Appendix — Kanoivicki v. Green
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Supteme Court, U.S.
FILED
: | APR 26 96
CASE NUMBER 94-1585, si
SUPREME COURT OF THE UNITED: STADE! OF THE CLE
!
OCTOBER TERM, 1994 |
t
’
LEON KANOIVICKI and *
MAURICIO KANOIVICKI,
Petitioners,
Vv.
BETTYE JEAN GREEN, et al.,
Respondents.
APPENDIX TO BRIEF IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF TENNESSEE
George E. Barrett
BARRETT, JOHNSTON & PARSLEY
217 Second Avenue North
Nashville, Tennessee 37201
(615) 244-2202
Counsel of Record for
Respondents
William L. Harbison
L. Webb Campbell II
Elizabeth B. Thompson
SHERRARD & ROE, P.L.C.
424 Church Street
Nashville, Tennessee 37219
(615) 742-4200
H. Thomas Parsons
PARSONS & NICHOLS
104 West Main Street
Manchester, Tennessee 37355
(615) 728-1316
INDEX TO APPENDIX
June 1, 1992 Order of Coffee
County Circuit Court granting
summary judgment against the
Main Street Church of Christ .. Al
December 6, 1993 Order of
Tennessee Supreme Court denying
applications of Carolyn Higdon
and Main Street Church of Christ
for permission to appeal ... . AS5
February 14, 1994 Order of
Tennessee Supreme Court denying
motion to intervene and
"petition to rehear" filed by
Kanoivickis of denial of
applications of Carolyn Higdon
and Main Street Church of Christ
for permission to appeal .... Aé6
Respondents’ Notice of Contest,
Coffee County Chancery Court .. A8
Carolyn Higdon’s Notice of
Contest, Coffee County Chancery
Court All
Certificate of Contest, Coffee
Coumty Cireulé Gomet . . . » . Al3
Main Street Church of Christ’s
Bond of Will Contestant and
Beneficiary, Coffee County
Chancery Court tas es a ae Als
Document filed by Kanoivickis in
Coffee County Chancery Court on
Peay &, 20ee 6 68 8 6 es A21
10.
11.
aa.
13.
14.
LS.
16.
Respondents’ Brief in Support of
Motion for Summary Judgment,
Coffee County Circuit Court . A27
Response of Carolyn Higdon to
Motion for Summary Judgment,
Coffee County Circuit Court . A80
Main Street Church of Christ’s
Response to Motion for Summary
Judgment, Coffee County Circuit
Court 6 aes ae ee See a ae ae
Main Street Church of Christ’s
Motion to Alter, Amend and Set
Aside, Coffee County Circuit
Court eae ee ee ee eae
Respondents’ Memorandum in
Opposition to Motion to Alter,
Amend and Set Aside, Coffee
County Cirewst Cowst .... . AiZs
Motion to Intervene in Appeal of
Carolyn Higdon and Main Street
Church of Christ, filed by
Kanoivickis in Tennessee Supreme
Court on December 7, 1993 .. A145
"Petition to Rehear" denial of
applications of Carolyn Higdon
and Main Street Church of Christ
for permission to appeal, filed
by Kanoivickis in Tennessee
Supreme Court on December 12,
Sune & & 6 2 Sew eS ee Se, ee
Kanoivickis’ "Answer and
Statement of Contest," Coffee
County Circuit Court : 2 <6 + ae
a?
18.
13.
20.
21.
a2.
Kanoivickis’ Response in
Opposition to respondents’
filings opposing "Answer and
Statement of Contest," Coffee
County Circuit Court
Kanoivickis’ Brief in Tennessee
Court of Appeals
Kanoivickis’ Application for
Permission to Appeal to
Tennessee Supreme Court
Kanoivickis’ Petition to Rehear
to Tennessee Supreme Court
Basden v. Lawson, 1992 W.L.
332089 (Tenn. 1992) Lites
i ain
P rshi a,, 1992 W.L.
387342 (Tenn. Ct. App. 1992)
A179
A211
A274
A296
A303
A320
IN THE CIRCUIT COURT
FOR THE FOURTEENTH JUDICIAL DISTRICT
OF TENNESSEE, AT MANCHESTER,
PART II
NO. 24,954
BETTYE JEAN GREEN, MARTIN KING,
DEBORAH LAPIDUS FISHER,
LISA LAPIDUS COHEN and BARRY LAPIDUS,
Plaintiffs-Proponents,
Vs.
CAROLYN HIGDON,
Defendant-Contestant,
AND
CAROLYN HIGDON,
Plaintiff-Proponent,
Vs.
BETTYE JEAN GREEN, MARTIN KING,
DEBORAH LAPIDUS FISHER,
LISA LAPIDUS COHEN and BARRY LAPIDUS,
Defendants-Contestants.
ORDER
In this cause the pleadings reflect
that with the exception of the Main
Al
Street Church of Christ no other
beneficiary made an appearance after
being duly served with the Summary
Judgment Motion of the proponents of the
Dave King Wills dated January 18, 1985
and April 8, 1985. The pleadings filed
by the Main Street Church of Christ by
their counsel in response to the Motion
for Summary Judgment rely on the proof
tendered by the proponent of the
holographic will, Carolyn Higdon. No
additional proof has been tendered at any
Stage of this proceeding by the Main
Street Church of Christ in any form
whether affidavits, deposition or sworn
testimony and counsel for Main Street
Church of Christ stated in open Court
that it was the church’s position that
the holograph will was valid and relied
upon the proof introduced by Carolyn
Higdon, defendant-contestant.
A2
Taking the entire record introduced
by the proponent of the holographic will,
Carolyn Higdon, and viewed by the Court
from the standpoint of being introduced
on behalf of the potential beneficiary,
Main Street Church of Christ, the proof
appears to be insufficient to present the
issue to a jury. The record from prior
hearings in federal proceedings is clear
that the January 18, 1985 and April 8,
1985 wills were executed after the
holographic will and there is no proof to
the contrary in the present proceeding
and no proof that David King lacked
testamentary capacity at least at the
time the January 18, 1985 will was
executed. The Court is of the opinion
that this is a fact question and the
Court finds that no proof has been
presented by the Main Street Church of
Christ that would support its position
A3
that the holographic will was the Last
Will and Testament of Dave King and
therefore the Court respectfully rules
there is no issue to present to a jury.
The Motion for Summary Judgment
filed on behalf of Plaintiff/Proponents,
Betty Jean Green et al is sustained as to
the Main Street Church of Christ.
IT IS SO ORDERED.
ENTER this the _lst. day of _June ,
1992.
s/John W. Rollins
CIRCUIT JUDGE
A4
IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
COFFEE CIRCUIT
NO. 01-A-01-9209-CV-00369
BETTYE JEAN GREEN, MARTIN KING,
DEBORAH LAPIDUS FISHER,
LISA LAPIDUS COHEN and BARRY LAPIDUS,
Plaintiffs-Proponents,
vs.
CAROLYN HIGDON and THE MAIN
STREET CHURCH OF CHRIST,
Defendants-Appellants.
ORDER
Upon consideration of the
applications for permission to appeal and
the entire record in this cause, the
Court is of the opinion that the both
applications should be denied.
PER CURIAM
A5
es
IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
COFFEE CIRCUIT
NO. 01A01-9209-CV-00369
BETTYE JEAN GREEN, MARTIN KING,
DEBORAH LAPIDUS FISHER,
LISA LAPIDUS COHEN and BARRY LAPIDUS,
Plaintiffs-Proponents,
Vs.
CAROLYN HIGDON and THE MAIN
STREET CHURCH OF CHRIST,
Defendants-Appellants.
ORDER _ON PETITIONS TO INTERVENE
AND TO REHEAR
On 6 December 1993 this Court denied
T.R.A.P. applications submitted by the
two (2) defendants.
On 7 December 1993, two (2) non-
parties, Leon Kanoivicki and Mauricio
Kanoivicki, filed a motion to intervene.
A6
On 12 December 1993 the same non-
parties filed a petition to rehear denial
of the T.R.A.P. 11 applications.
Upon consideration the Court
concludes that the Motion to intervene
was untimely and therefore must be
denied.
There is no provision in the Rules
of Appellate Procedure for rehearing of
denial of a T.R.A.P. 11 application for
permission to appeal, therefore the
petition to rehear must be denied.
Enter this 14th day of February,
1994.
PER CURIAM
A7
IN THE CHANCERY COURT FOR
COFFEE COUNTY, TENNESSEE
PROBATE DIVISION
NO. 90-87
IN RE:
ESTATE OF DAVE KING,
Deceased.
NOTICE OF N T
The undersigned counsel for Martin
King, Betty Jean Green, Deborah Lapidus
Fisher, Lisa Lapidus Cohen, and Barry
Lapidus ("King Petitioners"), hereby give
notice that they contest the. validity of
the undated document, submitted on behalf
of Carolyn Higdon in this matter, as the
last will of Dave King. These
contestants submit that they have filed
Simultaneously herewith a Petition for
Probate in Solemn Form, containing the
document or documents which are the last
will of David King, deceased, and that
A8
these proceedings should be consolidated
with the Petitioners’ Petition for
Probate in Solemn Form so that the entire
matter can be certified to the Circuit
Court for a will contest, in accordance
with T.C.A. §§32-4-101 et seq.
Petitioners will designate the issues in
the will contest proceedings at the
appropriate time or as directed by the
Court.
Contestants request that the Court
enter an order in this cause holding that
the purported order entered by the Clerk
& Master in this matter is null and void
and of no effect, and that the grant of
letters testamentary to Carolyn Higdon is
also null and void and of no effect, all
pursuant to T.C.A. §16-16-201(b).
AS
GEORGE E. BARRETT, P.C.
By:
s/Georoe E. Barrett
George E. Barrett
217 Second Avenue North
P.O. Box 2846
Nashville, Tennessee
37219
(615) 244-2202
O’ HARE, SHERRARD & ROE
By:
100 N.
2930.
s/William L. Harbison
William L. Harbison
L. Webb Campbell II
424 Church Street
Suite 2000
Nashville, Tennessee
37219
(615) 742-4200
Attorneys for Betty
Jean Green, Martin
King, Deborah Lapidus
Fisher, Lisa Lapidus
Cohen and Barry Lapidus
CERTIFICATE OF SERVICE
I hereby certify that a copy of the
foregoing Notice has been hand delivered
to J. Stanley Rogers, ROGERS &
RICHARDSON,
Manchester, Tennessee 37355, this 7th day
of December,
Spring Street,
s/William L. Harbison
William
L. Harbison
A10
IN THE CHANCERY COURT OF
COFFEE COUNTY, TENNESSEE,
AT MANCHESTER
NOS. 90-87 and 90-88
IN RE:
ESTATE OF DAVE KING,
Deceased.
NOTI OF CONTEST
The undersigned, counsel for CAROLYN
HIGDON, hereby give notice that she
contests the validity of che instruments
dated January 18, 1985, and April 8,
1985, purporting to be the Last Will and
Testamen_s of DAVE KING, deceased.
Petitioner will designate the issues of
devisavit vel non at the appropriate
time.
Respectfully submitted this 17
day of January, 1995.
All
ROGERS, RICHARDSON & DUNCAN
BY: s/J. Stanley Rogers
J. Stanley Rogers
BY: s/Doyle E. Richardson
Doyle E. Richardson
Attorneys for CAROLYN
HIGDON
100 North Spring Street
Manchester, TN 37355
(615) 728-0820
CERTIFICATE OF SERVICE
I hereby certify that a copy of the
foregoing has been served upon counsel
for all parties at interest in this cause
by delivering a true and exact copy of
Said pleading to the offices of said
counsel or by placing a true and exact
copy of said pleading in the United
States Mail, addressed to Said counsel at
his office with sufficient postage
thereon to Carry the same to its
destination, as follows:
George E. Barrett, Esq.
P.O. Box 2846
Nashville, TN 37219
William L. Harbison, Esq.
O’Hare, Sherrard & Roe
424 Church Street, Suite 2000
Nashville, TN 37219
James H. Henry, II, Esq.
Henry & McCord
P.O. Box 538
Tullahoma, TN 37388
Al2
IN THE CHANCERY COURT
OF COFFEE COUNTY, TENNESSEE
AT MANCHESTER
NOS. 90-87 AND 90-88
IN RE:
ESTATE OF DAVE KING,
Deceased.
CERTIFICATE OF CONTEST
BETTYE JEAN GREEN, MARTIN KING,
CEBORAH LAPIDUS FISHER, LISA LAPIDUS
COHEN, AND BARRY LAPIDUS (the
"Contestants"), having filed their
petition in this Court showing that they
are the heirs of DAVE KING, deceased, the
praying that they be allowed to contest
the validity of the paper writing
admitted to probate on January 17, 1991,
as the Last Will and Testament of DAVID
KING and that they be allowed to submit
two instruments dated January 18, 1985,
Al3
and April 8, 1985, for probate, the
Originals of which were tendered to the
Court on January 17, 1991; and process
having been issued and served on CAROLYN
HIGDON, beneficiary and the person named
Executor in said Will; and LEON
KANOIVICKI and MAURICIO KANOIVICKI,
LESLIE RODES, MAIN STREET CHURCH OF
CHRIST, HATTIE BILES, FREEMAN MACON, THE
JEWISH SYNAGOGUE, HARRY B. GILLEY, and
the legatees and devisees under said
instrument, before the hearing date of
January 17, 1991, and the said CAROLYN
HIGDON having filed Notice of Contest ;
and the said contestants having given
bond in the penalty of $500 per
contestant, payable to the said CAROLYN
HIGDON and conditioned as required by
law; and the said aforementioned devisees
and legatees having appeared and given a
Similar bond payable to the contestants;
Al4
iil
IT IS ORDERED by the Court that the Clerk
make out and certify a complete
transcript of the record and proceedings
in this Court, and transmic the same
together with the three instruments: (1)
holographic instrument, (2) instrument
dated January 18, 1985, and (3)
instrument dated April 8, 1985, submitted
for probate as the Will of DAVID KING,
deceased, as aforesaid, and the
prosecution bonds entered into by the
parties to the Circuit Court of Coffee
County.
ENTER this the 17th day of January ,
43992.
s/John W. Rollins
JUDGE holding the Chancery
Court of Coffee County,
Tennessee
A15
APPROVED FOR ENTRY:
s/George E. Barrett
GEORGE E. BARRETT
P. O. Box 2846
Nashville, TN 37219
O’ HARE, SHERRARD & ROE
BY:__s/William L. Harbison
William L. Harbison
424 Church Street,
Suite 2000
Nashville, TN 37219
Attorneys for Betty Jean
Green, Martin King,
Deborah Lapidus Fisher,
Lisa Lapidus Cohen, and
Barry Lapidus
ROGERS, RICHARDSON &
DUNCAN
BY: — Ss
J. Stanley Rogers
BY:_s/Doyle E. Richardson
Doyle E. Richardson
100 North Spring
Street
Manchester, TN 37355
Attorneys for Carolyn
Higdon
Al6
HENRY & McCORD
BY: s/James H. Henry II
James H. Henry
P. O. Box 538
Tullahoma, TN 37388
Administrator
Pendente Lite
s/Robert L. Huskey
ROBERT L. HUSKEY
yr. &.. Bee VII
Manchester, TN 37355
Attorney for Main Street
Church of Christ
A17
IN THE CHANCERY COURT OF
COFFEE COUNTY, TENNESSEE,
NOS. 90-87 and 90-88
IN RE:
ESTATE OF DAVE KING,
Deceased.
BOND OF WILL CONTESTANT
AND_ BENEFICIARY
WHEREFORE, three Wills in the
subject case have been submitted for
probate, one being a holographic
instrument and undated, the second being
dated January 18, 1985 and the third
dated April 8, 1985; and wherefore, each
of these Wills have been contested by
some interested party thereto and the
issues join for submission to Circuit
Court as a Will contest; and whereas the
Main Street Church of Christ is named as
a beneficiary in the April 8, 1985 Will
Als
and in the holographic Will, but in
differing amounts and is unnamed as a
beneficiary in the January 18, 1985 will
and since contest has been raised by some
party to each of these Wills, the Main
Street Church of Christ joins issue in
the proceedings in regard to each of
these Wills and submits its bond herewith
in the statutory amount of $500.00 as a
beneficiary under the holographic Will,
aS a contestant under the January 18,
1985 Will and as a beneficiary and
contestant under the April 8, 1985 Will.
Pursuant thereto, we, the Main
Street Church of Christ, principle and
Robert L. Huskey, surety, acknowledge
ourselves indebted and bound unto such
other parties to this Will contest as the
Court would deem appropriate under the
facts of this case in regard to each of
these three Wills to the degree that same
Alg
is necessary and appropriate according to
the Court to pay any and all costs which
the Court should deem appropriate that
the Main Street Church of Christ should
pay stemming from this action; and upon
compliance with any such order of the
Court, this obligation shall be void.
This the _—s day’: of February,
i991.
MAIN STREET CHURCH OF CHRIST
BY: s/Robert L. Huskey
Attorney
ROBERT L. HUSKEY
s/Robert L. Huskey
SURETY
A20
ee
To:
GEORGE E. BARRET
WILLIAM L. HARBISON
217 2ND Av. N.
P.O. Box 3846
Nashville, TN 37219
LEON KANOIVICKI, with Argentinian
identification number 10,809.096 with
permanent residence at Dean Funes, 2910
Cérdoba Argentina y MAURICIO KANOIVICKI
with identification number 6,505,696 with
permanent residence at the above, both
with respect to the inheritance of David
King respectfully wish to declare:
T) That by telephone we have been
informed of the death of our uncle, Mr.
David King which occurred in the United
States of America as well as the pending
legal proceedings in said Court of the
inheritance of the aforementioned.
II) That we have also been notified
of the hearing by said Court on the 17th
of January of 1991 and we have received
A21
copies of diverse documents in English
that explain the proceedings related to
the inheritance of David King. We
challenge such notification because they
were not in Spanish, nor were they
validated by proper legal authorities.
Such failure to notify us with the
documents translated into Spanish has
impeded us from exercising proper rights
of defense.
III) We want also to emphasize that
the short time until the 17th of January
of 1991, when the hearing will be held,
leaves it materially impossible for the
above mentioned to attend. We also must
point out that we are not in fiscal
conditions to acquire the passage, take
Out a passport, obtain visas and to
contract with professional counsel, etc.
in the little time before the 17th of
next year.
The County Court must give merit to
the great amount of time needed to travel
from Argentina to the U.S.A. for such
purpose.
To this end, based on what we have
said and the right of defense, we request
that the heariny set for the 17th of
January of 1991 be suspended and that a
new date be set not before the 30th of
March of 1991. With this petition, we,
the undersigned, request that the County
court weighs the material and time
considerations needed for travel
arrangements to the U.S.A. and in such
[ ] allow adequate access to the legal
proceedings pertaining to David King’s
inheritance and permit us to hire the
services of legal counsel to defend our
interest in said inheritance.
IV) Keeping in mind that we have
received word of the slow deterioration
A23
of David King’s mental health for many
years, and given that three wills have
been presented to said Court, we
challenge said wills as much regarding
their content as well as their form, and
emphasize, that before deciding which
testament is valid, it will be necessary
for the Court to establish whether David
King had use of his full mental faculties
and whether he was capable of declaring a
final will and testament.
The motive for this request is based
on contacts with relatives which
Suggested that David King was lacking in
his mental health which could have
impeded his ability to write a will.
Were this proven the Court could not
accept any of the wills.
This demands numerous expert and
scientific investigations and tests to
concretely determine what was the mental
A24
Capacity of King at the time of the
writing of the final testaments in
question, which are being challenged.
