Court reviews whether decedent was competent to make a will or to enter into a marriage contract

IN RE: ESTATE OF RAYMOND L. SMALLMAN, DECEASED, MARK SMALLMAN, ET AL., V. LINDA CARAWAY, ET AL. (Tenn. Ct. App. December 12, 2011)

The two sons of decedent asked the Court to declare that their father died intestate and that his marriage to appellant a few days before he died was void because he was neither competent to make a will or enter into a marriage contract. Upon trial, the jury determined that the deceased was not of sound mind when he executed a will, a copy of which was filed in evidence, and the will was obtained through undue influence of appellant. The jury also found that the marriage between the decedent and appellant was invalid as well. The Trial Judge approved the jury verdict and appellant has appealed. We hold that material evidence supports the jury verdict as approved by the Trial Judge and remand.

Full opinion available at:
http://www.tba2.org/tba_files/TCA/2011/smallmanr_121211.pdf

SUSANO's dissenting opinion is available here:
http://www.tba2.org/tba_files/TCA/2011/smallmanr_DIS_121211.pdf

Court reviews whether the appellant successfully rebutted the presumption of undue influence

IN RE: THE ESTATE OF FRANKLIN STEADMAN MURDAUGH, BARBARA MURDAUGH WARNER v. RUDY W. YOUNG (Tenn. Ct. App. December 8, 2011)

This case arises from a will contest. Appellant, the executor and sole beneficiary of the contested will, appeals the trial court's finding that Appellant did not meet his burden to rebut, by clear and convincing evidence, the presumption of undue influence based upon the existence of a confidential relationship between Appellant and Decedent. Finding no error, we affirm.

Full opinion available at:
http://www.tba2.org/tba_files/TCA/2011/murdaughf_120811.pdf

Court reviews whether the devisee can force enforcement of a contract between defendant and the decedent

TERESA SMITH, AS DEVISEE OF RONNIE CRABTREE v. LINDA D. HATFIELD (Tenn. Ct. App. December 5, 2011)

This is a breach of contract case. The defendant seller entered into a contract to sell a mobile home to the plaintiff's decedent. The contract required the decedent to make monthly payments by a date certain for eighty-four months, and if he failed to do so, all of his payments would be forfeited as rent. The decedent failed to make all of his payments in a timely manner. Later, the decedent died.

The plaintiff, the decedent's sole devisee, offered to pay the contract off by making a lump-sum payment to the defendant. The defendant rejected this offer. The plaintiff filed this lawsuit against the defendant, seeking to require the defendant to accept the lump-sum payment and convey the property to her. The trial court dismissed the plaintiff's claims upon the close of her proof, because the undisputed evidence showed that she had not made the required monthly payments under the contract.The plaintiff now appeals. We affirm and award attorney fees for a frivolous appeal.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/smitht_120511.pdf

Creditors' Claims under the Tennessee Investment Services Act of 2007

TN Attorney General Opinions
Date: 2011-11-28
Opinion Number: 11-79


QUESTION:

Whether the Tennessee Investment Services Act of 2007 requires a creditor to prove fraud in order to prevail on an action for attachment or other provisional remedy against property that is a qualified disposition to an investment services trust, or to avoid a qualified disposition to such a trust?

OPINION:

Yes. If the creditor’s claim arises before a qualified disposition, the creditor may prevail by proving actual or constructive fraud. However, if the creditor’s claim arises after a qualified disposition, the creditor must prove actual intent to defraud.

Read the full opinion at: http://www.tba2.org/tba_files/AG/2011/ag_11_79.pdf

Court reviews the validity of a holographic will that was executed while testator was under a conservatorship

IN RE: ESTATE OF MIRIAM L. RINEHART (Tenn. Ct. App. November 15, 2011)

This case concerns a holographic will executed by the testator while under a conservatorship. After the testator died, Appellant sought to be named personal representative over the decedent's estate and to have the decedent's holographic will probated. The decedent's daughter objected, arguing that at the time the holographic will was executed, the decedent was under a conservatorship that expressly revoked the decedent's right to make a will. The trial court granted the motion to dismiss in favor of the decedent's daughter. Discerning no error, we affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/rinehartm_111511.pdf

