1 The defendant/appellant’s last name was Snow at the ti mes at issue and is now Zolfagharbik. 

### IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON February 23, 2000 Session LEE M. GREER, III, Administrator of th e Estate of WOODROW WILSON TIMMONS v. MAUREEN NICOLE SN OW ZOLFAGHARBIK. An Appeal from the Chancery Court for Henry County No. 18069 Ron E. Harmon, Chancellor

No. W1999-01013-COA-R3-CV - Filed January 30, 2001

This is a will contest case. The defendant/a ppellant challen

ges the validity

of a mutual relea

se she signed in which she waived any right she had to challenge the revocation of the decedent’s will or to establish any rights under the decedent’s will, in exchange for a release of any claims the estate mayhave had against her. The trial court found that the mutual release signe d by the defendant/appellant effectively waived any claim she may have had

to establish the validity of the decedent’s will. We affirm, finding that the mutual release was an effective waiver

of any rights the defendant/appe

llant had under the

will or to challeng

e revocation of t

he will. Tenn. R. App. P. 3; Ju

dgment of the Chanc

ery Court affirm

ed.
H OLLY K IRBY L ILLARD , J., delivered the Opinion of the Court, in which A LAN E. H IGHERS , J. and D AVID R. F ARMER , J., joined.
Lee M. Greer, III

, Paris, Tennessee for the

Plai ntiff /Appe llee Le e M. Gr eer, III, Administrator of the Estate of Woodrow Wilson Timmons, Deceased.
W. Brown Hawley

, II, Par is, Tennesse

e for the Defendant/Appellant Maureen Nicole Snow Zolfagharbik.
OPINION Defendant/Appellant

Mauree n Nicole Snow Zolf agharbik 1 (“Snow”) is a for mer home healthcareworker who became acquainted with the decedent Woodrow Wilson T imm ons (“Timmons”) while caring for his dying wife. After the de ath of Timmons’ wife, as a result of the friendship

that develo

pe d between Snow an

d Timmons, Snow rece

ived several fin

ancial benefits fro mTimmons, including his co-signing a $98,000 bank loan for her and pledging a $100,0 0 0 certificate of deposit as collateral for her loan.-2-

On September

6, 1995, Timmons executed a will naming Snow as executrix of his estate and leaving her

his home and $100,00

0. Snow was also

the beneficiary under the residuary clause of the will. The residuar y clause stated that, in the event Snow predeceased Timmons, Snow’s children would take the remainder of the estate:
Igive devise and bequeath all the rest, residue and remainder of my estate, real , personal or mixed to Maureen Nichole [sic] Snow of Paris, Tennessee. In the event MaureenNichole [sic] Snow predeceases me, I give, devise and bequeath all the rest, residue and remainder of

my estate, real, personal or mixed to the issue of Maureen Nichole [sic] Snow living at the time of my death, per stirpes.
Sub seq uen tly, Snow defaulted on the $98,000 loanand, as a consequence, Timmons lost the $100,000 certificate of deposit. Timmons later filed a lawsuit against Snow based on his loss of the ce rt ificate of deposit. Timmons also directed his attorney, Gary Sway ne (“Swayne”), to whom Timmons had give n a d urab le p owe r ofatt orn ey, to destroy the September 6, 1995 will. Timmons was not present at the destruction of the will nor did he ever execute another will. Timmons died on August 27, 1997, with the lawsuit against Snow still unresolved.
After Timm o ns’ death and upon learning of the destruction of Timmons’ will, Snow’s attorney sent a letter to Swayne requesting information about persons present at the destruc tion of the will. Swayne never responded to her inquiries. Plaintiff/Appellee Lee M. Gree r, III (“Greer”) wa

s a ppointe d administrator of Timmons’ intestate estate by order of the probate court. The administrator’s bond was set at $200,000. Snow didnot request information from Greer about the circumstances surrounding the destruction of the will.
On December 23, 1997, after consulting at length with her attorney , Snow e ntere d into a mutual release with Gr

eer, in which Snow gaveup any rig ht to establish the Se

ptember 6, 1995 wil

l as valid, in exchange for the Estate’s agreement to release her from any claims it had against her, including the ba

nk loan suit. The re

lease states in pe

rtinent part:
Snow releases the Estate from all such claims, including without limitation, any claim she would have to establish a

s a valid will

a certain will and

testament execute

d by [Timmons] on September 6, 1995, which the estate does represent had been destroy ed . . .
The Estate releases Snow from all such . . . claims, including, without limitation, any claims for reimburseme

