                                                                                         09/28/2017
                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE
                            August 15, 2017 Session

                  IN RE ESTATE OF RUBY C. ROGGLI, ET AL.

                Appeal from the Chancery Court for Franklin County
                         No. 19998 Justin C. Angel, Judge
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                           No. M2016-02562-COA-R3-CV
                       ___________________________________


Decedent’s nephews by marriage filed a petition seeking to recognize and establish a
copy of a lost will as Decedent’s last will and testament. The trial court determined that
the will was still in existence at the time Decedent lost testamentary capacity, and that
Decedent did not have exclusive access and control of her will. Appellants appeal the
trial court’s order establishing the lost will. Discerning no error, we affirm.

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

KENNY ARMSTRONG, J., delivered the opinion of the court, in which ARNOLD B. GOLDIN
and BRANDON O. GIBSON, JJ., joined.

Jerre M. Hood, Winchester, Tennessee, for the appellants, Lanelle Clark Harrison, Janet
Jullian, Charlotte Reynolds, and Colleen Sylvester.

Trudy McKelvey Edwards, Winchester, Tennessee, for the appellees, Estate of Ruby C.
Roggli, Larry Shockley, Carl Spray, Charles Kent Clark, Jeff Clark, and Melissa Harrell.


                                        OPINION

                                   I.     Background


      On February 27, 2007, Ruby C. Roggli (“Decedent”) executed a last will and
testament. The will provided for all personalty, excluding her jewelry and farm
machinery, to pass to her sister, Lanelle Harrison, and to her nephew, Charles Kent Clark.
The will further provided for her jewelry to pass to her nieces, Janet Julian and Charlotte
Reynolds. The remainder of her estate, including her farm and farm machinery, were
devised to her nephews on her husband’s side, Larry Shockley and Carl Spray (together
“Appellees”). At the time of her death, Decedent was a widow with no children. Her
heirs were her two surviving sisters, Lannelle Clark Harrison and Colleen Sylvester; two
nephews, Charles Clark Kent and Jeff Clark; and three nieces, Melissa Harrell, Janet
Julian, and Charlotte Reynolds. The Appellants in this case are Ms. Harrison, Ms.
Sylvester, Ms. Julian, and Ms. Reynolds.

       Mrs. Roggli and her husband inherited the farm from Mr. Roggli’s parents.
During his life, Mr. Roggli had a close relationship with Appellees. Prior to Mr. Roggli’s
death, Appellees assisted the Rogglis in working the farm and maintaining the property.
After Mr. Roggli died in 2007, Mr. Shockley and his wife visited Mrs. Roggli every day
until her death in 2015. Mrs. Roggli did not want a caretaker in her home and did not
want to spend the night alone, so Appellees alternated nights so that she was never home
alone at night. The Shockleys provided Mrs. Roggli lunch and dinner every day, assisted
her in paying her bills and maintaining her property, and generally provided for all of her
needs.

        Mrs. Roggli had a large safe in her dining room where she kept all of her
important papers including her will. The last time her will was physically seen was in
approximately 2012, when Mrs. Roggli showed it to her sister, Ms. Harrison; after
showing it to Ms. Harrison, Mrs. Roggli put the will back in the safe. At this time, Ms.
Harrison noted that her sister’s behavior was different. Specifically, Ms. Harrison stated
that Decedent seemed like she just “wanted to die.” Mrs. Roggli’s physical and mental
health continued to deteriorate after her sister’s visit. In February 2015, after a series of
falls, Mrs. Roggli moved into a nursing home. A petition to appoint a conservator was
filed, and, in May 2015, without objection, Ms. Betty Shockley was appointed as
Decedent’s conservator. Mrs. Roggli died on July 15, 2015.

       Decedent consistently and repeatedly expressed, to her friend and longtime legal
advisor, Judge Thomas Faris, her desire that her real property pass to the Appellees and
that her personalty pass to the Appellants. During her mental decline, and even after her
death, several of Decedent’s family members had access to her home and the safe where
the will was kept. After an exhaustive search, the original will, which Decedent signed in
2007, was not located after she died.

