONG, JUDGE