# Appendix — Kanoivicki v. Green > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1481%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1995 - **Citation:** 514 U.S. 1135 ## Text 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 # 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 subje [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1481%3A3. Public record. Not legal advice.