Mabry v. Adams

Opinion

STANIFORTH, J. Jo Ann Adams and Corinne Flynn appeal a judgment finding they violated a no-contest (in terrorem) clause in their father’s will.

[571]Arthur Watson and Nova Watson were married. Adams and Flynn are Arthur’s daughters by a previous marriage.

Arthur Watson died on April 22, 1983. His will provided for specific bequests of $50,000 to Adams and Flynn and left “all of the rest, residue and remainder of [his] estate, both real and personal, regardless of where situated, to [his] wife, Nova L. Watson.” Arthur’s will also provided: “Each beneficiary under this Will, each of my heirs-at-law, and each person claiming under any of them, who at any time contests or seeks to impair or invalidate any of its provisions or joins with anyone attempting to do any such things, is hereinafter referred to as a ‘contestant.’ I hereby revoke every gift and all other benefits given by this Will to each person who is a contestant. I hereby expressly disinherit each of my heirs-at-law who is a contestant. All gifts under this Will to such contestant and any property of my estate to which such contestant might otherwise be entitled to receive under this Will, or pursuant to any and all laws, shall become part of the residue of my estate and shall be disposed of as if such contestant predeceased me, without issue.” The sum of $70,000 was distributed to Adams and Flynn under an unopposed order for preliminary distribution. The estate lacked funds to complete the distribution.

About eight months later, on December 23, 1983, Nova Watson died. Her will provided for distribution of her estate, 15 percent to Virgil Mabry, 5 percent to Marcia Rice, 40 percent to Bill Mabry and 40 percent to Betty Davis.

On April 30, 1984, Adams and Flynn filed a creditors’ claim in Nova’s estate, contending she had entered into an oral agreement with Arthur sometime in 1981 before the wills for Arthur and Nova were drawn. The daughters alleged under this agreement, Arthur promised to give Nova all his property at his death except for $100,000 in specific bequests for his daughters in exchange for Nova’s promise she would transfer all the Watson property to Arthur’s daughters at her death. On May 1, 1984, the creditors’ claim was rejected.

Adams and Flynn then filed suit on June 22, 1984, for breach of contract, constructive trust and injunctive relief against Virgil Mabry, Marcia Rice, Bill Mabry and Betty Davis. On August 10, 1984, the Nova heirs cross-complained against Adams and Flynn as well as the executor of Arthur’s estate, contending Adams and Flynn violated the no-contest clause of Arthur’s will by filing the creditors’ claim and complaint. The Nova heirs also filed a petition for relief from the preliminary distribution in Arthur’s estate.