                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                March 12, 2013 Session

                 IN RE: ESTATE OF JOHN LEONARD BURKE

               Appeal from the Chancery Court for Williamson County
                    No. P6299    Timothy L. Easter, Chancellor


                 No. M2012-01735-COA-R3-CV - Filed May 21, 2013




Robert LaFever appeals the Trial Court’s order of July 12, 2012 dismissing his notice of will
contest after finding and holding, inter alia, that the Last Will and Testament of John
Leonard Burke had been admitted to probate in solemn form and could not be challenged in
a later will contest. We affirm the Trial Court’s July 12, 2012 order.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed;
                                  Case Remanded

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which J OHN W. M CC LARTY,
and T HOMAS R. F RIERSON, II, JJ., joined.

Connie Reguli and Megan Woodson Miller, Brentwood, Tennessee, for the appellant, Robert
LaFever.

Rebecca C. Blair, Brentwood, Tennessee, for the appellee, the Estate of John Leonard Burke.

                                        OPINION

                                       Background

              In September of 2011, John Leonard Burke (“Deceased”) died at the age of 78
in Williamson County, Tennessee. Elizabeth L. Adams filed a petition in November of 2011
seeking to admit the Last Will and Testament of Deceased executed in August of 2010 (“the
Will”) to probate in solemn form and to be appointed as executrix of Deceased’s estate.
Robert LaFever, Deceased’s step-son, was one of the parties who received notice of Ms.
Adams’s petition.
                After a hearing, the Trial Court entered its Order to Probate in Solemn Form
on December 19, 2011 finding and holding, inter alia, that all potential beneficiaries had
been duly served with notice of the hearing on Ms. Adams’s petition, that no objection was
filed to the probate of the Will, that the Will was duly executed, that Deceased was of sound
mind and had full testamentary capacity at the time of the execution of the Will, and that the
August 20, 2010 Will is “the true, whole and Last Will and Testament of John Leonard
Burke.” The December 19, 2011 order admitted the Will to probate in solemn form and
appointed Ms. Adams as executrix of the Estate of John Leonard Burke (“the Estate”).

              On June 8, 2012 Robert LaFever filed a notice of will contest alleging, in part,
that the Will was “procured by the fraudulent inducement” of Deceased’s wife, and that
Deceased “was in a compromised state both medically and mentally at the time of the
procurement of the 2010 will.” The Estate filed an objection to the notice of will contest and
a motion to dismiss.

              After a hearing, the Trial Court entered its order on July 12, 2012 finding and
holding:

       Based on the filings and argument presented at the hearing the Court finds that
       the Motion to Dismiss the Notice of Will Contest is well taken.

              In reaching this opinion the Court relies heavily on the opinion of the
       Tennessee Court of Appeals in the matter In re Estate of Boote, 198 S.W.3d
       699 (Tenn. Ct. App. 2005) in which that Court explained that because of the
       procedural and evidentiary distinctions between the two types of probate
       proceedings, the conclusiveness of an order admitting a will to probate
       depends on whether it was admitted to probate in common form or solemn
       form. Even after an order has been entered admitting a will to probate in
       common form, the will can still be challenged in a will contest at any time up
       to two years following the date of entry of the order. By contrast, once an
       order admitting a will to probate in solemn form has been entered, the will
       cannot be challenged in a later will contest. This Court does not see anything
       in Tenn. Code Ann. 32-4-108 which changes this conclusion.

              The subject Will of John Leonard Burke was entered to probate at a
       solemn form probate hearing on December 19, 2011, following notice to the
       contestant. No objection was asserted at that time. As a result, the Will cannot
       now be challenged. The Executrix’s Motion to Dismiss the Notice of Will
       Contest is GRANTED. Contestant’s Motion for Extension and Other Relief
       is moot.

                                             -2-
Mr. LaFever appeals the dismissal of his notice of will contest to this Court.

                                          Discussion

             Although not stated exactly as such, Mr. LaFever raises one issue on appeal:
whether the Trial Court erred in dismissing his notice of will contest.

