A 110 year old rule has stopped an estate battle in its tracks not once, but twice. But there may be a change ahead.
Attorneys are hopeful that the Tennessee Supreme Court may review and reconsider a decision made in a case from 1906 that has been standing in the way of one very large estate battle, according to The (Chattanooga) Times Free Press.
The article, “Attorneys: Tennessee Supreme Court nudged to reconsider 110-year-old case,” says that since September 2015, the Brock siblings have claimed that their father's second wife and former secretary, Sammye, teamed up with two other adopted children (her kids from a previous marriage) to exclude them from a 2013 will.
Brock died in 2015 of mesothelioma.
The Tennessee Court of Appeals recently agreed with a probate court that upheld J. Don Brock's will, although somewhat grudgingly.
Marya Schalk, one of the attorneys representing the siblings commented, "It seems like the court had a problem reaching in the decision it reached because of Cowan."
Cowan is a 1906 Tennessee Supreme Court decision which holds that a descendant who was left nothing in an earlier, un-probated will has no standing to contest a later will. In other words, you can't contest the final will if you weren't left anything in a previous will. That was the verdict in February, when the trial court judge reluctantly dismissed the five siblings' claim for that reason: they didn’t have standing to contest the 2013 will because they weren't included in a 2012 draft.
Schalk and her co-counsel appealed the ruling. They argued that J. Don Brock created numerous wills over the years and those wills cut out the children at different times.
Even though it said the trial judge was right, the appeals court also had difficulty with Cowan, which was last affirmed in 1966 and since has been applied in several probate contests.
"Tennessee law does not appear to provide a mechanism by which a contestant can challenge multiple prior wills when the contestant is excluded from those wills," Judge Brandon Gibson wrote for the court. "The Tennessee Supreme Court is free to re-visit its rulings in Cowan (1906) and Jennings (1966), and we encourage an examination of their practical application."
The attorney representing Brock’s estate has a different view of Judge Gibson’s comments. He said that the court was saying that there might be situations where the Cowan rule could be used to hide fraud in an estate, but that the court did not say that this is such a case. He added that there is no right to inherit in Tennessee and that the claims against the estate are based on falsehoods.
Reference: (Chattanooga) Times Free Press (November 12, 2016) “Attorneys: Tennessee Supreme Court nudged to reconsider 110-year-old case”