nt of sums owed to

[Timmons] of

any nature whatsoever....
Greer then filed suit against Snow, seeking a declaratory judgment that the September 6, 1995 will hadbeen effective

ly revoked and

that the mutual release was binding on Snow. Snow then filed a2 This understanding was apparently based in part on the fac t that Greer’s bond as administrator

of Timmons’ estate was set at $200,000, although the re cord is somewhat unclear on this point. -3- counterclaim, asking that the mutual release be set aside. In the counterclaim, Snow asserted that the revocation of the will was ineffective and that she had been misled

about the worth of the Estate.
Prior to trial, Snow filed

a motion to have her

two children adde

d as necessary

parties to the suit. The trial court ov

erruled the motion. Snow also filed a motion for partial summary judgment in which she sought

a ruling that the revocation of the will was ineffective because Timmons was not present at its destruction. This motion was also overruled.
At trial, th e trial court heard only evidence relating to the validity of the release. The trial court held that the mutual release was valid and binding, finding that Snow understood the terms and consequences of executing the release and that each side had received valuable consideration for the execution of the release. The trial court found that its determina t ion on the validity of the mutual release was dispositive, and declined to address the issue of the validity of the will’s revocation. From this order, Snow now appeals.
On appeal, Snow argues that the trial court erred in d enying her mot

ion to add her two children as necessary

parties. She asserts that

the release was essentially a disclaimer or renunciation of her rights under the September 6, 1995 will and, if given effect, the property she would have received under the will would pass to her children under the residuary clause of the will

, just as if she hadpredeceased Timmons. She argues further that the trial court erred in deny ing her motion for partial summary judgment on the issue of the validity of the w ill’s revocation. She asserts that under Tennessee Code Annotated § 32-1-201, only the testator or a person in the testator’s presence may effectively

revoke a will

by destroy

ing it; therefore, the attempted revocation of the will was ineffectivebecause Timmons w as not present whe

n Swayne de

stroyed the

document. Snow also contends that the trial court erred in failing to grant partial summary judgment to her on the basis of Greer’s failure to

file any counter-affidavits as required by Rules 56.03 and 56.04 of the Tennessee Rules of Civil Procedure.
Sn ow also argues that the trial court erred in finding that the mutual release was valid a n d enforceable. She asserts that, a t the time she executedthe release, she understood that the value of the Estate was approximately $200,000, 2 and late r learned that it was closer to $600,000. She contends that she would not have signed the release had she known the true value of the Estate and that Timmons was not pre

se nt at the destruction of

the will. Snow arg

ues that Greer’ s failure to informher of these facts was a breach of his fiduciary du ty of good f

ait h and fair dealing and constituted constructive fraud. She contends that there was no meeting of the minds on the r

elease because she did not have the necessary information and that there was not adequate consideration for the release because the value of her devise under

the will substantially outweighed the amount of any possible claims the Estate may have ha d against her.-4-

Greer argues that he had no fiduciary duty to Sno w. He contends that

she had ampl e opportunity

and means, with the assistance of her lawyer, to i n vestigate the circumstances surrounding the destruction of the will and the value of Timmons’ estate, before signing the release. Greer notes that it is undisp

uted that all of Snow ’s inquiries a bout the si

ze of the Estate and the destruction of the will were directed at Swayne, Timmons’ lawyer, and not at Greer, even after Snow learned that Greer was the administrator of the Estate.
Greer also contends that Snow’s motion toadd her children as necessary parties was without merit because an y interest that the children may have ha d was contingent on Snow predeceasing Timmons, which did not occur. Greer asserts that the trial court appropriately denied Snow’s motion for partial summary judgment without any counter -affidavits because there ar e no disputed issues of material fact and the revocation of a willoutside of the testator’s presence is effective when the part y des tro ying t he w ill is a cti ng at the tes tat or’ s re que st p urs uan t to a po wer o f at tor ney. Our review is de novo accompanied by a presumption of correctness in the

findings of fact of the trial court, un

less the evidence

preponderates

oth erwise

. See Tenn. R. App. P. 13(d). No presumption of correctness attaches to the trial court’s conclusions of law. U nion Carbide Corp. v. Huddleston , 854 S.W. 2d 87, 91 (Tenn. 1993).
We addressfirst Sn ow’s argument that her children should have been added as necessary parties. The residuary clause in the September 6, 1995 w