       On August 18, 2015, Appellees filed a petition to recognize and establish the lost
will. Appellants filed an answer, and the matter proceeded to trial on October 3, 2016.
Immediately prior to the hearing, the parties stipulated that the only issue was “whether
said last will and testament dated February 27, 2007, has been revoked.” The trial court
determined that the will was still in existence at the time Decedent lost testamentary
capacity and that Decedent did not have exclusive access and control of her will at the
end of her life. On November 16, 2016, the trial court entered a final order establishing
the 2007 will as a true and correct copy of the original, which could not be located after a
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diligent search. Appellants appeal.

                                          II. Issues

       Appellants raise three issues for review as stated in their brief:

       1.     Did the trial judge err in the application of the criteria necessary to
              establish a lost will, i.e., did the plaintiff prove by “the clearest and
              most stringent evidence that Testator did not have custody and
              control of the will after execution or that she had lost her
              testamentary capacity for a period before her death and the will was
              in existence at the time the loss of competency had occurred?”

       2.     Did the trial judge correctly apply the burden of proof standard to
              the proof necessary for plaintiff to prevail in establishing a lost will?

       3.     Did the trial judge improperly rule as to what the decedent wanted at
              the time of her death by considering the contents of the will in
              question, which is presumed to have been revoked, as evidence the
              decedent did not destroy the will in question?

                                   III.   Analysis

       As noted above, prior to trial, the parties stipulated that the sole issue was whether
Decedent revoked her will. The long-standing presumption is that if a will is traced into
the hands of the testator and not found after his or her death, the testator canceled it.
Hickey v. Beeler, 171 S.W.2d 277, 279 (1942) (citing Allen v. Jeter, 74 Tenn. 672, 676
(1881). “The burden of rebutting this presumption is on the person seeking to establish a
will.” Sanders v. McClanahan, 442 S.W.2d 664, 668 (Tenn. Ct. App. 1969) (citing
Haven v. Wrinkle, 195 S.W.2d 787, 794-95 (Tenn. Ct. App. 1945)); Shrum v. Powell,
604 S.W.2d 869, 872 (Tenn. Ct. App. 1980). To rebut the presumption that Decedent
revoked her will, proponents of the will have the burden of proof, which we have
previously described as follows:

       When a will cannot be found after the death of the testator, there is a strong
       presumption that it was destroyed or revoked by the testator himself, and
       this presumption stands in the place of positive proof. One who seeks to
       establish a lost or destroyed will assumes the burden of overcoming this
       presumption by adequate proof. It is not sufficient to show that persons
       interested to establish intestacy had an opportunity to destroy the will. One
       must go further and show by facts and circumstances that the will actually
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       was lost or destroyed fraudulently or accidentally against, and not in
       accordance with, the wishes and intention of the testator.

       The presumption that the will was destroyed by the testator, animo
       revocandi, may be rebutted, and its loss or destruction by other means may
       be shown, by circumstantial as well as positive evidence, [s]uch as: by
       showing that the testator did not have the custody and control of the
       instrument after its execution; that he had lost his testamentary capacity for
       a period before his death; that the will was in existence at the time the
       mental alienation occurred. The declarations of the testator, before or after
       making the will, are admissible in evidence to support or destroy the
       presumption of revocation.
In re Estate of Leath, 294 S.W.3d at 575 (citations omitted); see also In re Estate of
West, 729 S.W. 2d 676, 678 (Tenn. Ct. App. 1987). Concerning the type of evidence
necessary to meet the burden of proof, the Leath Court uses the term “adequate proof,”
but it does not define the term. Our case law has defined adequate proof as “clear, cogent
and convincing.” In re Estate of Oakley, No. M2014-00341-COA-R3-CV, 2015 WL
572747, at *10 (Tenn. Ct. App. Feb. 10, 2015); In re Estate of Leath, 294 S.W.3d at 575.
However, the proponent is not required to overcome the “almost impossible barrier” of
proving absolutely, rather than circumstantially, that the will was not revoked. Estate of
Oakley, 2015 WL 572747, at *10. Because cases involving the validity of lost wills
usually deal with deceased testators and interested parties, the evidence of the testator’s
intent or actions is most often circumstantial. It is logical, therefore, that courts
addressing these cases require more proof than the usual preponderance of the evidence.
Tenn. R. App. P. 13(d). “Doubtless this is due to the fear that a more elastic rule might
bring about more fraud than it would prevent.” Id. (citing Sanders v. McClanahan, 442
S.W. 2d 664, 667 (Tenn. Ct. App. 1969).

