                   IN THE SUPREME COURT OF TENNESSEE
                               AT Knoxville
                         September 4, 2012 Session at Knoxville

                       IN RE ESTATE OF INA RUTH BROWN

           Appeal by Permission from the Court of Appeals, Eastern Section
                          Chancery Court for Knox County
                   No. 61159-3    Michael W. Moyers, Chancellor


                  No. E2011-00179-SC-R11-CV - Filed March 22, 2013


G ARY R. W ADE, C.J., concurring.

       I concur in the majority opinion but write separately to comment upon the specific
question presented in this appeal and the effect of our decision on prior Tennessee case law.

        The primary issue upon which we granted review, as stated in the application for
permission to appeal filed by the appellant, Rockford Evan Estes, is “[w]hether the [t]rial
[c]ourt erred . . . by determining that [it] had subject matter jurisdiction to hear a [w]ill
[c]ontest case based solely on a breach of contract argument.” Estes’ primary contention is
that the trial court lacked subject matter jurisdiction not because of the untimeliness of the
complaint, but because of the nature of the claim—the breach of a contract not to revoke a
prior will.

         At least two prior opinions of our Court of Appeals lend support to Estes’ assertion.
In Rogers v. Russell, the Court of Appeals “determined that a will contest proceeding is not
the proper forum to assert . . . contractual rights,” and further concluded that in a will contest,
“the trial court does not have jurisdiction to entertain a claim based upon an alleged contract
. . . not to alter or revoke a will.” 733 S.W.2d 79, 83-84 (Tenn. Ct. App. 1986); see also id.
at 85 (“The issues in a will contest proceeding . . . should not be obscured by issues that are
not within the court’s jurisdiction to decide.”). Several years later, the Court of Appeals
interpreted Rogers to “stand[] for the proposition that a claim for breach of contract not to
revoke a will, however it is styled, must be filed in probate court, must be timely filed, and
must satisfy the procedural requirements [for asserting a claim against an estate].” In re
Estate of Cook, No. E2004-00293-COA-R3-CV, 2004 WL 3021131, at *7 (Tenn. Ct. App.
Dec. 30, 2004).

       Relying primarily upon Junot v. Estate of Gilliam, 759 S.W.2d 654, 655-56 (Tenn.
1988), the majority concludes that a party may bring a cause of action for breach of a contract
not to revoke a prior will in three ways: as a claim against an estate, an action for specific
performance, or a claim in a will contest. I believe that to be an entirely appropriate
assessment; however, because this conclusion cannot be reconciled with the holdings of
Rogers and In re Estate of Cook, I would favor explicitly overruling those cases.




                                                    _________________________________
                                                    GARY R. WADE, CHIEF JUSTICE




                                              -2-
