                                                                                         05/17/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                March 14, 2018 Session

                IN RE ESTATE OF JOHN TYLER McKELVEY

                Appeal from the Chancery Court for Franklin County
                   No. 2016-PR-133 Don R. Ash, Senior Judge
                     ___________________________________

                           No. M2017-01298-COA-R3-CV
                       ___________________________________

This appeal arises from a declaratory judgment action seeking to determine whether the
decedent died intestate. The decedent executed a will in 2005 and executed another will
in 2011, which expressly revoked all prior wills and codicils. Following the decedent’s
death in 2016, the original of the 2011 will could not be located; however, the original of
the 2005 will was found in the decedent’s personal filing cabinet. The decedent’s children
then filed a Petition to Open Estate and [for] Declaratory Relief, seeking a declaration
that the decedent died intestate. The decedent’s live-in companion of approximately 30
years, and a beneficiary under both wills, filed an answer, contending that the decedent
died testate under either the 2005 or the 2011 will. At the trial, the decedent’s companion
conceded that she did not have evidence to overcome the presumption that the decedent
revoked the 2011 will; thus, the trial focused on whether the decedent intended to revive
his 2005 will upon revoking the 2011 will. The trial court found “there is no proof
Decedent revoked the 2011 Will with the intent to execute a later will,” and “[g]iven the
preservation and nearby-safekeeping of the 2005 Will following revocation of the 2011
Will and the lack of evidence indicating a contrary intent, the Court concludes Decedent
intended to revive his 2005 Will.” We affirm.

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

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and W. NEAL MCBRAYER, J., joined.

David L. Stewart, Winchester, Tennessee, for the appellants, Teresa S. Payne, William T.
McKelvey, and Trudy McKelvey Edwards.

John H. Baker, III, Murfreesboro, Tennessee, for the appellee, Rebecca Dudley.
                                         OPINION

       John Tyler McKelvey (“Decedent”) died in Winchester, Tennessee on March 24,
2016, at age 77. He was survived by three adult children, Teresa S. Payne, William T.
McKelvey, and Trudy McKelvey Edwards (collectively, “Decedent’s children”) and his
live-in companion of approximately 30 years, Rebecca Dudley, all of whom are
beneficiaries under both the 2005 and 2011 wills.

       After Decedent’s children filed the petition to contest both wills and Ms. Dudley
filed her answer insisting that one or both of the wills was valid, the trial court opened the
estate and issued letters of administration pendente lite to Decedent’s son, William
McKelvey. The order also recited that “a dispute exists as to whether John Tyler
McKelvey died leaving a proper Will and thus, a determination must be made as to the
validity of the Wills attached to the Petition.”

        In the May 9, 2005 will, which was prepared by Decedent’s daughter, Trudy
Edwards, a licensed attorney, Decedent designated his son, William, as the executor of
his estate. The 2005 will bequeathed a portion of his real and personal property to each of
his three children and granted Ms. Dudley a life estate in “the house, vehicle, garage, and
yard . . . provided no other male resides with her,” with the entire residuary estate going
to his son William. The parties do not dispute that the 2005 will was validly executed and
stored in a personal filing cabinet located in Decedent’s home.

       The later will, executed on March 21, 2011, expressly “revoke[d] and render[ed]
null and void any and all other [prior] wills, codicils and testamentary instruments.” It
also designated his son, William, as the executor of his estate, and it bequeathed a portion
of Decedent’s real and personal property to each of his three children. Also similar to the
2005 will, the 2011 will granted Ms. Dudley a life estate “in [Decedent’s] home, well
house, garage and chicken coop” along with an easement to access those structures.
However, unlike his 2005 will, the 2011 will divided the residuary estate equally among
his children. Although the original of the 2011 will was never located, the law firm that
prepared the 2011 will filed a signed copy with the court.

      At trial, it was undisputed that the original of the 2011 will could not be found,
and the parties stipulated that the original 2005 will was found at the bottom of
Decedent’s personal filing cabinet underneath some papers. Because Ms. Dudley
conceded that there was no evidence to rebut the presumption that Decedent revoked his
2011 will, the trial focused on whether Decedent intended to revive the 2005 will upon
revoking the 2011 will.

       Decedent’s three children, his granddaughter, and Ms. Dudley testified at trial. Ms.
Dudley stated that Decedent expressed his intent to revive the 2005 will by preserving it
in his personal filing cabinet. Decedent’s children stated that Decedent kept his most
                                           -2-
important papers in his safe, not in his personal filing cabinet; Decedent frequently
expressed dissatisfaction with the 2005 will; and Decedent expressed the intent to make a
new will after 2011.

