                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                              Assigned on Briefs May 22, 2003

              IN RE: ESTATE OF DONALD LEE (D.J.) KEITH, JR.

                     Appeal from the Chancery Court for Bledsoe County
                        No. P-429    Jeffrey F. Stewart, Chancellor

                                      FILED JULY 28, 2003

                                 No. E2002-02056-COA-R3-CV


This is a will contest. Freddie A. Johnson and wife, Marie Johnson (“the grandparents”), filed a
petition to probate the holographic will of their grandson, Donald Lee (D.J.) Keith, Jr. (“the
decedent”). The decedent’s widow, Alexis Keith (“the wife”), and his minor daughter, Kassce Mae-
Kyle Keith (“the minor child”), contested the alleged will, arguing that it did not constitute a valid
holographic will. The trial court granted the motion for summary judgment filed by the wife and the
minor child, holding that the document under contest was not a last will and testament. The
grandparents appeal, contending that summary judgment is not appropriate. We vacate the trial
court’s judgment and remand for further proceedings.

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

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which HOUSTON M. GODDARD ,
P.J., and D. MICHAEL SWINEY, J., joined.

Howard L. Upchurch, Pikeville, Tennessee, for the appellants, Freddie A. Johnson and wife, Marie
Johnson.

Landon Colvard, Jr., Crossville, Tennessee, for the appellee, Alexis Keith.

Lynne Swafford, Pikeville, Tennessee, for the appellee, Kassce Mae-Kyle Keith.


                                             OPINION

                                                  I.

        On August 22, 2000, the eighteen-year-old decedent was killed in a motorcycle accident. At
the time of his death, the decedent was separated from his wife of less than a year, and the two were
involved in divorce proceedings. The parties’ minor child was almost eight months old.
         The decedent had lived with the grandparents1 since he was an infant. While he had resided
with the wife for a short time during their marriage, the decedent was living with the grandparents
at the time of his death.

        Sometime after the decedent’s death, the grandparents found two documents pertaining to
the disposition of his estate. The first document, which was entirely in the handwriting of the
decedent, was dated August 4, 2000, and stated, in toto, with grammatical errors, as follows:

                    To who it may concern,

                    I have been thinking a lot lately about things since mom got shot and
                    I realize a body never knows about what might happen, so I am
                    having a will typed up today, so if something happens to me, the stuff
                    I have will go where I want it to which is to granny and pa, and they
                    can let my brothers have some stuff if they wants to. This is not
                    meant to worry anybody it is just something that needs doing.

                                                                      /s/ Donald L. Keith Jr.

The second document, entitled “Last Will and Testament” and also dated August 4, 2000, was
entirely typewritten, with the exception of the decedent’s signature. The typed document made the
same disposition of property as set forth in the handwritten document; however, the second
document was not signed by any witnesses. It is clear that the latter document was not executed with
the formality required to make the document a valid will.

        On November 22, 2000, the grandparents filed a petition for administration of the decedent’s
estate, averring that the handwritten document signed by the decedent was a holographic will and
requesting that it be admitted to probate.2 The wife filed a motion contesting the admission of the
alleged holographic will to probate. Sometime thereafter, a guardian ad litem was appointed to
represent the interests of the minor child. The wife and the minor child’s guardian ad litem then filed
a motion for summary judgment, contending that the handwritten document propounded by the
grandparents is not a valid holographic will. The grandparents filed a response to the motion, along
with several affidavits.

      Following a hearing on May 17, 2002, the trial court granted the motion, finding that the
document in question "states the intent to perform a future act; contains precatory language; contains



        1
            They are his maternal grand parents.

        2
          The grandparents submitted the affidavits of seemingly disinterested witnesses who stated that they were
familiar with the decedent’s handwriting, and that the handwritten document was indeed written and signed by the
decedent. The wife and the minor child submitted no affidavits, nor did they present any proof to contradict the
grandp arents’ affidavits.

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no commands as to the disposition of the decedent’s estate; and does not meet the legal requirements
for a holographic will." This appeal followed.

                                                   II.

         In deciding whether a grant of summary judgment is appropriate, courts are to determine “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 to a judgment as a matter of law.” Tenn. R. Civ. P. 56.04. Courts “must take the strongest
legitimate view of the evidence in favor of the nonmoving party, allow all reasonable inferences in
favor of that party, and discard all countervailing evidence.” Byrd v. Hall, 847 S.W.2d 208, 210-11
(Tenn. 1993) (citations omitted).

