skyline
attorneys
office

In some situations, the existence of multiple wills can lead to confusion or even litigation after the death of the testator.  In a March 21, 2018 opinion, the Court of Appeals reviewed a will contest action arising out of a Tennessee estate dispute involving two wills.  The plaintiff in the case was the decedent’s daughter.  She filed an action challenging one of the wills that disinherited her and her sisters.campfire

In 1991, the decedent executed a Last Will and Testament, providing the majority of her estate to her husband and, should he predecease her, the remainder to her children.  In 2009, the decedent executed a second will, in which she explicitly revoked all former wills.  In the 2009 will, the decedent left the bulk of her estate to her husband and the remainder to a charity, and she disinherited all of her children.  The decedent’s husband passed away before her death in 2013.

The plaintiff filed a petition to probate the 1991 will and was named the executor of the decedent’s estate.  Shortly thereafter, the charity named in the decedent’s later will filed a petition to probate the 2009 will.  The plaintiff challenged the 2009 will, alleging that the decedent had instructed another person to destroy the 2009 will in her presence and indeed believed that it had been destroyed, therefore rendering the decedent intestate or making the 1991 will effective.  The circuit court dismissed the will contest for failure to state a claim.

Continue reading

If you are initiating a divorce action, it is important to file your petition in a court with jurisdiction to adjudicate the matter.  In an April 5, 2018 case, the Court of Appeals addressed the issues surrounding jurisdiction over the parties’ Tennessee child custody arrangement.  The parties in the case had resided in Scotland, California, and Tennessee during their five-year marriage and had a child together.passport

After the parties married in California, the wife lived there with her parents while the husband was deployed.  The couple later moved to Tennessee with their son so that the husband could finish school, and finally, they moved to Scotland, where the father held a temporary student visa.  The wife initiated a child custody proceeding while in Scotland.  The husband then filed a Tennessee divorce action in the chancery court, which adjudicated the divorce.  The court named the husband as the primary residential parent and established a parenting schedule.

On appeal, the wife argued that the Tennessee court lacked jurisdiction to adjudicate the divorce and child custody matters because the parties were not domiciled in Tennessee.  The appeals court first resolved the question of whether one or both parties was a resident or domiciliary of Tennessee, in order for the court to have jurisdiction over the divorce.

Continue reading

Bicycle collisions can result in serious injuries or even death.  In a March 28, 2018 case arising out of a fatal cycling accident, the surviving spouse filed a Tennessee wrongful death lawsuit against two individuals who were cycling with her husband.  The trial court granted summary judgment in favor of the defendants, holding that, among other things, the decedent was at least 50% at fault for the accident and that the activities in which they were engaged were inherently dangerous.  The plaintiff appealed the decision.bicycle

In the case, the husband, the defendants, and two others were on a cycling expedition on the shoulder of a highway in Tennessee.  The group was riding in a paceline, which requires the cyclists to ride in a line extremely close to each other in order to counteract wind resistance and increase the efficiency of the ride.  All of the individuals in the group, including the decedent, were seasoned cyclists.  At some point during the ride, one of the defendant’s front tire struck the other defendant’s back tire, causing the former to crash and fall to the pavement.  As the decedent attempted to avoid him, he somehow flew off his bicycle and landed on his head.  The decedent was rendered quadriplegic by the wreck and months later passed away.

On appeal, the defendants argued that paceline riding is an inherently risky activity, especially for an older cyclist such as the decedent, and pointed to the testimony of the experts and participants.  The appeals court disagreed with the position that, by participating in paceline riding, the decedent assumed the risk of any unreasonably dangerous conduct on the part of the other participants.  The court also noted that the Tennessee Supreme Court had abolished implied assumption of the risk as a complete bar to recovery.

Continue reading

Allegations of domestic violence or abuse are serious, especially in divorce and child custody cases.  A March 1, 2018 decision from the Tennessee Court of Appeals reveals some of the legal considerations and issues that may be involved.  The parties in the case had one child together during their marriage.  After a trial, the court declared the parties divorced and entered a final order designating the father as the primary residential parent.  On appeal, the mother contended that the trial court failed to properly consider the father’s history of domestic violence and abuse against her.hands

In Tennessee, the final order in a divorce action must incorporate a permanent parenting plan for the parties’ minor children, including a residential schedule and designation of a primary residential parent.  In developing the plan, the trial court must consider certain statutory factors and any relevant statute.  In particular, TCA 36-6-406(a)(2) provides that a parent’s residential time must be limited if the court finds, based upon a prior order or other reliable evidence, that the parent has engaged in physical or sexual abuse, or a pattern of emotional abuse, of a parent, child, or other person living in the household.

