“It’s stopped the five adopted children of the late Astec Industries CEO J. Don Brock from contesting their father’s estate twice now—a 110-year legal decision known as ‘the Cowan rule.’”The (Chattanooga) Times Free Press explains that thanks to a rare “nudge” by an appellate judge, the Tennessee Supreme Court may take up a 1906 case and reconsider its long-standing precedent.
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 in reaching 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.”
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”