V) Keeping in mind that to this date
we have not received legal copies duly
translated into Spanish and made legal
through proper Argentine authorities, we
request that the legal proceedings be
suspended until we have legal notice of
said proceedings. We reserve the right
to present exceptions, defense, offering
of additional evidence, challenges, etc.
which are necessary to protect our
rights. Reiterating that any legal
document must be sent to the above
mentioned address in Argentina.
VI) We wish it to be known that
this text has been sent to George E.
Barret, William L. Harbisson and Rogers
and Richards (all lawyers in this case),
as well as to respective cousins of the
A25
undersigned that also could claim right
of inheritance by their relation as
nephews and nieces to David King.
We request that this petition be
honored by the Court in the name of
Justice.
LEON KANOIVICKI MAURICIO KANOVICKI
A26
IN THE CIRCUIT COURT FOR THE FOURTEENTH
JUDICIAL DISTRICT
AT MANCHESTER, TENNESSEE
NO. 24,954
BETTYE JEAN GREEN, MARTIN KING,
DEBORAH LAPIDUS FISHER,
LISA LAPIDUS COHEN, and BARRY LAPIDUS,
Plaintiffs-Proponents,
Vs.
CAROLYN HIGDON,
Defendant-Contestant,
AND
CAROLYN HIGDON,
Plaintiff-Proponent,
Vs.
BETTYE JEAN GREEN, MARTIN KING,
DEBORAH LAPIDUS FISHER,
LISA LAPIDUS COHEN, and BARRY LAPIDUS,
Defendants-Contestants.
BRIEF OF THE KING PETITIONERS
IN SUPPORT OF THEIR MOTION FOR
SUMMARY JUDGMENT
A27
BARRETT, JOHNSTON &
PARSLEY
George E. Barrett
217 Second Avenue North
Nashville, Tennessee 37219
(615) 244-2202
SHERRARD & ROE
William L. Harbison
L. Webb Campbell II
424 Church Street,
Suite 2000
Nashville, Tennessee 37219
(615) 742-4200
PARSONS & NICHOLS
H. Thomas Parsons
104 West Main Street
Manchester, Tennessee
37355
(615) 728-1316
Attorneys for the King
Petitioners
ORAL ARGUMENT IS REQUESTED
A28
TABLE OF AUTHORITIES
(Table of Authorities has been Omitted]
A29
ZI. INTRODUCTION AND STATEMENT OF THE
CASE
In this will contest proceeding,
three wills have been propounded as the
last will of David King. Bettye Jean
Green, Martin King, Deborah Lapidus
Fisher, Lisa Lapidus Cohen, and Barry
Lapidus (the "King Petitioners"), have
propounded two wills dated January 18,
1985 and April 8, 1985. In addition,
Carolyn Higdon has propounded an undated
handwritten document (the "Handwritten
Document") as the last will of David
King.
In the answer to the complaint filed
by the King Petitioners, Carolyn Higdon
admits that the two wills propounded by
the King Petitioners were duly executed
by Mr. King. However, Mrs. Higdon
asserts the affirmative defenses of undue
influence and lack of testamentary
A30
a
capacity to support her contention that
these are not the last wills of Mr. King.
In the answer to the complaint filed by
Mrs. Higdon, the King Petitioners deny
that the Handwritten Document is Mr.
King’s last will, and assert certain
affirmative defenses, including Carolyn
Higdon’s undue influence over Mr. King.
The relationship between David King
and Carolyn Higdon, as well as other
issues relevant to this Motion, has been
the subject of prior litigation in the
Coffee County Chancery Court (the "State
Court Action") and the United States
District Court for the Eastern District
of Tennessee (the "Federal Court
Action"). Pursuant to the findings of
fact and conclusions of law in the prior
litigation, and pursuant to the sworn
A31
testimony related thereto,’ no genuine
issue exists as to any material fact in
this proceeding.
The grounds for the Motion for
Summary Judgment are twofold. First, as
a matter of law Carolyn Higdon cannot
establish that the wills propounded by
the King Petitioners were procured by
undue influence, or that David King
lacked testamentary capacity at the time
of their execution. Second, as a matter
of law Mrs. Higdon is unable to carry her
burden of establishing that the
’ The King Petitioners have filed
herewith and incorporate herein an
Appendix containing: (1) the Courts’
findings of fact and conclusions of law
in the Federal Court Action and the State
Court Action in the prior litigation; and
(2) portions of the depositions and trial
testimony of Carolyn Higdon, Harry Barr
Gilley, and others. Citations to the
Appendix in this Brief will be "App.,
Een. . Pp. "
A32
OR ——
Handwritten Document propounded by her is
the last will of David King.
II. STATEMENT OF UNDISPUTED FACTS
A. THE BACKGROUND OF DAVID KING
David King was born in Russia in
1897 and immigrated to the United States
at the age of fifteen. In 1917, Mr. King
moved to Manchester, Coffee County,
Tennessee. [App., Exh. 1, p. 3.] When
he arrived in Coffee County, Mr. King
began selling housewares and supplies
door-to-door. He used his wages to make
down payments on and secure options to
purchase small tracts of real estate.
Mr. King married Clarine May, the
daughter of a prominent landowner in
Coffee County. Id.
Mr. King became a figure of
substantial influence in Manchester. In
addition to his real estate and auction
A33
business, Mr. King obtained a controlling
interest in the Peoples Bank of
Manchester ("Peoples Bank"), and served
as its president for many years. Id. at
3-4. In 1969, Clarine May King died and
Mr. King inherited the majority of her
estate. By the mid-1970s, Mr. King had
amassed a fortune valued at between five
and six million dollars. Id. at 4.
Mr. King and his wife had no
children. Mr. King’s closest living
relative was his niece, Melba King
Lapidus, of Nashville, Tennessee. Id.
The King Petitioners include Mr. King’s
niece, Bettye Jean Green, his nephew,
Martin King, and the children of Melba
King Lapidus, Deborah Lapidus Fisher,
Lisa Lapidus Cohen, and Barry Lapidus.
In 1974, Carolyn and Gerald Higdon
moved to Manchester and began operating
The Angus Restaurant ("The Angus") in
A34
partnership with R.B. Sowell. In 1975,
the Higdons purchased Mr. Sowell’s
partnership interest in The Angus for
$30,000.00. This money was borrowed by
RS See ee
the Higdons from Mr. King. Id. Mr. King
subsequently became the benefactor for
Sh a NAS Picts ies EL
the development of a new site for The
ere
Angus in Manchester. The construction
oh phiaae
costs associated with the new restaurant,
which included "lavish" living quarters
Kane ig, ads a ie rains jaca
for the Higdons upstairs, approximated
$750,000.00. The vast majority of these
bP eta ck HO
expensés were paid for by Mr. King. Id.
at 5. During the time The Angus was
operated by the Higdons, Mr. King
eer) ee eee ae
transferred over $1,000,000.00 to them.
Id. at 6.
Between 1975 and 1985, Mr. King
became very close to the Higdon family.
IRR biel a WR OA BER i Sih ais RR <a Dea
Mr. King and the Higdons went on several
vacations together, including trips to
A35
Hawaii, Jamaica, and Chicago. These
trips were financed by Mr. King. In
addition, Mr. King gave jewelry and a fur
piece to Carolyn Higdon. By early 1985,
Mr. King was spending as much as thirteen
or fourteen hour's per day with one or
both of the Higdons. At this time, "a
relationship of trust and confidence
existed between King and the Higdons."
Id.
B. THE WILLS OF DAVID KING
Re Introduction.
Three documents have been propounded
in this matter as the last will of David
King. The two documents propounded by
the King Petitioners are Signed,
witnessed, and dated January 18, 1985,
and April 8, 1985, respectively. The
Handwritten Document propounded by
Carolyn Higdon is not dated.
A36
mS Doeibanny NR A Paeinid aan Beets tin
AN arated Bs
a. 8 Will.
The January 18, 1985 Will was
prepared by Mr. King’s longtime attorney,
Harry Barr Gilley. [App., Exh. 6, p. 9.]
At the time he prepared this will, Mr.
Gilley knew of no prior wills of Mr.
King, although Mr. King had discussed the
need for a will with him from time to
time over the years. Id. at 10. Only
Mr. King and Mr. Gilley were present when
the bequests contained in this will were
discussed. Id. at 13. At Mr. King’s
request, the January 18, 1985 will was
witnessed by Frank and Fred Deadman at
the Deadman Funeral Home in Manchester.
id. at 11. Other than Mr. King, Mr.
Gilley, and Frank and Fred Deadman, no
one was present when the will was
executed. Id. at 13-14.
The January 18, 1985 will leaves the
residue of Mr. King’s estate to Mr.
A37
King’s nieces and nephew, Melba King
Lapidus, Martin King, and Bettye Jean
Green. The King Petitioners, or anyone
acting on their behalf, were not involved
in the preparation or execution of this
will in any manner. Id. at 13. ([App.,
Exh. 7, p. 13.) Mr. Gilley maintained
possession of this will until these
probate proceedings. [App., Exh. 6, p.
14.]
3. The April 8, 1985 Will.
Mr. Gilley and Mr. King discussed
the April 8, 1985 will in the lobby of
Peoples Bank during the week prior to its
execution by Mr. King. No one else was
present during this discussion. Id. at
16. Based cn this discussion, the will
was prepared by Mr. Gilley the week
before its execution. Id. On April 8,
1985, Mr. Gilley met Mr. King at his home
A38
and they again discussed the will alone
before going to Peoples Bank. Id. at 16-
> #
The April 8, 1985 will was witnessed
by Melinda Ashburn and Wayne Bramblett,
employees of Peoples Bank, in Mr.
Bramblett’s office. Other than Mr. King,
Mr. Gilley, and the witnesses, no one
else was present at the execution. Id.
at 18-19. Like the January 18, 1985
will, the April 8, 1985 will leaves the
residue of his estate to his blood
relatives, the King Petitioners. [App.,
Exh. 1, p. 9.] Mr. Gilley had no contact
with any member of Mr. King’s family with
regard to the preparation or execution of
the April 8, 1985 will. [App., Exh. 6,
Pp. 22-23; App., Exh. 7, p. 13.] Mr.
Gilley also maintained possession of this
will until these probate proceedings.
lapp., Exh. 6, p. 19.)
é, The Handwritten Document.
The Handwritten Document propounded
by Carolyn Higdon leaves the residue of
Mr. King’s estate to Mrs. Higdon. It "is
difficult to read -- the writing slants
sharply from left to right. In addition,
it appears that the [Handwritten
Document] was written in two different
colors of ink." [App., Exh. 1, p. 10.]
Significantly, Mr. Gilley had no
conversations with Mr. King regarding the
preparation of the Handwritten Document.
(App., Exh. 6, p. 62-63.] Moreover,
during his discussions with Mr. Gilley
prior to the preparation and execution of
the January 18, 1985 and April 8, 1985
wills, Mr. King never mentioned an intent
A40
x
;
3
;
t
i
A
;
:
4
2
A pe dS Ae
CO NV DS Oe PRE TDS
PR a SVD Bee,» Se
or desire to leave a bequest to Carolyn
Higdon.’
Mrs.
Higdon testified in the Federal
Court Action and in a related deposition
that she does not know when Mr. King
wrote or signed the Handwritten Document,
and that she was not with Mr. King when
it was written.’ The Handwritten
2
This issue was the subject of
inquiry by the District Court during Mr.
Gilley’s testimony in the Federal Court
Action:
Q.
A.
3
Did (Mr. King] mention Mrs.
Higdon at any other time, as
far as the will was concerned
until that last time he
appeared [on April 9, 1985]?
[Illegible in original
document }
,
Carolyn Higdon testified as
follows on the issue of when the
Handwritten Document was written and
Signed by Mr. King:
Q.
You don’t know when the
(Handwritten Document] was
written, do you?
I don’t know when it was
written, no.
* * *
A4l
Document was given to Carolyn Higdon by
Mr. King on April 9, 1985, and she
maintained possession of it until
surrendering it to her attorney prior to
the Federal Court Action. [App., Exh. 4,
pp. 581-82; App., Exh. 5, pp. 102, 106.]
.. THE PREVIOUS LITIGATION BY THE
CO-CONSERVATORS FOR DAVID KING
AGAINST THE HIGDONS
Pursuant to a petition filed by
Melba King Lapidus in the Coffee County
Chancery Court on April 16, 1985, Mrs.
Lapidus was appointed as her uncle’s
conservator. See In the Matter of David
King, Ward, No. 85-95 (Coffee Co. Chanc.
A. If you are asking me if I was
with him, when the [Handwritten
Document] was written, I
wasn’t. [App., Exh. 4, p.
764).
Q. Do you know when Mr. King
signed this [Handwritten
Document] ?
A. No. [App., Exh. 5, p. 110.)
A42
ee
Ct. filed Apr. 16, 1985). Harry Barr
Gilley was appointed co-conservator
shortly thereafter.
On May 10, 1985, Melba King Lapidus,
in her capacity as conservator for Mr.
King, filed a lawsuit against Carolyn and
Gerald Higdon in the Coffee County
Chancery Court. See Melba King Lapidus,
as Conservator for the Person and Estate
of David King v. Gerald Hiqdon, et yr
No. 85-110 (Coffee Co. Chanc. Ct. filed
May 10, 1985) (the "State Court Action").
The complaint in the State Court Action
was subsequently amended to add Harry
Barr Gilley as a plaintiff in his
Capacity as co-conservator. The
complaint alleged, inter alia, that
Carolyn and Gerald Higdon exercised undue
influence over Mr. King.
The State Court Action came on for
hearing on June 4-5, 1985, pursuant to
A43
the motion by Melba King Lapidus, as
conservator, for an injunction preventing
Carolyn and Gerald Higdon from attempting
to see Mr. King, and pursuant to a motion
to remove Mrs. Lapidus as Mr. King’s
conservator. During this hearing,
testimony was offered from fifteen
witnesses, and a report was presented to
the Court from Mr. King’s guardian ad
litem, James H. Henry. At the close of
proof, this Court stated its ruling from
the bench:
I think after two days of
testimony, I think I can pretty
well figure out how this case
should be decided without
further argument.
I don’t see any reason to
remove [Melba King Lapidus] as
conservator of [Mr. King’s]
person. I think she’s done a
fine job of taking care of him
and I think she should remain,
so I’m going to dismiss that
petition.
I’m going to modify [the
injunction against Carolyn and
A44
OO
Ne VI Sb MEitaie Roel Ril Bey Sonal Sal alaaa
BAT BE
Aili RES ieee ethe A, oe
ee a
Pate alld eel) Oe tae § Vif Aen Oe
Gerald Higdon] and say that
they will see him in the
presence of these attendants;
that they will not discuss any
business or discussion of that
kind with him. ... Those
visits should be reasonable
visits; not long extended ones
that would wear him out.
These people [Carolyn and
Gerald Higdon] owe [Mr. King]
some money. They have come up
with approximately a million
dollars over ten years that
he’s given them for whatever
reason. I make no decision on
what that was at all. But we
have got some peculiar
circumstances in this situation
and that’s why I’m imposing it
upon these people [the Higdons]
at this time.
[App., Exh. 3, pp. 482-86.]
On October 29, 1985, Melba King
Lapidus was murdered by a bomb explosion
in her home. After her death, her
husband Charles Lapidus was appointed to
replace her as co-conservator. [App.,
Exh. 1, p. 13.] On April 15, 1986, the
co-conservators for Mr. King filed an
action against Carolyn and Gerald Higdon,
A45
and others, in the United States District
Court for the Eastern District of
Tennessee, Winchester Division. See
Charles Lapidus, Harry Barr Gilley, Co-
Conservatcrs for David King v. Carolyn
Higdon, et al., No. CV-4-86-32 (E.D.
Tenn. 1988) (the "Federal Court Action").
The State Court Action was subsequently
removed to federal court and consolidated
with the Federal Court Action for trial
April 25-28, 1988.
On April 29, 1988, the District
Court entered an order in the Federal
Court Action awarding the co-conservators
a judgment against defendants James
Littlefield and Fran Littlefield, Gerald
Higdon’s sister and brother-in-law, in
the amount of $602,471.62. The judgment
was based on loans from Mr. King to the
Littlefields for which repayment was not
made. On May 16, 1988, the District
A46
lal
eee eee EEO
Court entered an order in the Federal
Court Action awarding the co-conservators
a judgment against defendant Harold Paul
Christian, Carolyn Higdon’s brother, in
the amount of $3,000.00. The judgment
was based on Mr. Christian’s admission
that he received certain property and
benefits from David King for which he
paid no consideration and which were not
subsequently forgiven from David King.
On May 18, 1988, the District Court
entered a Memorandum and Order awarding
the co-conservators a joint and several
judgment against Carolyn and Gerald
Higdon in the amount of $709,294.00.
[App., Exh. 1.] $671,294.00 of this
amount was for "loans owed by the Higdons
to David King," and $38.000.00 was for
"monies obtained by the Higdons from
David King by virtue of the exertion of
undue influence." Id. at 19. (emphasis
A47
supplied). Specifically, the District
Court held that Carolyn and Gerald Higdon
exerted undue influence over Mr. King
between January 31, 1985 and April 9,
1985. Id. at 17. This order was
subsequently amended to award the co-
conservators $561,426.00 in interest on
checks transferred by Mr. King to the
Higdons that were designated "loan," for
a total judgment against the Higdons in
the amount of $1,270,720.00. [App., Exh.
a. @. But
III. LEGAL ARGUMENT AND DISCUSSION
A. SUMMARY OF ARGUMENT
Carolyn Higdon’s allegation that the
wills were obtained by undue influence is
baseless. In addition, based on her
position and testimony in the Federal
Court Action, Mrs. Higdon is judicially
A48
estopped from asserting that Mr. King
lacked testamentary capacity to execute
the January 18, 1985 will and the April
8, 1985 will.
As the proponent of the Handwritten
Document, Mrs. Higdon has the burden of
proving that this instrument is the last
will of David King. It is undisputed
that Mrs. Higdon does not know when Mr.
King prepared or signed the Handwritten
Document. Accordingly, because of the
existence of duly executed wills dated
January 18, 1985 and April 8, 1985,
Carolyn Higdon is unable to carry her
burden of proving that the Handwritten
Document is the last will of David King.
Even if Carolyn Higdon could
introduce competent evidence to establish
when the Handwritten Document was
executed by Mr. King, summary judgment on
the issue of its admissibility to probate
A49
is warranted. For example, if the
Handwritten Document was executed prior
to January 18, 1985, it was revoked by
the January 18, 1985 will as a matter of
law. If the Handwritten Document was
executed between January 18, 1985 and
April 8, 1985, it was revoked by the
April 8, 1985 will. Moreover, if the
Handwritten Document was executed after
January 31, 1985, Carolyn Higdon has been
adjudicated in the Federal Court Action
to have exerted undue influence over Mr.
King during this time.
B. THE STANDARD FOR SUMMARY
JUDGMENT _IN TENNESSEE
Summary judgment has been
specifically held to be available in will
contest proceedings. See Qwen v.
Stanley, 739 S.W.2d 782, 786
(Tenn.Ct.App. 1987) (affirming grant of
ASO
summary judgment against contestant
Claiming undue influence and lack of
testamentary capacity). A motion for
summary judgment shall be granted if the
pleadings, sworn testimony, and
affidavits demonstrate that there is no
genuine issue as to any material fact and
that the moving party is entitled to a
judgment as a matter of law.‘ Tenn. R.
Civ. P. 56.03. See generally Blair v.