                Mr. LaFever also filed a motion seeking to have this Court strike “magnetic
tape audio recordings” of legislative proceedings from 1985 and 1987, which were included
in the record on appeal. Mr. LaFever’s motion asserts, in part, that these “magnetic tape
audio recordings” were not before the Trial Court and “have not been referred to by either
party in their briefs.” Mr. LaFever’s assertion that the “magnetic tape audio recordings” were
not “referred to by either party in their briefs” is patently wrong. The Estate refers to these
tapes and cites them in its brief on appeal on pages 19 and 20 and also attaches to its brief
a transcript of the tapes. Furthermore, Mr. LaFever himself refers to these tapes on page 5
of his reply brief on appeal.

              We have determined, however, that the issue on appeal can be resolved without
the need of these “magnetic tape audio recordings” of legislative proceedings, as will be
discussed more fully below. As such, the motion to strike these “magnetic tape audio
recordings” of legislative proceedings from 1985 and 1987 is granted, and these recordings
have not been considered by this Court.

              Our standard of review as to the granting of a motion to dismiss is set out in
Stein v. Davidson Hotel Co., in which our Supreme Court explained:

               A Rule 12.02(6), Tenn. R. Civ. P., motion to dismiss for failure to state
       a claim upon which relief can be granted tests only the legal sufficiency of the
       complaint, not the strength of a plaintiff’s proof. Such a motion admits the
       truth of all relevant and material averments contained in the complaint, but
       asserts that such facts do not constitute a cause of action. In considering a
       motion to dismiss, courts should construe the complaint liberally in favor of
       the plaintiff, taking all allegations of fact as true, and deny the motion unless
       it appears that the plaintiff can prove no set of facts in support of her claim that
       would entitle her to relief. Cook v. Spinnaker's of Rivergate, Inc., 878 S.W.2d
       934, 938 (Tenn. 1994). In considering this appeal from the trial court’s grant
       of the defendant’s motion to dismiss, we take all allegations of fact in the
       plaintiff’s complaint as true, and review the lower courts’ legal conclusions de
       novo with no presumption of correctness. Tenn. R. App. P. 13(d); Owens v.
       Truckstops of America, 915 S.W.2d 420, 424 (Tenn. 1996); Cook, supra.

                                               -3-
Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn. 1997).

             In In re: Estate of Boote, this Court explained:

              A will or codicil has no legal effect until it has been admitted to
      probate. State v. Lancaster, 119 Tenn. 638, 651, 105 S.W. 858, 861 (Tenn.
      1907); Weaver v. Hughes, 26 Tenn. App. 436, 443, 173 S.W.2d 159, 162
      (1943); 1 P RITCHARD §§ 35, at 55, 326, at 504.… Proceedings to probate a
      will are instituted by the filing of a verified petition in the court that exercises
      probate jurisdiction over the county where the testator or testatrix resided at
      the time of his or her death. Tenn. Code Ann. § 32-2-101 (2001); 1
      P RITCHARD § 326, at 504.

                                             ***

             There are two types of probate in Tennessee: probate in common form
      and probate in solemn form. Delaney v. First Peoples Bank of Johnson City,
      214 Tenn. 355, 364, 380 S.W.2d 65, 69 (1964); 1 P RITCHARD § 325, at 502;
      see also Tenn. Code Ann. § 32-5-103 (2001) (providing for probate of foreign
      will “either in common or in solemn form”). Probate in common form is an
      extremely informal procedure. McClure v. Wade, 34 Tenn. App. 154, 173, 235
      S.W.2d 835, 843 (1950); 1 P RITCHARD § 331, at 511-12. There is no
      requirement that interested parties be given notice of the proceedings, Tenn.
      Code Ann. § 30-1-117(b); Reaves v. Hager, 101 Tenn. 712, 720, 50 S.W. 760,
      762 (1899); In re Estate of Powers, 767 S.W.2d 659, 660 (Tenn. Ct. App.
      1988); 1 P RITCHARD § 331, at 511, and a judicial hearing is not required to
      have the will admitted to probate, Tenn. Code Ann. § 16-16-201(b); 3 P AGE
      ON W ILLS § 26.110, at 292.


              The clerk and master of the chancery court is statutorily authorized to
      probate wills in common form. Tenn. Code Ann. § 16-16-201(b). Thus, in
      many cases, the will can be admitted to probate in common form on the same
      day that the petition is filed. The clerk and master of the chancery court
      simply reviews the petition for completeness, collects the required fees, and
      enters an order admitting the will to probate in common form. After taking a
      bond and administering the appropriate oath or affirmation, the clerk and
      master issues letters testamentary to the person nominated by the testator or
      testatrix to serve as the executrix or executor for the estate. Tenn. Code Ann.
      §§ 30-1-111 (2001), 30-1-201(a)(2) (2001); 1 P RITCHARD § 36, at 58-59; 2
      P RITCHARD §§ 595, at 108-09, 596, at 109-10, 601, at 113.

