In Re Estate of David R. Leath

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

December 3, 2007 Session

IN RE ESTATE OF DAVID R. LEATH

Appeal from the Chancery Court for Knox County

No. P-06-651932 Daryl Fansler, Chancellor

No. E2007-00555-COA-R3-CV - FILED MARCH 3, 2008

Decedent’s will could not be located after his death, and decedent’s widow and stepdaughters

petitioned the trial court to recognize and establish a copy of such will as decedent’s last will and

testament. The trial court denied the petition upon determining that the petitioners failed to present

sufficient evidence to overcome the strong presumption that the lost will was revoked by decedent.

We affirm the judgment of the trial court and remand.

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

Remanded

SHARON G. LEE, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and D.

MICHAEL SWINEY , J., joined.

James A.H. Bell and William D. Hood, Knoxville, Tennessee, for the appellant, Raynella Dossett

Leath.

Dale C. Allen and Luis C. Bustamante, Knoxville, Tennessee, for the appellants Raynella M. Dossett

Connatser and Nancy K. Dossett.

James S. MacDonald, Knoxville, Tennessee, for the appellee Cynthia L. Wilkerson.

OPINION

I. Background

On March 13, 2003, David Leath was shot and killed in a bedroom of his home in Knox

County by an undetermined assailant. After his death, a dispute arose between Mr. Leath’s wife,

Raynella Dossett Leath, and Mr. Leath’s daughter from a prior marriage, Cynthia L. Wilkerson.

Both women, in court filings, accused the other of murdering Mr. Leath. The portion of their dispute

that is involved in this appeal concerns a will Mr. Leath made in 1996 which could not be found after

his death. Additional interested parties are Raynella M. Dossett Connatser and Nancy K. Dossett,

the children of Raynella Dossett Leath.

David Leath and Raynella Dossett Leath were married in 1993. On August 12, 1996, the

Leaths went to the law office of their attorney, Charles Child, and executed separate wills. Mr. Child

gave the parties the originals of the wills and retained signed duplicate copies at his office.

According to Mrs. Leath, she placed the original of her will in a safe deposit box at the bank and Mr.

Leath placed the original of his will in his sock drawer in a chest of drawers located in their

bedroom. After Mr. Leath’s death, his will could not be found.

On June 29, 2006, Mrs. Leath filed a verified petition in the Knox County Chancery Court

attesting that the original of Mr. Leath’s 1996 will was not located after a thorough and diligent

search and requesting that the trial court recognize and establish as the decedent’s last will and

testament an attached copy of such will and appoint her to serve as personal representative of the

estate. Mr. Leath’s daughter, Cynthia L. Wilkerson, answered and counterclaimed, alleging, among

other things, that Mrs. Leath killed the decedent and asserting that the fact that the August 12, 1996

will was missing was evidence that the decedent had revoked the will and died intestate. Attached

to this answer was a separate complaint that Ms. Wilkerson had previously filed in the Knox County

Circuit Court wherein she attested that Mrs. Leath had feloniously shot and killed the decedent, and

had thereby forfeited any right to the decedent’s estate and was precluded from serving as personal

representative of the estate. Mrs. Leath filed her answer to Ms. Wilkerson’s counterclaim, alleging

that, on the contrary, Ms. Wilkerson had feloniously shot and killed the decedent and that she had

thereby forfeited any right to his estate or to serve as the estate’s personal representative. Finally,

Mr. Leath’s two stepdaughters, Raynella M. Dossett Connatser and Nancy K. Dossett, filed an

answer and cross claim to Ms. Wilkerson’s counterclaim and requested, inter alia, that their mother’s

petition be approved by the trial court.

The competing interests in the disposition of Mr. Leath’s estate may be summarized as

follows. The 1996 will named Mrs. Leath as executrix of the estate and provided that the decedent’s

mother, Mayme Leath, (who survived her son) receive a life estate in 16.27 acres of land located in

Knox County. The will further provided that Mrs. Leath receive the residue of Mr. Leath’s estate

unless she died before Mr. Leath or the two died in a common accident, in which event all of Mr.