Allied Maintenance Corp., 756 S.W.2d 267,
269 (Tenn.Ct.App. 1988); Count
4
In the Statement of Undisputed
Facts, supra, the facts recited stem
directly from memoranda and orders issued
by the Coffee County Chancery Court in
the State Court Action and the District
Court in the Federal Court Action, sworn
testimony given in the Federal Court
Action, and the deposition testimony of
Carolyn Higdon and Harry Barr Gilley.
Therefore, in accordance with case law
interpreting the propriety of a summary
judgment motion, no genuine issue of
material fact exists. See Belsky v.
Payne, 560 S.W.2d 78, 81 (Tenn.Ct.App.
1977) .
A51
Livestock Market v. Kentucky State Bank,
724 S.W.2d 343, 348 (Tenn.Ct.App. 1986).
In Celotex Corp. v. Catrett, 477
U.S. 317, 106 S.Ct. 2848, 91 L. Ed. 2d
265 (1986), the United States Supreme
Court recognized that a party seeking
summary judgment bears the initial
responsibility of informing the court of
the basis of its motion, including
identifying those portions of the record
which demonstrate the absence of a
genuine issue of material fact. 477 U.S.
at 323, 91 L. Ed. 2d at 274. Once such a
motion is made, however, if the nonmoving
party would bear the burden of proof at
trial, as Carolyn Higdon would here, she
must respond with affirmative evidence in
support of each element of her claim.
477 U.S. at 324, 91 L. Ed. 2d at 274.
"By its very terms, [Rule 56]
provides that the mere existence of some
A52
alleged factual dispute between the
parties will not defeat an otherwise
properly supported motion for summary
judgment; the requirement is that there
is no genuine issue of Material fact."
Anderson v. Liberty Lobby, me... £77 0.6.
242, 247-48, 106 S.Ct. 2505, 91 L. Ed. 2d
202, 211 (1986) (emphasis in original).
This burden requires designating
"specific facts showing that there is a
genuine issue for trial." Celotex, 477
U.S. at 324, 91 L. Ed. 2d at 274. In
Anderson, the Supreme Court held that the
Standard for summary judgment "mirrors"
the standard for a directed verdict under
Rule 50(a); i.e., whether, under
governing law, there can be but one
reasonable conclusion as to the verdict.
477 U.S. at 250, 91 L. Ed. 2d at 213.
Tennessee courts have embraced the
summary judgment analyses set forth in
AS3
Celotex and Anderson, and in doing so
have defined the standard to be applied
when such a motion is made. Citing
Celotex, the court in Blair v. Allied
Maintenance Corp., 756 S.W.2d 267
(Tenn.Ct.App. 1988) held that a party’s
case may be dismissed if it is unable to
come forward and establish the essential
elements of its case on which it will
bear the burden of proof at trial. Id.
at 270. See also Owen v. Stanley, 739
S.W.2d at 787 (Tenn.Ct. App. 1987)
(summary judgment in will contest may be
entered if party fails to establish
essential element of case on which it
will bear burden of proof at trial);
Moman v. Walden, 719 S.W.2d 531, 533
(Tenn.Ct.App. 1986) (if nonmoving party
fails to establish existence of essential
element of claim, there can be no genuine
issue as to any material facts Since all
A54
eerie nena
other facts are necessarily rendered
immaterial.)
In order to defeat this motion for
summary judgment, Carolyn Higdon must
demonstrate, legally and factually, that
she possesses a prima facie case that
would withstand a motion for a directed
verdict at trial. As set forth, infra,
Carolyn Higdon is unable to meet this
exacting standard and, accordingly,
summary judgment in favor of the King
Petitioners is warranted as a matter of
law.
C. THE WILLS PROPOUNDED BY THE
KING PETITIONERS ARE VALID AS_A
MATTER OF LAW
a. There is No Evidence that
Wills Propounded b
the King Petitioners were
The burden of proving undue
influence regarding the duly executed
A55
wills® dated January 18, 1985 and April
8, 1985 is on Carolyn Higdon. 1 H.
Phillips & J. Robinson, Pritchard on
Wills and Administration of Estates
§§ 143, 145 (4th ed. 1983). The King
Petitioners deny that they, or anyone
acting on their behalf, exerted any
influence over Mr. King in the making of
these wills, and there is no evidence to
Support Carolyn Higdon’s baseless
allegations of undue influence in
connection with them. Indeed, every
attempt by Carolyn Higdon to develop a
theory in the Federal Court Action that
. Carolyn Higdon has not asserted
that there are any flaws in the execution
or attestation of the January 18, 1985
and April 8, 1985 wills. Rather, her
answer admits the due execution of the
wills but raises the defenses of undue
influence and lack of testamentary
Capacity.
A56
Brave es —
BRIE WO ia aS, SIR BG NI atin Si AS tinea Dla aa NR ine Sate: Os iste
BBG ARO ORS
Mr. King’s family unduly influenced him
regarding these wills was summarily refuted. ®
6
The testimony of Mr. Gilley,
Mr. King’s attorney and the draftsman for
the January 18, 1985 and April 8, 1985
wills, is undisputed on this issue:
Q. When Mr. King gave you the
instructions for the
contents of this [January
18, 1985) will .. ., who
was present during that
conversation besides you
and Mr. King?
A. No one was. [App., Exh.
a ee.
Q. ([Illegible on original
copy]
A. ao. i686. at iS.
Q. Who was present when you
had that discussion
(regarding instructions
from Mr. King for the
April 8, 1985 will]?
I don’t recall anyone
being present.
Was any of the Lapiduses
present at that time.
nO. Ie. got 16.
oO FP OO PY
Prior to April the 8th,
1985 had you had any
contact with any member of
Mr. King’s family in
regard to any will or
disposition of Mr. King’s
A57
Mr. King’s attorney, Harry Barr
Gilley, testified that he prepared the
January 18, 1985 and April 8, 1985 wills
for Mr. King and gave Mr. King
independent advice concerning them. See
Supra pp. 3-4. Independent advice, of
course, refutes any claim of undue
influence. Askew v. Askew, 619 S.W.2d
384, 386-87 (Tenn.Ct.App. 1981).
Finally, despite her current allegations
to the contrary, Carolyn Higdon herself
testified in the Federal Court Action
that she knew nothing about the execution
of either of these wills.’
estate?
A. Ro. tApp., Seh. 7; DP.
Carolyn Higdon testified in the
Federal Court Action as
follows:
Q. Did [Mr. King] tell you he had
executed a will in January of
‘85 where you were not in this
A58
id
%
“
a
bo
a
5
:
5
'
:
a
a
PO CORE atin Bee AES ET Ree Aa’ BR Caesarean? ta
ep Bie. Se
ES SE AED) TN
tintin
The Tennessee Supreme Court has held
that in the absence of proof of undue
influence, it is error to allow this
issue to be submitted to the jury. See
Boyd v. Boyd, 680 S.W.2d 462, 464 (Tenn.
1984). In Boyd, an elderly woman left
two wills, one dated in 1974 and one
dated in 1977. The contestants of the
1977 will charged that it was obtained
through the undue influence of the
contestant’s brother. The Supreme Court
held:
We find no evidence of undue
influence on the part of Alvin
Boyd, accused by his sister of
will?
A. No.
Q. Did he tell you on the morning
of April 9th [1985] that he had
executed a will the day before
at Mr. Gilley’s office?
A. No, he didn’t.
Q. So you were ignorant of both
prior wills on the morning of
April the 9th?
A. Yes, I was. [App., Exh. 4, p.
761.]
A59
having instigated or caused the
second will to have been
written. There is. . . no
testimony that at any time near
the date of its execution he
exercised any sort of dominion
or undue influence over her.
Accordingly we are of the
opinion that the trial court
erred in submitting that issue
to the jury and in charging the
jury concerning ‘suspicious
circumstances. ’
680 S.W.2d at 464. Boyd constitutes
controlling authority for the proposition
that the baseless allegation by Carolyn
Higdon that the King Petitioners
exercised undue influence on mr. King
should be removed from the jury.
a. Carolyn Higdon is
Judicially Estopped from
Maintaining that Mr. King
Lacked Testamentary
a ity wi R to
the Execution of the Wills
Propounded by the King
Petitioners.
In her vigorous defense of the
allegations of undue influence against
her in the Federal Court Action, Mrs.
A60
§
:
" ¥
a
*
*
:
+
1
A MBI Et EEN, nt! ae
Higdon took the position that Mr. King
was fully competent in 1985. Indeed, it
is difficult to conceive that she could
have taken a more vehement position
regarding Mr. King’s mental Capacity in
1985. The record in the Federal Court
Action is replete with testimony from
Carolyn Higdon regarding Mr. King’s
mental capacity in 1985.* In addition,
Carolyn Higdon orchestrated a veritable
parade of witnesses before the District
i Although she now asserts that
Mr. King lacked testamentary capacity on
April 8, 1985, Carolyn Higdon made the
foilowing statement under oath with
regard to his testamentary Capacity on
April 9, 1985:
Q. April 9th, ‘85, was Mr. King
aware and did he know of the
properties he had?
A. Mr. King knew every piece of
property he had and every piece
of property he ever owned,
whether he had it or not, he
knew who else owned it. He was
well aware of everything in
that area. ... {[App., Exh.
4, pp. 707-08.]
Aé1
eee
Court on the issue of Mr. King’s mental
capacity during this period of time.’
. Melinda Ashburn, an attesting
witness to the April 8, 1985 will,
offered the following testimony in
response from questioning by counsel for
Carolyn Higdon:
Q. Before April the 8th, 1985, did
you have, let’s restrict
ourselves to 1985, January,
February, March. Did you have
an opportunity to during those
three months to be around Dave
King there in the [Peoples]
bank?
A. Almost daily. ;
i. [W]here you in the presence of
Mr. Wayne Bramblet [sic] and
Mr. Dave King during that three
month period of time, when
banking business was discussed?
Yes, O42. . «
Did you have any reason to
believe that during that three
month period of time that Mr.
Dave King was incapable of
managing his affairs?
No, sir.
Or the affairs of the bank?
BO, Mit. «+ +
[O]n April the 8th, 1985, did
you attest to a document that
was styled the last will and
testament of Dave King?
Yes, sir.
On the following day, April
the, let me ask you this. Did
O PO Oo PY
0}
A62
A.
you form an opinion that day,
as to Mr. King’s mental
alertness. Was he alert that
day?
Yes, sir. [App., Exh. 4, pp.
674-76.]
Counsel for Carolyn Higdon called
additional witnesses to support her
position regarding Mr. King’s mental
capacity during 1985. Al Morris
testified as follows:
Q.
A.
Q.
A.
When was the last time you saw
Dave King before he went in the
hospital on April 9th, 1985?
It was the Sunday prior to his
going in the hospital, whatever
date that was [April 7,
1985]. .
Describe his demeanor that day,
his mood, his demeanor, his
actions.
He had a word for everybody
that was in my presence, you
know. As I say, I don’t recall
any details of those
conversations, but he had a
smile amd a handshake for
everybody there.
Was he coherent?
To me, yes. Id. at 661-62.
Similarly, Wallen Fraley testified
as follows:
Q.
During the time that you saw
. . . (Mr. King] in 1984 and
1985, did you see any problems
A63
The doctrine of judicial estoppel
prohibits Carolyn Higdon from now
asserting that Mr. King lacked
testamentary capacity in an effort to
defeat the wills propounded by the King
Petitioners. See generally 11 Tenn. Jur.
Estoppel § 13, at 135 (1984) (judicial
estoppel prohibits a litigant from
deliberately shifting positions to suit
the exigencies of each particular case
that may arise); Bubis v. Blackman, 435
S.W.2d 492, 499 (Tenn.Ct.App. 1968). The
doctrine is frequently invoked in will
contests to prevent conduct similar to
that demonstrated by Carolyn Higdon in
this proceeding. See generally 80
that he had or any changes that
had come over him in his
ability to carry ona
conversation and to remember,
to talk with you?
A. No, I did not. Id. at 694.
A64
Am.Jur.2d Wills § 1659; Allen v. Neal,
396 S.W.2d 344, 346-47 (Tenn. 1965). see
also Gore v. Howard, 94 Tenn. S77, 30
S.W. 730, 731-31 (1895) (children of
decedent held to be estopped from
contesting will because of prior
agreement purportedly settling claims to
their inheritance).
Carolyn Higdon’s allegation in this
proceeding that Mr. King lacked
testamentary capacity when he executed
the January 18, 1985 and April 8, 1985
wills directly contradicts her testimony
and conduct throughout the Federal Court
Action. As a matter of law, she may not
maintain this inconsistent position in an
effort to prevail in this lawsuit and
summary judgment on this issue is
warranted. See 11 Tenn. Jur. Estoppel
§ 13 (1984).
Aé6é5
D. CAROLYN HIGDON CANNOT CARRY HER
BURDEN OF PROVING THAT THE
HANDWRITTEN DOCUMENT IS THE
LAST WILL OF DAVID KING
i. The Handwritten Document
is Inadmissible to Probate
Because There is No Proof
as to its Date.
The lack of a date is not fatal to
the validity of a holographic will in
Tennessee, In Re Jones Estate, 314 S.W.2d
39, 44 (Tenn.Ct.App. 1957), although a
date is a formal requirement in many
states. See Annot., 22 A.L.R.3d 866
(1968). Nevertheless, in the event a
duly executed and dated will exists, the
proponent of an undated holographic will
must necessarily establish the date of
its execution. Otherwise, a jury could
only speculate as to whether the
holographic will postdates the duly
executed will. A verdict cannot be based
on speculation, surmise, or conjecture.
Law v. Louisville & N.R. Co., 170 S.W.2d
A66
360, 362 (Tenn. 1943); Evensky v. City of
Memphis, 350 S.W.2d 76, 79 (Tenn.Ct.App.
1961).
Tennessee courts have expressly
forbidden speculation in a will contest
proceeding. To warrant submitting issues
in a will contest to the jury, there must
be evidence that is substantial and
material, "and more than a mere scintilla
or glimmer of evidence." 25 Tenn. Jur.
Wills §76, at 185 (1985); Curry v.
Bridges, 325 S.W.2d at 87, 91
(Tenn.Ct.App. 1959). In Curry, the court
upheld a directed verdict for the
proponents, and characterized the
contestant’s evidence as "of a type of
scintilla or glimmer evidence upon which
no verdict, except one which might be
based upon pure speculation, could be
returned against the will." Id. at 96.
See also Davidson v. Gilreath, 273 S.W.2d
A67
717, 719 (Tenn.Ct.App. 1954) (where
evidence gives equal support to the
inconsistent theories of the parties toa
will contest, trial judge should direct a
verdict for the party not having the
burden of proof).
Although it is undisputed that the
Handwritten Document had been signed by
Mr. King at the time it was shown to Mr.
Gilley on the morning of April 9, 1985,
Carolyn Higdon does not know when Mr.
King prepared or signed it. See supra
p. 5 n. 3. Accordingly, because of the
existence of duly executed wills dated
January 18, 1985 and April 8, 1985, Mrs.
Higdon is unable to carry her burden of
proving that the Handwritten Document is
the last will of David King and summary
judgment is warranted. See Blair v.
Allied Maintenance Corp., 756 S.W.2d at
270 (case properly dismissed if party is
A68
unable to establish essential elements of
case on which it will bear the burden of
proof at trial).
- # Even if the Date of the
ndwri ment Can
be Established, the
Document is Inadmissible
to Probate as a Matter of
Law.
If the Handwritten
Document was Executed
prior to January 18,
1985, it was Revoked
by the January 18,
1985 Will; If the
Handwritten Document
was Executed between
January 18, 1985 and
April 8, 1985, it was
Revoked by the April
8, 1985 Will.
ny)
Subsequent inconsistent wills have
the effect of revoking prior wills, even
without the existence of an express
revocation clause. Tenn. Code Ann.
§ 32-1-201(1); Hickey v. Beeler, 171
S.W.2d 277, 279-80 (Tenn. 1943).
Accordingly, if the Handwritten Document
A69
was executed by Mr. King prior to January
18, 1985, as a matter of law it was
revoked by the January 18, 1985 will. If
the Handwritten Document was executed by
Mr. King between January 18, 1985 and
April 8, 1985, it was revoked by the
April 8, 1985 will.
b. If the Handwritten
Document was Executed
on or After January
31, 1985, Carolyn
Higdon was Exercising
Undue Influence Over
David King During
this Time.
Carolyn Higdon is bound by the
findings of the District Court in the
Federal Court Action pursuant to the
doctrine of res judicata. The Federal
Court Action afforded Mrs. Higdon a full
and fair opportunity to litigate the
issue of her undue influence over Mr.
King, and therefore the findings of fact
and conclusions of law of the District
A70
Court are binding on her. See 22 Tenn.
Jur. Res Judicata § 31.
Although Carolyn Higdon acknowledges
that she does not know when Mr. King
prepared or signed the Handwritten
Document, it is undisputed that the
Handwritten Document had been executed by
Mr. King at the time it was given to
Carolyn Higdon on April 9, 1985. As set
forth above, if the Handwritten Document
was executed prior to April 8, 1985, it
was revoked by Mr. King’s April 8, 1985
will. See Tenn. Code Ann. § 32-1-201(1).
Moreover, it was adjudicated in the
Federal Court Action that Carolyn Higdon
exerted undue influence over Mr. King
between January 31, 1985 and April 9,
1985. As a matter of law, if the
Handwritten Document was executed by Mr.
King during this time, it is admissible
A71
to probate because of her exertion of
undue influence over him.
The District Court held that a
confidential relationship existed between
Carolyn Higdon and Mr. King "by early
1985." [App., Exh. 1, p. 6.] Whena
confidential relationship is established,
the law presumes undue influence and the
burden shifts to Carolyn Higdon to
establish that undue influence was not
exercised. See Kelley v. Brading, 337
S.W.2d 471, 475 (Tenn.Ct.App. 1960).
Mrs. Higdon was unable to meet this
burden in the Federal Court Action and,
aS a matter of law, she is unable to meet
it in this case. Because the District
Court found that Mrs. Higdon was
exercising undue influence over Mr. King
between January 31, 1985 and April 9,
1985, to the extent the Handwritten
Document was executed by Mr. King after
A72
January 31, 1985, she is not entitled to
admit it to probate. [App., Exh. 1, p.
cs
Vv. CONCLUSION
As a matter of law, Carolyn Higdon
cannot meet her burden of proving that
the wills propounded by the King
Petitioners were procured by undue
influence, or that David King lacked
testamentary capacity at the time of
their execution. Moreover, Carolyn
Higdon is unable to carry her burden of
proving that the Handwritten Document is
the last will of David King. For these
reasons, summary judgment against Carolyn
Higdon is warranted.
A73
Respectfully submitted,
BARRETT, JOHNSTON &
PARSLEY
s/George E. Barrett
George E. Barrett
217 Second Avenue North
Nashville, Tennessee 37219
(615) 244-2202
SHERRARD & ROE
s/William L. Harbison
William L. Harbison
L. Webb Campbell II
424 Church Street
Suite 2000
Nashville, Tennessee 37219
(615) 742-4200
PARSONS & NICHOLS
s/H. Thomas Parsons by WLH
H. Thomas Parsons
104 West Main Street
Manchester, Tennessee
37355
(615) 728-1316
Attorneys for the King
Petitioners
A74
CERTIFICATE OF SERVICE
I hereby certify that a true and
exact copy of the foregoing has been
mailed by United States Mail, postage
prepaid, to J. Stanley Rogers and Doyle
E. Richardson, ROGERS, RICHARDSON &
DUNCAN, 100 North Spring Street,
Manchester, Tennessee 37355, Attorneys
for Carolyn Higdon; James H. Henry, HENRY
& McCORD, P. O. Box 538, Tullahoma,
Tennessee 37388; Robert L. Huskey, P.O.
