# FILED
February 17, 2000 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF AP PEALS OF TENNESSEE AT JACKSON

CHARLES H. BARNETT, ) ) Petitioner/Appellee, ) Madison Probate No. 97-11128 ) v. ) ) Appeal No. W1998-00837-COA- R3-CV JUSTIN OLIVER, CHRISTOP HER ) TYLER YOUNG, LEWIS CO BB, ) CHRISTY YOUNG, SPRAGGINS, ) BARNETT, COBB & BUTLER, ) ) Defendants, ) ) and ) ) T. A. OLIVER, MARTHA YOUNG, ) and MRS. OZELL D. OLIVER, ) ) Defendants/App

ellants. )

APPEAL FROM THE PROBATE COURT OF MADISON COUNTY

AT JACKSON, TENNESSEE THE HONORABLE LARRY J. LOGAN, JUDGE For the Petitioner/Appellee : For the Defend ants/Appellants : T. J. Emison, Jr. Charles A. Sevier Alamo, Tennessee Memphis, Tennessee

AFFIRMED

HOLL Y KIR BY LI LLA RD, J.

CONCURS: W. FRANK CRAWFORD, P. J., W.S. ALAN E. HIGHERS, J.OPINION

This is a lost will case. The decedent properly executed a will. The will was not found after the decedent’s death. A beneficiary under the will petitioned the probate court to establish a copy of the will as the decedent’s last will and testament. The decedent’s family objected, arguing that the decedent had revoked the will. The probate court entered an orde

r admitting the copy

of the will to probate. The deced ent’ s family appeals. We affirm, holding that the plaintiff beneficiary has established that th

e decedent neith

er revoked nor d

estroyed the will. Kenneth Wayne Oliver (“Decedent”) was a meticulous and organized person in his busine

ss affairs. Though hampered by a debilitating back condition, witnesses testified that the Decedent was

a “very astute business person” and that he was “fastidious” in his business dealings. The Decedent also kept his house i n an extremely neat and orderly condition. Witnesses testified that the Decedent’s house was “immaculate” an d “v ery organized”. One witness characterized the Decedent’s attention to detail as “almost obsessive-compulsive.” In July 1992, the Decedent asked Wes Clayton (“Clayton”), an attorney in Ja ckson, Tennessee, to draft a new will for him. The Decedent had kept a will continuously since 1982. In the ten years following 1982, the Decedent executed six more wills. During that time, he never went

more than three year

s without a new will.

The Decedent’ s will exe cuted in 1985 was revoked by written revocation, and each of the Decedent’s subsequent wills was revoked by specific language in the following will. In 1989, the Decedent also executed a living will. In accordan ce with the Dece dent’s instruction

s, Clayton drafted

the Decedent’s

will to include specific bequests to several of the Decedent’s family members and to leave the Decedent’s residuary estate to his attorne y, Charles Barnett (“Barnett”). Barnett was also appointed personal representati

ve under the wi ll. The will was properly signed and witnessed on July 31, 1992, and Clayton gave the executed will to the Decedent on that day. Clayton kept an unsignedcopy of the will at his office. On the day the will

was executed, the Decedent told Clayton that Barnett was his best friend and that he wanted to name Barnett in his will. Barnett had represented the

Decedent in a va

riety of legal matters since 1979. Though one witness tes tifi ed that the Dece dent’s relationsh

ip with Barnett had begun to sour before the Decedent’s death, the probate court heard substantial evidence that the Decedent tr

usted Barnett and

wished to provide f

or him afte

r the De cedent’s death. The Decedent gave Barnett durable p

ower of attorne

y in 1991, and in 1995 the Decedent reaf

firmed his desire that Barnett retain the durable power of attorney. In 1995, the Decedent also made Barnett

a joint owner with

right of survivorship on his checking account and on his stock brokera

ge account. In a ddition, th e Decedent gave Barnett a key and access to his safety deposit box. The Decedent purchased

savings bonds paya

ble on his death

to Barnett. In January 1997, the Decedent purchased

a life insu rance policy w orth $3,000 which named Barnett as the sole beneficiary. In 1997, the2

Decedent told

two employees at his broker’s office, Brad Sipes and Allison Buckley, that “he was leaving [Barnett] everything” when he died. The Decedent told several people the locat ion of his will so that it c ould be found if something happened

to him. Russell Wright (“Wright”), a friend of the Decedent, testified that the Decedent asked him to

come to hishouse before trips the Decedent took in 1993 and 1995. Wright testified that the Decede

nt took him to his home o ffic e, opened his file cabinet, lifted a legal-size envelope, and sta

ted “This is my will.