        While it rests primarily with the trial court to determine whether the evidence is
clear, cogent, and convincing, its finding is not conclusive. In reviewing such cases, it is
the duty of the appellate court to determine, not whether the trier of facts could
reasonably conclude that it is more probable that the fact to be proved exists than that it
does not, but whether the trier of facts could reasonably conclude that it is highly
probable that the fact exists. Estate of Acuff, 56 S.W.3d 527, 534 (Tenn. Ct. App. 2001)
(citations omitted). Therefore, the party with the burden of persuasion may prevail only
if he or she can “place in the ultimate factfinder an abiding conviction that the truth of
[his] factual contentions are ‘highly probable.’” Colorado v. New Mexico, 467 U.S. 310,
315 (1984). Accordingly, the determinative question under this standard of review is
whether the Appellees have carried the burden to establish that it is “highly probable”
that Decedent’s 2007 will was not revoked by Decedent and should be established as a
lost will.

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       The trial court found from the proof that Decedent “had a pattern of wanting to
make sure her legal affairs were properly taken care of.” Judge Thomas Faris was the
Rogglis’ friend and attorney for twenty-five years before he took the bench. In 1987, he
drafted wills for Mr. and Mrs. Roggli. After Mr. Roggli died in 2007, Judge Faris went
with Decedent to her attorney’s office, so that she could update her will. Describing her
as a very business-minded person, Judge Faris testified that Decedent was clear in her
wishes. She wanted the real estate to go to Larry Shockley and Carl Spray and the
personal property to go to Lanelle Harrison. According to Judge Faris, Decedent’s
wishes never wavered. The land, according to his testimony, was inherited from her
husband’s family, and by giving the land to her husband’s nephews, Decedent was
honoring her husband’s wishes. Judge Faris testified that those were her wishes when the
will was drawn in 2007 and that he was “sure that’s what she still wanted ‘til the day she
died.”

       Judge Faris’s testimony is bolstered by the testimony of Colleen Sylvester,
Decedent’s sister. Mrs. Sylvester stands to inherit part of the Roggli farm if the lost will
is presumed to have been revoked. Despite this fact, Mrs. Sylvester stated, in
interrogatories, that [Decedent] “would never have destroyed her will.” Mrs. Sylvester
affirmed this testimony at trial. Relying on the testimony of the witnesses, the trial court
found that

       all the proof shows that [Decedent] was the type of person who would take
       care of her affairs and make sure everything was done properly. That being
       said, she does not strike the Court as someone who would attempt to revoke
       a will by destroying it. That seems to be out of her character.

         Appellants argue that Decedent had exclusive access and control of her will
because the will was located in the safe. The proof, however, does not support
Appellants’ claim. Mr. Shockley testified that the keys to the safe were in the drawer of a
sewing machine located within six feet of the safe. Mr. Shockley also testified that the
key to the safe had been in the same location since he was a child and that its location
was common knowledge among family members. Although Ms. Harrison, Decedent’s
sister, testified that she did not know where the key to the safe was kept, she testified that
she saw Decedent open the safe many times throughout the years. Considering all the
times Ms. Harrison saw her sister open the safe, it is highly probable that she also saw her
sister retrieve the key from the sewing machine located only a few feet from the safe.