Box 777, Manchester, Tennessee 37355;
Michael I. Mossman, Noel Place, Suite
202, 200 Fourth Avenue North, Nashville,
Tennessee 37219; and by Certified Mail,
Return Receipt Requested, to Dr. David
Burgos, Sarmiento, 1411, Capital Federal,
Buenos Aires, Argentina; Messrs. Leon and
Mauricio Kanoivicki, c/o Dean Funes,
2901, Cordoba Capital, Argentina, this
7th day of August, 1991.
S/William L. Harbison
William L. Harbison
A75
IN THE CIRCUIT COURT FOR THE FOURTEENTH
JUDICIAL DISTRICT
AT MANCHESTER, TENNESSEE
NO. 24,954
BETTYE JEAN GREEN, MARTIN KING,
DEBORAH LAPIDUS FISHER,
LISA LAPIDUS COHEN and BARRY LAPIDUS,
Plaintiffs-Proponents,
Vs.
CAROLYN HIGDON,
Defendant-Contestant,
and
CAROLYN HIGDON,
Plaintiff-Proponent,
VS.
BETTYE JEAN GREEN, MARTIN KING,
DEBORAH LAPIDUS FISHER,
LISA LAPIDUS COHEN and BARRY LAPIDUS,
Defendants-Contestants.
APPENDIX TO BRIEF OF THE KING PETITIONERS
IN SUPPORT OF THEIR
MOTION FOR SUMMARY JUDGMENT
A76
BARRETT, JOHNSTON &
PARSLEY
George E. Barrett
217 Second Avenue North
Nashville, Tennessee 37219
(615) 244-2202
SHERRARD & ROE
William L. Harbison
L. Webb Campbell II
424 Church Street
Suite 2000
Nashville, Tennessee 37219
(615) 742-4200
PARSONS & NICHOLS
H. Thomas Parsons
104 West Main Street
Manchester, Tennessee
37355
(615) 728-1316
Attorneys for the King
Petitioners
TABLE OF CONTENTS
EXHIBIT 1 May 18, 1988 Judgment and
Memorandum Opinion in Charles
Lapidus, et al. v. Gerald
Higdon, et al., No. Civ. 4-86-
32 (E.D. Tenn. 1988).
EXHIBIT 2 October 5, 1988 Amended
Judgment and Memorandum ue?
Order in Chariee Lapidus,
al. v. Gerald Higdon, et ma ‘
No. Civ. 4-86-32 (E.D. Tenn.
1988).
EXHIBIT 3 Transcript of June 4-5, 1985
Proceedings in Melba King
Lapidu vator fo he
Person and Estate of David King
v. Gerald Higdon, et al., No.
85-110 (Coffee Co. Chanc. Ct.
filed May 10, 1985).
EXHIBIT 4 Transcript of April 25-28, 1986
Trial Proceedings in Charles
Lapidus, et al. v. Gerald
Higdon, et al., No. Civ. 4-86-
32 (E.D. Tenn. 1988).
EXHIBIT 5 July 9, 1986 Deposition
Transcript of Carolyn Higdon.
EXHIBIT 6 May 12, 1987 Deposition
Transcript of Harry Barr
Gilley.
EXHIBIT 7 April 21, 1988 Deposition
Transcript of Harry Barr
Gilley.
A78
—————_—e_aaaaaaae
CERTIFICATE OF SERVICE
I hereby certify that a true and
exact copy of the foregoing has been
mailed by United States Mail, postage
prepaid, to J. Stanley Rogers and Doyle
E. Richardson, ROGERS, RICHARDSON &
DUNCAN, 100 North Spring Street,
Manchester, Tennessee 37355, Attorneys
for Carolyn Higdon; James H. Henry, HENRY
& MCCORD, P.O. Box 538, Tullahoma,
Tennessee 37388; Robert L. Huskey, P.O.
Box 777, Manchester, Tennessee 37355;
Michael I. Mossman, Noel Place, Suite
202, 200 Fourth Avenue North, Nashville,
Tennessee 37219; and by Certified Mail,
Return Receipt Requested, and to Dr.
David Murgos, Sarmiento, 1411, Capital
Federal, Buenos Aires, Argentina; Messrs.
Leon and Mauricio Kanoivicki, c/o Dean
Funes, 2901, Cordoba Capital, Argentina,
this 7th day of August, 1991.
s/William L. Harbison
William L. Harbison
A79
IN THE CIRCUIT COURT
FOR THE FOURTEENTH JUDICIAL DISTRICT
AT MANCHESTER, TENNESSEE
NO. 24,954
BETTYE JEAN GREEN, MARTIN KING,
DEBORAH LAPIDUS FISHER,
LISA LAPIDUS COHEN and BARRY LAPIDUS,
Plaintiffs-Proponents,
vs.
CAROLYN HIGDON,
Defendants-Contestant,
AND
CAROLYN HIGDON,
Plaintiff-Proponent,
vs.
BETTYE JEAN GREEN, MARTIN KING,
DEBORAH LAPIDUS FISHER,
LISA LAPIDUS COHEN and BARRY LAPIDUS,
Defendants-Contestants.
RESPONSE OF CAROLYN HIGDON TO
MOTION FOR SUMMARY JUDGMENT
FILED BY KING PETITIONERS
Comes CAROLYN HIGDON and files this
Response to the Motion for Summary
A80
Judgment filed by the King Petitioners
and would show unto the Court that the
Motion should be overruled because
genuine issues of material fact remain,
and the King Petitioners are not entitled
to judgment as a matter of law. In
Support of this response, CAROLYN HIGDON
files the following:
i. Memorandum of Law with
Exhibits, and
re Affidavit of CAROLYN HIGDON
dated September 30, 1991.
Respectfully submitted this day of
October, 1991.
ROGERS, RICHARDSON & DUNCAN
BY: s/J. Stanley Rogers
J. Stanley Rogers
By: s/Doyle P. Richardson
Doyle P. Richardson
Attorneys for
CAROLYN HIGDON
100 North Spring Street
Manchester, TN 37355
(615) 728-0820
A81
CERTIFICAT F_ SERVICE
I hereby certify that a copy of the
foregoing has been served upon counsel
for all parties at interest in this cause
by delivering a true and exact copy of
said pleading to the offices of said
counsel or by placing a true and exact
copy of said pleading in the United
States Mail, addressed to said counsel at
his office with sufficient postage
thereon to carry the same to its
destination, as follows:
George E. Barrett, Esq.
P.O. Box 2846
Nashville, TN 37219;
William L. Harbison, Esq.
O’Hare, Sherrard & Roe
424 Church Street, Suite 2000
Nashville, TN 37219
H. Thomas Parsons, Esq.
Parsons & Nichols
101 West Main Street
Manchester, TN 37355
Attorneys for King Petitioners
James H. Henry, II, Esq.
Henry & McCord
P.O. Box 538
Tullahoma, TN 37388
Administrator Pendente Lite
Robert L. Huskey, Esq.
P.O. Box 777
Manchester, TN 37355
Attorney for
Main Street Church of Christ
A82
Michael I. Mossman, Esq.
Noel Place, Suite 202
200 Fourth Avenue North
Nashville, TN 37219
Dr. David Burgos
Sarmiento, 1411
Capital Federal
Buenos Aires, Argentina
Messrs. Leon and Mauricio
Kanoivicki
c/o Dean Funes, 2901
Cordoba Capital, Argentina
This day of October, 1991.
ROGERS, RICHARDSON & DUNCAN
BY: s/J. Stanley Rogers
A83
IN THE CIRCUIT COURT FOR THE FOURTEENTH
JUDICIAL DISTRICT AT
MANCHESTER, TENNESSEE
NO. 24,954
BETTYE JEAN GREEN, MARTIN KING,
DEBORAH LAPIDUS FISHER,
LISA LAPIDUS COHEN and BARRY LAPIDUS,
Plaintiffs-Proponents,
VS.
CAROLYN HIGDON,
Defendant-Contestant,
and
CAROLYN HIGDON,
Plaintiff-Proponent,
V8.
BETTYE JEAN GREEN, MARTIN KING,
DEBORAH LAPIDUS FISHER,
LISA LAPIDUS COHEN, and BARRY LAPIDUS,
Defendants-Contestants.
MEMORANDUM OF LAW IN SUPPORT
OF RESPONSE OF CAROLYN HIGDON TO
MOTION FOR SUMMARY FILED BY
KING PETITIONERS
A84
FACTS
David King was born in Russia in
1897 and immigrated to the United States
at the age of 15, as did several of his
brothers. District Court Order, ae?
attached hereto as Exhibit A. He moved
to Manchester, Coffee County, Tennessee,
in 1917. Id. His first work in Coffee
County was as a peddler selling
housewares and supplies while walking
house-to-house. Id. King was very
frugal and used the money he could save
to make down payments on or procure
options of small tracts of real estate.
Id. These purchases were made at a time
when land prices in Coffee County were
extremely low. Id. Until 1985, mr. King
spent much of his time and effort in the
buying and selling of real estate. Ze.
Through saving his money and wise
A85
investments in real estate, Mr. King was
able to acquire substantial wealth.
David King married Clairene May, the
only daughter of a prominent landowner in
Coffee County. Id. In addition to the
wealth which he was himself able to
acquire, Mr. King also managed the
substantial property which his wife
inherited from her parents when they
died. Id.
Mr. King became a figure of
substantial influence in Manchester. Id.
In addition to a real estate and auction
business which David King operated, he
also operated a controlling interest in
the Peoples Bank of Manchester and was
for many years the President of the Bank.
District Court Order, p. 3-4.
Mr. King was an intelligent and
successful businessman and was a generous
A86
man. District Court Order, p. 4. King’s
wife died in 1969.
In 1974, Gerald and Carolyn Higdon
moved to Manchester and began the
Operation of the Angus Restaurant in
partnership with R.B. Sowell. Id. The
Eigdons were married and had three
children. Mr. King was a frequent
customer of the Angus and within a year
of the Higdon’s move to Manchester, Mr.
King had become a friend of the family.
Id. As the friendship grew, King spent
more and more time at the Angus. Id. In
1975, the partnership between the Higdons
and Sowell terminated, and the Higdons
bought out Mr. Sowell’s partnership
interest in the restaurant for $30,006.
David King loaned the Higdons the
Purchase money. Id.
David King was fond of dining in
fine restaurants and lamented that there
A87
were none in the Manchester area.
District Court Order, p. 5. King
encouraged the Higdons to build and
operate a new Angus Restaurant in
Manchester in the tradition of the finest
Nashville restaurants. Mr. King was
clearly the Higdons’ benefactor in both
the development and initial operation of
the new Angus. King helped the Higdons
in the location of the tract of land for
the building and loaned them the money
for its purchase. Id. He prevailed upon
them to follow the concept of a fine
restaurant rather than a steak house
along the lines of a Western Sizzlin’
restaurant. Id. Mr. King assisted the
Higdons in obtaining restaurant fixtures,
as well as fixtures for the Higdons’
living quarters, which were in the
upstairs part of the restaurant. Id.
A88
Following the building of the new
Angus Restaurant, Mr. King was an almost
daily customer. Id. On most days, he
ate both lunch and dinner there and was
very often there when the restaurant
closed at night counting the receipts
with Gerald Higdon. Id. Gerald Higdon
became Mr. King’s driver and essentially
took him wherever he wanted to go. Often
the trips would be to take him to the
bank, to pick him up and bring him to the
restaurant, or to assist him in looking
at real property in which he was
interested. Id. at p. 6.
Between 1975 and 1985, David King
became very close to the Higdon family
and developed a family-type relationship,
with Mr. King acting as a grandfather
figure to the Higdon family. Id. Mr.
King and the Higdons went on several
vacations together, including trips to
A89
Hawaii, Jamaica, and Chicago. Id. Mr.
King gave jewelry to Mrs. Higdon and on
one occasion, gave her a fur piece.
These trips or vacations were paid for by
Mr. King. By early 1985, Mr. King was
spending as much as thirteen to fourteen
hours per day with one or both of the
Higdons. Id. By early 1985, a
relationship of trust and confidence
existed between King and the Higdons.
Id.
Prior to September 1984, Melba
Lapidus did not frequently visit Dave
King and was not actively involved in the
care of his needs, including his medical
care. After September, 1984, Melba
Lapidus began visiting King more often
and urged him to sell his home in
Manchester and move to Nashville.
Carolyn Higdon Affidavit. During this
time, Melba Lapidus asserted more
A90
influence over Mr. King and began
inquiring into his personal and business
affairs. Carolyn Higdon Affidavit.
After Melba Lapidus’ visits, Mr. King
would become very agitated and
emotionally distraught. Carolyn Higdon
Affidavit.
On January 18, 1985, Dave King
executed a Will which was prepared by
Attorney Harry B. Gilley. This Will was
executed at the Deadman Funeral Home in
Manchester, Tennessee, and was witnessed
by Frank Deadman and Fred Deadman. This
Will named King’s nephew, Martin King, as
Executor and requested that Attorney
Harry B. Gilley be employed to assist in
the settlement of his estate. This Will
bequeathed the sum of $10,000 to each of
King’s nephews, Mauricio Kanoivicki and
Leon Kanoivicki. The residue of his
estate was to pass equally to his nephew,
A91
Martin King; his niece, Melba Lapidus;
and his niece, Bettye Jean Green. See
Will of January 18, 1985, attached hereto
as Exhibit B.
On April 8, 1985, Dave King executed
another Will when he went to Attorney
Harry B. Gilley’s office. The Will was
executed at the Peoples Bank & Trust
Company of Manchester, Tennessee, in
Wayne Bramblett’s office. The witnesses
were Wayne Bramblett and Melinda Ashburn,
Bramblett’s secretary. This Will named
Harry B. Gilley as Executor. This Will
bequeathed the sum of $5,000 each to
King’s nephews, Mauricio Kanoivicki and
Leon Kanoivicki, and King’s secretary,
Letha Rhodes. King bequeathed the sum of
$10,000 to Main Street Church of Christ
in memory of his wife. King bequeathed
the sum of $5,000 to the Jewish Synagogue
which his nephew, Martin King, attended.
A92
The Will provided that Hattie Biles and
Freeman Macon have life estates in the
residence in which each resided. King
directed that his real property be sold
subject to those life estates. The
residue of the estate was to pass to
Martin King, Melba Lapidus, and Bettye
Jean Green, in equal shares. See Will of
April 8, 1985, attached hereto as Exhibit
Cc.
On April 9, 1985, Melba King Lapidus
called Carolyn Higdon and told her that
she was looking for Mr. King to take him
to the hospital in Nashville. Id. After
that phone call, the Higdons called Mr.
King, and Mr. King requested that the
Higdons take him to the hospital. Id.
Mr. Higdon picked up Mr. King in his car
at Mr. King’s home and drove him back to
the Angus. Id. at p. 10. According to
the Higdons’ testimony, Mr. King had with
A93
him that morning the holographic Will
which bequeathed the vast majority of the
King Estate to Mrs. Higdon.
After Mr. King and Mr. Higdon
arrived at the Angus, Carolyn Higdon
typed a copy of the Will. Id. Mrs.
Higdon then drove Mr. King to Harry B.
Gilley’s office. A Will was prepared and
executed at Gilley’s office based on the
holographic Will with the exception of a
few changes, including naming Harry E.
Gilley as Executor, changing the amounts
left to the Argentine nephews, and
allowing Harry B. Gilley to buy one-half
of his bank stock. This Will was
witnessed by Melinda Ashburn and Wayne
Bramblett. Gilley deposition, p. 56,
attached hereto as Exhibit D.
The Higdons took Mr. King to
Nashville, and he was hospitalized on the
afternoon of April 9, 1985. Id. His
A94
treating physician, Herman J. Kaplan,
M.D., diagnosed Mr. King as suffering
from dementia as a consequence of
Alzheimer’s Disease. He was disoriented
as to time, place, and person. Id. For
example, upon questioning by Dr. Kaplan,
Mr. King answered that Truman was the
President of the United States, the
current year was 1996, and the month was
September. Id. Dr. Kaplan opined at
that time that Mr. King was not capable
of managing his business affairs. Id.
Although he had difficulty in
establishing the date of the onset of the
dementia, Dr. Kaplan did indicate that in
his opinion Mr. King had suffered from
dementia and had been unable to manage
his business affairs for at least one
year prior to April, 1985. Kaplan
Deposition, p. 25-26, attached hereto as
Exhibit E. Shortly thereafter, Dr.
Ag95
Kaplan testified that King’s condition
required him to have 24 hour nursing
care. Kaplan deposition, p. 25-26.
The District Court held that Dave
King became incapable of managing his
business affairs on January 31, 1985.
Id. at p. 11. On April 19, 1985, the
Chancery Court of Coffee County declared
Dave King to be incapable of managing his
business affairs and appointed Melba King
Lapidus as Conservator for Dave King.
Shortly thereafter, Harry B. Gilley was
appointed Co-Conservator.
On October 29, 1985, Melba King
Lapidus died in a bomb explosion in her
home, and Charles Lapidus was appointed
as Co-Conservator.
Dave King died on December 3, 1990,
ana the three Wills were submitted to
probate.
The holographic Will left the
following special bequests:
a. The sum of $25,000 to the Main
Street Church of Christ in Manchester,
Tennessee;
b. The sum of $10,000 and a life
estate in the house in which they resided
to Hattie and Jim Biles.
c. The sum of $5,000 and a life
estate in the house in which he resided
to Freeman Macon.
d. The sum of $5,000 to Letha
Rhodes.
e. The sum of $100,000 each to
Melba Lapidus, Martin King, and Betty
Jean Greene; and
ee The sum of $25,000 to Harry B.
Gilley.
The residue of Mr. King’s estate is
bequeathed to Carolyn Higdon. The
holographic Will has a provision which
A97
states that he did not forget his nephews
in Argentina, but that he did not leave
them any money because it would be seized
by the country. The Will names Carolyn
Higdon as Executor and requests that she
hire Harry B. Gilley as an attorney. See
holographic Will attached hereto as
Exhibit F.
LAW
Tennessee Rules of Civil Procedure
56.03 provides that summary judgment is
appropriate “if the pleadings,
depositions, answers to interrogatories,
and admissions on file, together with the
affidavits, if any, show that there is no
genuine issue as to any material fact and
that the moving party is entitled toa
judgment as a matter of law." A summary
judgment is not appropriate in this case,
because there are genuine issues of
material fact with regard to the issue of
A98
whether Melba Lapidus or the King
Petitioners were exercising undue
influence at the time the Wills of
January 18, 1985, and April 8, 1985, were
executed. In addition, genuine issues of
material fact remain as to whether Dave
King lacked testamentary capacity when
the January 18, 1985, and April 8, 1985,
Wills were executed. Also, genuine
issues of material fact remain as to
whether the holographic will is the last
valid Wiil of Dave King.
The United States Supreme Court has
held that the moving party bears the
initial responsibility of informing the
Court of the basis for its motion by
identifying relevant portions of the
record. Celotex Corp. v. Catrett, 477
U.S. 317, 8. Ct. 2946, 91 L. BA.24 264
(1986). The non-moving party then bears
the burden of designating specific facts
A99
showing that there is a genuine issue for
trial. Celotex Corp. 91 L. Ed.2d at 274.
Tennessee courts have embraced this
summary judgment analysis. Qwen v.