In the event somet

hing should happen t

o me, I want you to know where this is.” In approximately March or April 1997, the Decedent tol d another friend

, Betty Wilson, that he kept

his will in his home office. Finally, Ron Kerber, the Decedent’s nephew, and Kerber’s girlfriend, Tina Jones, testified that they saw a document titled “ Wil l” in a briefcase the Decedent car ried on a tri p that they took with the Decedent months before the Decedent’s death. Under the Decedent’s July 1992 will, he did not name his mother, Ozell Ol iver , as a beneficiary. Ms. Oliver was eighty-eight years old and in poor health when the Decedent executed his will. A witness at the

trial testified tha

t the Decedent to

ld him that he did not intend to lea ve his mother anything because

he did not believe t

hat she needed a

nything from his

estate. After receiving money from

another estate,

Ms. Oliver had distr

ibuted the money she

received to

the Decedent and her other children. The Decedent

had eight brothers and siste

rs. Most of the Dec

edent’s siblings did

not benefit under the July 1992 will; however, the w ill be queathed certain items to two of the Decedent’s brothers, Justin Oliver and T.A. Oliver. The will also bequeathed all of the Decedent’s personal property to one of his sisters,

Martha Young. The

Decedent had ind

icated that he wa

s not close to

someof his family members and said that they had “never done anything for [him].” He expressed concern that his brothers and sisters would try to take all of his estate if he died. Three of the Decedent’s sibli ngs who did not bene

fit under the July

1992 will testified that they had a close r

elationship with

the Decedent.

Telephone records showed several long-distance phone calls from the Decedent’s house to family members who lived outside of Tennessee. Two of the sisters, Mary Garrett and Rose Neri, tes tified that the Decedent be came angry with th

em only when they tried to

talk to him about his us

e of prescriptio

n back pain medic

ations. Witnesses testified about the Decedent’s fondness for his nephew, Rocky Youn g. Rocky Young died in an automobil e accident in 1987. After his nephew’s death, the Decedent looked after Rocky Yo ung’s wi fe, Christy Young, and his son, Christop

her Tyler Young.

The July 1992 will bequeathed

items of the Dece

dent’s p ersonal property to Christy and Christopher Tyler Young. Most of the Decedent’s family lived outside of Tennessee, but his sister Martha Young lived

near the Decedent in Jackson, Tennessee. When he suffered from back pain, the De cedent depended on assistance from

Ms. Young as well as a number of friends and neighbors. In his last years, the3

Decedent gave keys to hishouse to several persons, presumably so that they would be able to enter the house if the Decedent needed help. Several people were aware that the Decedent

kept a spare house key in a tool shed outside his home. On May 13, 1997, the Decedent entered the hospital with a serious illness. It soon became apparent that the Decede

nt’s condition was t

erminal. At this point, his sister Martha Young moved into the Decedent’s

home and began to c

ontact family memb

ers who live d outside of Tennessee. Martha Young and another siste

r, Jean Boston, sta

yed at the Deced

ent’s house until

the day of his funeral. In the days before Decedent’s funeral, Martha Young removed legal documents and other records in the Decedent’s filing cabinet, a briefcase, and other items of personal proper

ty from his house. The Decedent died on June 18, 1997. Soon after his death, thefamily went to the Decedent’s house to search for his will. They had also been told t hat the Decedent had hidden significant amounts of cash around the house. N either the will nor the cash was found. Family members remarked that the house was

not in the neat condition in which the Decedent normally kept it. T.A. Oliver testified that it looked as though “someone had been through the house.” The Decedent’s family collected all of the Decedent’s property and divided it among themselves. At the Decedent’s funeral, a

business associate of the Decedent, Steve Foster (“Foster”