Leath’s property would go to Ms. Wilkerson, with the exception that any property that had come to

him as a result of the death of Mrs. Leath would go to her two daughters, Raynella M. Dossett

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Connatser and Nancy K. Dossett. Ms. Connatser and Ms. Dossett contend that, pursuant to this

provision, if Mrs. Leath is precluded from participating in the distribution of Mr. Leath’s estate, they

are entitled to distribution of the estate as contingent beneficiaries. Upon a determination that the

will was revoked, Mrs. Leath and Ms. Wilkerson would divide the estate equally in accord with state

intestacy law. See Tenn. Code Ann. § 31-2-104.

The case came on for trial without a jury on August 17, 2006, and on December 15, 2006,

the trial court entered its order and memorandum opinion denying Mrs. Leath’s petition to establish

the lost will upon its determination that Mrs. Leath had failed to present sufficient proof to overcome

the strong presumption under applicable law that a will that cannot be located has been revoked by

the testator. Mrs. Leath and her daughters, Ms. Connatser and Ms. Dossett, appeal this ruling.

II. Issue

The sole issue we address in this case is whether the trial court erred in ruling that the

appellants failed to submit sufficient proof to overcome the presumption that the decedent revoked

his lost will.

III. Analysis

A. Standard of Review

In a non-jury case such as this one, we review the record de novo with a presumption of

correctness as to the trial court’s determination of facts, and we must honor those findings unless the

evidence preponderates to the contrary. Tenn. R. App. P. 13(d); Union Carbide v. Huddleston, 854

S.W.2d 87, 91 (Tenn. 1993). 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 either as to the trial court’s factual findings. Seals v. England/Corsair Upholstery Mfg.

Co., Inc., 984 S.W.2d 912, 915 (Tenn. 1999). The trial court’s conclusions of law are reviewed de

novo and are accorded no presumption of correctness. Campbell v. Florida Steel Corp., 919 S.W.2d

26, 35 (Tenn. 1996); Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn. 1993).

B. Proof Required to Establish a Lost Will

A party seeking to establish a lost will must satisfactorily demonstrate 1) that the testator

made and executed a valid will and that the testator is no longer living; 2) the substance and contents

of the missing will; 3) that the will cannot be found after diligent search; and 4) that the will was

not revoked by the decedent. Pritchard on Wills and Administration of Estates, 5th Ed., § 51;

Shrum v. Powell, 604 S.W.2d 869, 871 (Tenn. Ct. App. 1982). In the case at bar, the only element

in dispute is whether the decedent revoked his will.

A party seeking to establish a lost will has a heavy burden of proof. Pritchard on Wills and

Administration of Estates, ibid., describes this burden of proof as follows:

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When a will cannot be found after the death of the testator, there is a

strong presumption that it was destroyed or revoked by the testator

himself, and this presumption stands in the place of positive proof.

One who seeks to establish a lost or destroyed will assumes the

burden of overcoming this presumption by adequate proof. It is not

sufficient to show that persons interested to establish intestacy had an

opportunity to destroy the will. One must go further and show by

facts and circumstances that the will actually was lost or destroyed

fraudulently or accidentally against, and not in accordance with, the

wishes and intention of the testator.

The presumption that the will was destroyed by the testator, animo

revocandi, may be rebutted, and its loss or destruction by other means

may be shown, by circumstantial as well as positive evidence, [s]uch

as: by showing that the testator did not have the custody and control

of the instrument after its execution; that he had lost his testamentary

capacity for a period before his death; that the will was in existence

at the time the mental alienation occurred. The declarations of the

testator, before or after making the will, are admissible in evidence to

support or destroy the presumption of revocation.

In order to overcome the presumption of revocation, the proponent of a lost will is not

required to overcome the “almost impossible barrier” of proving absolutely, rather than

circumstantially, that the will was not revoked. In re Estate of Brown, No. 01A01-9809-PB-00471,

1999 WL 802718, at *11 (Tenn. Ct. App. M.S., filed Oct. 7, 1999). However, as we have heretofore

indicated, the requirements for overcoming the presumption of revocation are, with good reason,

quite exacting:

Where a will has been lost or destroyed, the person seeking to set it

up labors under a severe handicap. Doubtless this is due to the fear

that a more elastic rule might bring about more fraud than it would

prevent.