       Summary judgment should be granted “when both the facts and the conclusions to be drawn
from the facts permit a reasonable person to reach only one conclusion.” Carvell v. Bottoms, 900
S.W.2d 23, 26 (Tenn. 1995) (citation omitted). In Evco v. Ross, 528 S.W.2d 20 (Tenn. 1975), the
Supreme Court observed as follows:

                Where there does exist a dispute as to facts which are deemed
                material by the trial court, however, or where there is uncertainty as
                to whether there may be such a dispute, the duty of the trial court is
                clear. [It] is to overrule any motion for summary judgment in such
                cases, because summary judgment proceedings are not in any sense
                to be viewed as a substitute for a trial of disputed factual issues.

Id. at 25. Since a motion for summary judgment presents a pure question of law, our review is de
novo with no presumption of correctness as to the trial court’s judgment. Gonzales v. Alman
Constr. Co., 857 S.W.2d 42, 44-45 (Tenn. Ct. App. 1993).

                                                  III.

       The sole issue this court must decide is whether there is a genuine issue of material fact
impacting the question of whether the handwritten document penned and signed by the decedent was
signed by him with animus testandi – an intention that the document would operate as his will. We
believe that there is such a genuine issue of material fact.

        The Tennessee Supreme Court, in addressing will contests, has stated as follows:

                [T]he cardinal rule for interpreting and construing a will is to
                ascertain the intent of the testator and to give effect to that intent
                unless prohibited by law or public policy. Furthermore, such
                “intention is to be gathered from the scope and tenor of the whole
                will, . . . .”


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In re Estate of Vincent, 98 S.W.3d 146, 150 (Tenn. 2003) (quoting Podesta v. Podesta, 28 Tenn.
App. 282, 189 S.W.2d 413, 415 (1945)) (internal citations omitted); see also Winningham v.
Winningham, 966 S.W.2d 48, 50 (Tenn. 1998); Williams v. Estate of Williams, 865 S.W.2d 3, 5-6
(Tenn. 1993); Wright v. Brandon, 863 S.W.2d 400, 402 (Tenn. 1993). It is important to recognize,
however, that these cases presuppose that the document in question has the requisite testamentary
intent. In the instant case, that is precisely what we are attempting to determine – did the testator
intend the handwritten document to be his will?

       To answer this question, we turn to a 1957 decision of this Court:

               If the testimony with respect to the animus testandi be doubtful, all
               the facts and circumstances may be looked to, and it is for the [trier
               of fact] to determine from all the evidence, intrinsic or extrinsic,
               whether or not the testator intended the instrument to operate as his
               will. The statutory requirements must be accompanied by sufficient
               proof of intent which must be proven in a manner which conforms to
               applicable rules of evidence and procedure; otherwise the script
               cannot be accepted as a will.

Scott v. Atkins, 44 Tenn. App. 353, 314 S.W.2d 52, 56-57 (1957) (citations omitted) (emphasis
added).

         In examining the facts and circumstances surrounding the decedent’s creation of the
handwritten document, we note that the decedent and the wife had a failed marriage and were
involved in divorce proceedings. Further, the evidence in the record reveals that the decedent had
a very close relationship with the grandparents, as they had raised him practically from birth.
Finally, the reference in the document to the recent shooting of the decedent’s mother ties into the
decedent’s feelings of mortality and concern over the proper disposition of his estate. The papers
in the record prompt a number of questions. What was the intention of the decedent when he drafted
and signed the subject document? Did he intend it to be a will, if only for a short period of time?
If this was not his intention, why did he draft and sign it?

        In our view, these facts could cause reasonable minds to reach different conclusions as to the
factual issue of whether the decedent, in drafting and signing the questioned document, intended the
handwritten document to be his last will and testament, at least until he could execute a more formal
disposition of his estate. This being the case, summary judgment is not appropriate. This critical
factual issue should be decided by the trier of fact following a plenary trial.

                                                 IV.

       The judgment of the trial court is vacated. This case is remanded to the trial court for further
proceedings consistent with this opinion. Exercising our discretion, we tax the costs on appeal to
the appellee, Alexis Keith.


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      _______________________________
      CHARLES D. SUSANO, JR., JUDGE




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