Tennessee Will Contest

J Don BrockA 110-year legal decision known as ‘the Cowan rule’” has effectively stopped five of J. Don Brock’s children from winning their will contest.

After their father’s death in March 2015, five Brock siblings claimed that their father's second wife and former secretary, Sammye, teamed up with her two children from a previous marriage (who Brock had officially adopted as well) to exclude them from a 2013 will.

At the center of this will contest is a very old law that seemingly has plagued many modern day Tennessee judges because of it does not allow for any extenuating circumstances to be considered. The Cowan Rule 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, 2016 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.

The Tennessee Court of Appeals recently upheld the lower probate court’s decision although they too seemed somewhat to be somewhat frustrated by the Cowan rule's rigidity that would not allow any other evidence to be considered.  For example, as the children’s attorney pointed out in their argument before the court, J. Don Brock had created numerous wills over the years and those wills cut out all of his children at different times. 

"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."

Richard Bethea, the attorney representing Brock's estate, said: "This isn't some draconian measure to protect rich people from doing things they shouldn't do. The whole purpose of the rule is to prevent someone from filing the will contest and basically trying to shake down the estate, to get money out of an estate, and delay the disposition of the estate through litigation." 

Reference: (Chattanooga) Times Free Press (November 12, 2016) “Attorneys: Tennessee Supreme Court nudged to reconsider 110-year-old case”


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