Court reviews an action seeking to rescind a warranty deed

IN RE: THE MATTER OF THE CONSERVATORSHIP OF MITTIE T. ALEXANDER v. JB PARTNERS, A Tennessee General Partnership (Tenn. Ct. App. November 2, 2011)

Plaintiff Conservator filed an action seeking rescission of a warranty deed executed by her Ward prior to the establishment of the conservatorship. The deed conveyed real property in Nashville to Defendant without consideration, but retained a life-estate. Plaintiff alleged incapacity to contract as grounds for rescission. Prior to the filing of Plaintiff's action, Defendant and Appellee Intervener executed a contract for sale of the property, subject to the life-estate. The trial court determined that the Intervener held superior title to the real property under the doctrine of equitable conversion. The trial court entered final judgment in favor of Intervener pursuant to Tennessee Rule of Civil Procedure 54.02. We affirm in part, reverse in part, and remand.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/alexanderm_110211.pdf

Court reviews whether an out-of-state probate court order for relief is enforceable in Tennessee

ROBERT R. SMITH, AS CONSERVATOR FOR THE ESTATE OF H. BOYD ISRAEL, WARD v. MARK ISRAEL (Tenn. Ct. App. November 1, 2011)

Petitioner sought to domesticate four orders entered by a probate court in Georgia for the payment of money pursuant to the Uniform Enforcement of Foreign Judgments Act, Tenn. Code Ann. section 26-6-101, et seq. The trial court granted the petitioner the relief he sought, and the debtor appealed, arguing Tennessee public policy should prevent the orders from being enforced based on the unusual circumstances surrounding the issuance of the orders and his attorney's misconduct in the Georgia proceedings. We affirm the trial court's judgment because the Georgia court had jurisdiction to enter the orders and Tennessee courts are not in a position to review the facts leading to a foreign court's judgment.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/smithr_110111.pdf

Court reviews whether an attorney-in-fact has the power to name herself as beneficiary of an insurance policy

EVA WEAVER v. PRISCILLA DEVERELL, ET AL. (Tenn. Ct. App. October 26, 2011)

This is a case involving life insurance and a Power of Attorney. After Decedent named Appellant as his attorney-in-fact through a Power of Attorney, the Appellant changed Decedent's life insurance policy to name herself as primary beneficiary. Appellee, the previous beneficiary of the policy, filed this action to prevent Appellant from receiving the proceeds, alleging fraud. The trial court found that the Uniform Durable Power of Attorney Act prevented Appellant from changing the beneficiary of the policy. Further, the trial court held that Appellant's argument that she had actual authority to make the change was an affirmative defense that was waived by Appellant's failure to specifically plead it. Based on the foregoing, we affirm in part, reverse in part and remand.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/weavere_102611.pdf

Court reviews whether wife's second will was void based on a previous contract to execute mutual wills with her husband

IN RE: ESTATE OF INA RUTH BROWN (Tenn. Ct. App. October 4, 2011)

This appeal arises from a dispute concerning a contract to execute mutual wills. Ina Ruth Brown ("Mrs. Brown"), and her husband, Roy Brown, Jr. ("Mr. Brown"), executed mutual wills as agreed by contract.

After Mr. Brown's death, Mrs. Brown executed a new will. Mrs. Brown died. Rockford Evan Estes ("Defendant"), Mrs. Brown's son, submitted the new will for probate.

Mr. Brown's adult children, Roy E. Brown, III, Joan Brown Moyers, and Donna Brown Ellis ("the Plaintiffs") filed this will contest suit in the Chancery Court for Knox County, Probate Division ("the Trial Court"), contesting the new will on the basis that, among other things, the mutual wills between Mr. Brown and Mrs. Brown were irrevocable.

Both the Plaintiffs and Defendant filed a Motion for Summary Judgment. The Trial Court denied Defendant's motion, granted the Plaintiffs' motion for summary judgment, and voided the new will created by Mrs. Brown. Defendant appeals.

