William Kenneth Wade v. Robert Crosslin

Summary

The Tennessee Court of Appeals affirmed the Chancery Court’s determination that a contested will could not be proven because the proponent failed to establish that one of the attesting witnesses was unavailable. The court held that the trial court did not abuse its discretion by distinguishing between unsuccessful service by a process server and unsuccessful service by certified mail. The judgment was affirmed and the case remanded.

Holdings

1. When a contested will is proved, all living attesting witnesses must testify if they can be found; if an attesting witness does not appear, the will proponent bears the burden of proving that the witness is unavailable or cannot be found. The trial court did not abuse its discretion in finding that Crosslin failed to meet that burden as to Fults.
2. The trial court did not apply a more rigorous standard to Fults merely because service was attempted by certified mail rather than by a process server; it permissibly evaluated the circumstances and adequacy of each service attempt.

Questions Presented

1. Whether the trial court erred by declining to declare Jasmine Fults, an attesting witness to the will, unavailable or unable to be found under Tennessee law.
2. Whether the trial court abused its discretion by accepting the unsuccessful process-server attempt concerning Lindsey Strange while rejecting the certified-mail attempt concerning Jasmine Fults.

Disposition

affirmed