In the case, the trial court found that the father committed domestic violence against the mother.  Although the incidents were not reported to the police, they were corroborated by the testimony of several witnesses, who stated that they saw the mother’s bruises, black eyes, and busted lip.  The court also considered the fact that the mother had once left the child in a hot car and was currently living with a man who had been convicted of a felony, among other considerations. Ultimately, the trial court found that while it was greatly concerned with placing a child with a man who had engaged in physical abuse, under the totality of the circumstances, it was in the child’s best interest that his father be designated as the primary residential parent.

Continue reading

Property owners may be responsible for injuries caused by their negligence in certain situations.  In a March 15, 2018 case, the Court of Appeals of Tennessee considered a personal injury action filed against a homeowner who had hired the plaintiff to paint her house.  The defendant in the case had provided the plaintiff with the materials and ladders needed to access the exterior of her house.  While using the defendant’s folding ladder, the plaintiff fell to the ground, injuring his wrist.  The plaintiff sued the defendant for damages, alleging that she was negligent for providing him with old ladders that were unsafe.ladder

Negligence is generally defined as a failure to exercise reasonable care. To succeed on a negligence claim in Tennessee, the plaintiff must prove five elements:   (1) a duty of care owed by the defendant to the plaintiff; (2) conduct below the standard of care that amounts to a breach of that duty; (3) an injury; (4) cause in fact; and (5) proximate, or legal, cause.  A defendant’s conduct constitutes the cause in fact of a plaintiff’s injury if the injury would not have occurred “but for” the defendant’s conduct.  When determining whether proximate cause exists, the court considers whether the injury that occurred was reasonably foreseeable by the defendant.

The plaintiff in the case had testified during his deposition that he did not know what caused him to fall off the ladder, and he could not state for certain whether the ladder had failed, whether he lost his balance, or if something else had caused him to fall.  On appeal, the court observed that generally, a plaintiff cannot prove the defendant’s liability on a negligence claim when the plaintiff is unable to identify what caused the fall, either personally or with the use of outside witnesses.  The court went on to hold that the plaintiff’s speculation about the cause of his injury was insufficient to establish the element of causation in fact.

Continue reading

The executor of a will is responsible for settling the decedent’s financial affairs and distributing the assets, among other duties.  Disagreements may arise if the beneficiaries do not agree with the decisions of the executor.  In some situations, the dispute is litigated in probate court, where a judge can order the appropriate action, as illustrated in a March 22, 2018 Tennessee estate case.gavel

In the case, a deceased father had bequeathed an annuity to each of his two daughters in his will, with the residual of the estate to be transferred in a trust, of which the income would be paid to his wife.  However, according to the final settlement submitted by the executors of his estate, the net amount to be distributed from the probate estate was approximately $8,700.  Since that amount was not enough to purchase and fund the beneficiaries’ $75,000 and $50,000 annuities, the executors sought to divide only the $8,700 between them.  The beneficiaries filed an objection, requesting the court to order the sale of a portion of the decedent’s real property, which was valued at over $3 million, in an amount sufficient to fund their annuities.  The probate court agreed, and the executors appealed the matter.

In Tennessee, when a testator bequests property to beneficiaries, known as legacies, without indicating the source from which they are to be paid, and then disposes of the rest of the estate in a mass residuary clause, the legacies are considered a charge on the residuary.  An executor may utilize a decedent’s real property if the personal property is insufficient to pay for the decedent’s obligations.  Furthermore, the probate court has jurisdiction to sell a decedent’s real property.

Continue reading

A person who has been injured in an accident caused by the carelessness of another person, entity, or business may be able to sue them for damages in a negligence claim.  In a February 22, 2018 decision, the Court of Appeals of Tennessee reviewed a Tennessee premises liability case based on negligence.  The case was filed by a plaintiff who was injured at a bulk waste disposal center, which was owned and operated by the defendant, a local government.
trash
The disposal center where the injury occurred was undergoing renovations at the time the plaintiff visited.  A worker directed the plaintiff to an upper platform to dispose of his trash in a certain bin.  As the plaintiff stepped out of his truck and moved to access the back of it, he stepped through a 15-inch drainage hole and fell five feet to the lower platform.  The plaintiff brought suit against the metro government under the Governmental Tort Liability Act.

