IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

October 19, 2017 Session

IN RE ESTATE OF ANDREW THOMAS PEERY, JR.

Appeal from the General Sessions Court for Blount County

No. P-01934 Michael A. Gallegos, Judge

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No. E2017-00603-COA-R3-CV

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The brother of a decedent filed a petition to admit to probate a purported holographic 

will. The decedent’s widow protested. After a hearing, the trial court ruled that the 

document was not a holographic will and that the decedent had died intestate. The

brother appeals. We affirm.

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

Affirmed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the court, in which D. MICHAEL

SWINEY, C.J., and THOMAS R. FRIERSON, II, J., joined.

J. Lewis Kinnard, Madisonville, Tennessee, for the appellant, John Wayne Peery.

John M. Jackson, III, Maryville, Tennessee, for the appellee, Martha Peery.

OPINION

I. BACKGROUND

Andrew Thomas Peery, Jr. (“the Decedent” or “Tom”), died on January 17, 2016. 

A brother, John Wayne Peery (“Wayne”) filed a petition to admit to probate a purported 

holographic will of the Decedent’s. The Decedent’s widow objected, and this action 

resulted.

The case was tried on November 1, 2016. Wayne testified that he owns half of the

real property at issue, which is the site of the old family home place. The other half was 

owned by the Decedent. The total size of the property is approximately 332 acres. 

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Regarding the purported holographic will, Wayne, his brother Glen Peery, and 

Wayne’s son, John Peery, all members of the family farming business, testified at trial 

that Tom had delivered the document to Wayne in 19921shortly after it was prepared and 

that the handwriting was that of the Decedent. Wayne noted that he had retained the 

document for 24 years until after the Decedent’s death. The document relates as follows:

Nov. 13, 1992

After my death I A.T. (Tom) Perry, Jr. give to Wayne Peery 

or his son John Peery an option too (sic) buy my share of the 

Farm located in the 12 District of Blount County for the Price 

of one dollar. The reason I have done this, he has never 

charged me any rent on his share of the Farm and has helped 

me in other ways. So I feel he should have my share of the 

Place.

/s/ A.T. (Tom) Peery. Jr.

The document was notarized by a notary public.

Martha Peery, the widow of the Decedent (“Widow”), challenged the document 

proffered by Wayne, asserting that it lacked testamentary intent, failed to meet basic 

requirements of a will, and inadequately described the property that is the subject of the 

document. As to the purported will, Widow related that she had never seen it until 

Wayne showed it to her after Tom’s death. She acknowledged that she had asked the 

Decedent several times to make a will. Widow noted, however, that Tom never told her 

that he had a will made and would say, “I’m going to.” She testified as follows:

Q: Based on your discussions with your husband, do you 

believe he thought that he had a Will?

A: No. No, I don’t.

 

Widow testified that she and Tom were married in 1976 and had no children of their 

own.2 She asserted her familiarity with Tom’s business dealings and affairs, noting the 

following assets: stock in Regions Bank, a savings account at First Tennessee Bank, a 

savings account at Citizens Bank, an IRA at Regions Bank, and stock at Farm Bureau 

Insurance Company. According to Widow, the Decedent owned a residence with her at 

the time of his death.3 There was additional proof offered that Tom was the owner of a

 

1

Tom was married at the time.

2 Widow noted that she has three daughters by a previous marriage.

3

The residence and the land on which it sits are not part of the property at issue. 
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share of a 300-plus acre farm in Monroe County. The Decedent also owned machinery, 

equipment, and trucks that were used in the farming business. 

Widow presented two documents at trial that she located, not in the box by the 

living room chair where Tom kept his important documents, but in an old horse trailer in 

a barn. The writings both appear to be dated January 1, 1997, and contain the following 

language: “I hereby make and Declare this as and for my last will and testament.” Item 1 

of both documents declares specific bequests of both real and personal property. The two 

documents are different, but they both attempt to devise and bequeath the Decedent’s 

interest in the marital residence, stocks, checking and savings accounts, interest in 

property in Monroe County, cattle, pickup trucks, and other machinery. Both instruments 

appoint Widow as executor of the will and direct that she serve without bond. As to the 

Blount County property, both documents indicate that the Decedent struck out references 

to Wayne. On the second writing in particular, the Decedent noted as follows:

I give Wayne Peery or John Peery my Interest in the Home 

Place except what is fenced in with my house and Direct that 

they Deed to my Wife Martha, Wayne’s Interest in that 

amount around the house. If they Refuse to Deed this then 

Martha will get 1/2 of my interest in the Home Place and 

Wayne or John will get 1/2 of my interest in the Home Place.