Stanley, 739 S.W.2d 782 (Tenn.App. 1979);
Moman v. Walden, 719 S.W.2d 531
(Tenn.App. 1986).
Carolyn Higdon has met her burden of
designating specific facts showing that
there are genuine issues of material fact
regarding the issue of whether Melba
Lapidus or the King Petitioners exerted
undue influence over Dave King in the
execution of the Wills of January 18,
1985, and April 8, 1985. When a Will is
contested on the grounds of undue
influence, a very broad range of inquiry
is permitted, including the chain of
circumstances which led up to and attend
the preparation and execution of the
Will. 1 Pritchard On Wills and
A100
Administration of Estates (4th ed. 1983),
Section 143. Inquiry can be made into
many areas including the nature and
extent of the testator’s estate, the
condition, character, and conduct of
persons around him, and the testator’s
business, social, and family relations.
Pritchard, Section 145. Undue influence
can be proved by circumstantial, as well
as direct evidence and is usually shown
by proving the existence of suspicious
circumstances. Mitchell v. Smith, 779
S.W.2d 384 (Tenn. App. 1989). As the
Supreme Court has held: "What is undue
influence in the sense of the law must be
decided by the application of sound
principles and good sense to the facts of
each case." Halle v. Summerfield, 287
S.W.2d 57, 61 (Tenn. 1956). Therefore,
courts have refrained from proscribing
the type or number of suspicious
A101
circumstances that will warrant
invalidating a Will on the ground of
undue influence. Mitchell, 779 S.W.2d at
388.
The evidence designated by Carolyn
Higdon raises genuine issues of material
fact on the issue of undue influence.
Evidence has been presented as to the
existence of several suspicious
circumstances which are recognized as
relevant in establishing undue influence,
including the following: (1) existence of
confidential relationship between
testator and beneficiary; (2) the
testator’s physical or mental
deterioration; (3) the beneficiary’s
active involvement in procuring the Will;
(4) secrecy concerning the Will’s
existence; (5) the testator’s advanced
age; (6) the lack of independent advice
in preparing the Will; (7) the testator’s
A102
illiteracy or blindness; (8) the testator
being in an emotionally distraught state;
(9) discrepancies between the Will and
the testator’s expressed intentions; and
(10) fraud or duress directed toward the
testator.
In January 1985 and April 1985, Dave
King was in a weakened physical and
mental state. Dr. Kaplan testified that
Dave King suffered from primary dementia
as a result of Alzheimer’s Disease, and
that in his Opinion, King had been unable
to handle his business affairs for one
year prior to April 9, 1985. Kaplan
deposition, p. 25. King’s condition
deteriorated to the point that in May,
1985, Dr. Kaplan concluded that King
required attendants around the clock.
Kaplan deposition, Pp. 26. King was
hospitalized on April 9, 1985, only one
day after executing the Will of April 8,
A103
1985, and only a few short months after
executing the Will of January 18, 1985.
The weakened mental and physical
condition of Dave King are proper factors
for a jury to consider in determining
whether these Wills should be invalidated
on the ground of undue influence.
Another appropriate factor to be
considered is King’s business, social,
and family relationships. It is
undisputed that the Higdons and King had
a very close, family-type relationship.
In addition, King spent thirteen to
fourteen hours per day with one or both
of the Higdons. King was a grandfather
figure to the Higdons. Many of the
activities in which the Higdons and King
participated were activities usually
performed by families, including taking
several vacations together.
A104
Saja RG Meee #8 Rete Sa aia
ve totiat ie entihaoa GX
On the contrary, Melba Lapidus and
the other King Petitioners played a very
small, insignificant role in Dave King’s
life prior to September, 1984. At that
time, Melba Lapidus became interested in
Mr. King’s condition and affairs. Mrs.
Lapidus began visiting Mr. King more
frequently and inquired into his
financial affairs. Mrs. Lapidus urged
Mr. King to sell his house in Manchester
and move to Nashville. Her visits and
Suggestions that he move away from
Manchester made King very upset and
emotionally distraught.
The limited involvement of Melba
Lapidus in providing for Dave King’s
medical needs prior to September 1984 and
early 1985 is further Supported by the
testimony of Dr. Kaplan. Dr. Kaplan
testified that he did not recall Melba
Lapidus accompanying Mr. King to the
A105
doctor’s office prior to May 1985, even
though he bad been treating Mr. King for
several years. Kaplan Deposition, p.
110.
Another appropriate consideration is
the fact that King executed three Wills
with different dispositions within a
three month time period. [he
dispositions made in the Wills of January
18, 1985, and April 8, 1985, were
contrary to Dave King’s intentions as
expressly stated to Carolyn Higdon and
expressed in his holographic Will which
was written prior to his physical and
mental infirmities. In addition, Dave
King had expressed different intentions
to Walden Fraley, a long-time business
acquaintance. In the District Court
hearing, Fraley testified that Dave King
had discussed with him on several
occasions the manner in which he wanted
A106
ee eee Or Ce eS
fe tia = tf
to dispose of his money. Fraley related
the substance of those conversations as
follows:
i This has been back, I I
couldn’t give you dates, but
it’s been back five to ten
years ago, something like that.
Over the different times I have
had the conversation I know at
least two different time he
told me that his nephew Martin
wanted him to leave a sizeable
sum for the synagogue or for
religious purposes in Nashville
and I couldn’t quote you
exactly, but the essence of it
was he says that, I didn’t make
my money in Nashville and says,
I made my money in Manchester
and I am going to leave it in
Manchester.
Q Do you recall him making a
remark like that on at least
two occasions.
A Yes, sir.
District Court Transcript
=p,
Pp. 697, attached hereto as
Exhibit G.
It is important to note that the
January 18, 1985, Will omitted all of
King’s closest friends and relations,
A107
including Letha Rhodes, Freeman Macon,
Hattie Biles, and Carolyn Higdon. In
addition, there was no specific bequest
to either of the churches with which King
was affiliated.
The facts of this case distinguish
it from Boyd v. Boyd, 680 S.W.2d 462
(Tenn. 1984). In the Boyd case, there
was no testimony or evidence that Alvin
Boyd exercised any sort of dominion or
undue influence over the testatrix at any
time near the execution of the Will. In
the instant case, the affidavit of
Carolyn Higdon contains evidence that
Melba Lapidus did exercise dominion and
undue influence in January 1985, and
April 1985. This evidence, coupled with
the other circumstances discussed above
raise genuine issues of material fact
which must be resolved by a jury.
A108
eee ee ee ee ee ee
In their Brief, the King Petitioners
state, "Independent advice, of course,
refutes any claim of undue influence",
and cite the case of Askew v. Askew, 619
S.W.2d 384 (Tenn.App. 1985). Carolyn
Higdon submits to the Court that that
statement is not a correct statement of
the holding in the Askew case.
Furthermore, a Will can be invalidated on
the ground of undue influence, even if
the testator discussed the provisions
with an attorney who then prepared the
Will. The Askew case held that
independent advize can be used to rebut
the presumption of invalidity arising
from the existence of a confidential
relationship. Askew, 619 S.W.2d at 386.
In addition, the mere fact that an
attorney is involved in the preparation
and execution of a Will does not
automatically rule out the ground of
A109
undue influence. In Mitchell v. Smith,
779 S.W.2d 384 (Tenn. App. 1989), the
Will was held invalid on the ground of
undue influence even though an attorney
had prepared it. Factual issues remain
regarding the circumstances surrounding
the discussions, preparation, and exe-
cution of each of the three Wills, and
these are jury issues.
Additional proof regarding the
dominion or undue influence which Melba
Lapidus or the King Petitioners exercised
over King will be obtained in the
discovery process and will be presented
at trial. However, Carolyn Higdon has
met her burden of establishing that
genuine issues of material fact remain by
designating affirmative evidence on the
issue of undue influence. Therefore, the
Motion for Summary Judgment should be
overruled.
A110
LL
RRA HPP et Ce
Carolyn Higdon is not judicially
estopped from alleging that Dave King
lacked testamentary capacity at the time
he executed the Wills of January 18,
1985, and April 8, 1985. The doctrine of
judicial estoppel applies only where
there has been a willful misstatement of
fact. Woods v. Woods, 638 S.W.2d 403
(Tenn. App. 1981). Carolyn Higdon has
not made a willful misstatement of fact,
and therefore, judicial estoppel does not
apply. In the District Court hearing,
Carolyn Higdon merely testified as to her
Opinion as a lay person as to King’s
mental state. In the Federal Court
proceedings, Carolyn Higdon testified
that in her opinion, King was competent
in April 1985. The Co-Conservators
introduced evidence, including testimony
from Mr. King’s treating physician, that
Mr. King was incompetent and unable to
Alll
manage his business affairs from April 9,
1984, forward. Admittedly, Carolyn
Higdon will not testify inconsistently
with her previous testimony regarding her
opinion as to Dave King’s mental state.
However, she is not judicially estopped
from relying upon evidence introduced by
the Co-Conservators in the Chancery and
Federal Court proceedings or from
introducing other evidence as to Dave
King’s mental competency in 1985.
In Woods v. Woods, 638 S.W.2d 403
(Tenn. App. 1985), the Court of Appeals
held that the doctrine of judicial
estoppel did not apply. Mrs. Woods filed
a Complaint alleging that her marriage
was void, because it had never been
consummated. Prior tc a hearing, her
spouse died, and she dissented from the
will and demanded a spouse’s share. The
Court of Appeals held that she was not
A112
en ee ee Yee ee ee
judicially estopped from asserting the
position that she was legally married at
the time of her husband’s death even
though she had filed a Complaint alleging
the marriage was void. Likewise, Carolyn
Higdon is not judicially estopped from
raising the issue of testamentary
Capacity.
Clearly, genuine issues of material
fact remain on the issue of whether Dave
King lacked testamentary Capacity when he
executed the Wills of January 18, 1985,
and April 8, 1985, and Summary Judgment
is inappropriate.
The holographic Will propounded by
Carolyn Higdon is admissible to probate.
Tennessee Courts do not require a
holographic Will to be dated in order for
it to be valid. Although Carolyn Higdon
cannot establish the exact date on which
the holographic Will was executed, the
A113
evidence establishes that the hoiographic
Will was executed prior to April, 1984.
The Wills of January 18, 1985, and April
8, 1985, do not revoke the holographic
Will, if those two Wills are found to be
invalid by a jury.
Therefore, the holographic Will is
the valid Last Will of David King, since
the Wills of January 18, 1985, and April
8, 1985, are invalid on the grounds of
undue influence and/or lack of
testamentary capacity. Dave King’s
estate should pass pursuant to the terms
of his holographic Will
The District Court Judge
specifically declined to address any
issue regarding whether any of the Wills
were procured by undue influence.
Amended District Court Order, p. 5,
attached hereto as Exhibit H. In
addition, the Court’s holding is very
A114
specific as to the time period within
which he held that Mr. King was unduly
influenced by the Higdons. The time
period of January 31, 1985, through April
9, 1985, is after the execution of the
holographic Will. Therefore, the
District Court ruling has no effect on
the admission of the holographic Will to
probate.
CONCLUSION
Summary judgment is not appropriate
in this case, because genuine issues of
material fact remain on each issue raised
by the King Petitioners, and they are not
entitled to judgment as a matter of law.
Based upon the foregoing, CAROLYN HIGDON
respectfully requests the Court to
overrule the Motion for Summary Judgment
filed by the King Petitioners.
A115
romeaetgs
Respectfully submitted this lst day
of October, 1991.
ROGERS, RICHARDSON & DUNCAN
By: s/J. Stanley Rogers
J. Stanley Rogers
By: s/Doyle E. Richardson
Doyle E. Richardson
Attorneys for Carnlyn
Higdon
100 North Spring Street
Manchester, TN 37355
(615) 728-0820
CERTIFICATE OF SERVICE
I hereby certify that a copy of the
foregoing has been served upon counsel
for all parties at interest in this cause
by delivering a true and exact copy of
said pleading to the offices of said
counsel or by placing a true and exact
copy of said pleading in the United
States Mail, addressed to said counsel at
his office with sufficient postage
thereon to carry the same to its
destination, as follows:
George E. Barrett, Esq.
P.O. Box 2846
Nashville, TN 37219;
William L. Harbison, Esq.
O’Hare, Sherrard & Roe
424 Church Street, Suite 2000
Nashville, TN 37219
A116
H. Thomas Parsons, Esq.
Parsons & Nichols
101 West Main Street
Manchester, TN 37355
Attorneys for King Petitioners
James H. Henry, II, Esq.
Henry & McCord
P. O. Box 538
Tullahoma, TN 37388
Administrator Pendente Lite
Robert L. Huskey, Esq.
?. ©. Box 777
Manchester, TN 37355
Attorney for Main Street Church of
Christ
Michael I. Mossman, Esq.
Noel Place, Suite 202
200 Fourth Avenue North
Nashville, TN 37219
Dr. David Burgos
Sarmiento, 1411
Capital Federal
Buenos Aires, Argentina
Messrs. Leon and Mauricio Kanoivicki
c/o Dean Funes, 2901
Cordoba Capital, Argentina
This lst day of October, 1991.
ROGERS, RICHARDSON &
DUNCAN
By: s/J. Stanley Rogers
A117
IN THE CIRCUIT COURT FOR THE
FOURTEENTH JUDICIAL DISTRICT,
AT MANCHESTER
NO. 24,954
BETT: 2 JEAN GREEN, MARTIN KING,
DEBORAH LAPIDUS FISHER,
LISA LAPIDUS COHEN and BARRY LAPIDUS,
Plaintiffs-Proponents,
VS.
CAROLYN HIGDON,
Defendant-Contestant.
AND
CAROLYN HIGDON,
Plaintiff-Proponent,
Vs.
BETTYE JEAN GREEN, MARTIN KING,
DEBORAH LAPIDUS FISHER,
LISA LAPIDUS COHEN and BARKY LAPIDUS,
Defendants-Contestants.
RESPONSE OF MAIN STREET CHURCH OF
CHRIST TO SUMMARY JUDGMENT. MOTION
COMES NOW, the Main Street Church of
Christ, by and through its attorney and
A118
for a response to the Summary Judgment
Motion would show unto this Honorable
Court the following:
Actually, the motion itself
addresses itself to Carolyn Higdon and
would thereby nct appear to require a
response from the Main Street Church of
Christ; however, since they are part of
the litigation, in that a dismissing of
the case of Carolyn Higdon would be
adverse to its interest, since it also
Claims under the handwritten Will that
the Main Street Church of Christ will
proceed to respond.
aq.
The Main Street Church of Christ
adopts for its response hereto the
pleadings and documents filed by
attorneys for Carolyn Higdon.
A119
oe #
In addition, the Main Street Church
of Christ would show that in its Motion
for Summary Judgment, the King
Petitioners contend that Summary Judcoment
should be granted because Carolyn Higdon
is estopped to contend that Mr. King was
incompetent when he executed the two
Wills reported by the King Petitioners
because in prior litigation, she
contended that he was competent at such
period. The Main Street Church of Christ
would show to the Court that it was not a
party to that prior litigation and has
not taken such a position and that even
if it should be held that Carolyn Higdon
for some reason was estopped to claim
that position, the Main Street Church of
Christ is not estopped to make that
contention.
A120
RESPECTFULLY SUBMITTED,
ROBERT L. HUSKEY
s/Robert L. Huskey, by
Permission slb
Attorney for Main Street Church
of Christ
CERTIFICATE OF SERVICE
I, Robert L. Huskey, certify that I
have hand delivered a copy of the
foregoing pleading to counsel for Carolyn
Higdon and to counsel for the King
Petitioners on the 22nd day of October,
1991.
s/Robert L. Huskey, by
Permission slb
ROBERT L. HUSKEY
A121
IN THE CIRCUIT COURT
FOR THE FOURTEENTH JUDICIAL DISTRICT
OF TENNESSEE, AT MANCHESTER,
PART II
NO. 24,954
BETTYE JEAN GREEN, MARTIN KING,
DEBORAH LAPIDUS FISHER,
LISA LAPIDUS COHEN and BARRY LAPIDUS,
Plaintiffs-Proponents,
VS.
CAROLYN HIGDON,
AND
CAROLYN HIGDON,
Plaintiff-Proponent,
Vs.
BETTYE JEAN GREEN, MARTIN KING,
DEBORAH LAPIDUS FISHER,
LISA LAPIDUS COHEN and BARRY LAPIDUS,
Defendants-Contestants.
MOTION TO ALTER, AMEND AND SET ASIDE
COMES NOW the Main Street Church of
Christ, by and through its attorney of
record, pursuant to Rule 59 of the Rules
Al22
of Civil Procedure and pursuant to any
other rule or category applicable and
would move this Honorable Court to alter,
amend and set aside the Court’s Order
entered June 1, 1992, whereby this
Honorable Court granted a Summary
Judgment to Bettye Jean Green, Martin,
King, Deborah Lapidus Fisher, Lisa
Lapidus Cohen, and Barry Lapidus,
hereinafter for reference to as the
"Lapidus Group."
Counsel would not contend to the
Court that this is the first time that he
has ever had a Summary Judgment granted
against him or his client; however,
Counsel would show to the Court that to
the best of his knowledge this is the
first time he has ever had a Summary
Judgment granted against him or his
client when no Summary Judgment Motion
was filed against them.
A123
It is a fact that in August of 1991,
NANG Tees ae ee
the Lapidus Group did file a Motion for
Summary Judgment against Carolyn Higdon.
As the Court can readily see from the
record the Main Street Church of Christ
has an interest in Carolyn Higdon
remaining in the litigation and being
successful in the litigation. Counsel
for the Main Street Church of Christ in
response to that Motion filed a pleading
which first off pointed out that the
Motion only addressed itself to Carolyn
Higdon and therefore didn’t require
response by the Main Street Church of
Christ, but since the Church was a part
of the litigation and that it was felt
that dismissing Carolyn Higdon would be
adverse to the Church’s interest and
Since the Church also claims benefit
under the handwritten will, we chose to
likewise oppose the Motion for summary
A124
Judgment and in that regard would adopt
the response and pleadings filed by
Carolyn Higdon. We go on further to
point out that the Church was not party
to the prior to the litigation referenced
in the Motion for Summary Judgment and
therefore in no way would be utilized to
bar the Church’s interest in this case.
The Court in its Order of June l,
pointed out that we adopted the position
and pleading of Carolyn Higdon and that
nothing new was added to raise a factual
issue and therefore granted the Summary
Judgment. The Court must consider that
in that responsive pleading where the
Church adopted the Higdon position it was
addressing a Motion for Summary Judgment
against Carolyn Higdon and Carolyn Higdon
only. The Main Street Church of Christ
was not required to go forward with
anything at that time. However, Counsel
A125
would show even though not required to go
forward at that time that there were
matters in the record that would raise a
factual issue as to Mr. King’s competence
at the time of the execution of either of
the January or April 1985 Wills, the two
Wills which the Lapidus Group seeks to
support. The effect of His Honor’s
ruling in relation to the Higdon Motion
was that although she may have that
evidence she is estopped to raise it
because of her prior position taken in
prior litigation. : Thus, there is clearly
evidence and proof for the Court to raise
a factual issue of Mr. King’s competence
at the time he executed either of the
Wills supported by the Lapidus Group but
the Court has held Ms. Higdon can raise
it but the Court has specifically held
that that doesn’t bar the Church of
Christ from raising it and rightly so
: A126
because we weren’t a party to the prior
litigation.