Sanders v. McClanahan, 442 S.W.2d 664, 667 (Tenn. Ct. App. 1969) (citing Haven v. Wrinkle, 195

S.W.2d 787, 793 (Tenn. Ct. App. 1946)). As noted by this Court in Shrum v. Powell, 604 S.W.2d

869, 871 (Tenn. Ct. App. 1980), a person seeking to show that a lost will was not revoked by the

testator must do so by presenting “the clearest and most stringent evidence” or “clear, cogent and

convincing proof.”

The appellants in the instant matter argue that the circumstances, as demonstrated by “the

clearest and most stringent evidence” or “clear, cogent, and convincing proof,” rebut the presumption

that the decedent revoked or destroyed the lost will. Arguments advanced by the appellants include

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that they proved that the decedent lacked the mental capacity required to revoke a will; that the

decedent would not have revoked the will, as shown by his communications with third parties, the

nature of his relationship with the appellants as compared to his relationship with Ms. Wilkerson,

and the fact that he and Mrs. Leath had executed similar wills; that the decedent executed the subject

will and previous wills and thereby indicated his desire to die testate; and that parties, other than the

decedent, had access to the will and that inadequate consideration was given to the possibility that

the will was either removed and/or lost by one of these other parties.

We have carefully reviewed the entire record in this case and have considered all of the

appellants’ arguments, and it is our determination that the trial court’s ruling was correct and is well

supported by the evidence and the applicable law. We conclude that the appellants did not overcome

the presumption that the will was destroyed or revoked by the testator by clear, cogent, and

convincing proof.

1. Capacity to Revoke

First, we address the argument that the decedent lacked the capacity to revoke the will.

As the trial court correctly noted in its memorandum opinion “no greater capacity is needed

to revoke a will than is required to execute one in the first instance.” See 79 AM . JUR. 2d Wills § 469

(2002). (“The same degree of mental capacity is necessary to revoke a will as to make one.”) We

have previously summarized the law regarding testamentary capacity as follows:

The burden in a will contest is always on the one who alleges an

unsound mind to prove it. Harper v. Watkins, 670 S.W.2d 611

(Tenn. Ct. App. 1983). That burden requires a contestant to produce

evidence from which the jury could infer that the testator, at the very

time of executing the will, did not know and understand the force and

consequences of his act. American Trust & Banking Co. v.

Williams, 32 Tenn. App. 592, 225 S.W.2d 79 ([Tenn.] 1948). A

testator “is not rendered incapable of making a will by . . . old age,

blunt perception, or failing mind or memory, if his mind is

sufficiently sound to enable him to know and understand what he is

doing.” Id. 225 S.W.2d at 83. Evidence of a prior mental condition

due to temporary, superficial, accidental, occasional or intermittent

causes or conditions has little or no probative value - not enough to

shift the burden of proving the testator’s condition at the very time the

will was executed. Id. 225 S.W.2d at 84.

In re Estate of Oakley, 936 S.W.2d 259, 260 (Tenn. Ct. App. 1996) (emphasis in original).

In support of their argument that the decedent did not know or understand the consequences

of revoking his will and therefore, lacked the mental capacity to do so, the appellants rely primarily

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upon the deposition testimony of Ronald Bryan, M.D., a neurologist who examined and treated the

decedent within the three years preceding his death. Dr. Bryan attested that he first encountered the

decedent in February of 2000, when he was hospitalized for “mental status changes, frank confusion,

[and] diminished level of consciousness.” According to Dr. Bryan, the decedent presented as

“lethargic, sleepy but arousable” and “fundamentally coherent,” but with loss of memory. An

electroencephalogram (EEG) was conducted and produced an abnormal reading, and a magnetic

resonance imaging (MRI) scan showed that the decedent had suffered a “mini stroke” as the result

of the occlusion of a very small blood vessel in the brain. The decedent was next hospitalized in

March of 2001, after he experienced an episode of confusion, and symptoms noted by Dr. Bryan

included short term memory difficulties, such as forgetting to answer the phone or to take a bath;

emotional ups and downs; short temper; and falling asleep frequently through the day. On March

1, 2002, Dr. Bryan conducted a mini-mental status exam which measured the decedent’s orientation,

memory, and attention, based upon responses to various questions. At one point during the test, the

decedent began to cry because he was unable to spell a word backwards. Dr. Bryan testified that the

decedent scored 22 out of a possible 30 on this test and that this score indicated “mild dementia”

which in his opinion was demonstrated by a score ranging from 20 to 25. However, considering the

possibility that the mini stroke that the decedent had suffered might be causing small seizures, Dr.