       At the conclusion of the trial, the trial court held that the presumption that
Decedent destroyed the 2011 will, which arose from the inability to locate the original
will, was not overcome and that the 2011 will was of no effect. The court found that the
original 2005 will was located “in a safe in Decedent’s home beneath other papers” and
ruled:

       At trial, scant evidence was submitted regarding Decedent’s intent. To be
       sure, destroying a second will with the intent to execute a third will does
       not revive the first will. However, there is no proof Decedent revoked the
       2011 Will with the intent to execute a later will. Our Supreme Court has
       held “when the older will is in existence, and is carefully preserved by the
       testator after the destruction of the later, and no other facts appear, there can
       be but little question that it was the intention of the testator to republish the
       former will.” Given the preservation and nearby-safekeeping of the 2005
       Will following revocation of the 2011 Will and the lack of evidence
       indicating a contrary intent, the Court concludes Decedent intended to
       revive his 2005 Will. Accordingly, the Court finds Decedent did not die
       intestate, but under the revived Last Will and Testament of John Tyler
       McKelvey executed May 9, 2005.

(Citations omitted).

       Decedent’s children appealed.

                                  STANDARD OF REVIEW

       In actions tried without a jury, appellate courts review the trial court’s factual
findings de novo upon the record, accompanied by a presumption of the correctness of
the findings, unless the preponderance of the evidence is otherwise. Kelly v. Kelly, 445
S.W.3d 685, 692 (Tenn. 2014) (citing Tenn. R. App. P. 13(d)). “For the evidence to
preponderate against a trial court’s finding of fact, it must support another finding of fact
with greater convincing effect.” State ex rel. Flowers v. Tennessee Trucking Ass’n Self
Ins. Grp. Trust, 209 S.W.3d 595, 599 (Tenn. Ct. App. 2006). Our review of a trial court’s
determinations on issues of law is de novo, without any presumption of correctness. Lind
v. Beaman Dodge, Inc., 356 S.W.3d 889, 895 (Tenn. 2011).




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                                         ANALYSIS

        The dispositive issue on appeal is whether the trial court erred by reviving
Decedent’s 2005 will. Decedent’s children challenge the trial court’s ruling on three
fronts. First, they contend its ruling was based on an erroneous finding of fact, which
pertained to where the original of the 2005 will was found after Decedent’s death.
Second, they contend the trial court did not properly apply the law as to the revival of a
revoked will. And third, they contend Ms. Dudley’s evidence is insufficient to show that
Decedent intended to revive the 2005 will when weighed against the children’s evidence
of his intent to make a new will after 2011.

        A later will which contains a clause revoking all prior wills, as is the case here,
does not necessarily render an earlier will null and void. See Ewell v. Rucker, 187 S.W.2d
644, 647 (Tenn. Ct. App. 1945). An express revocation clause in a later will, like any
provision in a will, remains tentative “until the death of the testator calls the will into
operation.” 1 Jack W. Robinson, Sr., et al., Pritchard on Wills and Administration of
Estates, § 299, at 4-41, (7th ed.). Thus, an express revocation in a later will, which has
itself been revoked, does not support nor does it prevent the revival of an earlier will.
Ewell, 187 S.W.2d at 647. “The legal presumption is neither adverse to nor in favor of the
revival; but the question is one of intention purely, open to decision either way, solely
according to the facts and circumstances.” Id.

        Accordingly, the proponent of revival must show by a preponderance of the
evidence that upon revoking the later will, the decedent intended to revive the earlier will.
See id.; see also McClure v. McClure, 6 S.W. 44, 46 (Tenn. 1887); In re Estate of Powell,
No. E2007-0348-COA-R3-CV, 2007 WL 3087687, at *5 (Tenn. Ct. App. Oct. 24, 2007).
When the decedent merely preserves the earlier will, there is a “bare presumption” of the
intent to revive it. Ewell, 187 S.W.2d at 648. However, this bare presumption vanishes
when there is evidence of the decedent’s intent to make a third will. Id. “[W]hen the older
will is in existence, and is carefully preserved by the testator after the destruction of the
later, and no other facts appear, there can be but little question that it was the intention of
the testator to republish the former will.” McClure, 6 S.W. at 46.

                                     A. FINDINGS OF FACT

        Decedent’s children contend the trial court’s ruling was based on an erroneous
finding of fact, that “the original, signed 2005 Will was found in a safe in Decedent’s
home beneath other papers.” The undisputed fact is that the 2005 will was found in
Decedent’s filing cabinet beneath other papers, not in his safe. Nevertheless, this
erroneous finding must be considered along with the trial court’s other specific findings
of fact which are supported by a preponderance of the evidence. In pertinent part, the trial
court made the following findings of fact:

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John Tyler McKelvey died in Winchester, Tennessee, on March 24, 2016, a
resident of Franklin County, Tennessee, at age seventy-seven. He was of
sound mind until the time of death.

