In Re Estate of Micki D. Thompson ( 2021 )

10/25/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs October 1, 2021
IN RE ESTATE OF MICKI D. THOMPSON
Appeal from the Chancery Court for Sumner County
No. 2019-PR-519 Louis W. Oliver, III, Chancellor
No. M2021-00025-COA-R3-CV
This appeal arises from a petition to probate a handwritten instrument as a codicil to the
decedent’s last will and testament. The parties stipulated that the purported holographic
will was in the handwriting of the decedent and that she was of sound mind and disposing
memory at the time the purported holographic will was written. Additionally, the trial court
found that the writing expressed a testamentary intent on the part of the decedent.
Nevertheless, the trial court denied the petition, holding that the writing did not satisfy the
signature requirement of Tenn. Code Ann. § 32-1-105 because, inter alia, the decedent’s
name, Micki D. Thompson, was not subscribed to the writing. Instead, she merely
identified herself within the writing in the third person as “Micki.” The court found the
word “Micki” was not the decedent’s signature. The petitioner appeals, contending the
handwritten instrument satisfies Tenn. Code Ann. § 32-1-105 because a testator’s name
need not be “subscribed” as long as the name, or a portion thereof, is “inserted in some part
of [the writing]” and the other requirements of Tenn. Code Ann. § 32-1-105 are satisfied.
We agree because the decedent’s name was inserted in the writing, it was established that
she was of sound mind and disposing memory, and the writing expresses a testamentary
intent on the part of the decedent. Therefore, we reverse and remand with instructions to
admit the handwritten instrument to probate as a codicil to the decedent’s last will and
testament.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Reversed and Remanded
FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which JOHN W.
MCCLARTY and ARNOLD B. GOLDIN, JJ., joined.
Ronald K. Nevin, Nashville, Tennessee, for the appellant, Albert Read Lewin.
Philip C. Kelly, Gallatin, Tennessee, for the appellee, Estate of Micki D. Thompson.
OPINION
The Estate of Micki D. Thompson (“the Estate”) was opened on November 14,
2019, in the Chancery Court for Sumner County, Tennessee. At that time, a last will and
testament, dated July 25, 2013, along with two codicils, dated July 23, 2016, and March 3,
2017, were admitted to probate. William Richard Brooks was appointed Executor.
On July 20, 2020, Albert Read Lewin filed a petition to probate a handwritten
instrument as the third codicil to the 2013 will. The Estate filed a timely objection to the
handwritten instrument being admitted to probate.
The purported third codicil, which was written in a Bible owned by Mr. Brooks,1
was very brief and stated in its entirety:
July 22, 2019
Owner [of the Bible]: William Richard Brooks
Albert Read Lewin—shall receive $3,000 per month for life—This is
appreciation for his care and complete dedication to Micki and her welfare.
He gave All in making her life-
The parties agreed and stipulated that the above writing was in Ms. Thompson’s
handwriting. Further, the parties agreed that Ms. Thompson was “of sound mind and
disposing memory” on the date the statement was written. The Estate, however, argued that
the inscription lacked a sufficient signature; therefore, it was not a valid holographic will
or codicil under Tenn. Code Ann. § 32-1-105.
In its final order, and after acknowledging the parties’ agreements and stipulations
as to the evidence, the trial court made the specific finding that “the handwriting was the
handwriting of the Decedent and that she was of sound mind and disposing memory at the
time the note was written.” The court also found that the handwritten instrument
“expresse[d] a testamentary intent on the part of Ms. Thompson as written on July 22,
2019.” The court then stated that “[t]he question then comes down to whether or not the
Decedent intended that her name ‘Micki’ would constitute her signature.” In its analysis of
this issue, the court reasoned and held:
T.C.A. 32-1-105 sets out the requirements for holographic wills. It states,
“No witness to a holographic will is necessary, but the signature (emphasis
added) and all it[s] material provisions must be in the handwriting of the
testator and the testator’s handwriting must be proved by two (2) witnesses.”
1
Although the Bible was owned by Mr. Brooks, Ms. Thompson’s close friend, the Bible was
found among Ms. Thompson’s personal property.
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The Court notes that the Decedent referred to herself in the third person rather
than in the personal pronoun. Based upon the foregoing, the Court finds that
the word “Micki” is not the signature of the Decedent and that the paper
writing does not contain the signature of the Decedent. Therefore, the Court
denies the admission of the paper writing as the codicil to the Estate of
MICKI D. THOMPSON.
This appeal followed.
ISSUE
The issue presented by the Estate, and agreed to by Mr. Lewin, reads: “Does Micki
Thompson’s name, appearing within the body of a holographic will, constitute a signature
pursuant to Tenn. Code. Ann. § 32-1-105?” We have determined that a more accurate
statement of the dispositive issue is whether the testator’s insertion of her first name
“Micki” within the body of the handwritten instrument satisfies the signature requirement
under Tenn. Code. Ann. § 32-1-105.
STANDARD OF REVIEW
The standard of review of a trial court’s findings of fact is de novo, and we presume
that the findings of fact are correct unless the preponderance of the evidence is otherwise.