Bryan prescribed an epilepsy medication. At a follow up exam on March 28, 2002, Dr. Bryan noted

that the decedent’s symptoms had improved in that he was no longer sleeping during the day, his

memory was better, his mood was better and he was interested in more activities and had recently

bought a fishing license. At a subsequent visit on July 3, 2002, Dr. Bryan re-administered the mini-

mental status exam and the decedent achieved an improved score of 25. Dr. Bryan’s testimony

indicated that the decedent would have had a perfect score but for the fact that he could not spell a

word backwards. Dr. Bryan prescribed a medication to improve the decedent’s memory. At the

next examination of the decedent on October 17, 2002, Dr. Bryan noted mood swings. When Dr.

Bryan last saw the decedent on January 16, 2003, the decedent was “frustrated and tearful,” and his

mental status was “obviously deteriorating,” as primarily exemplified by memory problems. Dr.

Bryan attested that he believes that at this time the decedent was in a moderately advanced stage of

Alzheimer’s disease, and that at this stage a victim of such disease is likely to misplace things.

Finally, Dr. Bryan testified that it was his opinion that the decedent would not have been able to

understand the implications of destroying a will at the time of his last consultation.

We conclude that appellants failed to meet their burden of showing that the decedent could

not have known or understood what he was doing with respect to the revocation of his will after his

last visit to Dr. Bryan. We have noted Dr. Bryan’s testimony regarding the improvement in the

decedent’s condition in late March and July of 2002, and in clinical notes made by Dr. Bryan during

the last visit in January of 2003, he recorded that Mrs. Leath indicated that as of that time, the

decedent’s condition did not appear to be deteriorating and that many of his previous problems were

no longer occurring.

We further note the below recounted testimony of multiple witnesses who had known the

decedent for many years, interacted with him on successive occasions up until the time of his death,

and observed nothing that would lead them to believe that the decedent was suffering from

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diminished mental capacity. Roger Yarnell testified that he had been a close friend of the decedent

since the decedent was a teenager, was an usher in the decedent’s wedding, socialized with the

decedent every week or two during the last three to four years of the decedent’s life, and talked to

the decedent the day before his death. Mr. Yarnell attested that he noticed no changes in the

decedent’s mental abilities and that the decedent always appeared to understand and know what he

was doing and was normal the last time he talked to him. Mike Ogle, the owner of a local motor

vehicle repair shop, testified that he had known the decedent since 1983, that he saw the decedent

every month or so, and sometimes twice a week, during the last two years of the decedent’s life, that

at times the decedent would visit him for a couple of hours and that he was with the decedent two

days before his death. Mr. Ogle testified that he never observed any confusion in the decedent and

that the decedent always seemed to know and understand what he was doing. Peggy Rowe, the

decedent’s ex-wife, testified that she had occasion to see the decedent eight to ten times a year when

he came to visit with her parents during the two to three years before he died and that she saw him

at their house the week before he died. Ms. Rowe attested that she never observed any confusion

in the decedent or that anything had happened to his mental faculties. Gordon Armstrong testified

that he had known the decedent for forty five years, was the best man at the decedent’s wedding, and

considered the decedent to be his best friend. In Mr. Armstrong’s words, the decedent “was on top

of it,” and he testified that the decedent never seemed confused or to have any problems with his

memory and that the decedent usually arrived at their meetings ahead of time. We also note the

testimony of attorney Charles Child regarding a February 4, 2003 meeting between himself and the

decedent wherein they discussed the decedent’s will. Mr. Child testified that although the decedent

was emotional, the decedent knew what he was doing and why he was there and understood their

conversation regarding the will. Finally, Mrs. Leath herself testified that after this meeting, the

decedent understood instructions given him by Mr. Child as to what he should do if he wished to

change the will.

In summary, we do not find that the evidence presented shows that the decedent was mentally

incapable of revoking his will.