On the face of both documents the word “Void” appears written in multiple places. 

Accordingly, these instruments were not introduced as being the will of the Decedent. 

Rather, they were proffered to reflect both that the Decedent knew how to formally make 

a holographic will, and that in January 1997, a little over four years after the date the 

instrument was given to Wayne, Tom apparently believed that he still needed to create a 

will. The parties agree these documents are in the handwriting of the Decedent. 

Wayne did not provide further evidence as to testamentary intent of Tom. He 

presented no proof regarding why the purported holographic will was silent as to all other 

property, accounts, equipment, machinery, stocks, and trucks of the Decedent or why 

Widow was not mentioned in any capacity. However, Wayne did argue that Tom knew 

the assets Widow would receive upon his death and that he desired for the home place 

property to remain in the family. 

The trial court held that Wayne’s document was not the Decedent’s last will and 

testament and determined that Tom had died intestate. The court observed at the hearing 

that “in 1997, I pick up on some evidence that [Tom]’s still unclear of the disposition of 

this property. . . . I think all the other surrounding evidence that’s been admitted here 

today points to the fact that he did not intend on this being his Last Will and Testament as 

it pertains to this piece of property.” Accordingly, the trial court found that by statute, 

the share of the property at issue passed to the Decedent’s sole heir, Widow. The court 
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denied Wayne’s motion to alter or amend. This appeal followed.

II. ISSUE

The sole issue raised by Wayne is whether the trial court erred in failing to find the 

document at issue to be the last will and testament of the Decedent.

III. STANDARD OF REVIEW

In a non-jury case, we will “review the record de novo with a presumption of 

correctness as to the trial court’s determination of facts.” In re Estate of Price, 273 

S.W.3d 113, 119 (Tenn. Ct. App. 2008) (citing Tenn. R. Civ. P. 13(d); Bogan v. Bogan, 

60 S.W.3d 721, 727 (Tenn. 2001)). When a trial court has seen and heard witnesses, 

especially where issues of credibility and weight of oral testimony are involved, 

considerable deference must be accorded to the trial court’s factual findings. Seals v. 

England/Corsair Upholstery Mfg. Co., Inc., 984 S.W.2d 912, 915 (Tenn. 1999). A trial 

court’s conclusions of law are subject to a de novo review with no presumption of 

correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 

(Tenn. 2001).

IV. ARGUMENT

There are few formal requirements for the execution of a handwritten testamentary 

instrument. Smith v. Smith, 232 S.W.2d 338, 341 (Tenn. Ct. App. 1949). The statutory 

requirements demand only that “the signature and all its material provisions must be in 

the handwriting of the testator and the testator’s handwriting must be proved by two (2) 

witnesses.” Tenn. Code Ann. § 32-1-105. However, testamentary intent, or animus 

testandi remains a necessity; without it there is no valid will. Smith, 232 S.W.2d at 341;

Davidson v. Gilbreath, 273 S.W.2d 717 (Tenn. Ct. App. 1957). Even if the instrument in 

question meets all the statutory requirements as to form, there must be sufficient proof of 

intent; otherwise, the writing cannot be accepted as a testamentary instrument. Scott v. 

Adkins, 314 S.W.2d 52, 56-57 (Tenn. Ct. App. 1957). This testamentary intent must be 

“proven in a manner which conforms to applicable rules of evidence and procedure.” See 

Smith, 232 S.W.2d at 341. As articulated in Smith, “[i]f the animus testandi be doubtful, 

all the facts or circumstances may be looked to, and it is for the jury to determine from all 

the evidence, intrinsic or extrinsic, whether or not the testator intended the instrument to 

operate as his will.” Id., at 341-342.

