In the Matter of the Estate of Dennis R. Woolverton

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

Submitted on Briefs September 26, 2013

IN THE MATTER OF THE ESTATE OF DENNIS R. WOOLVERTON

Appeal from the Chancery Court of Weakley County

No. 21822 W. Michael Maloan, Chancellor

No. W2013-00517-COA-R3-CV - Filed January 30, 2014

This is a will contest. The alleged will was signed by three witnesses. At the hearing on the

will contest, two of the three witnesses and a notary public testified about the signatures on

the purported will. The trial court held that the document was the decedent’s validly

executed will and admitted it to probate. On appeal, the contestant of the will argues that the

will proponent failed to satisfy the statutory requirement of proof from all living witnesses,

if to be found, because the third witness to the will did not appear or testify. We hold that

the proponent of the purported will was required to either submit the testimony of all living

witnesses or show that a living witness whose testimony was not proffered was not to be

found. However, because the trial court failed to make findings of fact and conclusions of

law regarding the availability of the third witness, as required under Tenn. R. Civ. P. 52.01,

we must vacate the trial court’s decision and remand.

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

and Remanded

H OLLY M. K IRBY, J., delivered the Opinion of the Court, in which A LAN E. H IGHERS, P.J.,

W.S., and J. S TEVEN S TAFFORD, J., joined.

Plaintiff/Appellant Pamela Jo Woolverton Jones, Dyersburg, Tennessee, self-represented

Harold R. Gunn, Humboldt, Tennessee for Defendant/Appellee Rosie Annette Woolverton

OPINION

F ACTS AND P ROCEEDINGS B ELOW

Dennis R. Woolverton (“Decedent”) died on January 4, 2012, at the age of 51. The Decedent

was not married at the time; he and his former wife, Defendant/Appellee Rosie Annette

Woolverton (“Ex-Wife”) divorced several years prior to his death.

The Decedent’s sister and sole heir at law, Plaintiff/Appellant Pamela Jo Woolverton Jones

(“Sister”), believed that the Decedent died intestate. Accordingly, in February 2012, Sister

opened a small probate estate for the Decedent in the Chancery Court of Weakley County,

Tennessee. Sister was appointed as the administratrix of the Decedent’s estate.

In April 2012, Ex-Wife filed a “Motion to Set Aside Inju[n]ction and Probate,” claiming that

the Decedent left a will and that the will left all of the Decedent’s assets to Ex-Wife. In

support of the motion, Ex-Wife submitted her own affidavit and a typed document purporting

to be the Decedent’s last will and testament. Dated December 30, 2010, the document stated:

I have again an area of my surgery (sutures) under my abdomen top of my leg

that has broken giving a bloody-runny brown-discharge. I want it to be known

that Annette Woolverton, though divorced, is still my wife and my executor.

I give her total power and she is to inherit all my property including but not

limited to vehicles, dogs, furniture, moneys, and retirement funds. My sister,

Pam Jones, her husband Dwight Jones, niece Sherry, nephew Jason, or great

niece Miranda Jones is not to be allowed at the hospital or my funeral. I will

have visitation and memorial-at the place of her choosing. I request cremation

with Annette to decide what she wants to do with the ashes.

The document includes the purported signature of the Decedent and the signatures of three

witnesses: Jennie Townsend, Cindy Copeland, and Zach Oyebi. The document also included

a handwritten notary oath and notary stamp by notary public David N. Spencer for the

signature of the Decedent and each witness. The oaths stated that the Decedent and the three

witnesses executed the document at issue in Spencer’s presence on December 31, 2010.

In response, Sister challenged the validity of the purported will. Sister asserted that Ex-Wife

was living in the Decedent’s residence and had in her possession undisclosed assets that

rightly belonged to the Decedent’s estate. Sister asked the trial court to enjoin Ex-Wife from

dissipating or removing any property owned by the estate. The trial court issued the

requested injunction and discovery ensued.

In November 2012, Sister filed a complaint in the trial court to contest the purported will.