        Mr. Shockley also testified that Decedent’s nephew, Kent Clark, and his wife
Linda were given a key to Decedent’s home at the time she went into the nursing home.
Additionally, Mr. Shockley said that he saw Mr. Clark open the safe during the period of
time that Decedent was in the nursing home. The Shockleys and Ms. Harrison testified
that after Decedent’s death, several members of her family had access to the house. The
trial court determined that Decedent’s custody and control of the executed will was
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diminished by the number of people who had access to the executed will during the time
she lacked testamentary capacity and moved into the nursing home. Ultimately, the trial
court determined that Decedent did not have exclusive access and control of her will at
the end of her life.

        Appellants argue that the trial court erred in finding that Decedent lost
testamentary capacity to revoke the will several years prior to her death and that the will
was in existence at the time Decedent’s mental decline occurred. Ms. Harrison testified
that when she visited Decedent, approximately three years before her death, Decedent
opened the safe, took out a document, and said, “this is the will.” After she showed her
the will, Decedent put the document back in the safe and locked it according to Ms.
Harrison’s testimony. This testimony supports the conclusion that the will was last seen
in 2012. Although Ms. Harrison did not testify to her sister’s lack of capacity, she did
testify that Decedent’s behavior was “different” around this time. According to Ms.
Harrison, her sister “just wanted to die because her husband had died and she was crazy
about him.”

        Betty Shockley, Mr. Shockley’s wife, also testified. The Shockleys lived less than
two miles from Decedent for twenty years preceding her death. As noted above, after
Mr. Roggli died in 2007, the Shockleys played a large role in Decedent’s care.
According to Mrs. Shockley, Decedent gradually slowed down over the years such that,
by 2013, Decedent could not take care of herself. According to Mrs. Shockley, after
2013, Decedent would forget to eat food that was prepared for her, so Mrs. Shockley had
to sit with her to make sure she ate. Mrs. Shockley also assisted Decedent with bathing
and household chores. Because Decedent could no longer take care of her business
affairs, the Shockleys also assisted her in paying her bills.

        Judge Faris also testified concerning Decedent’s capacity in the last three years of
her life. Specifically, Judge Faris testified that during the last three years, Decedent was
not “in a condition that would have been appropriate to execute [or revoke] a will.” “She
had 92 really good years, and I think she passed at age 95.” Judge Faris also testified that
although he would expect Decedent to take care of her business and keep her important
papers in the safe, “what happened from 2013 on is open to debate.” The trial court
relied on the testimony of Ms. Harrison, Mrs. Shockley and Judge Faris in determining
that Decedent lost her testamentary capacity while in possession of the will. The trial
court found that from the time the will was executed in 2007 until Ms. Harrison last
visited her sister, Decedent still had possession of the will and had not destroyed or
revoked it. The trial court determined that “the period of diminished capacity” was after
Ms. Harrison’s visit in 2012.

       Appellants contend that Appellees did not meet their burden of proving, by “clear,
cogent, and convincing evidence” that Decedent had not revoked her will. In support of
this argument, Appellants cite Kennon v. Gay, (no case number in original), 1984 Lexis
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2709, Tenn. Ct. App. (Feb. 28, 1984), in which this Court reversed the trial court’s
finding that a lost will had been established. The Kennon Court concluded:

       There is not proof or contention in this record that the deceased ever
       became mentally incapacitated so as to be unable to revoke the will. . . .
       There is also no showing that the deceased had no opportunity to revoke the
       will. Furthermore, there is no evidence tending to show that the will was
       actually lost or destroyed against and not in accord with the testatrix’[s]
       wishes and intention.