We hold that the Trial Court did not err in denying Defendant's motion for summary judgment because the Trial Court did have subject matter jurisdiction to hear this will contest based on this breach of contract claim. We further find that the Trial Court did not err in granting the Plaintiffs' motion for summary judgment after also finding that the June 13, 2002 contract to execute mutual wills was supported by adequate consideration. We affirm the judgment of the Trial Court.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/browni_100411.pdf

Court reviews whether an order to sell real property and division of proceeds is consistent with the intent of the decedent

WANDA LEAVER WILLIAMS ET AL. v. BRANDON LEAVER ET AL. (Tenn. Ct. App. September 28, 2011)

The trial court imposed a constructive trust on a six-acre parcel of real property to carry out the intent of the father that his son and daughter would divide the property. The court ordered the sale of the property and division of the proceeds. We have concluded that the more appropriate equitable remedy is a resulting trust and have modified the judgment with regard to the disposition of the sale proceeds. Otherwise, we affirm the result reached by the trial court.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/williamsw_092811.pdf

Court reviews an action to establish a conservatorship that was not fully adjudicated before the Respondent's death

IN RE: THE CONSERVATORSHIP OF PAUL ESTIL LINDSEY (Tenn. Ct. App. September 16, 2011)

This is an action to establish a conservatorship. The trial court assigned one-half of Petitioner's attorney's fees and fees of the guardian ad litem to Respondent, although Respondent died before the matter was fully adjudicated and no fiduciary was appointed. We reverse.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/lindseyp_091611.pdf

Court reviews a will contest that questions the decedent's testamentary capacity

BOYD L. HUGHES ET AL. v. CURTIS E. HUGHES, EXECUTOR OF THE ESTATE OF LUCILLE C. LUTTRELL (Tenn. Ct. App. September 8, 2011)

This is a will contest case in which the plaintiffs attempt to invalidate the will of Lucille C. Luttrell due to her supposed lack of testamentary capacity. The executor of Ms.Luttrell's estate filed two motions for summary judgment. The first one was denied; the second one was granted. The court ultimately held that the affidavits of medical doctors who evaluated the testator's mental faculties approximately six months before she signed her will do not create a genuine issue of fact regarding her testamentary capacity at the time she signed the will. The plaintiffs appeal. We vacate the order granting summary judgment and remand for further proceedings.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/hughesb_090811.pdf

Court reviews a claim filed by the decedent's daughter against her parent's estate

IN RE ESTATE OF ROGER WASHINGTON BOULDIN (Tenn. Ct. App. August 31, 2011)

Daughter of decedent filed claim against estate. The probate court dismissed the daughter's claim on the ground that it was not timely filed. We affirm the trial court's decision.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/bouldinr_083111.pdf

Courts Limit Bank Immunity in Power of Attorney Cases (Memphis Daily News)

A recent ruling from the Tennessee Court of Appeals has limited the immunity banks once had when it comes to liability for withdrawals of money under powers of attorney. The ruling came in a Memphis case in which an account holder's nephew withdrew money from his uncle's account. The trial court ruled the bank was immune from wrongdoing because the nephew possessed his uncle's power of attorney. The appeals court disagreed, saying state law does not support the notion that banks automatically are insulated from liability just because a power of attorney exists.

Read the full article at the Memphis Daily News' Site.

Court Reviews a dispute involving Power of Attorney and an alleged theft of personal property

KIMBERLY E. LOVE v. STEVEN D. BEARD (Tenn. Ct. App. June 22, 2011)

The plaintiff filed this action against her brother alleging that he misused her power of attorney and that he stole some of her property. Following a bench trial, the trial court held that the plaintiff failed to prove her claims, with the exception of her claim for theft of her automobile, and ordered the defendant to pay restitution for the vehicle. Plaintiff appealed; however, she failed to file a transcript of the proceedings or a statement of the evidence for which we must accept the findings of the trial court as correct. Finding no error, we affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/lovek_062211.pdf

Court Reviews the Trial Court's Instructions to a Conservator for Administering an Estate

IN THE MATTER OF: THE CONSERVATORSHIP OF: MARY LOUISE SOTTONG, Appellee, GEOFFREY SOTTONG, Appellant (Tenn. Ct. App. June 3, 2011)


In this conservatorship estate, Geoffrey Sottong, son of Mary Louise Sottong, raises issues as to the ruling of the Trial Court regarding the conservator's administration of the conservatorship estate. Upon review, we conclude that the Trial Court's series of orders properly instructed the conservator on administering the estate, and affirm the Judgment of the Trial Court on these issues.