Put simply for several reasons
there’s no reason to award a Summary
Judgment against the Main Street Church
of Christ in this case, the first being
there was no Motion for Summary Judgment
against it to start with, and the second
being that if there were there’s plenty
of evidence in the record including the
statements taken by Ms. Lapidus, of
doctors to support her establishment of
the conservatorship and the deposition of
Dr. Kaplan all go to establish the
incompetence of Mr. King when he executed
those two Wills.
Therefore the Main Street Church of
Christ through Counsel would respectfully
request this Honorable Court to set aside
totally its Order of June 1, 1992.
A127
RESPECTFULLY SUBMITTED,
s/Robert L. Huskey
ROBERT L. HUSKEY
Attorney for
Main Street Church of
Christ
CERTIFICATE OF SERVIC
I, Robert L. Huskey, certify that I
have served a copy of the foregoing
pleading upon Ms. Higdon by mailing a
copy of same to her attorneys of record,
the firm of Rogers, Richardson & Duncan
at 100 North Spring Street, Manchester,
TN 37355, and also have served a copy of
this pleading upon the Lapidus Group by
mailing a copy of same to the Honorable
William L. Harbison at Sherrard & Roe,
424 Church Street, Nashville, TN 373219,
and also upon the Honorable George E.
Barrett at Barrett, Johnston and Parsley,
217 Second Avenue North, Nashville, TN
37219, and also a copy of the Court
appointed administrator, the Honorable
James H. Henry, II, at Henry and McCord,
300 North Jackson, Tullahoma, TN 37388,
all mailings first-class mail, postage
prepaid, this the 8th day of June,
1992. Copy also sent to the Honorable
Trial Judge.
s/Robert L. Huskey
ROBERT L. HUSKEY
A128
IN THE CIRCUIT COURT FOR THE FOURTEENTH
JUDICIAL DISTRICT,
AT MANCHESTER, PART II
NO. 24,954
BETTYE JEAN GREEN, MARTIN KING,
DEBORAH LAPIDUS FISHER,
LISA LAPIDUS COHEN and BARRY LAPIDUS,
Plaintiffs-Proponents,
VS.
CAROLYN HIGDON,
Defendant-Contestant.
AND
CAROLYN HIGDON,
Plaintiff-Proponent,
Vs.
BETTYE JEAN GREEN, MARTIN KING,
DEBORAH LAPIDUS FISHER,
LISA LAPIDUS COHEN znd BARRY LAPIDUS,
Defendants-Contestants.
KING PETITIONERS’ MEMORANDUM IN
OPPOSITION TO MOTION TO
ALTER, AMEND. AND SET ASIDE BY THE
MAIN STREET CHURCH OF CHRIST
A129
- INTRODUCTION.
On June 1, 1992, the Court awarded
summary judgment in this will contest
against the Main Street Church of Christ
(the "Church of Christ"). As the only
remaining contestant to the January 18,
1985 will propounded by the King
Petitioners, the Court held that the
Church of Christ has failed to meet its
burden of demonstrating the existence of
material facts in dispute regarding David
King’s testamentary capacity when he
executed the January 18, 1985 Will.
Because the January 18, 1985 Will
postdates the holographic will propounded
by the Church of Christ, summary judgment
against the Church of Christ was granted.
The Church of Christ has filed a
Motion to Alter, Amend and Set Aside the
Order granting summary judgment against
it. The grounds for this motion are (1)
A130
vs ia
"there was no Motion for Summary Judgment
against it to start with" and (2)
"there’s plenty of evidence in the record
to establish the incompetence of
Mr. King when he executed [the January
18, 1985 and April 8, 1985 Wills]."
Motion to Alter, Amend and Set Aside, at
The motion of the Church of Christ
is without merit and should be denied.
Although the Church of Christ correctly
notes that the King Petitioners’ motion
for summary judgment is against Carolyn
Higdon, the motion also sought summary
judgment "against the validity of the
[holographic will] propounded by her."
Motion for Summary Judgment, at 1.
Recognizing that an adjudication against
the validity of the holographic will
"would be adverse to its interest, since
it also claims under the [holographic
A131
will]," the Church of Christ submitted
its response to the motion for summary
judgment on October 22, 1991.* Response
to Motion for Summary Judgment, at 1.’
This response adopts the proof introduced
by Carolyn Higdon on the issue of Mr.
. At the hearing on the King
Petitioners’ motion for summary judgment
on October 22, 1991, a "Response of Main
Street Church of Christ to Summary
Judgment Motion" was submitted by counsel
for Carolyn Higdon on behalf of the
Church of Christ. This response "adopts
for its response hereto the pleadings and
documents filed by attorneys for Carolyn
Higdon." Response to Motion for Summary
Judgment, at 1. The Church of Christ,
through statements of counsel for Carolyn
Higdon, otherwise waived its right to
appear and protect its position regarding
the King Petitioners’ motion for summary
judgment. Copies of pages 2 and 3 from
the transcript of this hearing are
attached as Exhibit l.
. Because the response was
apparently not stamped "filed" by the
Circuit Court Clerk, the King Petitioners
hereby request, so that the record is
clear, that it be filed nunc pro tunc to
reflect a filing date of October 22,
1991.
Al32
King’s testamentary capacity when he
executed the January 18, 1985 Will.
As a matter of law, the Court held
that the evidence in the record is
insufficient to create a jury issue
regarding Mr. King’s testamentary
Capacity on January 18, 1985. June l,
1992 Order, at 2. Although it has moved
the Court to set aside the order of
judgment against it, the Church of Christ
has submitted no additional proof in
support of its motion on the issue of Mr.
King’s testamentary capacity.’
. The Church of Christ emphasizes
in its motion that no motion for summary
judgment was pending against it when the
Court’s Order was entered on June 1,
1992. This does not establish grounds to
set aside the Order for two reasons.
First, the King Petitioners’ motion for
summary judgment challenged the validity
of the holographic will, and the Church
of Christ has still failed to meet its
burden under Rule 56 of establishing a
genuine issue of material fact related to
Mr. King’s testamentary capacity when he
subsequently executed the January 18,
A133
Accordingly, the motion is nothing more
than a motion to reconsider the Court’s
prior determination that a jury issue
does not exist regarding the Church of
Christ’s reliance on the validity of the
holographic will propounded by it. The
Court’s prior determination was correct,
and this Memorandum is respectfully
submitted in opposition to the Church of
Christ’s motion.
II. LEGAL ARGUMENT AND DISCUSSION.
The Church of Christ asserts in its
motion that no motion for summary
judgment had been filed against it when
judgment was entered against in on June
1, 1992.* However, the King Petitioners’
1985 Will. Second, as a matter of law
summary judgment may be granted by the
Court sua sponte.
’ To the extent counsel for the
Church of Christ laments that "this is
the first time he has ever had a Summary
A134
motion for summary judgment also sought
judgment "against the validity of the
[holographic will] ... ." Motion for
Summary Judgment, at 1. As a proponent
of the holographic will and a contestant
to the January 18, 1985 Will that was
executed by Mr. King after the
holographic will, the Church of Christ
therefore had a burden to demonstrate "by
affidavits or as otherwise provided in
iTenn. R. Civ. P. S6), .. . specific
facts showing that there is a genuine
issue for trial. If he does not so
Judgment granted against him or his
client when no Summary Judgment Motion
was filed against them," he fails to
explain why he was compelled to file a
response to the King Petitioners’ motion
for summary judgment which states that
"since they [sic] are part of the
litigation, in that a dismissing of the
case of Carolyn Higdon would be adverse
to its interest, since it also claims
under the handwritten Will that the Main
Street Church of Christ will proceed to
respond." Response to Motion for Summary
Judgment, at 1.
A135
respond, summary judgment, if
appropriate, shall be entered against
hia.* Tenn. R. Civ. PF. 36.08.
In its response to the King
Petitioners’ motion for summary judgment,
and in support of its contention that the
January 18, 1985 will should not revoke
the holographic will because Mr. King
lacked testamentary capacity on January
18, 1985, the Church of Christ adopted
"the pleadings and documents filed by
attorneys for Carolyn Higdon." Response
to Motion for Summary Judgment, at 1.
This evidence includes the entire record
from the prior proceedings in the United
States District Court for the Eastern
District of Tennessee (the "District
Court"), and the affidavit of Carolyn
Higdon wherein she states that the
holographic will was written and signed
by Mr. King prior to January 18, 1985.
A136
The Church of Christ has offered no
additional evidence on the issue of Mr.
King’s testamentary capacity when he
executed the January 18, 1985 Will.
After considering on behalf of the
Church of Christ the evidence in the
record relating to Mr. King’s
testamentary capacity on January 18,
1985, the Court concluded that such
evidence is insufficient to create a jury
issue. See Street v. J.C. Bradford &
Co., 886 F.2d 1472, 1479 (6th Cir. 1989)
(a court’s inquiry regarding summary
judgment or directed verdict is the same:
whether the evidence presents a
sufficient disagreement to require
submission to a jury or whether it is so
one-sided that one party must prevail as
a matter of law). Specifically, the
Court stated:
A137
Taking the entire record
introduced by the proponent of
the holographic will, Carolyn
Higdon, and viewed by the Court
from the standpoint of being
introduced on behalf of the
potential beneficiary, Main
Street Church of Christ, the
proof appears to be
insufficient to present the
issue to a jury. The record
from prior hearings in federal
proceedings is clear that the
January 18, 1985 and April 8,
1985 wills were executed after
the holographic will and there
is no proof to the contrary in
the present proceeding and no
proof that David King lacked
testamentary capacity at least
at the time the January 18,
1985 will was executed.
June 1, 1992 Order, at 2.
The Court’s conclusion is correct.
Although the Church of Christ may contend
that "there’s plenty of evidence in the
record . . . to establish the
incompetence of Mr. King when he executed
[the January 18, 1985 Will]," Motion, at
3, aS a matter of law the District Court
found Mr. King competent to manage his
A138
business affairs prior to January 31,
1985. This judicial finding of
competence from the District Court,
coupled with the lack of evidence in the
record supporting the Church of Christ’s
contention that Mr. King did not have
testamentary capacity on January 18,
1985, warrants the granting of summary
judgment against the Church of Christ.°®
The Church of Christ has failed to meet
its burden under Rule 56 of the Tennessee
Rules of Civil Procedure of showing that
there is a genuine issue for trial.
The Church of Christ’s contention
that judgment against it should be set
aside because no motion for summary
. There have also been
allegations in this will contest that Mr.
King was unduly influenced by the King
Petitioners when he executed the January
18, 1985 Will. To the extent the Church
of Christ takes this position, there is
also no evidence in the record to support
this baseless allegation.
A139
judgment had been filed against it is
legally irrelevant. The Tennessee
Supreme Court has held that, in the
absence of a genuine issue of material
fact, a trial judge may grant summary
judgment in favor of a party even though
that party has not filed a motion seeking
summary judgment. See, e.g., Brewer v.
Argo-Collier Truck Lines Corp., 592
S.W.2d 322, 326 (Tenn. 1979); Thomas v.
Transport Ins. Co., 532 S.W.2d 263, 266
(Tenn. 1976). In Thomas, the court cited
with approval the following statement
from Moore's Federal Practice:
Care should, of course, be
taken by the district court to
determine that the party
against whom summary judgment
is rendered had had a full and
fair opportunity to meet the
proposition that there is no
genuine issue of material fact
to be tried, and that the party
for whom summary judgment is
rendered is entitled thereto as
a matter of law.
A140
Thomas, 532 S.W.2d at 266 (citing 6 J.
Moore, Moore’s Federal Practice, § 56.12
(2d ed. 1985).
The issue, therefore, is whether the
Church of Christ has had the opportunity
to demonstrate that there is a genuine
issue of material fact regarding Mr.
King’s testamentary capacity when he
executed the January 18, 1985 Will.
Because the Church of Christ relied upon
the evidence submitted by Carolyn Higdon
on this issue, and because no additional
evidence was submitted by the Church of
Christ to support its motion to alter,
amend and set aside, the record to date
is identical to the record prior to the
entry of summary judgment against the
Church of Christ on June 1, 1992. This
record, as the Court correctly held, is
insufficient to support the Church of
Christ’s contention that the holographic
A141
will is the last will and testament of
Mr. King, and therefore no issue exists
to be submitted to the jury.
III. CONCLUSION.
The Church of Christ is unable to
meet its burden of establishing that a
genuine issue of material fact exists
with regard to Mr. King’s testamentary
capacity when he executed the January 18,
1985 Will. Because it is undisputed that
the January 18, 1985 Will postdates the
holographic will propounded by the Church
of Christ, the holographic will is
revoked as a matter of law and summary
judgment against the Church of Christ is
warranted. The Church of Christ’s motion
to alter, amend and set aside this
summary judgment is without merit and
should be denied.
A142
Respectfully submitted,
s/George E. Barrett by LWC
George E. Barrett (No. 2672)
BARRETT, JOHNSON & PARSLEY
217 Second Avenue North
Nashville, Tennessee 37201
(615) 244-2202
s/L. Webb Campbell II
William L. Harbison (No. 7012)
L. Webb Campbell II (No. 11238)
SHERRARD & ROE
424 Church Street, Suite 2000
Nashville, Tennessee 37219
(615) 742-4200
{H. Thomas Parsons by LWC
H. Thomas Parsons (No. 2571)
PARSONS & NICHOLS
101 W. Main Street
Manchester, Tennessee 37355
(615) 728-1316
Attorneys for the King
Petitioners, Bettye Jean Green,
Martin King, Deborah Lapidus
Fisher, Lisa Lapidus Cohen, and
Barry Lapidus
CERTIFICATE OF SERVICE
I hereby certify that a true and
exact copy of the foregoing has been
forwarded by U.S. Mail, postage prepaid,
to J. Stanley Rogers and Doyle E.
Richardson, Rogers, Richardson & Duncan,
100 North Spring Street, Manchester,
Tennessee 37355, attorneys for Carolyn
Higdon; Robert L. Huskey, P. O. Box 777,
Manchester, Tennessee 37355; James H.
Henry, Henry & McCord, P. ©. Box 538,
Tullahoma, Tennessee 37389; Michael I.
Mossman, Eisenstein, Moses & Mossman, One
Church Street, Suite 500, Nashville,
Tennessee 37201-1607, and by Certified
Mail, Return Receipt Requested, to Dr.
David Burgos, Sarmiento, 1411, Capital
Federal, Buenos Aires, Argentina; and
Messrs. Leon and Mauricio Kanoivicki, c/o
Dean Funes, 2901, Cordoba Capital,
Argentina, this 29th day of June, 1992.
s/William L. Harbison by LWC
William L. Harbison
A144
IN THE SUPREME COURT FOR THE
STATE OF TENNESSEE
AT NASHVILLE
COURT OF APPEALS
NO. O1AO1-9209-CV-00369
Coffee Circuit No. 24954
BETTYE JEAN GREEN,
MARTIN KING,
DEBORAH LAPIDUS FISHER,
LISA LAPIDUS COHEN, and
BARRY LAPIDUS,
Plaintiffs/Appellees,
VS.
CAROLYN HIGDON and
MAIN STREET CHURCH OF CHRIST,
Defendants/Appellants.
MOTION OF LEON KANOIVICKI AND
MAURICIO KANOIVICKI TO INTERVENE
KEN BURGER, BPR #3731
Attorney for Leon Kanoivicki and
Mauricio Kanoivicki
WM.KENNERLY BURGER, P.C.
301 N. Spring St., P. 0. Box 398
Murfreesboro, TN 37133-0398
(615) 896-4154
ORAL ARGUMENT REQUESTED
A145
IN THE SUPREME COURT FOR THE
STATE OF TENNESSEE
AT NASHVILLE
COURT OF APPEALS
NO. O1LAO1-9209-CV-00369
Coffee Circuit No. 24954
BETTYE JEAN GREEN,
MARTIN KING,
DEBORAH LAPIDUS FISHER,
LISA LAPIDUS COHEN, and
BARRY LAPIDUS,
Plaintiffs/Appellees,
VS.
CAROLYN HIGDON and
MAIN STREET CHURCH OF CHRIST,
Defendants/Appellants.
MOTION OF LEON KANOIVICKI AND
MAURICIO KANOIVICKI TO INTERVENE
The undersigned requests oral argument
on this motion.
1.LEON KANOIVICKI and MAURICIO
KANOIVICKI, pursuant to Rule 22 of the
Rules of Appellate Procedure respectfully
move the Court for an order permitting
A146
them to intervene and submit briefs in
the captioned proceeding.
2.The KANOIVICKIS are now before the
Court of Appeals of Tennessee, Middle
Section of Nashville, in case number
O1A01-9303-CV-00396, in which briefs have
been filed, and the matter scheduled for
oral argument on April 5, 1994. The
issues presented in that matter now
pending before the Court of Appeals are
closely related to the issues now pending
in the above-numbered proceeding, which
is pending before the Supreme Court upon
applications for permission to appeal,
pursuant to Rule 11, filed in behalf of
Appellants CAROLYN HIGDON and MAIN STREET
CHURCH OF CHRIST.
3.David King, a resident of Coffee
County, died December 3, 1990, following
years of progressively worsening
Alzheimers disease, necessitating the
A147
appointment of a conservator for his
approximate eight million dollars
($8,000,000.C0) in assets in 1985. Mr.
King left multiple wills, three of which
were executed during a relatively brief
period of time in early 1985.
4. The only relatives surviving
David King are those cousins described as
the Lapidus Group (BETTYE JEAN GREEN;
MARTIN KING; DEBORAH LAPIDUS FISHER; LISA
LAPIDUS COHEN; and BARRY LAPIDUS), and
the KANOIVICKIS (LEON KANOIVICKI and
MAURICIO KANOIVICKI), cousins of Mr. King
who reside in Argentina. CAROLYN HIGDON
was a close friend of David King. The
MAIN STREET CHURCH OF CHRIST is involved
in the matter as a beneficiary under one
of the wills, and as an assignee of a
portion of CAROLYN HIGDON’S potential
interest in the estate. All of the
above-named individuals are designated
A148
beneficiaries in one or more of the wills
executed by David King. The Lapidus
Group and the KANOIVICKIS have contested
a will which primarily favors CAROLYN
HIGDON. CAROLYN HIGDON and the
KANOIVICKIS have sought to contest a will
which primarily favors the Lapidus Group.
5. No jury trial has ever occurred
in any of the will contests, and the
matters have progressed to the Court of
Appeals following summary judgment
rulings by Judge John Rollins in the
Circuit Court of Coffee County. The
KANOIVICKIS were not represented by
counsel until after October, 1992, when
an order was entered which granted
summary judgment to the Lapidus Group
(and against HIGDON and the CHURCH).
That part of the case is now pending
before this Court, following the Court of
Appeals, ruling which affirmed Judge
A149
Rollins’ October, 1992 order. Although
the KANOIVICKIS had not been represented
by counsel prior to the entry of Judge
Rollins’ order, they had filed pro se
pleadings in the matter, and had been
recognized, by court order, as
"contestants" in the Circuit Court will
contest proceedings.
6. Through some very unusual,
bizarre twists, the case has become
procedurally entangled. The KANOIVICKIS,
as movants in the present motion,
respectfully insist that the matters
require consolidation for an appropriate
consideration, since all parties have not
had an opportunity to adequately present
their positions either at the trial level
or at the Court of Appeals. Simply
stated, the KANOIVICKIS respectfully
insist that the original motions filed in
behalf of the Lapidus Group before Judge
A150
Rollins in 1991 started as one thing, and
were concluded by the Court of Appeals,
as a much different, and much more broad,
form of relief.
va Attached as Exhibit #1 to this
motion is the brief of Appellants LEON
and MAURICIO KANOIVICKI, now pending
before the Court of Appeals at Nashville,
and the reply brief filed in behalf of
the Lapidus Group, (Exhibit 2) . As
previously stated, that matter is
scheduled for oral argument on April 5,
1994. Attachment 1 to the KANOIVICKI
brief is the opinion of the Court of
Appeals filed in appeal number 369 (not
to be confused with the present appeal
number of 396) which affirmed the order
of Judge John W. Rollins on the Lapidus
summary judgment application filed in
4991 .