                                              -4-
              Probate in solemn form is a much more formal affair. All interested
      parties are entitled to receive notice of the proceedings and of their right to
      participate in them. Tenn. Code Ann. § 30-1-117(b); 1 P RITCHARD §§ 341, at
      523-24, 342, at 524-25. There must be a judicial hearing at which the will is
      formally offered for probate. Tenn. Code Ann. § 16-16-201(b); 1 P RITCHARD
      § 343, at 525. At the hearing, the proponent of the will must produce all living
      witnesses who attested its execution for examination. In re Estate of King, 760
      S.W.2d 208, 210 (Tenn. 1988); 1 P RITCHARD § 345, at 526-27. The court must
      enter an order accepting or rejecting the will for probate in solemn form, but
      there is no requirement that the court enter the order on the same day that the
      in solemn form hearing is held. 1 P RITCHARD § 343, at 525-26; 3 P AGE ON
      W ILLS § 26.110, at 289-90.

              Prior to the entry of an order admitting a will to probate in common
      form or in solemn form, the will can be challenged directly by means of a will
      contest. 1 P RITCHARD §§ 358, at 550, 396, at 591. However, because of the
      procedural and evidentiary distinctions between the two types of probate
      proceedings, the conclusiveness of an order admitting a will to probate differs
      depending on whether it was admitted to probate in common form or in solemn
      form. 1 P RITCHARD § 325, at 503-04. Historically, orders of both types have
      been immune from attack in all collateral proceedings absent allegations of
      fraud in the procurement of the order itself. Ledbetter v. Ledbetter, 188 Tenn.
      44, 49-50, 216 S.W.2d 718, 721 (1949); Murrell v. Rich, 131 Tenn. 378, 403,
      175 S.W. 420, 427 (1914); Ex parte Williams, 69 Tenn. 529, 530-31, 1878 WL
      4406, at * 1 (1878); 1 P RITCHARD §§ 45, at 73, 325, at 503-04, 327, at 505,
      335, at 515-16, 337, at 517-18. However, even after an order has been entered
      admitting a will to probate in common form, the will can still be challenged
      directly in a will contest at any time up to two years following the date of entry
      of the order. Tenn. Code Ann. § 32-4-108 (2001); Murrell v. Rich, 131 Tenn.
      at 403-04, 175 S.W. at 427; 1 P RITCHARD §§ 338, at 519, 366, at 559; 3 P AGE
      ON W ILLS §§ 26.113, at 296-97, § 26.114, at 298-99. By contrast, once an
      order admitting a will to probate in solemn form has been entered, the will
      cannot be challenged in a later will contest. Jennings v. Bridgeford, 218 Tenn.
      at 292, 403 S.W.2d 287 at 291; State v. Lancaster, 119 Tenn. at 651, 105 S.W.
      at 861; 1 P RITCHARD § 325, at 503. Thus, if there is to be a will contest at all
      in proceedings to probate a will in solemn form, it must be initiated prior to the
      entry of the final order.

In re: Estate of Boote, 198 S.W.3d 699, 711-13 (Tenn. Ct. App. 2005) (footnotes omitted).



                                             -5-
               With regard to the question now before us on appeal, the Estate of Boote Court
further clarified its resolution of this issue in its Opinion on Petition for Rehearing:

        A hearing in a proceeding to probate a will in solemn form is not a will
        contest. To be sure, there are similarities in the procedures and conclusiveness
        of will contests and proceedings to probate a will in solemn form. In addition,
        both this court and the Tennessee Supreme Court have frequently analogized
        the two types of proceedings in prior decisions, several of which have been
        cited by Ms. Shivers and Ms. Gerritsen in support of their argument. Petty v.
        Call, 599 S.W.2d 791, 793 (Tenn. 1980); Bearman v. Camatsos, 215 Tenn.
        231, 385 S.W.2d 91, 94 (1964); Lillard v. Tolliver, 154 Tenn. 304, 285 S.W.
        576, 579 (1926); Green v. Higdon, 891 S.W.2d 220, 222 (Tenn. Ct. App.
        1994). In each of the cited cases, the court highlighted the similarities or
        dissimilarities between the two types of proceedings on its way to making a
        larger point regarding the legal questions at issue in that particular case. None
        of these cases stands for the proposition that an in solemn form probate
        proceeding that has not yet been concluded bars the initiation of a will contest.
        To the contrary, the authorities are clear that if a will contest is to be
        maintained at all, it must be initiated prior to the entry of the order of probate
        in solemn form. See, e.g., Murrell v. Rich, 131 Tenn. At 397-99, 175 S.W. at
        425-26.