Opinion available at:

http://www.tba2.org/tba_files/TCA/2011/sottongm_060311.pdf

Court Reviews Whether Defendants Depleted the Decedent's Assets Such that they Deprived the Plaintiff of her Specific Bequest in the Will

IN RE ESTATE OF ELOISE J. STOREY, 

PEGGIE SHERRILL HUBER v. LAWRENCE G. YOHANEK, CPA, A/K/A LARRY G. YOHANEK, SHARRON S. YOHANEK, AND JOHN GARY STOREY (Tenn. Ct. App. May 31, 2011)



This lawsuit was filed by the decedent's daughter against other family members alleging undue influence, conversion, breach of fiduciary duty, and civil conspiracy. After the decedent suffered a stroke, the family members, as attorney in fact and signatory on the decedent's bank accounts, made gifts from the decedent's assets to themselves and to other family members.

After the decedent died, the plaintiff daughter filed this lawsuit, alleging that the defendant family members wrongfully depleted the decedent's assets during her lifetime so as to deprive the plaintiff of her specific bequest in the decedent's will. The defendants filed a motion for partial summary judgment on various grounds.

The trial court granted in part and denied in part the defendants' motion finding, inter alia, that the plaintiff did not submit evidence to support several of her claims, and that several claims were barred by the statute of limitations. The Plaintiff now appeals.

On appeal, we apply the Tennessee Supreme court's revised analytical framework for summary judgment motions, requiring the defendant movants to either conclusively establish facts supporting an affirmative defense or negate an essential element of the plaintiff's claim. Applying this standard, we affirm in part, reverse in part, and remand.


Opinion available at:

http://www.tba2.org/tba_files/TCA/2011/storeye_053111.pdf

Court Reviews a Motion to Marshal Assets and the Exercise of Personal Jurisdiction over a California Resident

THE ESTATE OF PAULINE VERNUSE BUTLER, v. PAUL V. PEEPLES, SR. (Tenn. Ct. App. May 26, 2011)



The representative of this Estate filed a "Motion to Marshal Assets" alleging that a California resident held assets of the Estate and had refused to turn them over to the Estate. The Trial Court summarily ordered the California resident to surrender any assets held and turn them over to the Estate. Paul V. Peeples, the California resident, filed a Motion in Probate Court that the Court had no personal jurisdiction over him, along with his affidavit. His Motion was denied. He appealed to this Court and we hold that he was not subject to the jurisdiction of the Trial Court and reverse the orders against him and dismiss him as a party to the probate estate action. 


Opinion available at:

http://www.tba2.org/tba_files/TCA/2011/butlerv_052611.pdf 

Court Reviews a Whether a Will was the Product of Undue Influence

THOMAS L. GRIMES, ET AL. v. HELEN CORNELL (Tenn. Ct. App. May 24, 2011)



This appeal involves a will contest in which the trial court found that a will executed in 2005 was the product of undue influence and, as a consequence, admitted a will executed by the testator in 2004 to probate. The proponent of the 2005 Will appeals the finding of undue influence as well as the dismissal of her claim for intentional infliction of emotional distress and award of attorney's fees to Plaintiffs to be paid from the estate. We affirm the trial court in all respects.


Opinion available at:

http://www.tba2.org/tba_files/TCA/2011/grimest_052411.pdf

Perpetuities Rule Finally Ends $100M Waiting Game for Lumber Baron’s Heirs, 92 Years After His Death

From ABA Journal: Perpetuities Rule Finally Ends $100M Waiting Game for Lumber Baron’s Heirs, 92 Years After His Death (Martha Neil)

The rule against perpetuities, which prevents estate distributions from dragging on endlessly by requiring a property interest conveyed in a will to vest, if at all, within 21 years of the death of individuals already in existence at the time of the testator's death, recently settled a deadlock over a Michigan lumber baron's will.

Martha Neil reports in the ABA Journal:

"Not allowed to collect their share of Wellington Burt's fortune until 21 years after the death of his youngest grandchild in existence when the patriarch cashed in his chips, the 12 great-, great-great- and great-great-great-grandchildren among Burt's surviving descendants are expected to see his trust open by the end of the month, the Associated Press reported. The heirs range in age from 19 to 94 years old.