A151
G. The important points are as
follows:
A. When the Lapidus Group presented
its summary judgment motion in
October, 1992 (prior to the
KANOIVICKIS retaining their lawyer for
representation) the summary judgment
motion sought relief only against
CAROLYN HIGDON, and sought no finding
that would affirmatively affect the
KANOIVICKIS. Otherwise stated, the
Lapidus Group asked Judge Rollins to
grant summary judgment as to CAROLYN
HIGDON, on grounds that she was
estopped, by previous, unrelated court
proceedings, from taking a position
regarding Mr. King’s competency which
would be patently inconsistent with
the previous position taken on that
issue. The motion for summary
judgment sought no specified relief
against the KANOIVICKIS, and only
requested that CAROLYN HIGDON h)e
declared estopped from pursuing a
position in the will contest which
would be contrary to a previous
position taken by her in federal court
proceedings several years ago.
B. Curiously, as seen on page 12 of
the Court of Appeals’ decision, the
granting of "summary judgment against
Carol Hi only" was declared a
final judgment, but a subsequent
order, entered June 1, 1992, involving
the rights of the MAIN STREET CHURCH
OF CHRIST through CAROLYN HIGDON, was
never declared a final judgment. The
A152
Court of Appeals notes, on page 12 the
following:
"The judgment from which this appeal
is prosecuted is not a final,
appealable judgment because no
disposition is made of the April 8,
1985 will .. . . It is debatable as
to whether the partial judgment
against the holographic will was
properly declared final.
Nevertheless, in view of the advanced
stage of this appeal, the issues will
be considered and resolved as upon
extraordinary appeal."
That finding by the Court of
Appeals had the procedural effect of
completely divesting the KANOIVICKIS
of any rights to be heard on the
important issues pending before the
Circuit Court of Coffee County.
C on the basis of the foregoing
finding by the Court of Appeals, the
Court of Appeals thereafter treats the
matter as an in rem resolution of all
issues pertaining to the will
contests, and enters certain findings
regarding "all wills executed prior to
January 18, 198511 (see page 26 of the
opinion) effectively finding against
the KANOIVICKIS, although the
KANOIVICKIS had never had an
opportunity to present any proof on
those issues.
D. Because of their critical
importance to the issues being
discussed, two orders are attached for
the Court’s review in considering the
A153
—————————————————————
present motion. Attached as exhibit 3
to this motion is the "Final Order"
entered following a hearing on October
9, 1992, at which time the trial
court, in purportedly finally ruling
on the summary judgment issues
involving HIGDON and MAIN STREET
CHURCH OF CHRIST found that "there are
no longer any contestants before the
Court." Exhibit 4 to this motion is
very significant because it is an
order of the Circuit Court entered
March 27, 1991 that specifically
recognizes LEON and MAURICIO
KANOIVICKI as "participants" in the
"trial of the will contests", and
contemplates their "appearance at
these proceedings."
E. The trial court entered the
(Order recognizing the KANOIVICKIS as
"participants" in the will contest,
because they had filed in the Probate
Court a detailed answer, translated
from Spanish, which pointedly
challenged the mental competency of
David King as an Alzheimer’s sufferer,
and requested permission to
participate in the contested
proceedings. The record in the case
will demonstrate that they were served
with a solemn form petition in the
Probate Court, and that they were
forwarded notices in every stage of
the Circuit Court will contest
proceedings. The file will further
reflect that the KANOIVICKIS retained
counsel in October, 1992, and that the
counsel for the KANOIVICKIS
immediately filed additional pleadings
at the Circuit Court level detailing
A154
the nature of the KANOIVICKIS’
objection to all wills propounded for
probate. Based upon the trial court’s
October, 1992 finding that the summary
judgment as to HIGDON and the CHURCH
resolved all issues, the trial court
then subsequently entered a summary
judgment finding against the
KANOIVICKIS stating that they had not
timely entered into the proceedings to
contest the wills.
9. If the decision of the Court of
Appeals in the matter now pending for
Rule 11 consideration stands, the
KANOIVICKIS, having followed every
appropriate procedural step to protect
their rights, will have been denied an
opportunity for a jury trial
consideration of the will contest issues.
Although the HIGDON/CHURCH summary
judgment matters commenced in a motion
which requested relief only as to HIGDON
and MAIN STREET CHURCH OF CHRIST, the
Court of Appeals’. decision, which is now
before this Court for review, had the
effect of broadening the application of
A155
that finding to an in rem conclusion of
all will contest issues pertaining to
every will except the April, 1985 will
executed by Mr. King. The KANOIVICKIS
did not intervene at the Court of
Appeals, level because nothing pending
before the Court of Appeals sought direct
relief as to the KANOIVICKIS. In fact,
the KANOIVICKIS agree that CAROLYN HIGDON
should be estopped in the manner
described in the summary judgment motion.
10. The legal authority recognizing
the appropriateness of the KANOIVICKIS’
intervention in the present appeal is
well established:
"But the general rule that only
parties to the record can appeal does
not apply in contested will cases, for
the reason that the rights of persons
interested in the estate, as heirs or
distributees, devisees, or legatees,
are settled conclusively by the result
of the trial, whether they are named
as parties or not. Consequently, all
such persons as might have made the
contest in the first instance are
A156
entitled to intervene, if not already
parties, and appeal the case." 5379
(Persons Entitled to Appeal),
Pritchard on Wills and Administration
of Estates, at page 480.
11. Thus, the KANOIVICKIS, having
been served with a summons, and having
filed a detailed answer contesting David
King’s mental competency as to all wills,
and having participated in the
proceedings below, are certainly ina
greater procedural stature than the
Situation contemplated by the above
reference in the Pritchard Treatise on
Will Contests. Without the intervention
of the Supreme Court in permitting the
KANOIVICKI briefs to be considered along
with the other pending briefs, the
KANOIVICKIS may be deprived of any
opportunity to be properly heard on the
issues. Having been recognized, by order
of the trial court, as participants in
the will contest trial level proceedings,
A157
the KANOIVICKIS, simply stated, have been
procedurally cut from the picture by a
ruling in the Court of Appeals that
grants relief far beyond that requested
by the summary judgment movants, and
without any notice to the KANOIVICKIS
that the Court of Appeals would treat the
"non-final" orders as though the matter
was an extraordinary appeal. That
decision by the Court of Appeals, to
broadly rule on all of the wills as an in
rem finding, effectively denied the
KANOIVICKIS their day in court ina
matter in which they had been served with
process, and had properly answered.
iZ. Based upon the foregoing,
MAURICIO KANOIVICKI and LEON KANOIVICKI,
through their undersigned counsel,
requests permission to intervene in the
captioned matter, and requests that the
legal authorities cited in the attached
A158
brief be considered. Further, the
KANOIVICKIS request that all of the
matters involving the King Estate be
consolidated for disposition before the
Supreme Court and heard on oral argument.
Respectfully submitted,
s/Wm. Kennerly Burger
WM. KENNERLY BURGER,
P.C.
Attorney for Leon
Kanoivicki and
Mauricio Kanoivicki
301 N. Spring St.,
P. O. Box 398
Murfreesboro, TN 37133-
0398
(615) 896-4154
A159
CERTIFICATE OF SERVICE
A true and exact copy of the foregoing
has this date been mailed to the
following: J. Stanley Rogers, Attorney at
Law, ROGERS, RICHARDSON & DUNCAN, 100 N.
Spring Street, Manchester, TN 37355;
James H. Henry, II, Attorney at Law,
HENRY & McCORD, P. 0. Box 538, Tullahoma,
TN 37388; Robert L. Huskey, Attorney at
Law, P. 0. Box 777, Manchester, TN 37355;
Michael I. Mossman, Attorney at Law,
EISENSTEIN, MOSES AND MOSSMAN, One Church
Street, Suite 500, Nashville, TN 37201-
1607; William K. Harbison, Attorney at
Law, SHERRARD & ROE, 424 Church Street,
Suite 2000, Nashville, TN 37219; H.
Thomas Parsons, Attorney at Law, 101 W.
Main Street, Manchester, TN 37355; George
E. Barrett, Attorney at Law, BARRETT,
JOHNSTON PARSLEY, 217 Second Avenue
A160
North, Nashville, TN 37201; this 6th day
cf December, 1993.
s/Ken Burger
KEN BURGER
A161
IN THE SUPREME COURT
FOR THE STATE OF TENNESSEE
AT NASHVILLE
COURT OF APPEALS
NO. 01A01-9209-CV-00396
Coffee Circuit No. 24954
BETTYE JEAN GREEN, MARTIN KING,
DEBORAH LAPIDUS FISHER,
LISA LAPIDUS COHEN and BARRY LAPIDUS,
Plaintiffs/Appellees
vs.
CAROLYN HIGDON and
MAIN STREET CHURCH OF CHRIST
Defendants/Appellants.
PETITION TO REHEAR FILED IN BEHALF OF
LEON KANOIVICKI AND MAURICIO KANOIVICKI
ZL. The Court has entered an order
denying the application for permission to
appeal filed in behalf of the MAIN STREET
CHURCH OF CHRIST and CAROLYN HIGDON, who
are before the Court on an appeal from an
order from the Circuit Court of Coffee
County granting summary judgment to the
A162
Lapidus Group in appeal number 00369.
The undersigned, LEON KANOIVICKI and
MAURICIO KANOIVICKI are cousins of David
King (as are the members of the Lapidus
Group), and have appealed from a separate
summary judgment action in Coffee County
Circuit Court, now pending before the
Court of Appeals in case number 00396,
which is now scheduled for oral argument
before the Court of Appeals on Tuesday,
April 5, 1994.
2. Because of the potential impact
of the decision of the Court of Appeals
in case number 369, the KANOIVICKIS filed
a motion to intervene in that appeal, and
requested that the application of HIGDON
and the MAIN STREET CHURCH OF CHRIST be
granted in order that some very important
and difficult issues related to the
estate be properly resolved. This court
ruled on the application for permission
A163
to appeal, denying the request, prior to
consideration of the recently filed
motion to intervene.
3. Simply stated, the position of
the KANOIVICKIS is as follows:
A. Prior to the KANOIVICKIS
retaining counsel in the Coffee
County circuit will contest case,
the Lapidus Group filed a motion for
summary judgment which sought
dismissal of the claims of CAROLYN
HIGDON and MAIN STREET CHURCH OF
CHRIST, and upon grounds that HIGDON
was judicially estopped from taking
a position in the will contest which
would be inconsistent with her
position in previous litigation.
Significantly, no affirmative relief
was sought against the KANOIVICKIS.
The problem arising for the
KANOIVICKIS, upon the Court of
Appeals granting its decision in
case number 369, is that the
appellate decision appears to grant
relief significantly broader than
that requested in the initial motion
for summary judgment, and the order
entered by Judge Rollins in granting
the relief requested. If left to
stand with its present wording, the
decision of the Court of Appeals in
appeal number 00369 may
Significantly impact upon the rights
of the KANOIVICKIS, although the
pleadings regarding the summary
judgment motion, served upon them
A164
prior to their employment of
counsel, and decided prior to the
employment of counsel at the trial
level, will severely prejudice their
rights in the remaining litigation.
B. The estate of David King
involves an estimated eight million
dollars ($8,000,000.00). The matter
has become procedurally entangled at
the trial level. The KANOIVICKIS,
who are natives of the country of
Argentina (and speak no English)
have been recognized in a prior
order entered by Judge Rollins as
"participants" who are before the
Circuit Court for the contemplated
trial (a copy of that order is
attached to the KANOIVICKIS brief
and the later motion to intervene).
A proper resolution of the difficult
issues in the case require the
consolidation of the two appeals
before the Supreme Court, and a full
hearing on the merits of the
parties’ respective arguments.
Cc. The trial recorc! reveals patent
inconsistencies. The attached order
of 3/14/91 acknowledges that the
Kanoivickis are "participants" in
the "will contest" and contemplates
their "appearance at these
proceedings." The attached order of
10/20/92 states that there are "no
longer any contestants before the
court." The court’s order of
5/27/92, granting summary judgment
and overruling Higdon’s motion to
alter and amend states: "The court’s
decision has no effect on the
A165
remaining parties to this action."
(emphasis added, see page 10 of the
appellate decision in case number
369). However, the decision of the
Court of Appeals, in sustaining the
granting of summary judgment in the
first appeal, states: "On this
issue, the judgment need not be for
or against a party, but for or
against the propounded will." (page
23, decision of the Court of Appeals
in case number 369)
Respectfully submitted,
WM. KENNERLY BURGER, P.C.
s/Ken Burger
KEN BURGER, BPR #3731
Attorney for Leon Kanoivicki
and Mauricio Kanoivicki
301 N. Spring St.,
P. O. Box 398
Murfreesboro, TN 37133-0398
(615) 896-4154
A166
CERTIFICATE OF SERVICE
A true and exact copy of the
foregoing has this date been mailed to
the following: J. Stanley Rogers,
Attorney at Law, ROGERS, RICHARDSON &
DUNCAN, 100 N. Spring Street, Manchester,
TN 37355; James H. Henry, II, Attorney at
Law, HENRY & McCORD, P. 0. Box 538,
Tullahoma, TN 37388; Robert L. Huskey,
Attorney at Law, P. 0. Box 777,
Manchester, TN 37355; Michael I. Mossman,
Attorney at Law, EISENSTEIN, MOSES AND
MOSSMAN, One Church Street, Suite 500,
Nashville, TN 37201-1607; William K.
Harbison, Attorney at Law, SHERRARD &
ROE, 424 Church Street, Suite 2000,
Nashville, TN 37219, H. Thomas Parsons,
Attorney at Law, 101 W. Main Street,
Manchester, TN 37355; George E. Barrett,
Attorney at Law, BARRETT, JOHNSTON
PARSLEY, 217 Second Avenue North,
A167
Nashville, TN 37201; this 13th day of
December, 1993.
s/Ken Burger
KEN BURGER
A168
IN THE CIRCUIT COURT
FOR THE 14TH JUDICIAL DISTRICT
OF TENNESSEE
SITTING AT MANCHESTER, PART II
CIVIL ACTION NO. 24954
JURY DEMAND
BETTYE JEAN GREEN, MARTIN KING,
DEBORAH LAPIDUS FISHER,
LISA LAPIDUS COHEN and BARRY LAPIDUS,
Plaintiffs-Proponents,
VS.
CAROLYN HIGDEN,
Defendant-Contestant,
AND
CAROLYN HIGDEN,
Plaintiff-Proponent,
Vs.
BETTYE JEAN GREEN, MARTIN KING,
DEBORAH LAPIDUS FISHER,
LISA LAPIDUS COHEN and BARRY LAPIDUS,
Defendants-Contestants.
ANSWER AND STATEMENT OF CONTEST
BY MAURICIO KANOIVICKI AND
LEON KANOIVICKI, AS INTESTATE HEIRS
OF THE ESTATE OF DAVID KING
A169
‘? MAURICIO KANOIVICKI and LEON
KANOIVICKI have previousiy been served
with process in the solemn form probate
proceeding, certified to the Circuit
Court in the captioned proceeding.
MAURICIO KANOIVICKI and LEON KANOIVICKI
assert standing to challenge the
testamentary documents purportedly
executed as the Last Will and Testament
of DAVID (DAVE) KING, upon the assertion
that, as nephews of DAVID KING, they
would constitute heirs at law, pursuant
to the provisions of Tennessee Code
Annotated, §31-2-104(b) (3) upon a finding
by the Court that DAVID KING died
intestate.
a MAURICIO KANOIVICKI and LEON
KANOIVICKI (hereinafter "the
KANOIVICKI’S") assert that DAVID KING
executed a testamentary document,
purporting to be his Last Will and
A170
Testament, on April 9, 1985, and that no
other testamentary document was executed
after that date. The KANOIVICKI’S assert
that execution of the document on April
9, 1985 had the effect of revoking the
prior alleged wills dated April 8, 1985;
January 18, 1985; and the undated
holographic will, based on the provisions
of Tennessee Code Annotated, §32-1-
201(1). The KANOIVICKI’S further assert
that the decedent DAVID KING, manifested
an intention to revoke all previously
executed testamentary instruments by his
efforts to procure the April 9, 1985
will. The KANOIVICKI’S further assert
that DAVID KING thereafter validly and
lawfully revoked the April 9, 1985
instrument by physically destroying the
document in the presence of the attorney
who had prepared it, evidencing an
intention that the estate pass according
A171
to the intestate laws of the state. The :
KANOIVICKI’S plead the inapplicability of
the doctrine of dependent relative
revocation in view of the decedent’s
failure to undertake, over a period of
months prior to his death, any efforts to
destroy other documents known by him to
exist, or to clarify any position of
priority.
ae The KANOIVICKI’S plead in the
alternative, pursuant to Rule 8 of the
Tennessee Rules of Civil Procedure, the
absence of testamentary capacity of DAVID
KING in the execution of the April 9,
1985 will; the April 8, 1985 will; the
January 18, 1985 will; and the undated
holographic will. In support of the
sonclusion of testamentary incapacity,
the KANOIVICKI heirs assert the following
salient facts:
A172
A. At the time of the execution of
the each of the instruments now
before the Court, DAVID KING was of
advanced age, and in a condition of
advanced mentai degeneration and
advanced senility, manifesting
disorientation, and rendering him
incapable of forming a valid
testamentary thought. The decedent
was accordingly not qualified or
competent to make a will, within the
meaning of T.C.A. §32-1-102.
B. The instruments now before the
Court were executed over a
relatively brief period of time,
following a medically documented
period of mental degeneration by
DAVID KING. Following the execution
of the last instrument on April 3,
1985, which was subsequently revoked
by destruction, a period of several
months elapsed prior to the death of
DAVID KING. During the passage of
that substantial time, DAVID KING
manifested no conduct, which would
be indicative of lucid, formative
testamentary capacity, which would
have been directed toward expressing
a position of priority as to the
apparently known, existing
instruments. The chronic and
progressive mental debilitation of
DAVID KING culminated in the
commencement of a conservatorship
proceeding in the Chancery Court of
Coffee County in April, 1985, in
which relatives and associates of
DAVID KING attesting to his
inability to manage his personal
affairs, much of which was
A173
predicated upon observations
regarding DAVID KING’S confusion and
disorientation. Those allegations
were sustained by the Court, which
appointed a guardian ad litem to act
as legal representative for DAVID
KING, and further appointed niece
Melba Lapidus as conservator of the
assets of DAVID KING.
4. Further, pieading in the
alternative, the KANOIVICKI’S assert the
invalidity of the instruments before the
Court on grounds that each instrument:
(a) was procured by the undue influence
upon the decedent’s testamentary act;
and/or (b) that a confidential
relationship existed between one or more
of the primary beneficiaries, creating a
presumption of invalidity in the absence
of independent advice.
A. Specifically, as to the
purported holographic will of DAVID
KING which designates CAROLYN HIGDEN
as primary beneficiary it is
asserted by the KANOIVICKI’S that
CAROLYN HIGDEN, as beneficiary of
the instrument, exerted such
compelling influence upon the
testamentary act of executing the
A174
Bs
document as to deprive the maker,
DAVID KING, of his own volition and
intent.