2. Communication of Intent to Third Parties

The next question we must address is whether, given the decedent’s adequate capacity to

revoke the will, he would have done so. Citing Third Nat’l Bank v. Stevens, 755 S.W.2d 459,462

(Tenn. Ct. App. 1988), the appellants correctly note that the testator’s intent is the guiding principle

in all will cases. The appellants insist that the evidence shows that it was the decedent’s intent that

the will not be revoked and that he not die intestate. In this regard, we first address the appellants’

argument that the decedent communicated this intent to others. As positive proof for this argument,

the appellants rely upon the testimony attorney Charles Child, who stated that, at the February 4,

2003 meeting, the decedent gave him no instructions to change or revoke the subject will and that

as the decedent was leaving the meeting the decedent said words to the effect of “this is my will and

that is what I want.” As legal authority for their argument, the appellants rely heavily upon In re

Estate of Brown, 1999 WL 802718. In that case, the petitioner appealed the trial court’s finding

that she had failed to establish the lost will of her grand uncle by clear and convincing proof. In

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reversing the judgment of the trial court, we noted, among other things, that the week before he died,

the testator reiterated to one of his friends that he had a will and had left almost everything to the

petitioner and another witness testified that the night before the testator suffered an incapacitating

stroke, the testator stated that everything he had would go to his grand niece and showed the witness

the box containing his will and instructions for his funeral arrangements. Given this testimony and

other evidence, including evidence showing that another relative of the testator had access to the will

and strong incentive to destroy it, we concluded that the petitioner overcame the presumption of

revocation.

We find the Brown case and the instant matter are clearly distinguishable. In Brown, the

proof showed that within twenty-four hours of his stroke, the testator reconfirmed his intent to leave

everything to the petitioner, had his will in a box in its customary location, and expressly indicated

his intention to leave it in that place. By contrast, in the instant matter, no positive evidence was

introduced as to the decedent’s testamentary intent after his last meeting with Mr. Child thirty-six

days before his death. Given the extensive amount of intervening time and testimony by Dr. Bryan

that the decedent was emotionally labile and as a result was more likely to change his mind than he

would have been otherwise, we cannot agree that the appellants have overcome the presumption of

revocation on this basis. We acknowledge Mr. Child’s additional testimony that he always advised

clients that if they intended to revoke their will that they let his office know so that a duplicate

retained by the office would be destroyed and the further testimony of Mr. Armstrong that he

believed that the decedent would have advised him (Mr. Armstrong) had he revoked the will.

However, the assertion that the decedent would not have revoked the will without advising Mr. Child

and Mr. Armstrong and that his failure to do so signifies that he did not revoke the will ignores the

obvious possibility that the decedent would have advised them had he not been prevented from doing

so by his sudden, unexpected death. We further note that whatever Mr. Child’s instructions to Mr.

Leath as to his office policy regarding revocation may have been, Mr. Leath was under no legal

compulsion to contact Mr. Child in order to revoke his will. In any event, we do not agree that the

decedent’s failure to advise Mr. Child and Mr. Armstrong of the revocation constitutes the “clear,

cogent and convincing proof” the appellants must present to meet their burden in this case.

3. Relationship With Others

The appellants also reference the testimony of Mrs. Leath and various other witnesses that

the decedent had an excellent relationship with his wife and her two daughters. The appellants assert

that this relationship was superior to the relationship the decedent had with his daughter and that

based upon this fact, it is clear that the decedent would not have revoked his will in order to benefit

his daughter at the expense of his wife and stepdaughters. Again, the appellants seek to rely upon

Brown, ibid., in support of their argument and again, we find a clear distinction between Brown and

this case. In Brown, the testator’s brother was heir to his estate in the event of intestacy. However,

evidence showed that the brother had no relationship with the testator until the testator became ill

with lung cancer and that he visited the testator no more than two or three times in the preceding

twenty years. By comparison, the record in Brown showed that the testator referred to the petitioner

as his “daughter,” that the testator and the petitioner enjoyed a loving and extremely close family

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relationship, and that the testator’s feelings for the petitioner remained unchanged the night before

his incapacitating stroke.