Burt died in 1919."


Read the full story by Martha Neil here:
http://www.abajournal.com/news/article/perpetuities_rule_finally_ends_100m_waiting_game/

Court Reviews Whether Appellants Proved that Decedent Did Not Revoke Her Will

JANICE DAVIS BOELTER and RICHARD DAVIS v. JACKIE CURTUS REAGAN, ET AL. (Tenn. Ct. App. May 19, 2011)



Decedent executed a will in 1988 which could not be found upon her death. Decedent's stepchildren sought to establish a copy of the 1988 will as Decedent's last will and testament, but the trial court found that they had failed to rebut the presumption that the will had been destroyed and revoked. We find that Appellants failed to prove that Decedent did not revoke her will. Accordingly, we affirm the trial court's involuntary dismissal of Appellants' claim as well as its order that Decedent's Estate be administered as an intestate estate.


Opinion available at:

http://www.tba2.org/tba_files/TCA/2011/boelterj_051911.pdf

Jones' will ruled forgery with handwriting expert help

Judge Robert Benham ruled on May 6 that the signature on a will purporting to be that of the late state Rep. Ulysses Jones Jr. is a forgery. The will left the bulk of Jones' estate to Sandra Evette Richards, the woman who submitted the document following his death in November and who said Jones was her fiance. Benham said his opinion was swayed by shaky witness credibility and handwriting experts.

Read the full story here:
http://www.commercialappeal.com/news/2011/may/06/judge-rules-signature-forgery-will-late-rep-ulysse/

Court Reviews the Award of Attorney's Fees for Services Rendered on Appeal

IN RE ESTATE OF ANNA SUE DUNLAP, DECEASED, RICHARD GOSSUM, ADMINISTRATOR CTA (Tenn. Ct. App. April 29, 2011)



This appeal addresses an award of attorney fees to the attorney for a decedent's estate for services rendered on appeal. The appellant administrator of the estate is also the estate's attorney. The administrator/attorney's final accounting was approved by the trial court, and two of the estate's beneficiaries appealed. The appellate court affirmed the trial court's approval of the final accounting.

On remand, the administrator/attorney filed a motion for the approval of all attorney fees incurred in the administration of the estate, including attorney fees for services rendered in the first appeal. The trial court declined to approve the attorney fees incurred on appeal, holding that such fees may be awarded in the first instance only by the appellate court. The administrator/attorney now appeals.

We reverse, concluding that attorney fees for the administrator/attorney's services rendered on appeal constitute an administrative expense of the estate, and so the request for such fees must be made in the first instance in the trial court. 


Opinion may be found at:

http://www.tba2.org/tba_files/TCA/2011/dunlapa_042911.pdf

Court Reviews Whether Daughter or a Neutral Third Party is the Appropriate Person to Serve as a Conservator

IN RE CONSERVATORSHIP OF KARUBAH CARNAHAN (Tenn. Ct. App. March 9, 2011)

In this conservatorship case, a daughter filed a petition asking the court to appoint her as the conservator of her father, who had experienced cognitive decline after a stroke and required full-time care in an inpatient facility. The father's spouse protested the appointment of the daughter as the conservator and requested that a neutral third party be appointed instead. After a hearing, the trial court determined that the daughter was the appropriate person to serve as conservator, and specifically enumerated the power to file for divorce on behalf of the ward to the conservator. The spouse appeals. We affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/carnahank_030911.pdf
(Note: Original opinion withdrawn and replaced with this substitute opinion)

Order regarding new opinion
http://www.tba2.org/tba_files/TCA/2011/carnahan_ORDER_030911.pdf

Court Reviews Ownership of Property via Adverse Possession or a Life Estate

NANCY GATES v. KATIE WILLIAMS ET AL. (Tenn. Ct. App. February 28, 2011)

As this action was pleaded and tried, it was:
(1) a claim by Nancy Gates ("the plaintiff") seeking to be declared the owner of a life estate in a tract of property; and, as a consequence of her estate, seeking the removal of Katie Williams ("the defendant"), the widow of the plaintiff's son, Tony, from the property; and
(2) a counterclaim by the defendant alleging that she had become the owner of an interest in the property by adverse possession due to her having lived on the property since the late 1960s or early 1970s.