), told the Decedent’s family that, in January 1997, the Decedent had asked him to serve as executor of his estate. Foster agreed to act as executor, but the Decedent never talked with Foster about the matter again. At the trial, Ron Kerber testif ied that he overheard his aunt, Martha Young, state at the funeral that she knew the contents of the Decedent’s will. Martha Young denied having made the statement. On May 29, 1997, Barnett petitioned the prob ate court to establish Clayton’s copy of the Decedent’s July 1992 will as the D ecedent’s last w

ill and testament. Justin Oliver and several of the Decedent’s other family members (“Olivers”) opposed admission of the will to probate. After the hearing, the p

robate court entered an order admitting the copy of the July 1992 will to probate as Decedent’s last will and testament. In the order, the probate court stated that the only contestedissue in

the case was whether the Decedent had revoked the July 1992 will. I t found the evidence overwhelming th at the Decedent had n ot revoked the will. The probate court noted that it would have been “totally out of character” for the D ecedent to diewithout a will. In addition, the Decedent had always

revoked his

previous wills by written document. The probate court found the weight of the evidence inconsistent with the Olivers’ assertion that the Deceden t would h ave revoked his will without havin

g a valid will to re

place it. The probate court observed that the Decedent had a will beginning i

n 1982 and that he had kept a will sinc e that t

ime. The Decedent told several people that he had a will, and expressed4

desires con cerni ng the final disposition of his property consistent with the July 1992 will. The Decedent also showed several persons where he kept his will in his house. The probate cour

t noted th at virtually every witness in the case te stified that the Decedent had enjoyed a lo

ng and close fr

iendship with

Barnett. The Decedent took substantial steps to ensure that Barnett was provided for fina ncially after the Decedent’s death. The probate court found that Barnett had “basically

. . . become famil

y” to the Decedent and that, as such, he would have been the na tural objec t of th e Deced ent’s bount y. In contrast, the pro bate court observed that there had been occasional friction between the Decedent and his family. The pr obate court credited Ron Kerber’s testimony tha

t he heard Martha

Young, an oppone

nt to the admission of

the July 1992 wi

ll, state at the Decedent’s funeral that she knew of the will’s existence and of its contents, and accorded Kerber’s tes timony addit ional weigh t in light o f Kerber’s rel ationship to Martha Yo ung. The probate

court commented that several persons had access to the Decedent’s home and that several also kne

w that the Decede

nt kept significa

nt amountsof cash hidden in his home. The probate court expressed it

s belief that someo

ne with confid

enti al knowledge and access to the Decedent’s home entered the homebetween the time the Decedent went to the hospital and the

time of his death and too

k the Decedent’ s cash and his will. The probate court co

ncluded that the e

vidence, taken a

s a whole, clear

ly sh owed that the Decedent did not revoke the July 1992 will before he die

d. Therefore, t

he copy of t

he July 1992 will

was admitted to probate as the Decedent’s last will and testam

ent. From this order, the Olivers now appeal. On appeal, the Olivers argue that Barnett failed to carry his burden of proof that the Decedent didnot revoke or destroy the July 1992 will. The Olivers assert that the fact that the Decedent asked Foster to serve as the executor of his estate establishes that the Decedent revoked the July 1992 will. They also argue that

the Decedent named Barnett as beneficiary of the insurance policy as consolation for revoking the July 1992 will. The Olivers maintain that this evidence demonstrates that the Decedent lik

ely revoked the J

uly 1992 will but died

before he could

execute a new will. The Olivers assert that Barnett failed to prove that the Ju

ly 1992 will was acc

idently lost or fraudulen

tly destroyed again

st the Decedent’ s wishes. Since this case was tried by the probate court sitting without a jury , w e review the case de

novo upon the record with a presumption of correctness of the findings of fact by the trial court. See Tenn.R.App.P. 13(d). In order to establish

a lost will, the p roponent of the will must show (1) that the testator executed a valid will, (2) the substanceand contents of the will, (3) that the testator died, (4) that the testator did not revoke the will, and (5) that the will cannot be found after a diligent search. See Shrum v. Powell , 604 S.W.2d 869, 871 (Tenn. Ct. App. 1980) (citing Moore v. Williams , 2075