Decedent is survived by three children: Teresa S. Payne, William T.
McKelvey and Trudy McKelvey Edwards (collectively, “Children”).
Decedent lived with his girlfriend, Rebecca Dudley, for approximately
thirty years at his home located at 554 Bland Road, Estill Springs, Franklin
County, Tennessee.

On May 9, 2005, Decedent properly executed his Last Will and Testament
naming his son, William, executor. (Petition Ex. 1). In the 2005 Will,
Decedent divided his real property and guns between his Children with a
remainder interest in all property to his son, William. However, he also
granted Ms. Dudley a life estate in “the house, vehicle garage, and yard . . .
provided no other male resides with her” and he directed she “be
responsible for the maintenance and upkeep, insurance, and real property
taxes” associated with her life estate. Additionally, he bequeathed to Ms.
Dudley a bed frame and allowed her to use a specific lawnmower during
her life tenancy. After Decedent’s death, the original, signed 2005 Will was
found in a safe in Decedent’s home beneath other papers.

On March 21, 2011, Decedent purportedly executed a second Will again
naming his son, William, executor. (Petition Ex. 2). The Will expressly
“revoke[d] and render[ed] null and void any and all other [prior] wills,
codicils and testamentary instruments[.]” In the 2011 Will, Decedent
bequeathed his real and personal property—specifically, guns, vehicles,
firearms, certain appliances, farm equipment and tools—to his Children. In
contrast to the 2005 Will, he left his residuary estate equally to his
Children. Decedent granted Ms. Dudley “a life estate interest in
[Decedent’s] home, well house, garage and chicken coop” along with an
easement “to access said structures[.]” He also conveyed to Ms. Dudley a
fee simple interest in a gun, a vehicle, two cows, chickens and certain
furniture and appliances and a life interest in two dressers, a safe, a bed
frame and a lawnmower, with the remainder interest to William. The
original 2011 Will has not been located; pursuant to a subpoena, a signed
copy was provided by the law firm which prepared it.

Decedent’s son William T. McKelvey testified, shortly before Decedent’s
death, Decedent asked Ms. Dudley to retrieve certain documents from a
safe located in his home. She located the requested envelope and brought it
to Decedent; she did not look inside. The nursing home facility copied the
documents, returned the originals to Decedent, and Decedent gave the
                                    -5-
       documents to son, William T. McKelvey, who destroyed them after
       Decedent’s death. Pursuant to a subpoena, the nursing home provided
       copies of a Living Will and Power of Attorney—both dated March 21,
       2011; the nursing home records contained no Will.

       Jenny Payne, Decedent’s granddaughter who worked in a law firm, testified
       Decedent complained about the 2005 Will and she advised him he could
       tear it up if he wanted.

        Though the trial court stated the 2005 will was found in Decedent’s “safe,” when
in fact it was found in his filing cabinet, we shall consider this fact in the context of the
court’s other findings, as well as the evidence in the record, to determine if the trial court
properly applied the law to revive the 2005 will.

                              B. APPLICABLE LEGAL PRINCIPLES

       Decedent’s children contend the trial court did not properly apply the law as to the
revival of a revoked will.

       After determining the 2011 Will was revoked, the trial court turned its attention to
the 2005 Will and stated in its Conclusions of Law analysis:

       In Tennessee, “the mere act of revocation of a subsequent inconsistent, or
       revocatory will does not of itself revive a former will and creates no
       presumption for or against revival, but the question to be determined from
       all the facts and circumstances is the intention of the testator.” Wrinkle v.
       Williams, 260 S.W.2d 304, 309 (Tenn. Ct. App. 1953) (citing McClure v.
       McClure, 86 Tenn. 173, 176, 6 S.W. 44 (1887); Ewell v. Rucker, 28 Tenn.
       App. 156, 187 S.W.2d 644 (1945)). Revocation “‘alone would furnish too
       slight a basis upon which to find the testator’s intention.’ In re Estate of
       Powell, No. E2007-0348-COA-R3-CV, 2007 WL 3087687, at *5 (Tenn.
       Ct. App. Oct. 24, 2007) (quoting Ewell, 187 S.W.2d at 647-48). Instead,
       “‘[i]t is necessary to prove circumstances bearing on the intention to revive
       the first will.’” Id. (quoting Ewell, 187 S.W.2d at 647-48). Where “‘the
       circumstances indicate an intention to die intestate[,] the former will cannot
       be admitted to probate.” Id. (quoting Ewell, 187 S.W.2d at 647-48).

