               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                 May 26, 2016 Session

                    IN RE: ESTATE OF JOAN UHL PIERCE

                Appeal from the Chancery Court for Knox County
               No. 74292-2 Clarence E. Pridemore, Jr., Chancellor


                 No. E2016-00013-COA-R3-CV – Filed July 22, 2016


This appeal arises from a dispute over purported wills. Joan Uhl Pierce (“Decedent”)
died and was survived by five living children (“Petitioners”). Another of Decedent’s
children, Brock Andrus, predeceased her, and he was survived by two adult children of
his own (“Respondents”). The Administrator of Decedent’s estate filed a petition for
declaratory judgment in the Chancery Court for Knox County (“the Trial Court”) seeking
a determination as to whether Decedent died testate or intestate. Petitioners filed a
verified petition seeking to admit a purported holographic will of Decedent’s to probate,
under which Respondents did not inherit. Respondents asserted that the document, a
completed questionnaire, was not a valid holographic will. After a hearing, the Trial
Court entered an order in which it held that the questionnaire was not a holographic will,
and instead entered into probate an earlier purported will and codicil of Decedent’s in
which Respondents did inherit. Petitioners appeal. We hold that the questionnaire is not
a valid holographic will. However, we hold also that the Trial Court erred in admitting
the putative will and codicil into probate when there was no verified petition before the
Trial Court seeking their admission. We vacate the admission of the putative will and
codicil and remand for the Trial Court to address the lack of a verified petition. The
judgment of the Trial Court is affirmed, in part, and, vacated, in part, and this cause is
remanded for further proceedings consistent with this opinion.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
             Affirmed, in Part, and, Vacated, in Part; Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which JOHN W.
MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.

J. Scott Griswold, Knoxville, Tennessee, for the appellants, Kim A. Soper, Shauna
Andrus, Marlin V. Andrus, Graydon H. Andrus, and Shane H. Andrus.
Willis B. Jackson and Thomas G. Slaughter, Knoxville, Tennessee, for the appellees,
Joshua Andrus and Lexi Staley.


                                           OPINION

                                           Background

               Decedent died on October 14, 2013. In 2007, Decedent had signed a
typewritten document called her last will and testament in which she bequeathed her
assets to her living children and, if any of her children did not survive her, to that child’s
children. In 2010, Decedent handwrote a purported holographic codicil to the 2007
document in which, among other things, she clarified that her son Brock had given up his
own livelihood to become her caregiver. Decedent’s other children lived outside of
Tennessee. Decedent’s son, Brock, was to receive her home under the purported
holographic codicil. Brock died eleven months before Decedent. On October 9, 2013,
mere days before she died, Decedent completed a three-page document she had obtained
from an attorney titled “Confidential Estate Planning Questionnaire.” This document ran
contrary to the 2007 and 2010 will and codicil in that, this time, no mention was made of
any distribution to her grandchildren. The issue in this case and on appeal between the
surviving children, Petitioners, and the grandchildren, Respondents, is whether the 2007
and 2010 documents should be admitted to probate and whether the 2013 purported
holographic will serves to revoke and replace those earlier documents even if they were
otherwise appropriate to be admitted to probate.

              In November 2013, the Trial Court appointed Steve Sams as Administrator
of Decedent’s estate.1 In the wake of confusion over which document, if any, disposed of
Decedent’s assets, the Administrator filed a petition for declaratory judgment in February
2014. In March 2015, Petitioners filed a verified petition seeking to admit the purported
holographic will to probate. Respondents filed their response in opposition to the
petition. In October 2015, this matter was tried. Kim Soper (“Soper”), a Petitioner and
one of Decedent’s adult children, was the only witness. Soper testified to a falling out
between Decedent and Respondents around the time of Brock’s death. According to
Soper, it was Decedent’s desire that Respondents not inherit any of her assets.

             In December 2015, the Trial Court entered its final judgment in which it
admitted the 2007 and 2010 documents to probate. The Trial Court held that the
Questionnaire was not a valid holographic will. The Trial Court stated as follows:


1
    Steve Sams filed no brief on appeal.
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       This cause having come on the [sic] be heard before this Honorable
Court on the 13th day of October, 2015, upon Verified Petition to Admit
Holographic Will to Probate in Solem[n] Form. After testimony of sworn
witnesses, introduction of exhibits and argument of respective counsel and
a review of the records as a whole, the Court finds as follows: Decedent
Joan Uhl Pierce passed away on October 14, 2014, at which time she was
survived by five children and predeceased by one child, Brock Andrus, who
died approximately eleven months before the Decedent. At the time of
Brock Andrus’ death, he was living with the Decedent and left two
surviving children of his own. Collective Exh. No. 1, which was admitted
into evidence, is a set of three separate documents:

      a) Last Will and Testament of Joan Uhl Pierce dated January
      3, 2007;
      b) Amendment/Addendum to Last Will and Testament of
      Joan Uhl Pierce, which had a handwritten date of February 1,
      2010; and
      c) Confidential Estate Planning Questionnaire, which had a
      hand written date of October 9, 2013.