After a bench trial, the court found that the metro government breached its duties and was at fault for the plaintiff’s injuries, but the plaintiff was also at fault in failing to notice the drainage cut that caused his fall.  The trial court apportioned 80 percent of the fault to the metropolitan government and 20 percent to the plaintiff.  The plaintiff was therefore awarded damages for his injuries.

Continue reading

After a divorce, modifications to court-ordered support obligations for a spouse may be possible in certain situations, such as retirement.  In a Tennessee spousal support opinion issued on January 3, 2018, the Court of Appeals of Tennessee reviewed whether a post-divorce modification of alimony in futuro was appropriate after the husband retired.coins

The spouses in the case had divorced in 2011 after 42 years of marriage.  Their divorce decree provided that the husband would pay monthly alimony in futuro to the wife.  In 2012, the husband suffered a heart attack and sold his dental practice shortly thereafter.  He filed a petition to terminate his alimony obligation, since he was no longer able to pay.  The trial court found that despite a substantial and material change in circumstances as a result of his retirement, the husband had the ability to pay, and the wife had the need for support.  The husband appealed the decision.

In Tennessee, an award of alimony in futuro may be increased, decreased, terminated, extended, or otherwise modified upon a showing of a substantial and material change in circumstances.  On appeal, the court agreed that the husband’s retirement was objectively reasonable and constituted a material and substantial change of circumstances.  The court next considered whether a modification was justified in light of all of the statutory factors.  In making its determination, the two most important considerations are the financial ability of the obligor to provide the support and the financial need of the party receiving the support.

Continue reading

Establishing a trust may be advantageous for Tennessee estate planning purposes in some situations.  However, it is important to understand the limitations of revocable living trusts.  In a February 13, 2018 case, the Tennessee Court of Appeals considered a challenge filed by the beneficiary of a living trust against a trustee for exceeding her authority under the terms of the trust agreement.pen

The defendant in the case and her husband had executed a removable living trust agreement.  They conveyed approximately 200 acres of real property to the trust.  Upon the death of the husband, the trust was the sole residual beneficiary of his will.  The defendant, as the successor trustee, distributed all of the real estate in the trust to herself by way of a quitclaim deed.  She then terminated the trust.  Her son, who was a beneficiary of the trust, filed an action alleging that she had exceeded her authority under the trust.  He requested an accounting of the trust’s assets and sought the return of any wrongfully distributed assets.

In Tennessee, trusts are interpreted by looking at the language, context, purpose, and scope of the trust agreement to determine the grantor’s intent.  In addition, a trust must be interpreted in order not to frustrate the intent of the grantor.

Continue reading

The death of a child is a heart-wrenching experience, and more so when family members believe it could have been prevented.  In such situations, a Tennessee medical malpractice attorney can handle the procedural aspects of a negligence lawsuit, while the family focuses on healing.  A February 6, 2018 medical malpractice case before the Court of Appeals of Tennessee was brought by the parents of an infant who died in childbirth.  After a jury ruled in favor of the medical provider defendants, the plaintiffs appealed.  The plaintiffs’ lawyers argued a technical point on appeal concerning the jury selection, and they ultimately succeeded in reversing the verdict and obtaining a new trial.sleeping child

The plaintiffs in the case, individually and as administrators of the child’s estate, filed a complaint against the hospital, the treating physician, and the obygn practice, alleging negligence and vicarious liability for the wrongful death of their child.  During the jury selection process, the plaintiffs requested eight peremptory challenges, arguing that there were two party plaintiffs.  The trial court denied the request, finding that it was only the estate’s lawsuit, and granted the plaintiffs four peremptory challenges with two additional challenges for alternates.  The plaintiffs could therefore strike only four potential jurors from the selection pool without cause.

One of the arguments on appeal was whether the trial court erred in limiting the plaintiffs to less than eight peremptory challenges.  A peremptory challenge is a right provided by statute, permitting a party plaintiff to exclude a prospective juror without giving any reason for it.  The statute at issue allows four challenges for the party plaintiff, and in the event there is more than one plaintiff, it provides for an additional four challenges.  The initial question for the court, therefore, was whether the wrongful death action belonged to one plaintiff, i.e., the estate, or whether both parents named in the lawsuit constituted two plaintiffs.

Continue reading