The complaint alleged that the purported will was “fraudulently procured and/or conjured up

by [Ex-Wife]” and that Sister had “reason to believe that the purported will’s named

witnesses did not in fact witness the signing of the purported will.” The complaint stated that

Ex-Wife “must provide all living witnesses as proof of the validity of a contested will

pursuant to T.C.A. § 32-2-104,” and asked the trial court to hold that the purported will is

invalid and was procured by fraud. Ex-Wife denied Sister’s “outrageous accusation.”

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The appellate record indicates that Ex-Wife issued subpoenas for notary public David

Spencer and witnesses Cindy Copeland and Jennie Townsend. The appellate record does not

include a subpoena for witness Zach Oyebi.

On December 18, 2012, the trial court held a hearing on Ex-Wife’s “Motion to Set Aside

Injunction Probate” as well as Sister’s complaint contesting the alleged will. The record does

not contain a transcript of the hearing, but the trial court approved a statement of the

evidence.

According to the statement of the evidence, at the hearing, witness Jennie Townsend testified

that she was present on December 31, 2010, and that she witnessed the Decedent sign his last

will and testament. Townsend said that the Decedent was aware that he was signing his will

and wanted those present to know that he wanted his estate to go to Ex-Wife and not to

Sister. Townsend also testified that notary Spencer and witnesses Cindy Copeland and Zach

Oyebi were also present. Townsend saw Copeland and Oyebi sign the document as witnesses.

Witness Cindy Copeland testified that she was a former employee of the Decedent.

Copeland could not remember the order of the signatures but said that the Decedent was fully

aware that the document he was signing was his will. Copeland recalled that the will she

signed was handwritten rather than typed, but nevertheless she acknowledged her signature

on the typed document at issue.

Notary public Spencer testified as well. Spencer also testified that the Decedent was aware

that the document was his will. Spencer recalled that the Decedent signed the will first,

followed by witnesses Townsend and Copeland. Spencer explained he added the notary

acknowledgments by hand. The statement of the evidence contained no indication that

Spencer testified about witness Oyebi.

After this testimony, the proponent of the will rested.1

Sister then testified. Sister said that she did not believe that the document was the will of the

Decedent because the Decedent was an educated perfectionist who always used a lawyer.

Sister testified that the purported signature of the Decedent on the document was “not his.”

Sister also submitted the testimony of the Decedent’s niece. The niece produced several

documents showing the difference between the Decedent’s signature on the documents and

the signature on the purported will that was allegedly the Decedent’s signature. The

documents produced by the niece were admitted into evidence.

1

At the conclusion of Ex-Wife’s proof, the trial court denied Sister’s motion to dismiss.

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On rebuttal, Ex-Wife acknowledged that she and the Decedent were divorced. She claimed,

however, that they had reconciled and that in December 2010 they were living together. She

identified the signature on the will as that of the Decedent. She claimed as well that the

Decedent told her that he had written a will and that he gave her a copy of it.

The trial court took the matter under advisement and then sent a letter ruling to the parties.

The trial court’s letter ruling noted that the testimony of Townsend, Copeland and Spencer

was consistent that they witnessed the Decedent sign the document and that they saw each

other sign the document as well. The excerpt of the letter ruling contained in the statement

of the evidence did not mention witness Oyebi. The statement of the evidence noted that the

proof was undisputed that the Decedent and Ex-Wife were living together in December

2010. Consequently, the trial court observed, “there is some logic and reason as to why the

ex-wife is the sole beneficiary of Dr. Woolverton’s estate.” For these reasons, the trial court

concluded that, though not artfully drafted, the purported document met the statutory

requirements contained in Tennessee Code Annotated § 32-1-104, is the valid will of the

Decedent, and that it should be probated.

In January 2013, the trial court entered its Decree, reiterating the trial court’s conclusion that

the statutory requirements for a valid will had been met and that the Decedent’s will should

be probated. The Decree states in its entirety:

This matter came [] to be heard on December 18, 2012, before the Honorable

W. Michael Maloan, Chancellor, upon the testimony of witnesses who saw the

decedent sign Dennis Woolverton’s will in their presence and in the presence

of each other and though said will may not be artfully drawn, it meets the

statutory requirements of Tennessee Code Annotated Section 3[2]-1-104 2 and

said will shall be probated as the Last Will and Testament of Dennis R.

Woolverton, all of which is so ORDERED, ADJUDGED AND DECREED.