The trial court held that, as to these claims, neither party was entitled to relief against the other. The court found, however, that the plaintiff did, in fact, have a life estate in the subject property, and that the defendant had not proven adverse possession because her entry onto the property was with the plaintiff's permission.

The court then held, sua sponte, that the defendant had a license in the property coupled with an interest therein that had been acquired by building numerous structures on the property with the plaintiff's knowledge and that it would not be equitable to require the defendant to move. The plaintiff appeals. We affirm the trial court's judgment in part and reverse in part and remand for a hearing on the issue of what it would take to do equity given the facts of this case.

Opinion Available at:
http://www.tba2.org/tba_files/TCA/2011/gatesn_022811.pdf

Adams Law Firm's Estate Planning Services

The Adams Law Firm offers a standard Estate Plan, which includes the following documents:
 
1. Last Will and Testament
2. Living Will (containing advanced medical directives)
3. Power of Attorney for Healthcare (which operates in conjunction with the Living Will)
4. Power of Attorney for finances and other matters
 
We are also able to provide advanced estate planning services such as living trusts, Asset Protection Trusts, and Irrevocable Life Insurance Trusts.  Our charges for these services depend on the time required and complexity of the circumstances.  Start by filling out our Estate Planning Worksheets, which we can mail, fax, or email upon request.  Any information you provide will be strictly confidential.

Tennessee Residents are Impacted from an Estate Planning Perspective

As you may already know, on December 17, 2010, President Obama signed into law the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010 (the "Act") which significantly changes the federal estate tax and gift tax. The estate and gift tax provisions of the Act are generally favorable to taxpayers, but the Act is only temporary and will expire December 31, 2012 if Congress fails to act. As a service to our professional partners we have prepared the following summary of the Act’s key changes and how the Act impacts Tennessee residents from an estate planning perspective.
 
$5 Million Federal Exclusion Amount; 35% Tax Rate.
The Act reinstates the federal estate tax and sets the exemption at $5 million and the tax rate at 35% for decedents dying in 2011 and 2012. However, if Congress allows the Act to expire on December 31, 2012, the prior estate tax regime, with a 55% maximum estate tax rate and a $1 million applicable exclusion amount, will be reinstated at that time. The State of Tennessee still maintains a separate inheritance tax regime with an exemption for the first $1 million of assets. To help minimize Tennessee inheritance tax exposure, we are continuing to advise our clients about the advantages of credit shelter trusts.
 
Portability.
The Act also provides for "portability" between spouses, meaning any exemption amount not used by a predeceased spouse may be added to the exemption amount for the surviving spouse. If Congress fails to extend the Act, both spouses must die in 2011-2012 to take advantage of portability. Additionally, if a surviving spouse remarries, portability of the predeceased spouse’s unused exemption is lost. Given these limitations and the fact that Tennessee does not recognize portability for Tennessee inheritance tax purposes, we are continuing to advise many clients to use estate plans that incorporate credit shelter trusts.
 
Gift Taxes.
Under the Act the estate and gift tax regimes are re-unified allowing individuals to be able to use the full $5 million exemption to make lifetime gifts without any federal gift taxes. For lifetime gifts exceeding $5 million made in 2011 and 2012, the federal gift tax rate is 35%. Tennessee still has a gift tax and Tennessee does not have a lifetime exemption. Therefore, Tennessee gift tax consideration must be well thought out before gifting property in excess of the annual exclusion amounts. For 2011, the annual gift exclusion amount under both federal and state law remains at $13,000 per Class A donee (married couples may continue to "split" their gift and may make combined gifts of $26,000 to each Class A donee). "Class A donees" are a donor’s spouse, lineal descendent, lineal ancestor, sibling, son-in-law, daughter-in-law, step-child, and niece and nephew if the donor has no lineal descendents. "Class B donees" are all other persons.
 
Generation Skipping Transfer ("GST") Tax.
The Act provides a $5 million GST tax exemption and GST tax rate of 35% for 2011 and 2012. The Act also extends certain technical provisions under prior law affecting the GST tax. 



