In Re: Estate of J.B. Warren
1999 Tenn. App. LEXIS 224, 3 S.W.3d 493, 1999 WL 188289 (1999)
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Rule of Law:
A physical act of cancellation on the face of a will, such as underlining a provision, writing 'void' over it, and initialing it, creates a prima facie case of the testator's intent to revoke that provision, which can only be rebutted by evidence clearly demonstrating a contrary intent.
Facts:
- J.B. Warren, Jr. (Testator) executed a will devising his 'homeplace' to his daughter, Anita W. Goode LeCornu, and a separate house and lot to his son, Paul T. Warren.
- A specific provision in the will also bequeathed all of the Testator's stocks, bonds, and cash to his son, Paul T. Warren.
- The Testator suffered a stroke in 1987, and his physical and mental health declined, particularly after his wife's death in 1991.
- Sometime before his death, markings were made on the will over the provision bequeathing the stocks, bonds, and cash to his son.
- These markings consisted of the provision being underlined, enclosed in two sets of parentheses, and having the word 'void' and the initials 'J.B.Jr.' written above it.
- The Testator died in November 1997.
Procedural Posture:
- After J.B. Warren, Jr. died, his son, Paul T. Warren (Executor), filed a petition in the trial court to probate the will.
- The Executor then filed a second petition asking the court for instructions regarding the legal effect of the markings on the will.
- The trial court found that the Testator had made the markings himself but ruled that they did not constitute an effective revocation of the bequest.
- The trial court entered a judgment admitting the will to probate in its original, unmarked form.
- Anita W. Goode LeCornu, the Testator's daughter, appealed the trial court's judgment to the Court of Appeals of Tennessee, Western Section.
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Issue:
Does a testator's act of underlining a provision in his will, enclosing it in parentheses, writing the word 'void' and his initials above it constitute an effective revocation of that specific provision under Tennessee law?
Opinions:
Majority - Farmer, J.
Yes. A testator's act of underlining a provision, enclosing it in parentheses, and writing 'void' with his initials above it constitutes an effective revocation of that provision. Relying on the precedent set in In re Estate of Dye, the court held that such an 'unequivocal act of cancellation' serves as prima facie proof of a valid revocation. For a revocation to be valid, there must be a concurrence of intent to revoke and an act manifesting that intention. The physical markings on the will strongly infer the intent to revoke. The burden then shifts to the party opposing revocation to rebut this inference with evidence of a contrary intent, which the Executor failed to do. The court also deferred to the trial court's factual findings that the Testator himself made the markings and possessed the requisite testamentary capacity at the time.
Analysis:
This decision reaffirms the legal principle of partial revocation by physical act in Tennessee. It clarifies that distinct, physical markings of cancellation on the face of a will are legally sufficient to demonstrate the testator's intent to revoke a specific provision without invalidating the entire document. The case establishes that such markings create a strong legal presumption of intent, placing a significant evidentiary burden on any party challenging the revocation. Consequently, property from a validly revoked bequest passes through the will's residuary clause, altering the distribution of the estate.