Sister now appeals.

2

In its decree, the trial court inadvertently cited Tennessee Code Annotated § 31-1-104 rather than Tennessee

Code Annotated § 32-1-104.

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I SSUE ON A PPEAL AND S TANDARD OF R EVIEW

On appeal, Sister raises the following issue: whether proponent of the will met the burden

of proof for admission of the document into probate as the Decedent’s last will and

testament.

In considering this issue, we review the trial court’s findings of fact de novo with a

presumption of correctness, unless the evidence in the record preponderates otherwise. Tenn.

R. App. P. 13(d); In the Estate of Blackburn, 253 S.W.3d 603, 612 (Tenn. Ct. App. 2007);

Lee v. Gilliam (In re Estate of Meade), 156 S.W.3d 841, 843 (Tenn. Ct. App. 2004); see

also In re Estate of Eden, 99 S.W.3d 82, 87 (Tenn. Ct. App. 1995). Questions of law are

reviewed de novo, according no presumption of correctness to the trial court’s conclusions

of law. In re Estate of Chastain, 401 S.W.3d 612, 618 (Tenn. 2012) (citing In re Estate of

McFarland, 167 S.W.3d 299, 302 (Tenn. 2005); In re Estate of Stringfield, 283 S.W.3d 832,

834 (Tenn. Ct. App. 2008)); see also In re Estate of Pegram v. Pegram, 189 S.W.3d 227,

230 (Tenn. Ct. App. 2005).

A NALYSIS

In general, in a will contest, the ultimate issue is whether the paper writing offered for

probate is the testator’s valid last will and testament. In re Estate of Eden, 99 S.W.3d at 87

(citing Green v. Higdon, 891 S.W.2d 220, 222 (Tenn. Ct. App. 1994); Carver v. Anthony,

35 Tenn. App. 306, 312-13, 245 S.W.2d 422, 425 (Tenn. Ct. App. 1951)). In the proceedings

below, Sister asserted that the document at issue was not the Decedent’s validly executed

will.3

To demonstrate that a paper writing is the decedent’s valid last will and testament, “the

proponents of the will have the initial burden of proving that the will was duly executed.” In

re Estate of Eden, 99 S.W.3d at 88. “This may be accomplished using the testimony of

living witnesses and by showing that the will complies with all formalities of law.” Id. (citing

In re Estate of King, 760 S.W.2d 208, 210 (Tenn. 1988)). “Tennessee courts have

consistently interpreted statutes prescribing the formalities for execution of an attested will

as mandatory and have required strict compliance with these statutory mandates.” In re

3

Sister also asked the trial court to declare the purported will void because it was fraudulently procured based

on allegations that it was “conjured up” by Ex-wife and that the named witnesses did not in fact sign the

purported will. In its final order admitting the will to probate, the trial court found, based “upon the

testimony of witnesses who saw decedent sign Dennis Woolverton’s will in their presence in the presence

of each other,” that the statutory requirements of Section 32-1-104 were met. Sister has not raised an issue

on appeal regarding fraud.

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Estate of Chastain, 401 S.W.3d 612, 619 (Tenn. 2012). “Proof of due execution makes out

a prima facie case of the will’s validity because it gives rise to a presumption that the testator

was capable of making a will.” In re Estate of Eden, 99 S.W.3d at 88 (citing Curry v.

Bridges, 45 Tenn. App. 395, 407, 325 S.W.2d 87, 92 (Tenn. Ct. App. 1959); Needham v.

Doyle, 39 Tenn. App. 597, 622; 286 S.W.2d 601, 612 (Tenn. Ct. App. 1955)). Once the

proponent of the will shows due execution, “the burden of proof then shifts to the contestant

to prove the will is invalid for some reason.” Id. (citing Green v. Higdon, 870 S.W.2d at

520; Taliaferro v. Green, 622 S.W.2d 829, 835 (Tenn. Ct. App. 1981)).