By contrast, in the instant matter, while there was testimony indicating that the decedent had

a generally good relationship with Mrs. Leath, Ms. Wilkerson testified that the decedent also had a

good relationship with herself and her two children. Ms. Wilkerson also testified that she saw the

decedent two to three times a week at the barbershop where she works and where the decedent was

employed until his retirement. And she further testified that the decedent would spend time with her

children on his farm and would ride bikes with them and let his grandson, Tyler, who was thirteen

years of age when the decedent died, drive the farm tractor, and stay with the decedent when he was

out of school for two to three days. And in contrast to the evidence in Brown that the relationship

between the testator and the petitioner remained consistently good, in the instant case, Ms. Wilkerson

attested to conflict between the decedent and Mrs. Leath during the days immediately preceding his

death. In this regard, Ms. Wilkerson testified that Mrs. Leath called her on March 8, 2003, and told

her that the decedent had gotten upset with her because she had failed to start the tractor correctly

and that Mrs. Leath stated to her that “she was getting f’ing tired of this and would show him.” Ms.

Wilkerson further attested that Mrs. Leath called her again on March 11, 2003, and that the decedent

“had acted angry and they had got into it or something.” In light of the record as a whole, we do not

agree that the evidence indicates such a disparity in the relationship between the appellants and Ms.

Wilkerson as to necessitate the conclusion that the decedent would not have revoked his will to favor

one party over another.

4. Third Party Access to Will

The appellants also argue that they submitted proof showing the will’s location and its

accessibility to third parties. In this regard, the appellants reference the testimony of both Mrs. Leath

and Ms. Connatser that the will was last seen by them in 1996 in the decedent’s sock drawer in the

bedroom of the home where the decedent resided with Mrs. Leath. While there was some

contradictory testimony from another witness indicating that at some point the will was kept in a

kitchen cabinet, the appellants assert that, in any event, the evidence showed nothing other than that

the will was kept somewhere in the marital home. The appellants note that Ms. Wilkerson testified

that she had been to the decedent’s home before and that nothing prevented her from visiting the

home. Further, the appellant notes that other parties, including numerous law enforcement officers

employed by the Knox County Sheriff’s Department, were at the home after the decedent was killed.

The appellants contend that given these circumstances, the trial court erred in failing to consider the

possibility that the will might have been lost or destroyed by a third party. We disagree.

With respect to employees of the Sheriff’s Department on the decedent’s property after his

death, Detective Perry Moyers, who served as lead investigator on behalf of the Sheriff’s

Department, testified that he discovered no will during the investigation and that logs generated at

the time do not show that a will was ever located or removed from the house. The appellants present

no proof to the contrary, and their assertion that the will may have been removed and lost by

employees of the Sheriff’s Department is based upon pure speculation and is not substantiated by

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any positive proof. As to Ms. Wilkerson, although she did stand to benefit if the will could not be

found, the appellants presented no proof that she knew where the will was located or that the will

even existed. In fact, the only proof presented in that regard was Ms. Wilkerson’s own undisputed

testimony indicating that she had no discussions with the decedent regarding his will or what he

wanted to do with his property and that she was unaware of the contents of the will until she was

read Mr. Child’s copy of the will on April 21, 2003, over a month after her father’s death. Absent

proof that Ms. Wilkerson knew of the will’s existence and location or that she was even aware that

destruction of the will would benefit her, we find no reasonable basis for the argument that Ms.

Wilkerson destroyed the will. In sum, we find no basis for concluding that any party with access to

the will other than the decedent either destroyed or lost the will, and we find no merit in the

appellants’ argument that the trial court erred by failing to consider that possibility in reaching its

conclusions in this case.

IV. Conclusion

After careful review of the record as a whole and upon consideration of all arguments raised

by the appellants, including some not directly addressed herein, we do not agree that the evidence

presented in this case supports the appellants’ contention that the trial court erred in finding that they

failed to establish the decedent’s lost will by clear, cogent and convincing proof. Accordingly, the

judgment of the trial court is affirmed and the case is remanded for further action consistent with this

opinion. Costs of appeal are assessed to the appellants, Raynella Dossett Leath, Raynella Dossett

Connatser, and Nancy K. Dossett.

_________________________________________

SHARON G. LEE, JUDGE

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