        In addition to the above, the trial court went on to note that “destroying a second
will with the intent to execute a third will does not revive the first will. McClure, 6 S.W.
at 46.” Additionally, the trial court correctly recited our Supreme Court holding in
McClure: “when the older will is in existence, and is carefully preserved by the testator
after the destruction of the later, and no other facts appear, there can be but little question
that it was the intention of the testator to republish the former will.” Id.
                                               -6-
       The foregoing reveals that the trial court correctly identified the legal principles
that are to be applied to the facts and issues presented. Therefore, we now consider
whether the facts and law support the trial court’s decision to revive the 2005 will.

                 C. WHETHER THE 2005 WILL WAS ERRONEOUSLY REVIVED

        Decedent’s children contend the evidence is insufficient to show that Decedent
intended to revive the 2005 will when weighed against the children’s evidence of his
intent to make a new will after 2011.

        Ms. Edwards, Decedent’s daughter and the attorney who prepared the 2005 will,
testified that Decedent told her in 2014 that he had recently prepared a new will leaving
everything to his son. Although evidence of an intent to make a new will is generally
enough to overcome the “bare presumption” that arises in favor of revival when the prior
will was preserved, the evidence here preponderates in favor of finding that Decedent
intended to revive the 2005 will. As we discuss in more detail below, Decedent preserved
his 2005 will even though his family advised him to destroy it; the 2005 will divides
Decedent’s estate in a manner that is consistent with the wishes he expressed shortly
before his death; Decedent did not make a new will near the end of his life, and the only
will in existence when he died was the 2005 will; and Decedent’s repeatedly-expressed
desires for the distribution of his estate were never compatible with an intestate
distribution.

       First, as a preliminary matter, it is important to note that while Decedent’s children
presented testimony that Decedent claimed to have prepared a new will in 2014, the
alleged will was never found nor seen by any of the witnesses, and Decedent’s children
presented no other evidence that it was ever executed. To the contrary, the preponderance
of the evidence supports a finding that Decedent only executed the 2005 and 2011 wills.

        Nevertheless, Decedent’s children also offered evidence that Decedent was
dissatisfied with his 2005 will, and thus, would not want to revive it. However, while
Decedent told Ms. Edwards and his granddaughter, Jennie Payne, that he was unhappy
with the 2005 will, he preserved it, even though both advised him to destroy it near the
time of its execution. Ms. Edwards testified:

       Shortly after [Decedent] signed [the 2005 will] he called me. He was very
       upset and said it contained terms that he no longer desired. I didn’t question
       about what specific terms, but I – we discussed what to do when it
       contained terms that he didn’t – no longer wanted. . . . I advised him that –
       you know, to destroy it.


                                            -7-
       Likewise, Ms. Payne testified that Decedent told her he did not like his 2005 will,
and she told him “all he had to do was tear it up.” The fact that Decedent did not destroy
the 2005 will is evidence that he preferred the 2005 will to no will.

       In fact, Decedent made it clear to his granddaughter, who worked for Ms.
Edwards’ law firm, that he wanted to have a will, and he visited her office regularly to
discuss the way in which he wanted to divide his estate. In these discussions, Decedent’s
desires were never consistent with an intestate distribution. Ms. Payne, testified:

      A. [Decedent] told me multiple times what he wanted [to happen with his
      estate], and throughout the years it changed just a little bit. But he did
      repeatedly tell me different things.

                                     .      .      .

      Q. Okay. And you told us generally that he had these different desires as to
      what he wanted to happen. Can you remember specifically some of the
      things that he told you and approximately when he told you these things?

      A. The first time he kind of talked about it was close to the time that [Ms.
      Edwards] did the [2005 will]. And he was saying that he wanted Ms.
      Dudley to stay [in his home] until she passed, as long as she did not have a
      boyfriend. . . . After that he told me that, of course, Bill got everything.

      Q. You are saying at one point he expressed that his son, Bill McKelvey,
      would be – would receive everything?

                                     .      .      .

      A. That was around the same time that [Ms. Edwards] did the will, said that
      Bill got everything, all the land, everything. A few years – probably three
      or four years before he passed, he told me that Bill was going to get all the
      stuff, the majority of the land, and that my mom, Teresa, would get part of
      the land. Then probably about two years before he passed, he started telling
      me that he was going to divide the land between all the kids, and that Bill
      got all the stuff, but that the land would be divided between the kids….