ill states that Snow’s children would take the remainder of the

estate “[i]n the eve

nt . . . Sn o w predeceases ” Timmons. “A rema

inder is contingent

if, in order for it to become a present estate, the fulfilment of some condition precedent, other than the determination of the precedingfreehold estates, is necessary.” Jackson v. Jackson , 409 S.W.2d 172, 175 (Tenn. 1966). The bequeath of the remainder of

the estate to Snow’s children was contingent on Snow predeceasing Timmons. This did not occur. Snow’s argument on this issue is without merit.
We address next Snow’s argument that the trial court erred in holding that the release was valid and bi nding. A r elease is a contract and is governed by the rule s of contracts. Richland Country Club, Inc. v. CRC Equities, Inc. , 832 S.W.2d 554, 557 (Tenn. Ct. App. 1991). Therefore, a release may be voided on the basis of fraud only when fraud is shown by cl ear, cogent, and convincing evidence. Dixon v. Manier , 545 S.W.2d 948, 950 (Tenn. Ct. App. 1976). S no w contends that Greer’s fa

ilure to inform her of the value

of the Estate and of Timmons’ absence at the time the will was destro

yed amounte

d to constructive f

raud because th

e informatio

n was material andhe had a duty to disclose it. See Dobbs v. Guenther , 846 S.W.2d 270, 274 (Tenn. Ct. App. 1992) (stating that nondisclosure of a material fact will give rise to fraud when there was a duty to disclose); Parks v. Alexander , 608 S.W.2d 881 (1980) (a sser ting that the theory of constructive fraud concerns a breach of a legal or equitable duty

). In support o

f her argumen

t, Snow cites Baker v. Baker , 142 S.W.2d 737 (Tenn. Ct. App. 194 0), in which this Cour

t stated that,

“with respect to a widow,” an executor or administrator of an estate “occupies the relation of a trustee and must deal withher in the utmos t good faith, . . . disclos[ ing] to her material fa cts within his knowle dge whenever her interest is to be affected by a transaction wit

h him.” Id. at 750; see also Faught v.-5-

Faught , 730 S.W.2d 323, 326 (Tenn. 1987) (surviving spouse’s agre ement to accept p

ersonalty i

n lieu of his interest in his deceased wife’s estate

held not a knowing waiver of his rights because the fiduciary co-executors did not give him all of the necessary information). Because Greer did not informher of these facts, Snow asserts she did not make a knowledg

eable waiver of

her rights

and the release should be set aside.
It is undisputed in this case that Greer, the administrator of the Estate, did not make any affirmative misrepresentations to Snow or her attorney. Indeed, Snow’s inquiries were directed at Swayne, not Greer, and neither responded to them. Therefore, Snow’s argument is that Greer , as administrator

of the Estate, had a

n affirmative dut

y to disclose

to Snow the value of the Estate and the fact that Timmons was not present at thedestruction of the September 6, 1995 will. In

support, howev er, Snow cites only cases involving the fiduciary duty of an executor or administrator to a surviving spouse waiving r ights under an e

ffective will

or the intestate

statute. A survivin

g spouse is clearly an eventual beneficiary of the estate regardless of whether there is an effective will, and the administrator’s or executor’s concern is the proper distribution of the estate’s assets. Snow cites no case in which an administrator is found to have such a fiduciary duty to someone othe r than a surviving spouse.
In addition, Snow acknowledges that she had the advice of her own counsel before signing the release. She testified that she read the release and

agonized over w

hether to sign it,

speaking to her attorney about it. She conceded that her attorney would have answered any questions she may have had about the release. In the release, Snow cl early waives an

y claims she would have by establishing the validity o f the September 6,

1995 will, in exchang

e for the Estate’ s release of its claims against her.
Under these circumstances, we find no fraud, constructive fraud or b reac h of fid uci ary du ty. Snow clearly underst ood the righ ts she was wa iving and r eceived val uable consi deration i n exchange for the release. Consequently, we find that the mutual release was v alid and bi nding. The decision of the trial court on this issue is affirmed. This holding preter mits the issu e of the validity of the will’s revocation.
The decision of the trial court is affirmed. Costs on ap peal a re taxed to the Appe

llant, Mau reen Nic ole Sno w Zol fagh arbi k, a nd h er s uret y, fo r wh ich exe cut ion may i ssu e, i f nec ess ary.

___________________________________ HOLLY K. LI

LLARD, JUDGE