On appeal, Sister argues that Ex-Wife did not make out a prima facie case for admission of

the will into probate because she did not meet the requirements set forth in Tennessee Code

Annotated §§ 32-2-104 and 32-4-105. Specifically, Sister argues that Ex-Wife fell short of

the statutory burden of proof because she failed to either proffer the testimony of witness

Oyebi in the trial court proceedings or show that Oyebi was not to be found. Section 32-2-

104(a) states as follows:

Written wills with witnesses, when not contested, shall be proved by at least

one of the subscribing witnesses, if living. Every last will and testament,

written or nuncupative, when contested, shall be proved by all the living

witnesses, if to be found, and by such other persons as may be produced to

support it.

Tenn. Code Ann. § 32-2-104 (2013)(emphasis added). Tennessee Code Annotated § 32-4-

105 uses similar language in describing the proof for the proponent of the will in a will

contest:

Upon the trial of the issue in case of a written will with witnesses, it shall be

proved by all the living witnesses, if to be found, and by such other persons as

may be produced to support it.

Tenn. Code Ann. § 32-4-105 (2013)(emphasis added). Tennessee courts have viewed this

as a requirement in a will contest: “It is mandatory for all attesting witnesses to a will, if they

are found, as provided by statute, and available for testimony . . . to be produced by

proponents in all cases contesting the validity of wills.” Swindoll v. Jones, 292 S.W.2d 531,

541 (Tenn. Ct. App. 1954); see also In re Estate of Boye, No. E2006-01441-COA-R3-CV,

2007 WL 3124424, at *2 (Tenn. Ct. App. Oct. 26, 2007) (“At the hearing, the proponent of

the will must produce, for examination, all living witnesses who attested to its execution.”)

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(citing In re Estate of King, 760 S.W.2d 208, 210 (Tenn. 1988)). The determination of

whether the proponent of the will has complied with the statutory requirements is made by

the trial court, not the jury. Swindoll, 292 S.W.2d at 541 (“There is no issue to be

determined by the jury in will contests until the law with respect to production of such

witnesses has been complied with.”). “[I]t is the function of the Trial Judge to determine

whether a witness is available or can be found.” Lyman v. American National Bank &

Trust Company, 346 S.W.2d 289, 333 (Tenn. Ct. App. 1960) (testimony of two of the three

witnesses to the will was sufficient where proponent of will sent letter to third witness, with

no response, and searched unsuccessfully for third witness). On appeal, the trial court’s

decision on whether a subscribing witness is available or “to be found” is reviewed under an

abuse of discretion standard. Swindoll, 292 S.W.2d at 541.

In the case at bar, the third subscribing witness, Oyebi, apparently did not testify, and the trial

court made no finding as to whether Oyebi was available or “to be found.” The statement

of the evidence does not recite any proof as to why Oyebi did not testify, nor any finding as

to his availability. The trial court’s order simply holds that the document “meets the statutory

requirements of Tennessee Code Annotated Section 3[2]-1-104 4 and said will shall be

probated.” The order contains no findings of fact or conclusions of law as to witness Oyebi.

We recognize that, in Tennessee, the execution of a will requires only two witnesses. Tenn.

Code Ann. § 32-1-104. Nonetheless, Sections 32-2-104(a) and 32-4-105 appear to require

either the testimony of all living witnesses to the will or a finding that a living witness whose

testimony is not proffered is not “to be found,” without regard to whether the proponent of

the will has already proffered the testimony of two witnesses. Tenn. Code Ann. §§ 32-2-

104(a) and 32-4-105. “Courts presume that every word in a statute has meaning and purpose

and that these words ‘should be given full effect if the obvious intention of the General

Assembly is not violated by so doing.’ ” Johnson v. Hopkins, --- S.W.3d ----, 2013 WL

6699490, at *6 (Tenn. Dec. 19, 2013) (quoting Lind v. Beaman Dodge, Inc., 356 S.W.3d

889, 895 (Tenn. 2011)). Words in a statute “must be given their natural and ordinary

meaning in the context in which they appear and in light of the statute’s general purpose.”

Mills v. Fulmarque, Inc., 360 S.W.3d 362, 368 (Tenn. 2012). Moreover, courts “must be

circumspect about adding words to a statute that the General Assembly did not place there.”

Coleman v. State, 341 S.W.3d 221, 241 (Tenn. 2011). Therefore, we must interpret the

statute to require the proponent of the will in a will contest to either submit the testimony of

all living witnesses to the alleged will or show that a living witness whose testimony is not

4

As noted above, the trial court inadvertently cited Tennessee Code Annotated § 31-1-104 rather than

Tennessee Code Annotated § 32-1-104.