       The parties stipulated that the handwriting and signatures on the
2007, 2010 and 2013 documents were those of the Decedent. The parties
further stipulated that the originals of the 2007, 2010 and 2013 documents
were authentic. The 2007 Last Will and Testament was found in the
Decedent’s bedside table. The 2013 estate planning “Questionnaire” was
found on the Decedent’s desk in her office. Decedent obtained the
Confidential Estate Planning Questionnaire from Knoxville Attorney Keith
Burroughs. Decedent completed the “Questionnaire” on October 13, 2015.
The “Questionnaire” is a multi-page document and on page 2, in response
to question No. 3, “Estate Planning Goals”, the Decedent wrote the
following in her own handwriting: “Bequeath all money and home +
contents to 5 children. Shauna, Marlin, Graydon, Kim and Shane.” The
“Questionnaire” was never returned to Attorney Keith Burroughs and a new
will was never prepared. The five surviving children of the Decedent are
asking this Court to find the “Questionnaire” to be a holographic will. The
authenticity of and the handwriting on the 2013 “Questionnaire” offered as
the Decedent’s holographic will is not in question as both have been
stipulated to by the parties.

      The question for this Court is whether the Decedent intended the
“Questionnaire” to be a holographic will, revoking Decedent’s previous
                                    -3-
      will. The construction of wills is a question of law for the court. Presley v.
      Hanks, 782 S.W.2d 482, 287 (Tenn. Ct. App. 1989). While the validity of a
      will is a question of fact, as determined from all the evidence, intrinsic or
      extrinsic, as to whether the testatrix intended the writing to operate as a
      will. Tenn. Code Ann. § 32-4-107(a); In re: Estate of Cook, 2002 WL
      1034016 at 2 (Tenn. Ct. App. 2002), citing Scott v. Atkins, 44 Tenn. App.
      353, 314 S. W. 2d 52, 56 (1957). Evidence presented at trial showed that
      the Decedent was at one point upset with the children of Brock Andrus
      nearly one year prior to her death, but no evidence was presented at trial
      showing that Decedent’s testamentary intent was for the “Questionnaire” to
      be her new will.

             This Court considers the “Questionnaire” to be merely notes or
      memorandum in preparation of making a new will and not a new will.
      Therefore, this Court finds that the 2007 Will and the 2010 Codicil
      executed by the Decedent are authentic and signed by the decedent and that
      the original 2007 Will and the 2010 Codicil is controlling in this case, and
      is hereby admitted to Probate for administration.

(Format modified). Petitioners appealed to this Court.

                                       Discussion

               Although not stated exactly as such, Petitioners raise the following two
issues on appeal: 1) whether the Trial Court erred in holding that the proffered 2013
Questionnaire was not a holographic will; and 2) whether the Trial Court erred in
admitting two earlier putative testamentary instruments to probate when there was no
verified petition seeking their admission and no proof of due execution.

             We first address whether the Trial Court erred in holding that the proffered
2013 Questionnaire was not a holographic will. This Court previously has discussed the
requirements for holographic wills as follows:

              At the outset of our analysis, we note that it is immaterial whether a
      testatrix necessarily understands that by executing a particular document
      she is making a will, so long as the document demonstrates it was her clear
      intention to dispose of her property after her death, and the statutory
      formalities are satisfied. Smith v. Smith, 33 Tenn.App. 507, 232 S.W.2d
      338, 341 (1949); Carver v. Anthony, 35 Tenn. App. 306, 245 S.W.2d 422,
      424 (1951).

                                           -4-
              A holographic will need not be dated or name an executor to be
       valid. Nicley v. Nicley, 38 Tenn.App. 472, 276 S.W.2d 497, 500 (1954);
       Pulley, 137 S.W.2d at 340. The statutory requirements for a holographic
       will are that the document’s provisions be entirely in the testator’s
       handwriting, and authenticated by 2 witnesses. Tenn. Code Ann. § 32-1-
       105. In this case, the parties have stipulated that the handwritten document
       is the decedent’s handwriting and that the requirements of the statute are
       met.