Id at *6. The instant case is not analogous to Kennon. Here, multiple witnesses testified
that Decedent’s capacity was diminished in the three years before her death. Decedent’s
sister even testified that her behavior had changed three years before her death and that
she “just wanted to die.” Although Appellants argue that there was “opportunity for the
Decedent to revoke the will in the eight years between its execution and her death,” the
weight of the evidence does not support this contention. Appellant Lanelle Harrison
testified that she saw Decedent’s will in 2012, five years after it was executed. The
evidence shows that Decedent’s testamentary capacity was diminished the last three years
of her life, i.e, 2012-2015.

        Citing the fact that Decedent lived in her home until 2015 and that a conservator
was not appointed until May 2015, Appellants argue that Decedent had capacity after the
will was last seen to revoke same. However, the evidence clearly shows that despite the
fact that Decedent lived in her home and had no conservator, she was not mentally able to
take care of herself or her business affairs after 2012. Accordingly, the evidence supports
the trial court’s finding that between the last known sighting of the will and Decedent’s
death, Decedent did not have the capacity to revoke her will.

       The weight, faith, and credit to be given witnesses’ testimony lies in the first
instance with the trial court. Roberts v. Roberts, 827 S.W.2d 788, 795 (Tenn. Ct. App.
1991). With regard to credibility determinations, this Court has stated:

       When a trial court has seen and heard witnesses, especially where issues of
       credibility and weight of oral testimony are involved, considerable
       deference must be accorded to the trial court’s factual findings. Further,
       “[o]n an issue which hinges on the credibility of witnesses, the trial court
       will not be reversed unless there is found in the record clear, concrete, and
       convincing evidence other than the oral testimony of witnesses which
       contradict the trial court’s findings.”

       In re M.L.P., 228 S.W.3d 139, 143 (Tenn. Ct. App. 2007) (citing Seals v.
England/Corsair Upholstery Mfg. Co., Inc., 984 S.W.2d 912, 915 (Tenn. 1999)); In re
Estate of Leath, 294 S.W.3d 571, 574-75 (Tenn. Ct. App. 2008). Accordingly, where
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issues of credibility and weight of testimony are involved, this Court will accord
considerable deference to the trial court’s factual findings. In re M.L.P., 228 S.W.3d
139, 143 (Tenn. Ct. App. 2007) (citing Seals v. England/Corsair Upholstery Mfg. Co.,
984 S.W.2d 912, 915 (Tenn. 1999)). Here, the trial court found the witnesses to be
credible, and there is nothing in the record indicating otherwise.

        The law presumes that a lost will has been revoked by the testator. However, in
this case, the proof presented rebuts the presumption. It is undisputed that the Appellees
took care of Mrs. Roggli for eight years after Mr. Roggli died. They prepared her meals
and stayed every night in her home for eight years because she did not want to be alone.
There is no evidence that during this eight year period, Mrs. Roggli had a dispute with
Appellees or that their relationship had become strained causing her to revoke her will.
Ms. Harrison testified that Mrs. Roggli was “crazy about [her husband],” and Judge Faris
testified that she wanted to honor Mr. Roggli’s wishes by keeping the Roggli family farm
in the Roggli family. Judge Faris, who the trial court found credible, adamantly testified
that Mrs. Roggli wanted the farm to go to the Appellees “‘til the day she died.” Notably,
Appellant, Colleen Sylvester, testified that Mrs. Roggli “would never have destroyed her
will.” From the totality of the evidence, there is clear, cogent, and convincing proof to
rebut the presumption that Decedent revoked her will. As noted earlier, the evidence also
supports the trial court’s finding that Decedent lacked testamentary capacity during the
three year period between the last known sighting of the lost will and her death, thus
negating Decedent’s ability to have intentionally revoked her will.

                                      V. Conclusion

       For the foregoing reasons, we affirm the order of the trial court. We remand the
case for such further proceedings as may be necessary and are consistent with this
opinion. Costs of the appeal are assessed against Appellants, Lanelle Clark Harrison,
Colleen Sylvester, Janet Jullian, and Charlotte Reynolds, and their surety, for all of which
execution may issue if necessary.

                                                 _________________________________
                                                 KENNY ARMSTRONG, JUDGE




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