Tenn. R. App. P. 13(d); Rawlings v. John Hancock Mut. Life. Ins. Co., 78 S.W.3d 291, 296
(Tenn. Ct. App. 2001). For the evidence to preponderate against a trial court’s finding of
fact, it must support another finding of fact with greater convincing effect. Walker v. Sidney
Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000); The Realty Shop, Inc. v. R.R.
Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App. 1999).
Issues of law are reviewed de novo with no presumption of correctness. Nelson v.
Wal-Mart Stores, Inc., 8 S.W.3d 625, 628 (Tenn. 1999). The interpretation of a statute is a
question of law, which we review de novo without any presumption of correctness. Tidwell
v. City of Memphis, 193 S.W.3d 555, 559 (Tenn. 2006). If the evidence does not
preponderate against the trial court’s findings, we will affirm the trial court’s
determinations “unless the trial court has committed an error of law affecting the outcome
of the case.” Boyer v. Heimermann, 238 S.W.3d 249, 254–55 (Tenn. Ct. App. 2001).
ANALYSIS
Tennessee Code Annotated § 32-1-105, which is generally referred to as the
Holographic Will Statute, provides: “No witness to a holographic will is necessary, but the
signature and all its material provisions must be in the handwriting of the testator and the
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testator’s handwriting must be proved by two (2) witnesses.”2 Nevertheless, “[i]t is not
necessary to its validity that a testator’s name appear at the end of a holographic will. It is
sufficient that his name is subscribed elsewhere in the will.”3 In re Jones’ Estate, 314
S.W.2d 39, 44 (Tenn. Ct. App. 1957). Moreover, and with specific reference to
testamentary instruments, “[a] signing of part of the name, if done with testamentary
intent, may be sufficient. 1 Andra J. Hedrick, Jeffrey Mobley, Jack W. Robinson, Sr.,
Pritchard on the Administration of Wills and Estates § 204 (7th ed. 2009) (emphasis
added).
However, “[i]f the instrument propounded as a holographic will is . . . not
subscribed by the testator, though his name is inserted in some part of it, . . . the
presumption is that the writer did not intend the paper in that imperfect state to be his will.”
Campbell v. Henley, 110 S.W.2d 329, 330 (Tenn. 1937) (emphasis added). But this
“presumption may be rebutted by satisfactory proof that [the instrument] was
intended, in the form in which it appears and as far as it goes, to be the last will and
testament of the deceased.” Id. (emphasis added).
The parties agree that Tenn. Code Ann. § 32-1-105 is controlling. They also agree
that Ms. Thompson was of sound mind and disposing memory at the time of the execution
and that the handwriting of the inscription is that of Ms. Thompson.
As for testamentary intent, the trial court made the specific finding that Ms.
Thompson’s inscription demonstrated testamentary intent. As noted above, we presume
the trial court’s findings of fact are correct unless the preponderance of the evidence is
otherwise. See Tenn. R. App. P. 13(d). For the evidence to preponderate against this finding
of fact, it must support another finding of fact with greater convincing effect. See Walker,
40 S.W.3d at 71. Having determined that the evidence does not support another finding of
fact with greater convincing effect, we conclude that the evidence does not preponderate
against the trial court’s finding of testamentary intent. Accordingly, we affirm the trial
court’s finding that the inscription demonstrated testamentary intent.
Although Ms. Thompson did not subscribe or insert her entire name into the
handwritten instrument, she inserted her first name, “Micki,” within the inscription. Thus,
2
Tennessee Code Annotated § 1-3-105, which defines terms used in the code, defines “signature”
as including “a mark, the name being written near the mark and witnessed, or any other symbol or
methodology executed or adopted by a party with intention to authenticate a writing or record, regardless
of being witnessed[.]” Id. § 105(a)(30); see Taylor v. Holt, 134 S.W.3d 830, 832-33 (Tenn. Ct. App. 2003).
3
At common law no attestation or subscription of a will was necessary to its validity. Ragsdale v.
Hill, 684–85, 269 S.W.2d 911, 917 (Tenn. Ct. App. 1954). “The requirements of attestation, or subscription,
or both, are purely of statutory origin.” Id. (citing 57 Am.Jur., Wills, sec. 285). “In the absence of a statute
which requires attestation, or subscription, or both, it is not necessary that a will or a testament shall be
attested or subscribed by witnesses. Id. at 917-18.
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the instrument was signed by Ms. Thompson with the use of part of her name and, as the
trial court found, with testamentary intent. See Hedrick, Mobley, Robinson, Sr., supra, §
204. Therefore, we conclude that these facts overcame the rebuttable presumption that Ms.
Thompson did not intend for the handwritten instrument to act as her valid will and hold
that Ms. Thompson intended for the July 22, 2019, handwritten instrument to act as a
codicil to her will.
For the foregoing reasons, we reverse the decision of the trial court and remand with
instructions for the trial court to admit the July 22, 2019, handwritten instrument as the
third codicil to Ms. Thompson’s 2013 will.
IN CONCLUSION
The judgment of the trial court is reversed, and this matter is remanded for further
proceedings consistent with this opinion. Costs of appeal are assessed against the Estate of
Micki D. Thompson.
________________________________
FRANK G. CLEMENT JR., P.J., M.S.
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