              When the statutory requirements are met, a holographic will is of the
       same dignity as a will attested by subscribing witnesses. Campbell v.
       Henley, 172 Tenn. 135, 110 S.W.2d 329 (1937), and a properly proven
       holographic will supercede a formal will. See, First Christian Church of
       Guthrie, Kentucky v. Moneypenny, 59 Tenn. App. 229, 439 S.W.2d 620,
       623 (1968). Testamentary intent “must be determined from what he has
       written and not from what it is supposed he intended.” Presley, 782
       S.W.2d at 488, citing, Burdick v. Gilpin, 205 Tenn. 94, 325 S.W.2d 547,
       551 (1959); First American Nat’l Bank v. Dewitt, 511 S.W.2d 698, 706
       (Tenn. 1972).

In re Estate of Meade, 156 S.W.3d 841, 843-44 (Tenn. Ct. App. 2004).

             Petitioners argue that the completed Questionnaire satisfied the
requirements of a holographic will. Chiefly, Petitioners point to the testamentary intent
evidenced by Decedent’s use of the word “bequeath,” which, Petitioners assert, has a
strong and unmistakable meaning. Respondents, on the other hand, argue that the
document consists merely of notes and memoranda.

              Petitioners are correct that the substance of a holographic will prevails over
the form. The fact that the document in question has a somewhat informal nature does
not mean that it cannot be a holographic will, nor does the existence alone of pre-printed
language in the Questionnaire decide the issue. Testamentary intent controls.

              Nevertheless, context is crucial.          That the document is entitled
“Confidential Estate Planning Questionnaire” and was furnished to Decedent by an
attorney raises immediate concerns. A questionnaire suggests something less than final.
Indeed, Section IV of the Questionnaire is titled “Items to bring with you when you come
in for our conference.” While there is language that, in another context, might well
reflect Decedent’s testamentary intent, the fact that it is included in a planning document
for a future meeting with a lawyer serves to undermine any expression of testamentary
intent. The Questionnaire completed by Decedent constitutes the beginning stages of
                                            -5-
addressing her estate plan and is not a final product demonstrating her clear intention to
dispose of her property. We affirm the Trial Court in its determination that the
Questionnaire is not a valid holographic will.

              We next address whether the Trial Court erred in admitting two earlier
putative testamentary instruments to probate when there was no verified petition seeking
their admission and no proof of due execution. Petitioners raise various issues with the
Trial Court’s admission of the 2007 and 2010 will and codicil to probate. Tenn. Code
Ann. § 30-1-117 requires that, when offering a will for probate, a verified petition
containing certain essential information be filed. No such verified petition was filed by
Respondents. Petitioners point out that the Trial Court did not state whether it admitted
the 2007 and 2010 documents in common or solemn form. Petitioners also note that the
notary public’s jurat date on the self-proving affidavit with the putative will predates the
putative will by around six months. Petitioners assert that Respondents, as proponents of
the documents, had to prove their due execution by an attesting witness. Respondents
argue that whatever errors are contained in the 2007 will were cured by the 2010 codicil.

              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 PRITCHARD §§ 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 PRITCHARD § 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 PRITCHARD
       § 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 PRITCHARD § 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
                                            -6-
judicial hearing is not required to have the will admitted to probate, Tenn.
Code Ann. § 16-16-201(b); 3 PAGE ON WILLS § 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 PRITCHARD
§ 36, at 58-59; 2 PRITCHARD §§ 595, at 108-09, 596, at 109-10, 601, at 113.

       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 PRITCHARD §§ 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
PRITCHARD § 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 PRITCHARD § 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
PRITCHARD § 343, at 525-26; 3 PAGE ON WILLS § 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 PRITCHARD §§ 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 PRITCHARD § 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
PRITCHARD §§ 45, at 73, 325, at 503-04, 327, at 505, 335, at 515-16, 337, at
                                      -7-
      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 PRITCHARD §§ 338, at 519, 366, at 559; 3 PAGE ON
      WILLS §§ 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 PRITCHARD § 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).

               The record on appeal reveals that Respondents did not file a verified
petition seeking admission of the 2007 will and 2010 codicil as required by statute. We,
therefore, vacate the judgment of the Trial Court admitting the purported 2007 will and
2010 codicil to probate, and remand to give Respondents an opportunity to comply with
all statutory requirements in admitting the documents to probate and to allow Petitioners
the opportunity to contest the same. In so doing, we express no opinion as to whether
these documents should be admitted to probate.

                                       Conclusion

              The judgment of the Trial Court is affirmed, in part, and, vacated, in part,
and this cause is remanded to the Trial Court for further proceedings consistent with this
Opinion and collection of the costs below. The costs on appeal are assessed equally one-
half against the Appellants, Kim A. Soper, Shauna Andrus, Marlin V. Andrus, Graydon
H. Andrus, and Shane H. Andrus, and their surety, if any, and, one-half against the
Appellees, Joshua Andrus and Lexi Staley.


                                         ____________________________________
                                         D. MICHAEL SWINEY, CHIEF JUDGE




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