B. The KANOIVICKI’S assert, with
regard to the instruments of January
18, 1985 and April 8, 1985, that,
although executed by DAVID KING’S
personal counsel, the documents were
prepared in the context of
diminished mental capacity, and
under circumstances where the King
heirs (designated as residuary
legatees) were closely involved in
the affairs of DAVID KING, and under
general circumstances which would
shift the burden of proof to the
King heirs in demonstrating the
absence of a confidential
relationship, or a clear showing of
independent advice in expressing the
contents of the wills.
Based upon the foregoing Defendants
MAURICIO KANOIVICKI and LEON KANOIVICKI
deny the validity of any testamentary
instrument executed by DAVID KING, and
allege that the estate of DAVID KING must
be divided according to the intestate
laws of the State of Tennessee, as set
forth in Tennessee Code Annotated, §31-2-
104 (b) (3). Defendants KANOIVICKI demand a
A175
jury of twelve persons for the trial of
the issues now before the Court pursuant
SO. 3 sGecdee
§32-4-107.
Respectfully submitted,
WM. KENNERLY BURGER, P.C.
s/Ken Burger
KEN BURGER, BPR #3731
Attorney for Mauricio
Kanoivicki
and Leon Kanoivicki
301 N. Spring St.
Murfreesboro, TN 37130
(615) 896-4154
CERTIFICATE OF SERVICE
A true and exact copy of the
foregoing has this date been mailed to
the following: J. Stanley Rogers,
Attorney at Law, ROGERS, RICHARDSON &
DUNCAN, 100 N. Spring Street, Manchester,
TN 37355; James H. Henry, II, Attorney at
Law, HENRY & MCCORD, P. 0. Box 538,
Tullahoma, TN 37388; Robert L. Huskey,
Attorney at Law, P. 0. Box 777,
Manchester, TN 37355; Michael I. Mossman,
Attorney at Law, EISENSTEIN, MOSES AND
MOSSMAN, One Church Street, Suite 500,
Nashville, TN 37201-1607; William L.
Harbison, Attorney at Law, SHERRARD &
ROE, 424 Church Street, Suite 2000,
Nashville, TN 37219; H. Thomas Parsons,
Attorney at Law, 101 W. Main Street,
Manchester, TN 37355; George E. Barrett,
Attorney at Law, BARRETT, JOHNSTON &
PARSLEY, 217 Second Avenue North,
A177
Nashville, TN 37201; and Dr. David Burgos
Sarmiento, 1411 Capital Federal, Buenos
Aires, Argentina, this the _9th_ day of
November, 1992.
s/Ken Burger
KEN BURGER
A178
IN THE CIRCUIT COURT
FOR THE 14TH JUDICIAL DISTRICT
OF TENNESSEE
SITTING AT MANCHESTER, PART II
NO. 24954
JURY DEMAND
BETTYE JEAN GREEN, MARTIN KING,
DEBORAH LAPIDUS FISHER,
LISA LAPIDUS COHEN and BARRY LAPIDUS,
Plaintiffs-Proponents,
Vs.
CAROLYN HIGDON,
Defendant-Contestant,
AND
CAROLYN HIGDON,
Plaintiff-Proponent,
Vs.
BETTYE JEAN GREEN, MARTIN KING,
DEBORAH LAPIDUS FISHER,
LISA LAPIDUS COHEN and BARRY LAPIDUS,
Defendants-Contestants.
RESPONSE OF MAURICIO KANOIVICKI AND LEON
KANOIVICKI TO KING PETITIONER’S
MOTION FOR SUMMARY JUDGMENT
A179
# INTRODUCTION :
Summary judgment is inappropriate
under the requirements of Rule 56 of the
Tennessee Rules of Civil Procedure.
Genuine issues of material fact exist,
and certain statutory requirements, which
cannot be waived, have not yet been
satisfied.
Simply stated, the Petitioners
elected to probate the disputed will in
solemn form. Process was issued as
required by Rule 3 of the Tennessee Rules
of Civil Procedure, and service effected
against the Respondents. The Respondents
answered, and specifically denied the
validity of the wills. The KANOIVICKIS
requested notice of the trial date. No
motion for judgment by default against
the KANOIVICKI Respondents has ever been
requested or granted. The KANOIVICKI
Respondents has ever been requested or
A180
granted. The KANOIVICKI Respondents have
been awaiting a trial date on the issues,
and have been served with no notice of
that date. Upon employment of counsel, a
statement of contest was filed stating
with particularity the grounds of contest
asserted by the KANOIVICKI Respondents.
That statement is necessary to properly
frame the issues. Significantly, the
statutory requirements for (1) oral
presentation of the attesting witnesses
proof and (2) the trial court’s framing
of the issues have never been met, and
are not even mentioned in the
Petitioner’s summary judgment motion.
ya ARGUMENT AND SUMMARY OF THE
A. introduction:
The procedural history commencing on
page 2 of the motion for summary judgment
generally describes with accuracy the
progress of the matter to date.
The Respondents object to these
portions of the Petitioner’s affidavits
which would constitute hearsay, or
testimony by Petitioner’s counsel, as
being contrary to the requirements of
Rule 56.05 requiring that affidavits
"shall be made on personal knowledge,
shall set forth such facts as would be
admissible in evidence, and shall show
affirmatively that the affiant is
competent to testify to the matters
stated therein."
Further, Respondents strenuously
disagree with the factual statement, on
page 3 of the motion that "the will
contest had been concluded in October,
1992." As will be outlined in greater
detail below, it was procedurally
impossible for the will contest to have
A182
been concluded on that date. Further,
Petitioners misperceive the Respondents’
procedural standing in the matter by
characterizing it as an "attempt to
intervene" (petition page 4).
B. Argument overview:
The basic thrust of the Petitioner’s
request for summary judgment to be
predicated on two legal points: (1) That
the KANOIVICKIS are somehow bound by the
"final order" purportedly entered in the
will contest; and (2) Their "attempt to
intervéne" is not timely. A substantial
portion of the legal authority cited in
support of the foregoing conclusions
addresses the finality of a properly
concluded, final judgment in its solemn
will form contest. Respondent’s
position, on both points, is that the
authority cited correctly summarizes the
law on those legal propositions.
A183
However, those propositions have no
applicability to the present case.
- Procedural requirements for
probate in solemn form:
The KING Petitioners opted to
present the will in solemn form by
issuance of process, with service of
notice of probate on all interested
persons. The procedural requirements are
outlined in §328 through §337 of
Pritchard on Wills and Administration of
Estates, 4th Edition. Once the matter is
certified to Circuit Court for trial the
trial court must frame the issues, which
thereafter are considered by the trier of
fact, and the matter is conducted
according to the requirements of the
Tennessee Rules of Civil Procedure.
It is admitted that the KANOIVICKIS
were served with process in the probate
proceeding shortly after the petition in
A184
solemn form was filed om December 7,
1990. An informally drafted "answer" was
filed in the probate court by the
Respondents, acknowledging receipt of the
process. Their answer requests
additional time due to the translation
difficulties, and requests an opportunity
to be notified of a hearing date "not
before the 30th of March, 1991." The
Respondent’s answer states that they
"ch e id wi much rdin
hei nt Ww their form, and
emphasize, that before deciding which
t m Ls vali Lt will cessar
f w r_ David
, had b his ful) ;
w w bl f
declarin inal will an stament."
(see attachment #1)
On January 17, 1991 the Probate
(Chancery) Court certified a will contest
A185
to Coffee County Circuit Court, where the
matter has remained, pending a final
trial date.
"Will contests traditionally
have been initiated by the
filing of a petition. Rule 3
of the Tennessee Rules of Civil
Procedure provides that all
civil actions are to be
commenced by filing a
complaint." Pritchard, §354,
at page 459.
The filing of an answer, pursuant to
Rule 8 of the Tennessee Rules of Civil
Procedure, places the case at issue, and
precludes the granting of a judgment by
default. No motion for judgment by
default has been filed against the
KANOIVICKI Respondents, pursuant to Rule
55 of the Tennessee Rules of Civil
Procedure. It is admitted in the
Petitioner’s motion for summary judgment
that no notice of a trial on the issues
has been forwarded to the KANOIVICKI
Respondents.
A186
The Petitioner’s motion overlooks a
salient, unwaivable requirement: Once
the matter has been transferred to
Circuit Court for trial of the will
contest, the Court must "make up the
issue" as discussed in §366 of the
Pritchard treatise, at page 470.
"No particular form of issue is
required; all that is necessary —__——
is to show that the will is
propounded and averred to the
be the last will of the
decedent, on the one hand, and
that the affirmation is denied
on the other. If the
contestant chooses, for the
purpose of saving costs or for
any other reason, to limit the
contest to any particular
clause, thus admitting and
putting out of dispute the
balance of the will, he may
have the right to do so. But a
general denial of the
plaintiff’s affirmation that
the paper is the will of the
decedent brings the will as a
whole, and every part of it,
into contest. If, therefore,
the contestant files a general
denial, and also pleads
specially, the court properly
may strike out the special
A187
pleas." Pritchard, §366, at
page 470.
The foregoing Pritchard discussion
emphasizes the right of a contestant to
amend the pleading filed in Probate
Court, without remand of the matter to
the Probate Court for that purpose (see
page 471).
Most significantly, Tennessee Code
Annotated, §32-2-104 precludes any
disposition of the will contest, by
summary judgment or otherwise, which
would not bring into the open court, for
live testimony, the purported witnesses
to the contested document. That
requirement is not waivable in a solemn
form proceeding, and may not be avoided
by summary judgment application:
"The statute is silent on the
subject of proof of wills in
the probate court in solemn
form, but by implication,
conformably to the practice int
he ecclesiastical courts,
A188
requires that all the
subscribing witnesses to be
found should give testimony to
establish a written will with
witnesses in solemn form, even
when no opposition is
interposed.... Unless and until
> decisi fe)
the contrary, it appears that
all witnesses who are available
must be examined in person even
page 434. (Emphasis added)
In a will contest which was resolved
by summary judgment, that mandatory
requirement was lessened somewhat by the
allowance of a deposition, but only after
the opportunity to cross-examine:
"It is unnecessary, in every
instance, for the proponent to
offer the live testimony of the
available attesting witnesses.
This court has held that
» B§32-
2-104(a) is satisfied if the
testimony of the attesting
witnesses is preserved by
deposition, after the
contestants have been given the
opportunity to cross-examine.
Swindoll v. Jones, 41 Tenn.
App. 89, 109-10, 292 S.W.2d
$31, 541 (1954). Tennessee
A189
Code Annotated, §32-2-104(b)
authorizes the trial court, in
its discretion, to accept and
use an attesting witness’
deposition in lieu of live
testimony, if it determines
that the witness is ‘unable to
testify in person.’ Witness
unavailability is for the trial
court to decide, and its
determination will not be set
aside when the contestants have
acquiesced in the proof
concerning the manner in which
the will was executed. (citing
Lyman _v. American National Bank
& Trust, 346 S.W.2d 289, at
page 291 (1960)). Owen v.
Stanley, 739 S.W.2d 782 (Tenn.
App. 1987).
D. r fici i in the
above-summarized requirements:
It is not even suggested in the
Petitioner’s motion for summary judgment
that the foregoing procedural
requirements have been satisfied. First,
no "final order" has been entered, as a
matter of law. The "final judgment" by
the express terms of the October 22, 1991
order, is made referable only to CAROLYN
A190
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HIGDEN, and no other parties in the
litigation. Second, once the matter is
certified to Circuit Court for contest,
the matter is not finalized until the
hearing is conducted with the attesting
witnesses, and the issues framed. The
Circuit Court finding becomes the last
procedural step to probate:
"If the contest was begun
before probate in common form
in the probate court, the
decision of the issue in the
circuit court is of itself a
probate of the will, in solemn
form, or else an adjudication
that the paper is no will and
cannot be admitted to probate.
In any event, therefore, no re-
probate takes place int eh
probate court: The only duty
that court has to perform is to
record the certificate of the
verdict and the judgment, and
the original will, if
established." Pritchard, §382,
at page 483.
Accordingly, Qwen and the above
authorities stand for the proposition
that summary judgment may be appropriate
A191
in a will contest proceeding, but only if
the requirement for testimony of the
witnesses has been satisfied by use of
depositions, with the opportunity for the
contestants to cross-examine.
E. T iss fact pertainin
to proper attestati s_wel s_the
competency of the decedent must be
submitted to a jury:
Petitioners have requested a jury.
Rule 38 of the Tennessee Rules of Civil
Procedure provides that after any party
has made a request for a jury demand,
that demand may not be withdrawn "without
the consent of all parties as to whom
issues have been joined." Rule 38
therefore mandates that the issue of
statutory proof, required by T.C.A. §32-
2-104 be submitted to a jury, rendering
summary judyment procedurally
unavailable. (Also see Pritchard, §367,
A192
at page 471 which applies the Tennessee
Rules of Civil Procedure to will
contests, in the context of jury issues.)
The disposition as to CAROLYN HIGDEN and
MAIN STREET CHURCH OF CHRIST in no way
modifies that requirement, after the
KANOIVICKIS have appeared and made known
their objections to the will:
"But a general denial of the
plaintiff's affirmation that
the paper is the will of the
decedent brings the will as a
whole, and every part of it,
into contest." Pritchard, §366
at page 470.
That is particularly true where
other wills of the decedent may be at
issue.
"., . . being a proceeding in
rem, it is proper to permit the
propounding of other wills than
the one first offered for
probate, and against which a
contest was instituted, so that
the jury may determine which of
the papers is the true will of
the decedent." Pritchard,
§341, at 447.
A193
F. Th intiff’
memorandum which addresses the i fe)
"intervention" is inapplicable to the
case.
What authority supports the
conclusion that the Respondent
KANOIVICKIS, having been served with
process pursuant to Rule 3 of the
Tennessee Rules of Civil Procedure, would
need to "intervene", within the meaning
of Rule 24 of the Tennessee Rules of
Civil Procedure?
Had the Respondents not been served
with process, and answered, they would
have the procedural right to petition to
intervene in the present matter, as
discussed in §331, at page 433, of the
Pritchard treatise on wills. In that
event, the Respondent’s application would
be governed by Rule 24 of the Tennessee
Rules of Civil Procedure, and all of the
A194
authority discussed on pages 7 and 8 of
the Petitioner’s memorandum might be
appropriately considered. Simply stated,
the KANOIVICKI Respondents are bedcore the
Court by process in a case that has been
placed at issue, and no cited authority
supports the conclusion that they are
required to further intervene.
G. Res Judicata has no
a a3 Respondents:
The Petitioners incorrectly attempt
to rely upon res judicata or collateral
estoppel in asserting that the April 9,
1985 will is invalid, as a matter of law.
Petitioners attempt to support that
finding by arguing that the finding of
the United States District Court, ina
separate proceeding not involving the
KANOIVICKIS in 1988, determined that
CAROLYN HIGDEN, a beneficiary, was guilty
of undue influence. Obviously, since the
A195
KANOIVICKIS were not parties to the
proceeding, and the issues were not
identical, neither collateral estoppel or
res judicata would be applicable:
"The defendant contends that
the present litigation is
barred by the doctrine of res
judicata because the parties
herein were both included in a
will contest dated October 21,
1982. Res Judicata operates as
a bar to a second suit between
the same parties and their
privies as to the same cause of
action and as to all issues
which were or could have been
brought in the former suit.
Whitley v. Reeves, 39 Tenn.
App. 169, 281 S.W.2d 411
(1955); Lillard v. Yel aw
Man m4 i eptance Co
195 Tenn. 686, 263 S.W.2d 520
(1954); 22 Tennessee
Jurisprudence Res Judicata at
page 4 (1985). As we have
noted, the former will contest
was dismissed with prejudice.
A dismissal operates as an
adjudication on the merits and
serves as a bar to a suit for
relief on the same subject
matter. See; T.R.C.P.
41.02(3)." Stacks v. Saunders,
812 S.W.2d 587 (Tenn. App.
1990).
A196
Since it is not even asserted by the
KING Petitioners that the KANOIVICKIS
were involved in that proceeding, or that
the issues were identical, those findings
have no bearing on the KANOIVICKIS
position in the will contest now being
considered by the Court.
H. Genuine issues of material fact
exis n th Lon of the decedent's
testamentary capacity:
It is factually undisputed that the
decedent, DAVID KING, suffered from
Alzheimer’s and dementia during the
general time frame in which all of the
alleged wills were executed. The KING
Petitioners, in the federal court
proceedings and in the conservatorship,
vigorously asserted the position, in
behalf of the LAPIDUS family that MR.
KING was "totally incapable of making any
important decisions", and that he had
A197
been in that condition for "at least a
year" prior to the commencement of the
conservatorship proceedings. Curiously,
the LAPIDUS family and the HIGDONS have
found themselves in a reversal of roles
on the competency issue.
Aside from the obvious estoppel
difficulties which the KING Petitioners
will encounter at the trial of the
matter, those words have significance in
evaluating their present summary judgment
application.
When MELBA KING LAPIDUS filed her
"Verified Petition for Appointment of
Conservator" on April 16, 1985, she
alleged, under oath, the following (see
attachment #2) matters about DAVID KING:
a. That he was, at the time,
"in an incompetent state
of mind due to his
advanced age."
A198
b. That he was, at that time,
"totally incapable of
making any important
decisions.
¢. That he was, at that time,
"severely confused and
disoriented from a chronic
brain syndrome and requires an
attendant around the clock."
d. That he was, at that time,
"completely disoriented and
confused. .. .*
Significantly (in the context of
evaluating the decedent’s ability to
remember what his assets were, and the
identity of his purported beneficiaries)
reports filed by the conservators six (6)
months iater in support of their pending
issues, indicated the following (see
Exhibit 3):
a. "His recent memory was grossly
impaired".
b. On November 18, 1985, Mr. King
thought the date was December
25, 1988, and that his
birthdate was 1973.
Cc. "He could not retain two
sentences over five minutes."
A199
da. He was "functioning at
approximately the same level as
six months ago."
Judicial estoppel precludes the
"KING Petitioners" from taking a position
in the will contest which would dispute
the foregoing allegations in earlier
litigation. Gilley v. Jernigan, 597
S.W.2d 313 (Tenn. App. 1979).
"This court has succinctly
described the contestants’
burden of proof as follows:
Where, however, the contestant
shows the existence of
suspicious circumstances such
as a confidential relationship
in combination with the
beneficiary’s involvement in
procuring the will, OR
(emphasis ours) in combination
with impairment of the
testator’s mental capacity,
there arises a presumption of
fraud or undue influence which
the proponent of the will must
overcome by a preponderance of
the evidence. Owen v
Stanley, 739 S.W.2d 782, at
page (Tenn. App. 1987).
It is conceded by the Respondents
that the mere appointment of a
conservator does not alone remove
testamentary capacity. However, §369 of
Pritchard, at page 473, notes that "in
cases of doubtful capacity .. . the
burden is upon the proponent to satisfy
the minds of the jury that the testator
was not imposed upon and that he had
knowledge of the contents of the
instrument, and executed it freely and
understandingly, with testamentary
intent." The issue is purely one of
fact, to be determined by the trier of
fact. While the pendency of the
conservatorship does not per se remove
testamentary capacity, it may be
considered as evidence of incapacity,
along with other evidence. Harper v.
Watkins, 670 S.W.2d 611 (Tenn. App.
1983).
Where mental debilitation is shown
to have existed at some point prior the
A201
execution of the proposed will, "the
presumption of the law that it continues,
unless
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