Source: Gullett Sanford Robinson & Martin PLLC

Court Reviews a Fraudulent Will Case

JUDY DOTSON MCCONNELL, ET AL. v. PAT FULLER, ET AL. (Tenn. Ct. App. February 15, 2011)

In September of 2009, Judy Dotson McConnell and Jerry Dotson ("Plaintiffs") sued Pat Fuller, John Fuller, and Lela Dotson Gravett ("Defendants") alleging, in relevant part, that the Last Will and Testament of Clarence E. Dotson, which was offered for probate in May of 2003, was a fraudulent will. Defendants filed a motion to dismiss for failure to state a claim upon which relief may be granted alleging that the statute of limitations barred Plaintiffs' claim.

After a hearing, the Trial Court entered its order on February 16, 2010 finding and holding, inter alia, that Plaintiffs' lawsuit was not filed within the statute of limitations and that Plaintiffs failed to "allege facts which would bring into play fraudulent concealment," which would have tolled the statute of limitations. The Trial Court dismissed Plaintiffs' suit. Plaintiffs appeal to this Court. We affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/mcconnellj_021511.pdf

TN Supreme Court Reviews Wrongful Death and Negligence Claims Brought by Administratrix

ESTATE OF MARTHA S. FRENCH v. STRATFORD HOUSE ET AL. (Tenn. January 26, 2011)

The administratrix of the estate of the deceased brought this wrongful death suit against the defendant nursing home and its controlling entities, alleging damages as the result of ordinary negligence, negligence per se, and violations of the Tennessee Adult Protection Act.

The trial court granted the defendants' motion for partial summary judgment, holding that the Tennessee Medical Malpractice Act applied to the ordinary negligence claims, thereby precluding allegations of negligence per se or violations of the Tennessee Adult Protection Act. The trial court also dismissed a claim for punitive damages.

The Court of Appeals affirmed, but vacated the portion of the order dismissing the punitive damages claim. This Court granted the administratix's application for permission to appeal in an effort to clarify the standards governing nursing home liability and to resolve a conflict in the decisions rendered by the Court of Appeals.

We hold that, because the administratrix of the estate of the deceased has alleged violations of the standard of care pertaining to both medical treatment and routine care, she has made claims based upon both medical malpractice and ordinary negligence. Further, she may offer proof of negligence per se and violations of the Tennessee Adult Protection Act as support for her ordinary negligence claims. We affirm the Court of Appeals' reinstatement of the punitive damages claim. The judgment of the Court of Appeals is, therefore, affirmed in part and reversed in part. The cause is remanded to the trial court.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2011/frenchm_012611.pdf

KOCH dissenting
http://www.tba2.org/tba_files/TSC/2011/frenchm_DIS_012611.pdf

Court Reviews Whether the Bureau of TennCare Could Recover the Cost of Medical Assistance Provided to the Decedent

IN RE: ESTATE OF ARDELL HAMILTON TRIGG, DECEASED (Tenn. Ct. App. February 11, 2011)

The Bureau of TennCare filed a claim against a decedent's estate to recover the cost of medical assistance provided to the decedent. The Estate filed an exception to the claim. The probate court sustained the claim, and the Estate appealed the probate court's ruling to the circuit court which heard the matter de novo. The circuit court reversed the probate court and disallowed the claim of TennCare.

TennCare appeals; we hold that the circuit court was without subject matter jurisdiction to review the probate court's order. We vacate the judgment of the circuit court and remand the case.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/trigga_021111.pdf

Court Reviews Whether Beneficiary of a Trust is Entitled to Distributions Prior to His Parents’ Deaths

RYNE W. BROWN v. CATHERINE L. BROWN, Trustee, ET AL. (Tenn. Ct. App. February 9, 2011)

Appellant contends that he is a beneficiary of a trust created by his parents and thus entitled to distributions of principal and income. In a declaratory judgment action, the trial court determined that Appellant was not entitled to mandatory distributions of income or principal until both of his parents were deceased. We affirm this portion of the trial court's judgment. The trial court also determined that no corporate trustee was required. We reverse this portion of the trial court's judgment and remand for the appointment of a corporate trustee.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/brownr_020911.pdf

Court Reviews Whether the Trial Court Properly Found that Trust Documents Provided for Full Disposition of the Trust Assets

DAVID L. MORROW and JUDY M. WRIGHT v. SUNTRUST BANK, ET AL. (Tenn. Ct. App. January 31, 2011)


Appellants filed a complaint for declaratory judgment seeking to be named the sole heirs to trust residue. However, the Attorney General moved for summary judgment, claiming that a later trust document provided for a full disposition of the trust assets, and therefore, that no assets remained to which Appellants could be entitled. The trial court granted summary judgment, finding that the intent to leave no residue stated in the later document superseded the prior edition.