In the Smith case, the document was much more formal and similar to a will than 

the document before us. The document was in the decedent’s handwriting, it was titled 
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“Last Will and Testament,” and it was signed and dated. The Smith court noted,

however, that there were inferences created by the evidence that raised concerns. For 

example, the document “was not discovered among the valuable papers of the decedent,

but under circumstances that ‘negatived’ the idea that [the decedent] regarded it as being 

of any value or intended it to be effective as a disposition of his property.” Id. In 

addition, the “informality” of the document, shown by the type of paper used and the fact 

that it was written in pencil with abbreviations, interlineations, erasures, syntax errors, 

and so on supported the view that the decedent did not consider the document to be a 

final will. Id. Based upon this evidence, the Smith court concluded that there was a 

conflict in the evidentiary inferences to be drawn and held that resolution of the issue of 

whether there was animus testandi was for the trier of fact. Id. The Smith court 

ultimately determined that the document lacked testamentary intent and that the decedent 

did not regard the document as one he intended to operate as a will. Id.

In In re Estate of Blackburn, a holographic will was proffered that stated, “Freddy 

can do whatever he wants to with everything after I pass.” 253 S.W.3d 603, 615 (Tenn.

Ct. App. 2007). The issue before the Blackburn court was whether material evidence 

supported the conclusion that the decedent did not possess the requisite testamentary 

intent when he signed the document. Id. at 615. The court observed that in assessing 

testamentary intent, “it is immaterial whether a [testator] necessarily understands that by 

executing a particular document [he] is making a will, so long as the document 

demonstrates it was [his] clear intention to dispose of [his] property after [his] death. . . .” 

Id. (citing In re Meade, 156 S.W.3d 841, 843-44 (Tenn. Ct. App. 2004)). The Blackburn

court concluded that material evidence supported a finding that the decedent lacked the 

necessary testamentary intent and that, therefore, the document was not a valid 

holographic will. Id. According to the court, the circumstances surrounding the 

decedent’s execution of the document did not indicate testamentary intent. None of the 

witnesses present when the decedent wrote and signed the document testified that the 

decedent explicitly told them that he intended this document to be his will. Testamentary 

intent, the court noted, must be determined “from what [the testator] has written and not 

from what it is supposed he intended.” Id. (citing In re Meade,156 S.W.3d at 844 

(quoting Presley v. Hanks, 782 S.W.2d 482, 488 (Tenn. Ct. App. 1989)). The Blackburn

court held that no valid holographic will was created because: (1) “document has no 

heading, (2) [it] does not state that it is a last will and testament, and (3) [it] does not 

define the ‘everything’ to which it refers. . . .” and (4) “there is little evidence to suggest 

that the [d]ecedent ever represented the document to be his formal last will and testament 

to anyone.” Id. at 614-16. Thus, despite the fact that the formal requirements of a 

holographic will were satisfied, the court found the trier of fact was justified in finding 

that the reasons listed above demonstrated a lack of testamentary intent. 

Upon review of the document of record, it does not identify the “farm” more 

specifically than the district in which it is located. Further, it does not devise any fee 

interest or dispose of the property; rather, it creates an option. The two voided 
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instruments presented by Widow both specify that they are Tom’s will and explicitly 

state that he does hereby “give, devise, and bequeath” all of his property. Therefore, 

proof before us demonstrates that Tom knew how to draft a document that effectively 

disposed of all of his property after his death if he was inclined to do so. Furthermore, 

this evidence reveals that as of January 1, 1997, Tom did not believe that he had a will.

In the instant case, the record reflects that there was sufficient proof for the trier of 

fact to determine that the evidence preponderated in favor of its finding that the requisite 

testamentary intent did not accompany the preparation and execution of the document at 

issue. More is required than simply asserting proof that the document was in Tom’s 

handwriting and signed, a fact never disputed by Widow in this case. Absent a clear 

showing of testamentary intent, the writing must fail as a testamentary document.

Based on the record before this court, the evidence does not preponderate against 

the trial court’s finding that the document is not the last will and testament of the 

Decedent. Accordingly, the trial court’s ruling is affirmed that the property of the 

intestate Decedent vested immediately upon the death of the Decedent in Widow. See

Tenn. Code Ann. § 31-2-103. As there was no document introduced by any party which 

actually devised, bequeathed, or disposed of a fee interest in the property at issue, the 

property transferred by intestacy immediately upon the death of the Decedent, leaving no 

property against which to exercise the option.

V. CONCLUSION

The judgment of the trial court is affirmed and this cause is remanded to the trial 

court for collection of the costs below. The costs on appeal are assessed against the 

appellant, John Wayne Peery.

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JOHN W. MCCLARTY, JUDGE