Id. at 730.

               In his brief on appeal Mr. LaFever quotes from In re: Estate of Boote stating:
“Justice Koch opined in 2005 that ‘none of the [sic] cases stands for the proposition that an
in solemn form probate proceeding that has not yet been concluded bars the initiation of a
will contest.’” Mr. LaFever asserts that: “No final order has been entered closing the estate
of the decedent. Therefore Mr. LaFever is within his right to initiate a will contest.” Mr.
LaFever is mistaken.

              Mr. LaFever has confused a final order entering a will to probate in solemn
form with a final order closing an estate. These two final orders are very different. As this
Court clearly held in In Re: Estate of Boote, “if a will contest is to be maintained at all, it
must be initiated prior to the entry of the order of probate in solemn form.” 1 In Re: Estate
of Boote, 198 S.W.3d at 730 (emphasis added). Thus, in a solemn form proceeding a will
contest must be initiated, if at all, prior to the entry of the final order admitting the will to


        1
         This is true “absent allegations of fraud in the procurement of the order itself,” as noted in In re:
Estate of Boote, 198 S.W.3d at 712.

                                                     -6-
probate in solemn form, not prior to the final order closing the estate.

               Mr. LaFever argues in his brief on appeal that he has a right to contest the will
according to the strict language of Tenn. Code Ann. § 32-4-108. As discussed above,
however, In re: Estate of Boote considered that statute. We note that the case of In re: Estate
of Boote is a reported case that was filed in 2005. As this Court has stated:

               The legislature is presumed to know the interpretation which courts
       make of its enactments; the fact that the legislature has not expressed
       disapproval of a judicial construction of a statute is persuasive evidence of
       legislative adoption of the judicial construction, especially where the law is
       amended in other particulars, or where the statute is reenacted without change
       in the part construed.

Jo Ann Forman, Inc. v. National Council on Compensation Ins., Inc., 13 S.W.3d 365, 373
(Tenn. Ct. App. 1999) (quoting Hamby v. McDaniel, 559 S.W.2d 774, 776 (Tenn. 1977)).
The statute Mr. LaFever refers to, i.e., Tenn. Code Ann. § 32-4-108, was amended in other
particulars effective in July of 2011. Our Legislature made no change to this statute which
would effect the law as interpreted and analyzed in In re: Estate of Boote.

                There is no dispute in this case that Mr. LaFever did not initiate his will contest
until after the entry of the order admitting the will to probate in solemn form, nor did Mr.
LaFever make allegations of fraud in the procurement of the order to probate itself. Given
the fact that in a solemn form proceeding a will contest must be initiated, if at all, prior to the
entry of the final order admitting the will to probate in solemn form, and the fact that Mr.
LaFever did not file his will contest until after entry of the order entering the will in solemn
form, we find no error in the Trial Court’s dismissal of Mr. LaFever’s will contest.

               We note that in the argument section of its brief on appeal the Estate requests
that this Court award it damages for frivolous appeal. The Estate, however, failed to raise
this as an issue in its statement of the issues. As this Court has stated: “Courts have
consistently held that issues must be included in the Statement of Issues Presented for
Review required by Tennessee Rules of Appellate Procedure 27(a)(4). An issue not included
is not properly before the Court of Appeals.” Hawkins v. Hart, 86 S.W.3d 522, 531 (Tenn.
Ct. App. 2001). As the Estate failed to include the issue of frivolous appeal in its statement
of the issues, this issue has been waived.




                                                -7-
                                       Conclusion

              The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
appellant, Robert LaFever and his surety.




                                                  _________________________________
                                                  D. MICHAEL SWINEY, JUDGE




                                            -8-