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proffered is not “to be found.” Accordingly, in the instant case, even though Ex-Wife

submitted the testimony of two of the three subscribing witnesses to the purported will, if Ex-

Wife failed to proffer the testimony of witness Oyebi, she was required to show that Oyebi

was not “to be found.”

In a bench trial, Rule 52.01 of the Tennessee Rules of Civil Procedure requires trial courts

to issue findings of fact and conclusions of law:

In all actions tried upon the facts without a jury, the court shall find the facts

specially and shall state separately its conclusions of law and direct the entry

of the appropriate judgment. The findings of a master, to the extent that the

court adopts them, shall be considered as the findings of the court. If an

opinion or memorandum of decision is filed, it will be sufficient if the findings

of fact and conclusions of law appear therein.

Tenn. R. Civ. P. 52.01 (2013). The legislature’s decision to require findings of fact and

conclusions of law is “not a mere technicality.”5 Paul v. Watson, No. W2011-00687-COA-

R3-CV, 2012 WL 344705, at *5; 2012 Tenn. App. LEXIS 65, at *15 (Tenn. Ct. App. Feb.

2, 2012) (citing In re K.H., No. W2008-01144-COA-R3-PT, 2009 WL 1362314, at *8; 2009

Tenn. App. LEXIS 225, at *22-23 (Tenn. Ct. App. May 15, 2009)). The requirement serves

the important purpose of “facilitat[ing] appellate review and promot[ing] the just and speedy

resolution of appeals.” Paul, 2012 WL 344705, at *5; 2012 Tenn. App. LEXIS 65, at *15

(quoting In re K.H., 2009 WL 1362314, at *8; 2009 Tenn. App. LEXIS 225, at *21-22)

(citing White v. Moody, 171 S.W.3d 187, 191 (Tenn. Ct. App. 2004); Bruce v. Bruce, 801

S.W.2d 102, 104 (Tenn. Ct. App. 1990)). “Without such findings and conclusions, this

[C]ourt is left to wonder on what basis the court reached its ultimate decision.” Paul, 2012

WL 344705, at *5; 2012 Tenn. App. LEXIS 65, at *15; In re K.H., 2009 WL 1362314, at

*8; 2009 Tenn. App. LEXIS 225, at *22 (quoting In re M.E.W., No.

M2003-01739-COA-R3-PT, 2004 WL 865840, at *19; 2004 Tenn. App. LEXIS 250, at *58

(Tenn. Ct. App. Apr. 21, 2004)).

5

Prior to July 1, 2009, trial courts were required to make such findings of fact and conclusions of law only

“upon request made by any party prior to the entry of judgment.” Tenn. R. Civ. P. 52.01 (2008); Poole v.

Union Planters Bank N.A., 337 S.W.3d 771, 791 n.12 (Tenn. Ct. App. 2010) (noting the amendment). As

amended, Rule 52.01 requires findings of fact and conclusions of law even if no party requests them. Tenn.

R. Civ. P. 52.01 (2013); Poole, 337 S.W.3d at 791 n. 12.

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Because witness Oyebi apparently did not testify at the hearing on the will contest, in the

absence of a finding by the trial court on whether witness Oyebi was “to be found” in the

proceedings below, we are unable to determine whether the requirements of Sections 32-2-

104 and 32-4-105 were met. As such, we are unable to effectively review the trial court’s

decision. Under these circumstances, we have little choice but to vacate the trial court’s

decision and remand the case for findings of fact and conclusions of law pursuant to Rule

52.01 of the Tennessee Rules of Civil Procedure. On remand, the trial court may, in its

discretion, permit further evidence or reconsider its decision to admit the document into

probate as the Decedent’s last will and testament.

C ONCLUSION

The decision of the trial court is vacated and the cause is remanded for further proceedings

consistent with this Opinion. Costs on appeal are assessed one-half against Appellee Rosie

Annette Woolverton and one-half against Appellant Pamela Jo Woolverton Jones, and her

surety, for which execution may issue if necessary.

___________________________

HOLLY M. KIRBY, JUDGE

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