On appeal, Appellants argue that intent is irrelevant without a determination of the legal efficacy of the trust documents, and that the trial court lacked subject matter jurisdiction to render an advisory opinion. We find that the trial court properly exercised subject matter jurisdiction in adjudicating the declaratory judgment. Additionally, we affirm the trial court's denial of attorney fees and costs to SunTrust incurred at trial, and we decline to award SunTrust its attorney fees and costs incurred on appeal.


Opinion may be found here:

http://www.tba2.org/tba_files/TCA/2011/morrowd_013111.pdf

Court Reviews Whether a Partnership Existed Between the Decedent and Others

RICHARD SWECKER, et al., v. STEVEN MICHAEL SWECKER, et al., and, DINAH SLUDER, et al., IN RE: ESTATE OF JOSEPH JAMES SWECKER, STEVEN SWECKER, et al., v. RICHARD ALLEN SWECKER (Tenn. Ct. App. January 26, 2011)



Plaintiffs brought this action to establish a partnership with the deceased against the estate's personal representative and others. Defendants answered, denying the allegation that a partnership existed, and filed a counter-complaint, asserting the estate should be reimbursed for plaintiffs' mismanagement of the farm, and for monies the plaintiffs removed from the estate's bank account.

Following an evidentiary hearing, the Trial Court held that deceased and plaintiff had entered into a partnership and that the partnership would be wound up by the Court and the partnership assets distributed. Also, the Trial Court held that plaintiffs would be required to pay rent on the house they occupied on the farm for several years.

On appeal, we affirm the finding that a partnership existed, but reverse the Trial Court's holding that plaintiffs owed the estate rent for occupancy of the house on the farm. We remand, with directions to the Court to wind up the partnership.


Opinion may be found here:
http://www.tba2.org/tba_files/TCA/2011/sweckerr_012611.pdf

Court Reviews Whether Man’s Daughter was the Appropriate Person to Serve as Conservatorship

IN RE CONSERVATORSHIP OF KARUBAH CARNAHAN (Tenn. Ct. App. January 21, 2011)



In this conservatorship case, a daughter filed a petition asking the court to appoint her as the conservator of her father, who had experienced cognitive decline after a stroke and required full-time care in an inpatient facility. The father's spouse protested the appointment of the daughter as the conservator and requested that a neutral third party be appointed instead. After a hearing, the trial court determined that the daughter was the appropriate person to serve as conservator. The spouse appeals. We affirm. 


Opinion may be found at:

http://www.tba2.org/tba_files/TCA/2011/carnahank_012111.pdf

Court Reviews a Money Judgment Against Decedent’s Children in Favor of a Conservator

IN RE: CONSERVATORSHIP OF GOLDIE CHILDS (Tenn. Ct. App. January 6, 2011)

Two of the daughters of an eighty-two year old woman filed a petition to be named as their mother's Conservator. The trial court found that the mother did indeed need a Conservator, but because of family disagreements it appointed a third party to perform that role.

Seven months later, the same daughters filed a petition to remove the incumbent Conservator and to be named as Co-Conservators to replace her. The mother died after proceedings on the second petition began, but before the trial court could rule on its merits. The Conservator subsequently moved the court for payment of her fees. The court found that some of those fees were incurred as a direct result of the uncooperative acts of the two daughters. Since the decedent's estate was indigent, the court entered two money judgments for costs against the daughters.

We reverse the judgment that was assessed against one of the daughters for failing to return her mother to the nursing home in a timely way, because although her actions led to additional costs, no legal basis for the judgment appears in the record. We vacate the judgment based on the unsuccessful petition to remove the conservator and we remand the case for further proceedings, because although Tenn. Code Ann. section 34-1-114 does allow an assessment of costs against such petitioners, it is unclear how much of the court's judgment falls within the parameters of that statute.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2011/childsg_010611.pdf