       If Decedent were to die intestate, all of his real and personal property would be
distributed equally among his children, and, considering the foregoing testimony,
Decedent never expressed a desire consistent with that arrangement. See Tenn. Code
Ann. § 31-2-104(b)(1). Therefore, while the testimony shows that Decedent was
sometimes indecisive about the way he wanted to divide his property, his desire to avoid
an intestate distribution remained constant.
                                             -8-
       Perhaps most significant is that close to the end of his life, Decedent told his
daughters and his granddaughter how he wanted to distribute his property upon his death,
and it was in a manner not entirely inconsistent with his 2005 will. More importantly,
there was never an indication that Decedent intended to deprive Ms. Dudley of a life
estate in his home and other property. To the contrary, the only desired changes he
expressed pertained to the bequests to his children.

        Decedent’s daughter, Teresa Payne, testified that Decedent told her in two
conversations, one that occurred six months before his death and the other that occurred
two weeks before his death, that “he was going to give me and Trudy and Bill some land,
and then he was going to give Bill the rest of it, the rest of his stuff.” Likewise,
Decedent’s granddaughter, Jennie Payne, testified, “[T]he last six months, he repeatedly
told me he was going to take care of his kids. The kids would get the land. Bill got all the
stuff.” Furthermore, in these discussions, he never expressed a desire to revise or delete
the bequest of a life estate to Ms. Dudley.

     Ms. Edwards testified that after telling her that he prepared a new will in 2014,
Decedent contacted her approximately four months before he died:

       [H]is health was already failing and he had stated that he wanted to change
       his will, and provide for the three kids to get the—divide the land up, but he
       was going to leave everything else to Bill. And I advised him at that time
       that he shouldn’t do it, because I just think it’s bad course when you get
       towards the end of life and your health is failing, to be making changes as a
       matter of practice. And when we ended the phone call, it was my
       understanding that he was going to not take any further action and leave the
       prior will standing. . . .

        The last sentence quoted above reveals Decedent’s intention to not die intestate.
To the contrary, he intended to “leave the prior will standing.” The only uncertainty from
his statement is which prior will. Significantly, Decedent’s expressed wishes to Ms.
Edwards were consistent with the 2005 will, which bequeathed a life estate to Ms.
Dudley, his real property to each of his three children, and the rest and residue of his
estate to his son William. The only inconsistency between Decedent’s expressed wishes
and the 2005 will pertained to the distribution of the personal property, which the 2005
will divided among all three children.

        Furthermore, the 2005 will provided for Ms. Dudley, Decedent’s close companion
of approximately 30 years, because Ms. Dudley would receive nothing if Decedent died
intestate. Ms. Dudley testified that though she and Decedent never married, they lived
together as husband and wife, and they remained in a loving relationship up until the end
of Decedent’s life. The evidence shows that Decedent wanted to provide for Ms. Dudley
                                          -9-
upon his death. As previously stated, both the 2005 and 2011 wills leave Ms. Dudley a
life estate in Decedent’s home, where he and Ms. Dudley resided together during the
entire course of their relationship, except for one year. Though Decedent changed his
mind concerning what and how much property would go to his children, there is no
evidence that he wavered in his desire to provide a life estate to Ms. Dudley.

        As the trial court correctly noted, it is significant that that Decedent did not
destroy the 2005 will. Although the trial court erroneously stated that it was found in a
“safe,” the 2005 will was kept in a safe place, that being in Decedent’s personal filing
cabinet, and Decedent preserved his 2005 will even though he was advised to destroy it.
Additionally, as we discussed earlier, the 2005 will distributes Decedent’s property in a
manner that is generally consistent with the wishes he expressed close to the time of his
death, and Decedent did not want to die intestate. As the trial court correctly stated, inter
alia, in its conclusions of law,

        Given the preservation and nearby-safekeeping of the 2005 Will following
        revocation of the 2011 Will and the lack of evidence indicating a contrary
        intent, the Court concludes Decedent intended to revive his 2005 Will.
        Accordingly, the Court finds Decedent did not die intestate, but under the
        revived Last Will and Testament of John Tyler McKelvey executed May 9,
        2005.

        For the foregoing reasons, we affirm the trial court’s decision to revive the 2005
will.

                                     IN CONCLUSION

      The judgment of the trial court is affirmed, and this matter is remanded with costs
of appeal assessed against the appellants, Teresa S. Payne, William T. McKelvey, and
Trudy McKelvey Edwards.


                                                    ________________________________
                                                    FRANK G. CLEMENT JR., P.J., M.S.




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