S.W.2d 590, 591 (Tenn. Ct. App. 1947)). Thes

e elements must be p

roven by “the cle

arest and most stringent evidence.” Shrum , 604 S.W.2d at 871. When a will cannot be found after a due and proper search following the testator’s death, the testator is presumed to have

destroyed his wil

l. See In re Es tate of West , 729 S.W.2d 676, 678 (Tenn. Ct. App. 1987). The proponent seek in g to establish a lost will may overcome the presumption by proving that the testator did not have custody and control of the will after

execution. See id. It is not sufficient for the proponent of a lost will to show m

erely that perso

ns interested in establishing intestacy hadan opportunity to destroy the will. See Moore , 207 S.W.2d at 591. The proponent

must show by facts a

nd circumstance

s that the will was f

raudulentl

y de stroyed or accidently lost not in accord with the testator’s wishes. See id. In this case, there is no dispute that the D eceden t executed a valid will in July 1992, that Clayton retained an exact copy of the will, that the Decedent

died, and that no will could be found

am ong the Decedent’s possessions after his death. Therefore, the only issue at trial, and fo r thi s Court on appeal, is

whether the Dec

edent revoked or

destroyed the July

1992 will. As noted by the probate court, theDecedent was a meticulous person who took significant steps to ensure that he w

ould have a valid w

ill in place when he die

d. He executed h

is first will in 1982, and executed seven more wills in the fifteen years that followed. The Decedent’s practice was to revoke his prior w

ills by a written inst

rument; however

, there is no writte

n revocation of h

is July 1992 will. The Decedent ke pt his will in a filing c

abinet in the offic

e in his house and told several people the location of the will so that it could be foundwhen he died. Witnesses testified that the Decedent even carried his will with him on trips in a briefcase. The Decedent’s verbal statements concerning the final disposition of his property were consistent with the terms of the July 1992 will. In January 1997, five mont hs before he died, the Decedent told two persons that he was “leavin g [Barnett] everything.” The Decedent had a good relationship

with certain memb

ers of his fami

ly, but h e expressed fear that some of his relatives would try to take all of his property after his death. The July 1992 will be queaths property

to family memb ers with wh om the Decedent shared a close relationship. The Decedent had a good relationship

with his mother, and

sh e is not named in the July 1992 will. However, the evidence indicated that the Decedent felt that his mother did not need any money from his estate. Finally, several persons

had access to the

Decedent’s home

during his life as w

ell as after his death. Numerous persons had keys to the Decedent’s house or knew the location of his spare key. So me members of the Decedent’s family moved into the house after the Decedent en tered th e hospital. After Decedent’s death, his house wasdescribed as being in disarray, uncharacteristic of the Decedent, and both his will and the cash he had hidden a round th e house were missing. The record contains no direc

t proof that one of

the family member

s took the will. Howe

ver, evid enc e6

indicatedthat Martha Young removed legal documents and a briefcase from the Decedent’s house after he entered the hospital. Young’s nephew, Ron Kerber, testified that heheard Ms. Young sta te at the Decedent’s

funeral that she

knew the contents

of the Decedent’s will. The probate court noted its favorable evaluation of the nephew’s credibility. The trial judge, who has the opport unity to observe the witnesses in the ir manner and demeanor while testifying, is in a far better position than this Court toassess the truthfulness of witnesses. See McCaleb v. Saturn Corp. , 910 S.W.2d 412, 415 (Tenn. 1995). We must, therefore, accord great weight to the probate court’s determinations of credibility. See id

. In this case, Barnett mus t carry a high burden of proof; he must establish that the Decedent didnot revoke his will b

y “the clea

rest and most stringent evidence.” Shrum , 604 S.W.2d at 871. Since the will cannot be found, Barnett is required to overcome the presumption that the Decedent destroyed his will. See In re Estate of We st , 729 S.W.2d at 678. There is no direct evidence that the Decedent did

not revoke or destroy his will. However, considering all of the circ umstantial evidence and according great weight to the probate court’s determinations of credibility, we find that the burden of proof has been met that the will was neither revoked nor destroyed. Accordingly , the probate court’s decision to admit to probate the Decedent’s July 1992 will is affirmed. The decision of the probate court is affirmed. Costs are assessed against the Appellants, T. A. Oliver, Martha Young and Mrs. Ozell D. Oliver, for which execution may issue if necessary.

HOLLY KIRBY LILLARD, J. CONCUR:

W. FRANK CRAW

FORD, P. J., W.

S.

ALAN E. HIGHERS, J.